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The Supreme Court’s Next Landmark Cases
An op-ed by Noah Feldman.
Every U.S. Supreme Court term has a theme. For the term that begins Monday, the theme looks like it may be the achievement of longtime conservative aspirations using traditionally liberal constitutional tools. The court may finally prohibit government affirmative action, and it may effectively cripple unions by stripping them of the power to collect fees from nonmembers. The common thread in both cases is that precedent from the 1970s could be overturned by flipping a favorite liberal principle, one that progressives believe underpins the vary practice at issue. Affirmative action could die in the name of equality. And unions could lose in the name of free association.
The New Republic
Will the Supreme Court’s New Term Deliver the Next Great Dissent?
On Monday, the marshal of the United States Supreme Court will ask everyone in the courtroom to rise and, as the justices file in through the maroon curtains and take their seats, ask God to “save the United States and this honorable Court."...Whether the arguments in any of the dissents this coming term will eventually prevail is impossible to predict; as Harvard Law Professor Mark Tushnet
reminds us, only history can determine the great or “prophetic” dissents.
The Daily Beast
Do Male Freshmen Know What ‘Rape’ Is, and How to Negotiate Consent?
Starting college can be a scary, confusing time in a person’s life. You’re often away from your family for the first time. You have to figure out a major, and the kind of career you will want after college. You need to make new friends and create a new social circle. But what scares ‘Andrew’ (not his real name), a freshman at Tulane University in Louisiana, the thing that most concerns him about going to college is sexual assault—not being a victim of it, but being wrongly accused of committing it...“What’s most interesting about this case is that it would not have been brought ten years ago, and not because of any changes in law but because of changes in attitude,” Harvard Law lecturer and former judge Nancy Gertner
told the The Daily Beast of the “froze” in fear justification the victim used for not telling Labrie to stop...In the past year, law professors at Harvard University and the University of Pennsylvania have openly opposed administrative changes to sexual assault policy. Harvard Law professor Elizabeth Bartholet
told The Daily Beast, “there’s the risk we will find a lot of people responsible for sexual assault when they shouldn’t be."
Revealed: how AstraZeneca avoids paying UK corporation tax
AstraZeneca, one of Britain’s largest businesses, is using a multimillion-pound tax avoidance scheme in the Netherlands, set up months after the UK relaxed its tax laws for multinationals in 2013...Stephen Shay
, a senior law lecturer at Harvard Law School who has held senior tax roles in the US Treasury and who gave expert testimony in 2013 on Apple’s tax avoidance structures in a Senate investigation, said that it was “hard to say” how the companies in the Dutch structure “have a real commercial purpose other than to achieve the tax outcome”.
EPA’s Critics Are Wrong: It’s Not About Politics
An op-ed by Cass Sunstein.
This week’s decision by the Environmental Protection Agency, imposing a new limit on ground-level ozone at 70 parts per billion, was eminently reasonable -- an impressive vindication of both law and science. The loud objections, coming from both the business community and environmental groups, are unconvincing.
The National Law Journal
Who You Gonna Call? Ken Feinberg (registration)
A couple days before Congress went on its summer recess, Kenneth Feinberg
hit Capitol Hill to visit Midwestern lawmakers whose constituents were unsettled about possible cuts to troubled pension plans that he was appointed to review. Feinberg is no stranger to difficult, emotionally charged tasks. Over the past 15 years the federal government has enlisted him to oversee the victim compensation funds set up after the 9/11 terrorist attacks, BP's Deep Horizon oil spill in the Gulf of Mexico and the General Motors' faulty-ignition-switch settlement. Feinberg, who turns 70 this month, took on yet another federal assignment in June when Treasury Secretary Jacob Lew appointed him special master to oversee the implementation of the Multiemployer Pension Reform Act of 2014...Between his newsmaking work and his weekly travels to Cambridge, Massachusetts, to teach an evidence class at Harvard Law School, Feinberg, who lives in suburban Washington, still provides mediation services to private cases that keep his office's lights on.
Supreme Court Opens With a Trip to Europe
An op-ed by Noah Feldman
. The new Supreme Court term will include high-level discussions of affirmative action, free association and religious liberty. But the first Monday in October is starting with a suit about a Eurail pass. Specifically, the court will consider whether selling a Eurail pass in the U.S. through a subagent makes the Austrian rail service subject to liability in a U.S. court for an accident in which an American plaintiff lost her legs outside Innsbruck. And therein lies an important question about the relationship between U.S. courts and foreign entities, not coincidentally the subject of a new book by Justice Stephen Breyer.
SEC’s New Court Powers Aren’t Going Away
An op-ed by Noah Feldman
. Should the Securities and Exchange Commission be allowed to act as prosecutor, judge and jury in pursuing civil penalties against alleged violators of the security laws? If you think the answer is yes, you can only be heartened by Tuesday's decision by the U.S. Court of Appeals for the D.C. Circuit refusing to hear constitutional challenges to the SEC’s new powers under the Dodd-Frank Act. The court said that the defendant, George Jarkesy, could still bring his constitutional claims to the courts after the SEC reaches a final decision in this case, which hasn’t happened yet. In theory, the court could then reach a different result when reviewing the constitutional merits of the SEC’s powers.