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News@Law, 06/26/2018

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

Bloomberg
Courts Should Tread Lightly on College Admissions
An op-ed by Cass Sunstein. U.S. courts have long been reluctant to intervene in the admissions decisions of colleges and universities. In general, the law allows them to do whatever they want within this overarching framework: 1. Racial discrimination is forbidden. 2. An institution may not maintain a racial quota system, even if it is sincerely seeking to ensure the presence of adequate numbers of traditionally disadvantaged groups, including African-Americans. 3. An institution may consider race as a “plus,” at least if it is seeking to create a diverse educational environment.
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The New York Times
Trump Calls for Depriving Immigrants Who Illegally Cross Border of Due Process Rights
President Trump unleashed an aggressive attack Sunday on unauthorized immigrants and the judicial system that handles them, saying that those who cross into the United States illegally should be sent back immediately without due process or an appearance before a judge. “We cannot allow all of these people to invade our Country,” Mr. Trump tweeted while on the way to his golf course in Virginia. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”...Mr. Trump’s tweets on Sunday threw new legal questions into the puzzle. Laurence H. Tribe, a constitutional law professor at Harvard, said in an email that the Supreme Court has repeatedly held that “the due process requirements of the Fifth and 14th Amendments apply to all persons, including those in the U.S. unlawfully.” “Trump is making the tyrannical claim that he has the right to serve as prosecutor, judge and jury with respect to all those who enter our country,” Mr. Tribe said. “That is a breathtaking assertion of unbounded power — power without any plausible limit.”
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The Harvard Crimson
Should We Send Trump to the Hague?
During the six weeks ending Wednesday, the United States government executed a policy of kidnapping children. At this very moment, thousands of children sit in literal cages with no idea where their parents are or if they will ever see them again. Despite the dehumanizing rhetoric about immigrant criminals with which Donald Trump has tried to justify this unjustifiable policy, the change that created it entirely dealt with non-criminals: Attorney General Jeff Sessions’s “zero tolerance” policy, combined with a narrowing definition of asylum, meant that even families fleeing gang and domestic violence would be criminally prosecuted, and all, in a major change from the prior policy, would be incarcerated...Gerald L. Neuman, the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School and the co-director of the Human Rights Program at the Law School, wrote in an email that in his opinion, detaining children, with or without their parents, in order to deter seeking asylum “amounts to arbitrary detention in violation of the United States’s obligations under international human rights law.”
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The Harvard Gazette
Minow named University Professor
Renowned human rights expert Martha Minow, the Carter Professor of General Jurisprudence at Harvard Law School and a Harvard University Distinguished Service Professor, has been named a University Professor, Harvard’s highest faculty honor. Minow, who was dean of Harvard Law School from 2009 to 2017, will begin her appointment as the 300th Anniversary University Professor on July 1. Known for her wide-ranging intellectual curiosity and influential interdisciplinary scholarship, Minow has offered original ways to frame and reform the law’s treatment of racial and religious minorities as well as women, children, and persons with disabilities...John F. Manning, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School (HLS), noted that “Martha Minow has been a transformative scholar across multiple fields and disciplines, a devoted and influential teacher, an innovative and impactful dean, and a tireless advocate for those in need of legal services."
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WIRED
Autonomous Vehicles Might Drive Cities to Financial Ruin
An op-ed by Susan Crawford. In Ann Arbor, Michigan, last week, 125 mostly white, mostly male, business-card-bearing attendees crowded into a brightly lit ballroom to consider "mobility." That’s the buzzword for a hazy vision of how tech in all forms—including smartphones, credit cards, and autonomous vehicles— will combine with the remains of traditional public transit to get urbanites where they need to go. There was a fizz in the air at the Meeting of the Minds session, advertised as a summit to prepare cities for the "autonomous revolution."
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The New York Times
Harvard Is Wrong That Asians Have Terrible Personalities
There’s a moving passage contained in a deposition taken in the major class-action lawsuit accusing Harvard University of racial bias against Asian-Americans...As the Harvard law professor Jeannie Suk Gersen pointed out in The New Yorker, the tortuous and evasive quality of the discussion of the treatment of Asian-Americans in elite colleges stems from the way our legal doctrine on affirmative action has evolved. The Supreme Court ruled that it was legal to use race as a criterion in admissions in order to pursue the educational benefits of “diversity” in the landmark 1978 case Regents of the University of California v. Bakke, but it forbade the imposition of racial quotas and, by extension, the maintenance of a policy that consciously aims at “racial balancing.” This imposes a legal condition on Harvard. Rather than make the honest claim that it actively pursues racial balance and that there are good reasons to do so, the school must engage in a charade that nearly everyone working in the proximity of a highly competitive college knows to be false.
