Court’s New Approach to Fighting Voter Discrimination

An op-ed by Noah Feldman. What counts as discrimination? In our post-Ferguson era of heightened awareness of disparate racial treatment by police, no domestic question is more pressing. The U.S. Court of Appeals for the 5th Circuit has just addressed it in the context of a Texas voter identification law — and gave a measured, socially astute answer. The court held that there wasn’t sufficient evidence to say that the law requiring all voters to show an acceptable ID was intentionally racist. But it said the effect of the law nonetheless was racially discriminatory — because it made it disproportionately harder for blacks and Latinos to vote than for whites.

Supreme Court Bar Engages in Some Back-Scratching

An op-ed by Noah Feldman. A goodly portion of the Washington legal establishment has filed a friend of the court brief asking the U.S. Supreme Court to reverse the conviction of a securities fraudster. But the court shouldn’t take the bait, or the case. The court doesn’t, and shouldn’t, engage in what it calls error correction, except maybe in death penalty cases. And the Washington lawyers, who know this perfectly well, aren’t on board primarily to establish a principle. They’re engaged in a low-stakes process of mutual benefit that’s well-known to legal insiders but, if successful, would amount to a distortion of the court’s processes on behalf of fancy — and expensive — former government lawyers.

Trump and Bush, Thinking Fast and Slow

An op-ed by Cass Sunstein. Thursday’s Republican debate will pit System 1 candidates (above all Donald Trump) against System 2 candidates (above all Jeb Bush). Let me explain. Social scientists, most prominently Daniel Kahneman, have distinguished between “fast thinking,” undertaken by what they call the mind’s System 1, and “slow thinking,” which characterizes System 2. System 1 is automatic, intuitive, focused on the present and often emotional. System 2 is deliberative, calculating, focused on the long term and emotion-free.

Why Can’t Our Cities Be More Like Video Games?

An op-ed by Susan Crawford. In the 2007 best-seller “Spook Country,” William Gibson foresaw “the locative”: virtual fantasies layered over the real-world grid, visible to anyone with the right geo-aware gear. In the book, the charismatic Bobby Chombo is the only guy around with the technical chops needed to make the locative work. So when an artist wants to, say, digitally re-create the death of River Phoenix on Sunset Strip, he or she needs Chombo’s help. Cities are real-world grids: you can see that instantly on a Google map. But it’s not so easy to see the city as a civic entity. The stuff that counts — the interaction between people and city services — is hidden in plain view, invisible to almost everyone. That may be about to change. The opportunity: make it possible for cities to show their work and engage with citizens in a meaningful way, using the existing idea of 311. And make everyone who’s interested a Bobby Chombo.

The biggest risk to Obama’s climate plan may be politics, not the courts

An op-ed by Jody Freeman and Richard Lazarus. After releasing the Clean Power Plan this week the Obama administration must shift from offense to defense. The plan, which set the first national limits on carbon pollution from existing coal- and natural gas-fired power plants, faces two significant risks: one legal, the other political. The administration must address them to achieve the plan’s ambitious goal of cutting carbon emissions 32% below 2005 levels in 2030.

‘Right to Be Forgotten’ Online Could Spread

More than a year ago, in a decision that stunned many American Internet companies, Europe’s highest court ruled that search engines were required to grant an unusual right — the “right to be forgotten.” Privacy advocates cheered the decision by the European Court of Justice, which seemed to offer citizens some recourse to what had become a growing menace of modern life: The Internet never forgets…Recent developments — including a French regulator’s order that all of Google’s sites, including American versions, should grant the right to be forgotten — suggest the new right may not end with Europe…“France is asking for Google to do something here in the U.S. that if the U.S. government asked for, it would be against the First Amendment,” said Jonathan L. Zittrain, who teaches digital law at Harvard Law School. He pointed out that, if enacted, the French regulator’s order would prevent Americans using an American search engine from seeing content that is legal in the United States. “That is extremely worrisome to me.”

Corporations Are Perverting the Notion of Free Speech

An op-ed by John Coates and Ron Fein. Corporations are taking over the First Amendment. That’s not new, but it’s accelerating—and we have the data to prove it. Many people are familiar with the Supreme Court’s 2010 Citizens United decision, which held that corporations have a First Amendment right to spend unlimited amounts of money to influence elections. But the problem goes beyond election spending. Just one year after Citizens United, in a less widely reported decision, the court struck down a Vermont confidentiality law that prohibited sale of drug prescription data for marketing purposes. As the court explained, the law limited the “speech” of pharmacies and data miners that sell this data for use by pharmaceutical sales representatives.

A Climate Plan Businesses Can Like

An op-ed by Jody Freeman and Kate Konschnik. With the release of President Obama’s Clean Power Plan, a flood of legal challenges will begin. Already, opponents have denounced the new rule limiting carbon pollution as unconstitutional. Behind the rattling sabers, however, there’s a quieter story worth noticing. Many big players in the electric power industry will gain more with the rule in place than if the courts strike it down. In fact, many power companies have worked with the administration to get the best possible deal, and with states to discuss compliance strategies. Given their financial interests, some of these utilities may even wind up helping the government defend the rule.

Obama’s New Carbon Rules Pay Off

An op-ed by Cass Sunstein. When it comes to regulating greenhouse gases, some people think the more stringent the rules, the better. Others favor the more pragmatic approach championed by President Ronald Reagan: The benefits of any regulation must justify its costs. The Barack Obama administration’s rules for existing power plants, announced Monday, pass Reagan’s test with flying colors — and offer some nice surprises along the way.

How Obama plans to beat his climate critics

An op-ed by Jody Freeman. Now that the Obama administration has released the full details of its highly anticipated Clean Power Plan today, industry and state opponents are champing at the bit to challenge it in court…For those handicapping the litigation, however, the government’s odds of success just got a significant boost. A close analysis of the language in the final plan released today suggests that EPA has addressed each of these problems in subtle but significant ways, and the legal battle will now likely be much harder for the challengers.