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News@Law, 12/21/2016

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

Supreme Court Nominations Will Never Be the Same
An op-ed by Noah Feldman. The story of the Supreme Court in 2016 can be summarized in a statistic: It’s been 311 days since Justice Antonin Scalia died on Feb. 13, and his seat remains unfilled. That’s not the longest Supreme Court vacancy in the modern era, but it’s about to enter second place -- and it will become the longest if Donald Trump’s nominee isn’t confirmed before the end of March. This striking fact will be front and center when the history of the court in 2016 is written. But what really matters isn’t the length of the vacancy. It’s the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland’s nomination. And against the odds, it paid off for them...More recently, the confirmation process for Robert Bork in 1987 had epochal consequences. For the first time, judicial philosophy was the focus. No one disputed Bork’s intelligence or qualifications. Instead liberals, including law professors like my colleague Laurence Tribe, criticized Bork’s conservatism as opposition to fundamental rights...As it turned out, that also meant that Tribe’s generational successor in that role, Cass Sunstein...also had little chance of being nominated, despite being much more centrist than Tribe and just as qualified in his own right. The rules of the game had changed.
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Mother Jones
A St. Louis Suburb Jailed Nearly 2,000 People for Not Paying Fines
...In recent years, civil rights groups have taken cities to court to compel changes to their operation of so-called debtors' prisons, where those who cannot afford to pay fines are jailed until their debts are paid off. The practice was first barred under federal law in 1833. In 1983, the Supreme Court ruled that the act of imprisoning someone unable to settle their debt unconstitutional. Yet lawsuits and a federal investigation into policing and court practices in Ferguson following the death of Michael Brown shed light on how municipal courts locked up poor residents who couldn't pay off their debts as a way to generate revenue...."One thing that has been revealed over and over again in the Ferguson investigation and these lawsuits is that the worst practices tend to arise when courts and other officials perceive a financial necessity in funding their operation through fees and fines," says Larry Schwartztol, executive director of Harvard University's Criminal Justice Policy Program. "That creates conflicts of interest and distorts the justice system."
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States And Cities Take Steps To Reform ‘Dishonest’ Bail System
...It is stories like these that propelled the New Mexico legislature to approve a state constitutional amendment to reform the use of bail for defendants awaiting trial. The amendment became law after winning the support of 87 percent of voters in this year's election. The state thus joined an increasing number of U.S. jurisdictions that have begun to implement risk-based systems of pre-trial detention as a potentially fairer and more effective alternative to traditional money bail...Six states — Colorado, Hawaii, Nevada, New Jersey, Vermont and West Virginia — recently passed legislation to establish or expand pre-trial service agencies to administer conditions for release such as monthly phone calls, drug testing and electronic monitoring, according to a report by Harvard Law School's Criminal Justice Policy Program.
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The New York Times
Antonin Scalia Didn’t Trust Science
In 1981, the Louisiana Legislature passed a law that forbade public schools to teach evolution without also instructing students on “creation science.” The Creationism Act was challenged in court for breaching the constitutional wall between church and state, in a case that reached the Supreme Court in 1986. For seven justices, the decision involved a simple constitutional question. They saw the law as an effort to force religious belief into the science curriculum, and they struck it down. Justice Antonin Scalia dissented...When his colleagues reached results that matched their politics, he derided them with the phrase “any stick to beat a dog,” according to another former clerk, Bruce Hay, now a law professor at Harvard.
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The Oregonian
Most Oregon death row inmates suffer significant mental impairments, Harvard report finds
A Portland judge ruled this year that a double murderer could not be executed for his crimes. Michael Davis suffers from an intellectual disability, Multnomah County Circuit Judge Michael Greenlick said. His IQ was measured at 61 or 62. And executing people with intellectual disabilities is unconstitutional, the U.S. Supreme Court ruled in 2002, because it amounts to cruel and unusual punishment. Despite that ruling, according to a report released Tuesday, most of the inmates on Oregon's death row are much like Davis. Two-thirds suffer from impaired mental and emotional capacity, Harvard Law School's Fair Punishment Project found.
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