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Medium
Who are we
An op-ed by Lawrence Lessig...The child separation policy crosses the line for me. I don’t know if it would have affected me as much as it has before I had kids. Before I had kids, a kid’s cry was a noise. Now it is a line into a soul. Every parent can hear the difference between crying and aching. No parent can listen to these cries and not feel his or her heart rend. The lies from this administration are so regular that we don’t even notice. And so it is with this policy too — which on its face is a lie since the same administration gives three different accounts (Trump: it’s the Democrat’s policy; Nielsen: “it isn’t a policy”; Sessions: it’s my policy and I’m proud of it!). Suffice it that with no change in the actual law there was a radical change in the actual practice — and what accounts for that change is a decision by the Trump administration to adopt yet another brain-dead policy. Senator Warren puts its best: we have a president who is holding “kids hostage to try and get Congress to pay for his stupid wall.”
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The Washington Post
D.C. files motion to dismiss lawsuit over its controversial education requirements for child-care workers
Lawyers for the District argued Wednesday for the dismissal of a lawsuit that challenges city regulations requiring some child-care workers to obtain associate degrees or risk losing their jobs. Two day-care workers and a parent are suing the city over the controversial rules that supporters contend will make D.C. a national model for providing high-quality care for the youngest children...A Harvard Law School professor who studies constitutional law said the plaintiffs in the lawsuit against the city have just a slim chance of success. “You wouldn’t give it an F on the exam, you’d say, ‘Okay, creative argument — hard one to win, but creative argument,’ ” Noah Feldman said, referring to the suit.
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The Hill
States brace for dramatic overhaul to federal foster care funding
State and local governments are poised to undergo a major shift in the way they think about at-risk children, thanks to bipartisan federal legislation aimed at encouraging families to stay together and out of the foster care system. The Family First Prevention Services Act, a provision within the Bipartisan Budget Act that President Trump signed into law in February, would give states incentives to keep children with parents or relatives, rather than immediately transferring them to foster care or the state’s care...A second phase of the program will restrict federal funding for group care and provide additional funding for mental health and substance abuse programs. That phase has child welfare advocates concerned that the new measure disincentivizes foster care programs at the expense of the children themselves. “It’s really about prevention of foster care, not prevention of abuse and neglect,” said Elizabeth Bartholet, director of the Child Advocacy Program at Harvard Law School. “I think we do want children removed to foster care when they’re facing serious abuse and neglect at home.”
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The Wall Street Journal
Publisher of National Enquirer Subpoenaed in Michael Cohen Probe
Federal authorities have subpoenaed the publisher of the National Enquirer for records related to its $150,000 payment to a former Playboy model for the rights to her story alleging an affair with Donald Trump, according to people familiar with the matter. The subpoena from Manhattan federal prosecutors requesting information from the publisher, American Media Inc., about its August 2016 payment to Karen McDougal is part of a broader criminal investigation of Mr. Trump’s former personal lawyer, Michael Cohen, they said...The Federal Election Campaign Act makes clear that news stories, commentaries or editorials aren’t considered campaign expenditures, a press carve-out that could add First Amendment complications to an investigation of American Media. But the exemption isn’t absolute, said Thomas Frampton, a lecturer at Harvard Law School who studies criminal law. “If the other evidence is there, I don’t think AMI’s status as a media company will preclude liability,” he said.
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The Boston Globe
Parole board still slow to release inmates 8 years after ex-convict killed officer, critics say
Dominic Cinelli was one year out of prison and on parole when he shot and killed a police officer the day after Christmas in 2010. Since then, the number of people released on parole has remained consistently low, the state parole board has been stacked with members with law enforcement backgrounds, and the board has become less transparent, according to a coalition of attorneys, criminal justice reform groups, and prisoner rights advocates. The coalition wrote Governor Charlie Baker on Monday, saying the board is taking longer to decide the fate of inmates and failing to properly consider their mental health and drug use disorders. “It’s not working. It’s a terrible system,” said David Harris, managing director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, a research and civil rights advocacy center that signed the letter. “We are terribly backwards and emblematic of the punitive posture we have taken in this country for far too long.”
