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News@Law, 11/27/2017

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

WIRED
Why the government is right to block the AT&T-Time Warner Merger
An op-ed by Susan Crawford. Despite what Randall Stephenson thinks, the Department of Justice’s suit blocking AT&T from acquiring Time Warner’s assets in an $85 billion merger is a great moment for antitrust in America. It’s late, but it’s welcome. Stephenson, the AT&T CEO, has no one but himself to blame. He and his minions effectively tanked their own plans to merge their company—the largest major pay-TV provider in the country and the second-largest wireless carrier—with Time Warner’s must-have cable channels and sports rights.
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Austin American-Statesman
Commentary: Why Mexico’s presidential election matters in the Trump era
An op-ed by Samuel Garcia `19 and Carlos Peña Ortiz. In an election and presidency filled with incendiary comments, Americans may have all but forgotten about comments like this made during Donald Trump’s campaign. Unfortunately, many Mexicans have not, and one man in particular — presidential frontrunner Andrés Manuel López Obrador — might do something about it. As a populist wave swept through Europe, Americans breathed a collective sigh of relief as Emmanuel Macron declared victory in the French presidential election, seemingly ending the populist onslaught worldwide. However, in less than a year, America may once again be holding its breath as the Mexican presidential election takes place.
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E&E News
Trump races to pick judges who oversee environment cases
President Trump has dismissed global warming as a hoax, snubbed the Paris emissions pact and scrapped U.S. EPA climate rules. But executive actions can be fleeting — as the Trump administration has shown by moving swiftly to unravel many of President Obama's climate change policies. Yet there's a major piece of Trump's climate legacy that could be more enduring: his court picks...Richard Lazarus, an environmental law expert and professor at Harvard Law School, said courts have played an "outsized role" in climate policy in recent years because regulators are working with an old law to deal with a problem its authors weren't specifically addressing. "The reason why the courts play a big role right now is that, whether the executive branch is run by [President George W.] Bush or the executive branch is run by Obama, each time they're kind of stuck with old language," Lazarus said, noting that the 1970 Clean Air Act hasn't seen a major overhaul since 1990.
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Newsweek
How Jeff Sessions plans to end medical marijuana before the year is over
New York is one of 29 states (plus the District of Columbia) that have legalized medical marijuana––a trend that 94 percent of Americans support, according to an August Quinnipiac poll. But on December 8, all of that could begin to change. Congress has until that day to decide whether to include the Rohrabacher-Farr Act (also known as Rohrabacher-Blumenauer) in a bill that will fund the government through the next fiscal year...In May, Attorney General Jeff Sessions pushed back against the bill when he sent a strongly worded letter to Democratic and Republican leaders in Congress, asking them to oppose protections for legal weed and allow him to prosecute medical marijuana..."He’s old fashioned and very conservative," said Philip Heymann, a Harvard Law School professor and former Justice Department official for the Kennedy, Johnson, Carter and Clinton administrations. "Literally seven years ago, maybe eight years ago, marijuana was thought to be a very dangerous drug. Why would he focus on this issue? Because he’s seven years out of date."
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Reuters
Rival sides square off over succession at U.S. consumer finance agency
A battle over who should run the U.S. Consumer Financial Protection Bureau (CFPB) in the coming months was set for court as Obama-era holdovers sought to maintain their control over a powerful watchdog which President Donald Trump is seeking to curb...While the legal battle rages, the CFPB’s enforcement work will be put in limbo. “Anything that the agency does or fails to do could be subject to challenge until this cloud is removed,” said Harvard Law School professor Laurence Tribe.
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The Washington Post
How the Supreme Court could keep police from using your cellphone to spy on you
An op-ed by Bruce Schneier. The cellphones we carry with us constantly are the most perfect surveillance device ever invented, and our laws haven’t caught up to that reality. That might change soon. This week, the Supreme Court will hear a case with profound implications on your security and privacy in the coming years. The Fourth Amendment’s prohibition of unlawful search and seizure is a vital right that protects us all from police overreach, and the way the courts interpret it is increasingly nonsensical in our computerized and networked world. The Supreme Court can either update current law to reflect the world, or it can further solidify an unnecessary and dangerous police power.
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Bloomberg
The Constitution Is on Trump’s Side in CFPB Fight
An op-ed by Noah Feldman. Suits against President Donald Trump for abuse of executive power are an important tool for preserving the republic. But the newly filed suit by Democratic appointee Leandra English for the right to serve as acting director of the Consumer Financial Protection Bureau is not helping the cause.
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Splinter
Republicans Plan to Crack Down on Worker Centers, the Last Line of Defense
The Trump administration is sure to be hell for working people, but so far the actual Labor Secretary has been relatively quiet on the specifics...As explained at length here by former Labor Department official Sharon Block, the only real purpose for reclassifying worker centers is to make their lives harder by requiring them to do a ton of paperwork and follow a ton of new rules. There is no threat being addressed here, except the threat that day laborers might be paid a semi-living wage.
