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News@Law, 10/17/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

Project Syndicate
The Chimera of Stock-Market Short-Termism
An op-ed by Mark Roe. An often-heard refrain, increasingly voiced in US politics, is that corporate America is excessively influenced by short-term stock-market considerations. While the US presidential election is not particularly focused on policy at the moment, the campaign will soon end, at which point people will govern and policies will be adopted. Given that both Republicans and Democrats have criticized short-termism, it is possible that some of those policies might aim to address it. They are unlikely to make any difference. Not only has the problem of short-termism been woefully exaggerated, but the policy proposals for addressing it are severely lacking. Consider Democratic presidential nominee Hillary Clinton’s proposal – which Vice President Joe Biden has endorsed – to use the capital gains tax to encourage shareowners to hold on to their stock for a longer time.
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The New Yorker
What “Divorce” Understands About Marriage
An op-ed by Jeannie Suk Gersen. Last year, in holding that states must allow gay and straight couples alike to enter civil marriage, the Supreme Court extolled the “transcendent importance of marriage,” its beauty, nobility, and dignity. That was the fulsome culmination of the decades that led to marriage equality. But, just as two people must enter marriage with the law’s blessing, they need the law in order to exit it. As legal marriage is now universally available, so, too, is legal divorce. Marking the start of a period in which divorce may well get more attention is the new HBO series “Divorce,” which began airing this month. Sarah Jessica Parker, the show’s star and executive producer, has explained that her desire to tell the story of an ordinary suburban couple’s divorce was motivated by fascination with the inside of a marriage. The show, written by Sharon Horgan, of “Catastrophe,” understands that how people divorce can reveal more about a marriage than anything one could see before its unravelling.
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CNBC
This proposed investing rule would be a ‘dangerous mistake’
An op-ed by Hal S. Scott and John Gulliver. A new Securities and Exchange Commission rule goes into effect Friday that can restrict investors from withdrawing their cash from the money-market funds that were at the heart of the 2008 financial crisis. If the G-20's international regulator (the Financial Stability Board) has anything to say about it then a similar rule will soon apply to the $16 trillion invested in all U.S. mutual funds. This would be a dangerous mistake. The FSB's proposal is to charge investors' penalty fees if they try and sell their mutual-fund investment during a crisis and would even include a complete prohibition of such sales in extreme circumstances. It is expected to finalize its proposal later this year and then the SEC, U.S. Treasury and Federal Reserve are expected to promptly implement them in the U.S.
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Deseret News
Christian business owners take a different legal route in battle over serving gay marriages
Christian business owners are pursuing a new legal strategy to oppose laws they say would force them to use their artistic talents to promote same-sex marriage...ADF hopes to win with pre-enforcement challenges, which have been an effective legal maneuver for decades on several high-profile cases involving abortion, campaign financing and the Affordable Care Act. "They require that there (is) a realistic possibility that the plaintiff would actually be subject to some enforcement action," said Harvard Law School professor Mark Tushnet. He said this generally happens when a government agency announces that a policy — such as a non-discrimination law — will be enforced, or when someone has been denied service and threatens to sue.
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The Harvard Crimson
New ‘Living Laboratory’ Initiatives to Increase Sustainability Funding
Leaders of Harvard’s renewed “Living Laboratory” initiative, designed to engage students and faculty in sustainability efforts, say the program reflects growing interest in environmental action on campus. The core idea of the Living Laboratory initiative, which will be housed in the Office for Sustainability, is to use the Harvard campus as a test bed for new ideas related to combating climate change and improving public health. The Climate Solutions Living Lab Course and Research Project, led by Law School clinical professor Wendy B. Jacobs, will launch in spring 2017. The interdisciplinary course will discuss various approaches to reducing greenhouse emissions at Harvard and beyond. “The object of the course is for the students to do some real life problem solving about climate change,” Jacobs said. Jacobs also talked about the importance of collaboration and a multidisciplinary approach in the course. “The class is specifically designed to bring together faculty and students across campus,” she said.
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The New York Times
Supreme Court Recusals
A letter by Charles Fried. In “The Supreme Court Is Being Hypocritical” (Op-Ed, Oct. 11), Gabe Roth criticizes the justices for playing by their own rules instead of heeding their decisions in suits before them “that have parallels with how they act as stewards of their institution.” He writes that “surely Justice Kagan’s experience in the Obama administration constituted ‘significant involvement’ in the Affordable Care Act cases” and that the justice should have recused herself. Justice Elena Kagan’s “significant involvement” was as solicitor general, a position that is primarily concerned with managing the administration’s appellate litigation.
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Attn
5 Places Donald Trump Doesn’t Agree With Our Constitution
"I feel very strongly about our Constitution," Donald Trump told Fox News in January. "I'm proud of it, I love it, and I want to go through the Constitution." It must be a love/hate relationship that the Republican presidential nominee has with the Constitution of the United States, because many of his plans and statements would violate many of its most important amendments. "It would take more time than I can spare today to list all the provisions of the Constitution, and all the principles underlying it, that contradict Trump's various pronouncements about what he wants to do," Laurence Tribe, a constitutional law professor at Harvard Law School, told ATTN: in an email.
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Bloomberg
Wild Horses Couldn’t Drag the Government to Act
An op-ed by Noah Feldman. By law, the federal government is supposed to manage the wild horse population in the West. But what happens if, despite an overabundance of the beautiful beasts, the government does nothing about it? The official answer is not much, according to a federal appeals court that turned down Wyoming’s challenge to federal inaction. The decision follows familiar principles of deference to agency action (or, in this case, inaction). But it leaves farmers or others negatively affected by the overpopulation with essentially no recourse, a result that seems at odds with the intent of the law.
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The Harvard Crimson
Obama National Disability Council Appointee Discusses Self-Advocacy
Chester Finn, co-founder of the charity Community Empowerment Programs, talked about overcoming the judgments of others through self-advocacy at Harvard Law School on Friday. Finn currently works with Michael A. Stein, executive director of the Law School's Project on Disability, developing storytelling projects so that people with disabilities can talk about how they make their own choices and where they fit in the world...Stein lauded the work Finn has done as a self-advocate while introducing Finn. “In all those places, Chester has lent his wisdom, his smarts, his savvy to programming and work,” Stein said. Alice Osman [`17], a student at the Law School, said she enjoyed listening to Finn’s personal narrative.
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The Harvard Crimson
Law School’s Indigenous Rights Conference Brings Prospective Students to Cambridge
Current and prospective students, activists, and legal experts explored how legal strategy and international human rights advocacy influences indigenous rights in the U.S. at Harvard Law School’s Indigenous Rights Movement conference last week. Kristen A. Carpenter, an Oneida Indian Nation Visiting Professor of Law at HLS, said the conference sought to give students access to conversations on federal Indian law, a subject for which Harvard has no permanent professor. “It seems important to really do a lot of programming when we’re lucky enough to be here teaching for a short time, and really make an impact on the community and the students’ educational opportunities, as well as to note particularly what’s going on in the present moment of advocacy around American Indian issues,” Carpenter said. Carpenter co-chaired the event with Robert T. Anderson, another Oneida Indian Nation Visiting Professor of Law; Angela R. Riley, law professor at the University of California, Los Angeles; and Lorie M. Graham, law professor at Suffolk University Law School.
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