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Healio
Experts say lawsuit challenging Affordable Care Act could kill it
Attempts to eliminate the Affordable Care Act have taken a new turn. Nearly two dozen states or their governors have filed a lawsuit against the United States government, HHS, IRS and several others claiming that Congressional action that lowered the tax on those who did not comply with the individual mandate to buy insurance voids the Affordable Care Act. The new lawsuit, known as Texas v. the United States (2018), has some experts and medical societies concerned about its ramifications...Robert Greenwald: “The state plaintiffs and the administration have taken somewhat different positions in this case. The states are asserting that repeal of the individual mandate necessitates a repeal of the ACA in its entirety. The administration has agreed with the states, but only in so far as to assert that the guaranteed issue and community rating provisions must be overturned as a result of Congressional changes to the individual mandate. If either of these assertions prevails, then the scope of health care would change,” he said in an interview.
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MarketWatch
Feds must stop collecting debts of students who say they were scammed by schools
Betsy DeVos’s Department of Education must stop collecting the federal student debt of some borrowers who say they were ripped off by a now-defunct for-profit college, at least for now. That’s according to an order issued Tuesday by Sallie Kim, a judge in the Federal District Court in San Francisco. It applies to students who attended certain Corinthian College programs beginning as far back as 2010 if they’ve applied for relief from their federal loans and only had them partially forgiven. The order also applies to borrowers who’ve applied for relief and are awaiting a response and to those who apply for relief in the future...“It’s a huge victory,” said Toby Merrill, the director of Harvard Law School’s Project on Predatory Lending, which is representing the borrowers in the case. “But in a way it’s also it’s dispiriting that we’re still fighting this.”
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WBUR
Supreme Court Decides In Favor Of Immigrant From Martha’s Vineyard (audio)
An interview with Nancy Gertner. In an 8-1 opinion today, the Supreme Court ruled that if an immigrant is given a "notice to appear" in immigration court, that it must designate a specific time or place. The case, Pereira v. Sessions, originated on Martha's Vineyard with a man who entered the country from Brazil 16 years ago and overstayed his visa. The decision could affect thousands of immigrants living in the United States without authorization.
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Bloomberg
Conservative Justices Don’t Much Care for Antitrust Law
An op-ed by Noah Feldman. In a major victory for American Express Co., the U.S. Supreme Court held Monday that the company may continue to bar merchants from steering customers to credit cards that charge lower merchant fees. The 5-4 decision broke down on strictly partisan lines. It shows that the court’s conservatives don’t much care for antitrust law, and are willing to make new law in order to limit its reach. The liberal justices would prefer to stick with traditional principles that are focused on protecting consumers. On the surface, the majority opinion by Justice Clarence Thomas and the dissent by Justice Stephen Breyer are grappling over a technical question of economics: What market or markets does American Express participate in?
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Human Rights Watch
US: Criminal Justice System Fuels Poverty Cycle
The United States government at all levels should act to prevent the criminal justice system from punishing poverty and further impoverishing the poor, the Criminal Justice Policy Program (CJPP) at Harvard Law School and Human Rights Watch said today. In particular, authorities should not rely on fines and fees to pay for government programs because they disproportionately hurt the poor...“In the United States, many jurisdictions rely on fees and fines for revenue for the criminal justice system and for other programs,” said Mitali Nagrecha, director of the National Criminal Justice Debt Initiative at CJPP. “This has led to an increase in fees assessed across the country and more aggressive collection tactics, including time in jail. Given the makeup and size of our criminal justice system, this unsurprisingly places a disproportionate burden on large numbers of poor people and communities of color.”
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Bloomberg Law
D&I Dash: The Winning Idea From the Diversity in Law Hackathon
The creators of the D&I Dash, this year’s winning idea at the Diversity in Law Hackathon, hope that law firms can be convinced to publish data on recruitment, retention, promotion, and pay equity. The Diversity & Inclusion Dashboard — “D&I Dash” for short — is designed to be a central clearinghouse of diversity information, accessible to law firms, in-house legal departments, law students, and maybe even the public...Paras Shah [`19], a rising 3L at Harvard Law who is working at O’Melveny & Myers this summer, said he believes the D&I Dash will eventually give law students “a better sense of what firms are doing in real time, on the ground.”
