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News@Law, 09/12/2017

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

The Atlantic
Will Donald Trump Destroy the Presidency?
An op-ed by Jack Goldsmith. Donald Trump is testing the institution of the presidency unlike any of his 43 predecessors. We have never had a president so ill-informed about the nature of his office, so openly mendacious, so self-destructive, or so brazen in his abusive attacks on the courts, the press, Congress (including members of his own party), and even senior officials within his own administration. Trump is a Frankenstein’s monster of past presidents’ worst attributes: Andrew Jackson’s rage; Millard Fillmore’s bigotry; James Buchanan’s incompetence and spite; Theodore Roosevelt’s self-aggrandizement; Richard Nixon’s paranoia, insecurity, and indifference to law; and Bill Clinton’s lack of self-control and reflexive dishonesty.
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Politico
Russia probes pose loyalty test for Team Trump
Lawyers representing Donald Trump’s current and former aides are giving their clients one simple piece of advice: don’t lie to protect the president. As special counsel Robert Mueller and congressional investigators prepare to question high-ranking aides — including Hope Hicks, Reince Priebus and Sean Spicer — in the coming weeks, Trump’s long history of demanding his employees’ complete loyalty are being put to the test...Alex Whiting, a former federal prosecutor and Harvard Law professor, said that Mueller may have more luck getting cooperation from recently ousted Trump officials – like Priebus and Spicer, though he noted the two men also may end up being overly cautious too. “These guys they have their careers and reputations to be concerned about,” he said.
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Bloomberg
Feinstein’s Anti-Catholic Questions Are an Outrage
An op-ed by Noah Feldman. Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett -- and an explanation to all Americans who condemn religious bias. During Barrett’s confirmation hearings last week before the Senate Judiciary Committee, Feinstein, the California Democrat, insinuated an anti-Catholic stereotype that goes back at least 150 years in the U.S. -- that Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution. If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice.
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The National Law Journal
Judges Look to Profs in Awarding Lower Percentage Fees in Biggest Class Actions
After reaching a $101 million class action settlement to resolve lawsuits brought over a chemical spill that contaminated a West Virginia river, the plaintiffs lawyers asked a federal judge to grant them 30 percent of the fund as contingency fees. The judge praised their work but found that fee request to be just too high...The concern for those on the bench is how to award plaintiffs lawyers for their work without granting them excessive fees and leaving class members in the lurch. "Judges do take the role seriously," said William Rubenstein, a professor at Harvard Law School whose highly regarded "Newberg on Class Actions" has cited the Eisenberg/Miller and Fitzpatrick studies in his 11-volume treatise, alongside data he has used from a former publication called Class Action Attorney Fee Digest. "And they understand they're a bulwark against excessive fees from the class members' money."
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The Atlantic
The Question of Race in Campus Sexual-Assault Cases
The archetypal image of the campus rapist is a rich, white fraternity athlete. The case of Brock Turner—the freshman swimmer at Stanford University convicted last year of sexually assaulting an unconscious woman after meeting her at a party, but sentenced to only six months in jail—reinforced this...How race plays into the issue of campus sexual assault is almost completely unacknowledged by the government...Janet Halley, a professor at Harvard Law School and a self-described feminist, is one of the few people who have publicly addressed the role of race in campus sexual assault. Interracial assault allegations, she notes, are a category that bears particular scrutiny...Since there are no national statistics on how many young men of any given race are the subject of campus-sexual-assault complaints, we are left with anecdotes about men of color being accused and punished. There are many such anecdotes. In 2015, in The New Yorker, Jeannie Suk Gersen, a Harvard Law School professor, wrote that in general, the administrators and faculty members she’s spoken with who “routinely work on sexual-misconduct cases” say that “most of the complaints they see are against minorities.”
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Information Management
Richness of exposed data makes Equifax breach among worse ever
An op-ed by Seth Berman. News of the Equifax breach has been buried by the wall to wall media coverage of Hurricane Irma and, perhaps, by the fact that we have all become inured to reports of yet another major hacking of financial data. This is a mistake. The Equifax breach appears to be far worse than previous breaches, with potential consequences of a totally different order of magnitude than the prior mass corporate hacks. Initial headlines focused on the number of impacted consumers, which is indeed breathtaking – approximately 143 million people according to Equifax.
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CNN
Don’t waste your breath complaining to Equifax about data breach
An op-ed by Bruce Schneier. Last Thursday, Equifax reported a data breach that affects 143 million US customers, about 44% of the population. It's an extremely serious breach; hackers got access to full names, Social Security numbers, birth dates, addresses, driver's license numbers -- exactly the sort of information criminals can use to impersonate victims to banks, credit card companies, insurance companies, and other businesses vulnerable to fraud. Many sites posted guides to protecting yourself now that it's happened. But if you want to prevent this kind of thing from happening again, your only solution is government regulation (as unlikely as that may be at the moment).
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Tablet
Jewish Senators Need to Stop Subjecting Non-Jewish Nominees to Religious Tests
This past Wednesday, the Senate judiciary committee held its confirmation hearing for law professor Amy Barrett of Notre Dame, who had been nominated to serve on the 7th Circuit Court of Appeals. A devout Catholic, Barrett had not been shy about her personal views in her writings, including her opposition to both abortion and the death penalty. The former stance particularly concerned California Senator Dianne Feinstein, who asked Barrett whether her faith would interfere with her ability to apply the law...As Harvard law professor Noah Feldman put it to me, “It’s legitimate for Senators to seek assurance that a judge will rule according to the law. It’s outrageous—and unconstitutional—to suggest or even imply that a nominee’s religious faith would presumptively disqualify her from office.”
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The Verge
Why was it so easy to weaponize copyright against PewDiePie?
Over the weekend, superstar games vlogger Felix “PewDiePie” Kjellberg blurted a vicious racist insult during a game of PlayerUnknown’s Battlegrounds. The outburst sadly wasn’t too surprising, although PewDiePie promised to give up casual Nazi jokes last month, and it wasn’t the first time he had said that particular word. But this time, indie studio Campo Santo took the unusual step of filing a copyright takedown against PewDiePie’s playthrough of its 2016 game Firewatch...Kendra Albert, a fellow at Harvard’s Berkman Klein Center who works on video games and intellectual property, says that’s because there’s a largely symbiotic relationship between studios and video creators. “Most game companies understand that it's often in their economic interest to allow streamers to stream the game and send it out to a broader audience, and so there hasn't been a ton of litigation over it,” says Albert.
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