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The New York Times
How a Comedy Website Came to Sell Wine to Survive
Two friends started a greeting card company on the internet. It was cheap to launch and it instantly reached millions. Then one day without warning, Facebook changed the way it did business. This is a story about survival in the age of Facebook, when a privately held algorithm can turn a beloved product into a hobby with no monetary value...What happened next, as the cards thrived and then suddenly withered on Facebook, illustrates the mercurial power of a new near-monopoly, with implications for all sorts of publishers and businesses, said Jonathan Zittrain, director of the Berkman Klein Center for Internet and Society at Harvard University. “Facebook has grown at a pace and had an impact that it’s really hard to say anybody planned,” he said. “It isn’t just a mere commercial platform. It’s a place that people are turning to to get their sense of what’s going on in the world."
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Business Insider
Elizabeth Warren and the left go to war with Trump over the future of the top consumer watchdog agency
Democratic Sen. Elizabeth Warren of Massachusetts and her allies are putting a full-court press on President Donald Trump and his administration as they battle over who has the authority to appoint the acting director of the Consumer Financial Protection Bureau — the agency Warren championed after the financial crisis. The battle has ensued after both Trump and Richard Cordray, the recently departed head of the CFPB, both named separate successors at the agency. Cordray abruptly departed from the agency Friday...The liberal Harvard constitutional law professor, Laurence Tribe, told CNN that the original draft legislation creating CFPB in the House would have used the Federal Vacancies Act as the backing for naming an interim director..."And the law is very plain," he said. "The old law in 1998 was superseded by the new law. Time moves only in one direction. The 2011 law is specifically about the Consumer Financial Protection Bureau, the most important bureau in the country protecting people from fraudulent lenders, from being gouged, from being abused."
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The Associated Press
Gorsuch establishes conservative cred in 1st year on court
More than 2,000 conservatives in tuxedos and gowns recently filled Union Station’s main hall for a steak dinner and the chance to cheer the man who saved the Supreme Court from liberal control. Justice Neil Gorsuch didn’t disappoint them, just as he hasn’t in his first seven months on the Supreme Court. “Tonight I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” Gorsuch said to sustained applause from members of the Federalist Society, using terms by which conservatives often seek to distinguish themselves from more liberal judges... [Ian] Samuel, a professor at Harvard Law School and former Scalia law clerk, said Gorsuch has an obvious interest in questions about accountability in the American system of government and control over the court system. “It’s better that he puts it out there and says this is who I am. I don’t think he cares whether some people think it’s shocking,” Samuel said.
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Just Security
“Fixes” to Surveillance Law Could Severely Harm FBI National Security Investigations
An op-ed by Matt Olsen. A core national security law allowing the government to collect intelligence information—Section 702 of the Foreign Intelligence Surveillance Act—is set to expire at the end of the year. With the deadline looming, the debate in Congress over reauthorizing Section 702 now centers on a crucial issue: the FBI’s ability to search for clues in its databases. The focus on this issue is important. There is a national security imperative for the FBI to review quickly and efficiently data that the government has lawfully collected when the Bureau opens an investigation or identifies a new suspect, especially someone who may have links to terrorism or espionage.
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The Washington Post
The case against court-packing
In recent months, prominent legal scholars on both sides of the political spectrum have proposed court-packing plans, or at least urged reconsideration of the longstanding political norm against court-packing. If such ideas take hold, it will be a very dangerous development... But in his most recent post on this subject, [Mark] Tushnet notes – with admirable candor – that “[t]he rationale is not (on the surface) to ‘seize control of the judiciary'” (emphasis added). That, of course, suggests that “seizing control” is a major part of the rationale beneath the surface.
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The Washington Post
How two decisions in Washington could turn AT&T into a uniquely powerful company
The future of AT&T could be shaped by two big decisions in Washington this week, with the Justice Department suing the telecom giant on Monday to block its $85 billion purchase of Time Warner and the Federal Communications Commission announcing a plan Tuesday to roll back net neutrality rules, handing a big win to Internet providers...Still, consumer advocates say relying on after-the-fact enforcement is no substitute for clear, preemptive rules that seek to prevent consumers from being harmed in the first place. "Taking FCC [rulemaking] power off the table leaves us with only antitrust authority to rely on to protect consumers," said Susan Crawford, a law professor at Harvard University. "Which won't be enough, in the long run."
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Providence Journal
R.I. fails to address Hepatitis epidemic
An op-ed by Maryanne Tomazic and Abbe Muller. Rhode Island blocks life-saving treatment for people living with Hepatitis C. The state Department of Human Services applies unnecessary restrictions on Medicaid patients suffering from this disease. These restrictions not only contradict medical and legal advice, but they impair Rhode Island’s ability to address a public health crisis.
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