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News@Law, 10/19/2016

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

Harvard Magazine
Death Throes
...In 2009, the American Law Institute—the most prestigious organization in the country engaged in improving the law—removed the death penalty from the options it had long recognized that states could choose from to punish a convicted murderer...The genesis of that change was the strong sentiment among the institute’s membership to formally oppose capital punishment. Lance Liebman, then its director, turned to the sister-and-brother team of Carol S. Steiker ’82, J.D. ’86, RI ’11, and Jordan M. Steiker, J.D. ’88, for counsel. They were “the most influential legal scholars in the death penalty community,” wrote criminal-justice scholar Evan J. Mandery in his book A Wild Justice...In the past seven years, the report has played a quiet yet decisive role in helping shift debate among scholars and policymakers about the death penalty. The focus has moved from whether the penalty is just, which cannot be answered empirically, to an emphasis on whether states apply it fairly and consistently, which can. The Steikers’ approach shaped the policy of America’s most respected legal organization. With its imprimatur, their report has influenced decisions of people who shape American law.
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The Washington Post
Clinton challenger attacked in hacked email sees no ‘public good’ in WikiLeaks dump
On Aug. 11, 2015, the news media picked up on the plans of Larry Lessig, the Harvard Law professor and anti-corruption activist, to run for president in the Democratic primaries. Neera Tanden, the president of the Center for American Progress, apparently was not pleased. “You know what average Americans need?” Tanden appears to have written in an email allegedly obtained in a massive hack of Hillary Clinton campaign chairman John Podesta's account. “The smugness of Larry Lessig.”...“I can’t for the life of me see the public good in a leak like this — at least one that reveals no crime or violation of any important public policy,” wrote Lessig. “We all deserve privacy. The burdens of public service are insane enough without the perpetual threat that every thought shared with a friend becomes Twitter fodder. Neera has only ever served in the public (and public interest) sector. Her work has always and only been devoted to advancing her vision of the public good. It is not right that she should bear the burden of this sort of breach.”
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New York Magazine
If You’re Ever Dissed in a Hacked Email, Try to Respond Like Larry Lessig
Lawrence Lessig is a professor at Harvard Law School, a leading advocate for campaign finance reform, and short-lived presidential candidate. He was also, in the view of the Clinton campaign, circa August 2015, a “smug,” “pompous,” loathsome guy whom a reasonable person might wish “to kick the shit out of on Twitter.”...On Tuesday, these private barbs became public, thanks to WikiLeaks. And so, as Lessig made his way to New York to see his sick father, his inbox filled up with notifications about how much Neera Tanden once claimed to despise him. Reading through the email, Lessig was outraged — on Tanden’s behalf. Per Lessig’s blog: I’m a big believer in leaks for the public interest. That’s why I support Snowden, and why I believe the President should pardon him. But I can’t for the life of me see the public good in a leak like this — at least one that reveals no crime or violation of any important public policy.
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The Washington Free Beacon
Clinton Campaign Chair Tried to Organize Protests Against Harvard Professor
Hillary Clinton’s top campaign aide asked a billionaire donor to enlist a leading environmental activist to stage protests against a Harvard legal scholar arguing against environmental regulations in court, hacked emails show. In a March 2015 email to environmentalist and hedge fund billionaire Tom Steyer, Clinton campaign chairman John Podesta asked him to solicit the help of radical environmentalist Bill McKibben to organize protests at Harvard. Podesta hoped to target Harvard Law professor and constitutional scholar Laurence Tribe, who was representing coal company Peabody Energy in federal litigation challenging Environmental Protection Agency regulations on carbon emissions from power plants...In an emailed statement, Tribe, a liberal legal scholar whose students have included a young Barack Obama, pushed back against Podesta’s suggestion that he had taken a position against EPA regulations at the behest of Peabody Coal. “I have long liked John Podesta (and am working hard for Hillary Clinton’s election) but I strongly disagree with John’s supposed reaction to my role in challenging the legality and constitutionality of the EPA’s Clean Power Plan, which I doubted before agreeing to represent the Plan’s industry opponents,” he wrote.
