An op-ed by Noah Feldman. It’s not often that “The Wire” comes to the U.S. Supreme Court. But Tuesday, in Ocasio v. U.S., a scenario ripped straight from the greatest television show ever made will be considered in the highest court in the land. It involves (of course) the Baltimore Police Department, corruption and wiretapping. And it raises an arcane-sounding legal question: Can you be convicted of conspiracy to commit extortion if your alleged co-conspirator is none other than the victim of your scheme?
The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year…“This is a welcome step by the court to correct a problem that has persisted for more than a century, and which was exacerbated in recent years by modern technology,” Professor [Richard] Lazarus said. “The court deserves praise for its willingness to make transparent its corrections of past mistakes in its slip opinions.” But slip opinions are early versions of the court’s rulings. It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.
The U.S. Supreme Court announced Monday a series of policy changes that respond to public complaints about secret changes to the justices’ decisions, hiring “line-standers” for high-profile oral arguments and “link rot” in the court’s rulings…The move appears to be a direct response to a 2014 Harvard Law review article on the “nonfinality” of court opinions. In the article, Harvard Law School professor Richard Lazarus revealed that changes, some of them substantial, were being made to already issued opinions without notice to the public. Lazarus is a longtime friend of Chief Justice John Roberts Jr. Lazarus on Monday called the new policy “certainly a very welcome step by the justices to correct a practice that had persisted for far too long…But Lazarus cautioned that the court’s new policy “stops short of making transparent the changes made between the slip opinion and the final bound volume of the U.S. Reports. To address that problem, the court needs to make publicly available the changed pages that are used in publishing the final bound version of the court’s opinions.”…The court also announced new procedures to confront “link rot,” the phenomenon where web-based links that are included in court opinions disappear or become broken, making it difficult for scholars and others to recover materials that were pertinent to court decisions. A 2013 study by Harvard scholars including presidential candidate Lawrence Lessig found that 50 percent of links in Supreme Court opinions do not link to the originally cited information.
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”.
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.
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.
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.
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.
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.
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.”