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News@Law, 10/02/2017

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

The New York Times
New Skirmish in an Old Battle: Wall Street vs. the Customer
A corrosive custom forced on investors is finally getting the ax under new regulations in Europe. Too bad some on Wall Street are working overtime to ensure that United States investors don’t get the same deal. The rule change governs how investors pay for brokerage-firm research...Howell E. Jackson, a professor at Harvard Law School and an expert in financial regulation, thinks the unbundling of trading and research costs would be a boon to investors because of the sunlight it would bring to the financial markets. Under the European rule, Mr. Jackson said in an interview, “consumers can see how much of their commissions are going to research.”
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Financial Times
AIG sheds $150m in costs along with Sifi label
AIG is poised to save as much as $150m in annual compliance costs after US officials released it from “too big to fail” supervision, a decision that could also help the insurance company expand again after years of post-crisis shrinkage. A team of federal officials who have been stationed within the group to monitor its activities will be heading for the exit after a council led by Treasury secretary Steven Mnuchin ruled AIG’s collapse would no longer pose a threat to the financial system...Hal Scott, professor at Harvard Law School, said he expected regulators to take up Prudential’s case soon. “I’d be shocked if it wasn’t next on the list,” he said.
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Minnesota Public Radio News
The Supreme Court: the ‘least dangerous’ branch of government? (audio)
Today is the opening day of the Supreme Court's fall term. Harvard law and history professor Annette Gordon-Reed is a Pulitzer Prize-winning author and this hour in a Chautauqua Lecture she explores the origins, and the evolution, of the nation's highest court. Alexander Hamilton called it "the least dangerous" branch of government. She titled her lecture, "The Supreme Court: Hamilton's vision vs. reality."
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MSNBC
Trump, the NFL protests, and First Amendment rights (video)
Harvard Law School constitutional law professor Laurence Tribe joins Joy Reid to explain how in his view Donald Trump may be using the power of the government to pressure the NFL.
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The Washington Post
This is why Donald Trump’s tax returns haven’t been leaked
Donald Trump has maintained for seven months that he cannot release his tax returns because he is being audited by the Internal Revenue Service, making him the first major-party nominee for president since Gerald Ford to withhold such records from the public...“The courts could say, if the public thinks the tax returns are so important, let it demand that the candidate authorize the IRS to release them on pain of losing votes,” said Jonathan Zittrain, a privacy expert and professor at Harvard Law School.
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The Wall Street Journal
Facebook Is Still In Denial About Its Biggest Problem
It's a good time to re-examine our relationship with Facebook Inc. In the past month, it has been revealed that Facebook hosted a Russian influence operation which may have reached between 3 million and 20 million people on the social network, and that Facebook could be used to micro-target users with hate speech. It took the company more than two weeks to agree to share what it knows with Congress...Will Facebook solve this problem on its own? The company has no immediate economic incentive to do so, says Yochai Benkler, a professor at Harvard Law School and co-director of the Berkman Klein Center for Internet and Society. "Facebook has become so central to how people communicate, and it has so much market power, that it's essentially immune to market signals," Dr. Benkler says.
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Bloomberg
Gorsuch’s Rejection of a Politicized Executive Branch
An op-ed by Cass Sunstein. As Justice Neil Gorsuch starts his first full term on the Supreme Court, many people are cheering what they see as his conservatism, and many others are mourning it. But an investigation of his opinions as an appeals court judge offers a more complicated picture about his beliefs and his approach to the law. First, Gorsuch is fiercely protective of the independence of the judiciary -- and, in important respects, he is skeptical about executive power. Second, he is a bold thinker, willing to go in novel directions. Third, he is a fine writer.
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Bloomberg
Stage Is Set for Some Drama at Supreme Court
An op-ed by Noah Feldman. President Donald Trump managed to head off the drama of a Supreme Court confrontation, for now, by issuing a new travel ban last week. But the justices begin a new term Monday with other exciting, high-profile cases planned, tackling issues such as religious liberty and equality, privacy, unions and employees’ rights, and international human rights. One of the cases, a challenge to partisan gerrymandering, could turn out to be the most game-changing decision by the court in the realm of politics since one person, one vote.
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Utility Dive
Updated: DOE proposes cost recovery for baseload generators in new FERC rule
Released at the end of August, the Department of Energy's grid study concluded that the reliability of the bulk power system is strong today, but changes in the resource mix could present challenges in the future. The report urged federal regulators to begin examining how to better compensate generators for the services they provide for reliability and resilience if it finds reliability is threatened..."I would say this is not a proposed rule that could form the basis of a final rule," said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative​. "Usually proposed rules have far more detail that would provide a basis for comments on specific aspects of the proposal and that's not really here."
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WNYC
When Crime Data Becomes Politicized (audio)
An interview with fellow Thomas Abt. This week, the FBI released new crime statistics showing 17,250 homicides in the US last year, an increase of over 8.5% from the year prior. The right-wing media quickly sprang into action: Breitbart’s headline read: “FBI Data: Post-Ferguson Murder Spike Reaches 3761 Dead,” while the Daily Caller declared, “The FBI Just Confirmed What Sessions Has Been Saying About Violent Crime.” (For his part, Jeff Sessions responded with a predictable message of doom about "surrender[ing] our communities to lawlessness and violence.”) The left-wing response, meanwhile, came with its own politicized interpretation, downplaying the spike and shifting the focus to the apparent root causes of crime.
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Harvard Gazette
Thurgood Marshall: The soundtrack of their lives
Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.
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Financial Times
US delivers electric shock with coal and nuclear subsidy plan
A legal battle over the future of the US electricity system is looming after the Trump administration shocked the industry with proposals for new subsidies for coal-fired and nuclear power plants. If implemented, the plan could mean the most radical shake-up of the market in decades. Rick Perry, the energy secretary, on Friday sent a proposal to the Federal Energy Regulatory Commission calling for payments for power plants that provide “essential energy and ancillary reliability services” — and defined these in a way that means only coal and nuclear generators are likely to qualify...Ari Peskoe of Harvard Law School said Mr Perry’s plan did not meet the legal requirements for proposed rules under US administrative procedures, and recommended that FERC treat it as a “comment” on its existing work on supporting grid reliability.
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Bloomberg
Aging Justices Deserve Better Than a Death Watch
An op-ed by Noah Feldman. There’s something profoundly morbid about watching the U.S. Supreme Court and worrying about the health of your favorite aging justices. (They’re 84, 81 and 79, by the way.) A mandatory retirement age would take away the uncertainty. Such a rule was part of an elaborate court-packing plan proposed Monday by the president of Poland -- before he withdrew it under intense international pressure. In principle, age limits for life-tenured judicial appointees make a lot of sense.
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Greenwire
Perry proposes regulatory overhaul to boost coal, nuclear
In a rare move that could spark sweeping changes in energy regulation, Energy Secretary Rick Perry today called on the Federal Energy Regulatory Commission to take action that could prop up struggling coal and nuclear plants. The Department of Energy wrote in a notice of proposed rulemaking that FERC has an "immediate responsibility to take action to ensure that the reliability and resiliency attributes of generation with on-site fuel supplies are fully valued."...DOE's proposed rule orders FERC to finalize the regulation within 60 days of its publication in the Federal Register, but that timeline might not meet legal requirements, said Ari Peskoe, a senior fellow at the Harvard Law School Environmental Policy Initiative. "FERC rules usually have much more technical detail," said Peskoe. "This reads more like a directive to FERC to figure this out."
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