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New Hampshire Public Radio
Online Sales Tax Ruling Called ‘Disastrous’ for N.H. Economy
A major U.S. Supreme Court ruling out Thursday could force New Hampshire businesses to collect a sales tax on behalf of other states. The case of South Dakota v. Wayfair centers on how to treat items sold online, and whether states that impose a sales tax, such as South Dakota, can require businesses who sell goods to South Dakota residents to collect and remit those taxes...The decision in South Dakota versus Wayfair upends more than a half century of legal precedent. The court ruled in 1967 that states can’t force businesses located in other states to collect on their behalf. That case centered on mail order catalogue companies, a relic of an earlier economy. “And that’s a major premise of the court’s opinion--hey, if you didn’t notice, a lot has changed in 50 years,” says Ian Samuel, a lecturer at Harvard Law School. Samuel says in this decision, the court is recognizing that in an age of online shopping, states are losing out on too much revenue that is rightfully theirs to collect.
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Middle East Eye
Doctors in the firing line: Terrorism laws eroding right to health
When Israeli forces shot and killed Palestinian medic Razan al-Najjar in the Gaza Strip earlier this month, the international community condemned her death, sparking urgent calls to respect the inviolability of medical professionals and the care they provide in conflict zones. It was a well-rehearsed conversation, one the international community has been having for over 150 years. States have been in consensus on the provision of impartial medical care at all times - during or outside of armed conflict - since the original Geneva Conventions of 1864. These protections have been expanded time and again since – reiterating that non-discriminatory access to healthcare is a human right, and that doctors are ethically required to provide care regardless of the recipient...International law experts continue to voice concern that counterterrorism efforts have eroded basic principles the world has long accepted in international law. Dustin Lewis, a senior researcher at the Harvard Law School Program on International Law and Armed Conflict, told MEE that safeguarding impartial healthcare is one of the “key normative pillars of international humanitarian law.”
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The Boston Globe
‘The history of disability was to hide it,’ but Waltham students bring it to light
There were no tests on the syllabus. There was no homework, per se. In this unique course at Gann Academy in Waltham, the task was to create a museum-worthy exhibit on the history of people with disabilities in America...The result is “Division, Unity, Hardship, and Progress: A Disability History of the United States,” on display at the Charles River Museum of Industry and Innovation in Waltham through early September...“You have to be so curious and care so deeply in such a sustained way for months and months to do this kind of study,” said [Alex] Green, who is also former chair of the Waltham Historical Commission and a fellow at Harvard Law School. “On the back brace, [the students] did research entirely by material analysis. They looked this thing up and down and found the parts of it that were missing and then found the original patents for it and were able to figure out what it was used for.” The exhibit also includes oral histories, including one from a lawyer who helped rewrite portions of the Americans with Disabilities Act; another with a former trustee of the Fernald School; as well as several from Gann Academy students with learning and cognitive differences.
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WBUR
SCOTUS Says States Can Collect Sales Tax From Online Retailers (audio)
An interview with Nancy Gertner. The Supreme Court today ruled on South Dakota vs. Wayfair, writing that states can collect sales taxes from businesses even if they do not have a physical presence in the state. The 5-4 ruling effectively overturned its own 1992 decision in Quill vs. North Dakota that restricted states from collecting some sales taxes.
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The Washington Post
Trump’s presidency is an ongoing legal seminar
Don’t get me wrong — I’d give almost anything to have a boring president (of either party) who colors inside the constitutional lines. Given that we do not, however, we might think of the Trump presidency as a four-year course in constitutional and criminal law...First, when Trump says something such as I can pardon myself, or I haven’t decided if I will talk to the special counsel (ultimately a subpoena will settle the matter), do not consider it a pronouncement on the law or even a statement of intent. He says whatever he thinks in the moment serves his interests, shows he is top dog and/or pumps up his base. Rather than get irate, the rest of us have a job: show why his utterance is beyond the realm of reasonable argument. Take Trump’s self-pardon doctrine. Constitutional scholar Laurence Tribe tells me a self-pardon is an “a constitutional impossibility.” Former chief White House ethics lawyer Norman Eisen advises that a self-pardon “is inimical to the constitution and rule of law. It would be invalid, and would be set aside by the courts should a prosecutor or another party with standing challenge it.”
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The Week
Laurence Tribe’s book recommendations
Book recommendations from Laurence Tribe...Tyrant by Stephen Greenblatt: As an avid fan of Greenblatt's work, I read his new book the moment it became available. Following the lead of Shakespeare, who used history to shed light on his own time, Tyrant offers a brilliant meditation on the patterns of character and fate that drive tyrants to seek unbounded power and lead some societies to submit to their cruelties.
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