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Aljazeera
Is this the end of prison for profit in the US?
Last August the US Department of Justice released a statement that they would begin the process of phasing out private prison contracts in federal prisons, some 30 years after the Bureau of Prisons began its experiment contracting beds to for-profit facilities. The decision, according to the Justice Department, came in response to a declining prison population - down from 220,000 inmates in 2013 to fewer than 195,000 inmates today, as well as an acknowledgement of the often lower safety and security standards of the private prison industry..."They [private prison companies] are very careful about not publicly stating what they support; but if you follow the money, it becomes pretty clear," says Philip Torrey, a professor at Harvard Law School. Torrey notes how private prison companies, particularly the nation's two largest private prison companies, Geo Group and Correction Corporation of America (CCA), have supported controversial bills such as the three-strikes laws and minimum mandatory sentencing, as well as Arizona's controversial anti-immigration law - each acknowledged as drivers of incarceration, particularly of immigrants and people of colour.
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Bloomberg
Legal Case for Brexit Is Surprisingly European
An op-ed by Noah Feldman. Is Brexit unconstitutional? That’s the key issue in a suit argued this week before the High Court in London. What makes the question especially piquant is that Britain doesn’t have a single written constitution, but rather a complex tradition of constitutional law made up of principles, precedents and practices accrued over generations. Under those principles, the answer to whether the U.K. can leave the European Union without a parliamentary vote is … maybe. It seems most likely that the High Court -- or the Supreme Court, which will hear an appeal next -- will say that Brexit can be accomplished without it. But to reach that conclusion, the British courts will have to expand existing principles, and grapple with the meaning of the referendum as a political tool. It’s a sad day for the country that arguably invented representative government.
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The Wall Street Journal
How One Goldman Sachs Trader Made More Than $100 Million
One junk-bond trader at Goldman Sachs Group Inc. earned more than $100 million in trading profits for the firm earlier this year, an unusual gain at a time when new regulations have pushed Wall Street to take fewer risks. The gains were the work of Tom Malafronte, a managing director on the bank’s high-yield-bond desk in New York. The 34-year-old trader bought billions of dollars in junk corporate debt on the cheap starting in January, then locked in profits as prices recovered, according to people familiar with the matter...It is difficult—if not impossible—to define clearly the difference between trades made to meet clients’ demands and those conducted just to make money, said Hal Scott, a professor with Harvard Law School who has testified before Congress about efforts to regulate the banking industry. “No one has been able to distinguish between market making and prop trading,” Mr. Scott said.
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NPR
7 Insurers Alleged To Have Discriminated Against HIV Patients
The Affordable Care Act prohibits insurers from discriminating against people with serious illnesses, but some marketplace plans sidestep that taboo by making the drugs that people with HIV need unavailable or unaffordable, complaints filed recently with the Department of Health and Human Services' Office for Civil Rights allege. The effect may be to discourage people with HIV from buying a particular health plan or getting the treatment they need, according to the complaints. The complaints – brought by Harvard Law School's Center for Health Law and Policy Innovation – charge that plans offered by seven insurers in eight states are discriminatory because they don't cover drugs that are essential to the treatment of HIV or require high out-of-pocket spending by patients for covered drugs.
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Bloomberg
Dispute Over a Holy Site Somehow Gets More Religious
An op-ed by Noah Feldman. The Israeli press and government are in an uproar about a resolution submitted to UNESCO, the United Nations’s cultural agency, by seven Arab states that, they say, denies the connection between the Jewish people and the Temple Mount. The resolution, ratified Tuesday, is hopelessly one-sided, which is not a shock for a UN entity that operates on a majority vote and without a Security Council veto. But what’s fascinating is that the Israelis are treating the resolution as an assault on their religious-historical claims to the site, which the report addresses only obliquely. This is a deepening problem on both sides of the Israeli-Palestinian conflict: the slow transformation from a national struggle into a religious one. And the religious struggle never seems more intractable than when the topic is the Temple Mount.
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