Clinical and Pro Bono Programs

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From the Boston Marathon to a deadly meningitis outbreak, a prosecutor shares negotiation lessons

Via Harvard Law Today 

By: Adriel Borshansky

Credit: Lorin Granger

This spring, George Varghese, an assistant U.S. Attorney based in Boston, delivered a guest lecture to the Harvard Negotiation and Mediation Clinical Program’s (HNMCP) Spring 2019 Negotiation Workshop, a limited-enrollment course that combines theory and practice with the aim of improving both the participants’ understanding of negotiation and their effectiveness as negotiators. Drawing from a wide variety of prosecutorial experiences from his current work in Boston, and from his previous work as an assistant U.S. Attorney in Washington, D.C., Varghese shared insights and riveting anecdotes about what it is like to negotiate in the real world.

In the lecture, Varghese described three high-profile cases he worked on, and explained how the process of engaging in plea bargain negotiations provides a unique context in which to apply basic principles and theories of negotiation. While criminal law often features high-profile trials, he noted that 97% of cases are resolved through plea bargains.

He pointed out that several features characterize plea bargain negotiations. First, the stakes for defendants can be particularly high (often their lives are on the line). Second, the interests of defense counsel—seeking the best outcome for specific individuals—and the prosecution—representing the government and seeking the best outcome for a just society, broadly defined—often diverge significantly. Third, agreement reached through plea bargain negotiations involves a third party—a judge—who is not at the table, yet wields ultimate authority. Moreover, he said, plea bargain negotiations can be particularly complicated due to differing assessments of the law and uncertainties regarding the facts of a given case.

Varghese’s first example came from the case against Oscar Ortega-Hernandez, who shot at the White House in November 2011. After firing on the White House, Ortega-Hernandez fled and was ultimately apprehended after an extended manhunt. He was initially charged with the attempted assassination of President Barack Obama. However, during negotiations with defense counsel, this charge was dropped and Ortega-Hernandez was instead charged with destruction of property and discharging a firearm during a crime of violence, ultimately resulting in a 25-year sentence after the application of a terrorism enhancement. Varghese explained that the specific nature of the charge mattered to the defense, while the prosecution was more concerned with the ultimate sentence. This difference, he said, provided an opportunity to negotiate.

By contrast, he offered the Boston Marathon bombing case, where he said the focus of Dzhokhar Tsarnaev’s defense counsel was on avoiding a death penalty. According to Varghese, the defense was willing to accept a resolution of life imprisonment. The Department of Justice believed it was more appropriate to leave this issue to the determination of a jury. Varghese later explained the complexities of representing the public interest as a prosecutor, and how in some instances there was a compelling public interest in rigorously presenting evidence at trial and letting the jury decide. (At trial, Tsarnaev was sentenced to death.)

The case against fourteen employees of the New England Compounding Center provided a third distinct context. NECC, based in Framingham, Mass., was responsible for distributing contaminated drugs to patients in several states; nearly 800 people developed meningitis and other infections as a result of fungal contaminants. An investigation into NECC’s practices revealed that their facilities were improperly cleaned; mold and bacteria grew regularly inside NECC’s “clean rooms”; expired drugs were relabeled and reused; required tests for sterility and potency were not always conducted; negative test results were not shared with medical providers; and a pharmacy staff member worked there despite having his license revoked.

Varghese explained how the prosecutors spoke extensively with victims to ascertain their interests in prosecuting NECC, and how the governmental interests at play included revealing the fraudulent behavior to the public. While there was little opportunity to negotiate plea bargains with most defendants in this case, some of the lower-level actors did plead guilty and cooperated with the government. The strategy of negotiating with low-level actors can be effective in situations in which the government interest in obtaining testimony against higher level defendants outweighs its interest in charging everyone involved in wrongdoing.

Ultimately, the levers available to prosecutors in plea bargains consist largely of the specific charges to be brought and recommendations for sentencing. Defendants may care not only about the type and duration of sentences, but also the reputational costs of certain charges. Because plea bargain negotiations are confidential, prosecutors and defense counsel can be more candid and transparent in their assessment of the case, and this transparency facilitates frank discussions of the deals to be made (which can be helpful for prosecutors seeking agreement). At the same time, the lack of public transparency around these kinds of negotiations can mean that any given defendant has limited information to use in negotiating their deal. The dynamics of plea bargains are also strongly influenced by the rhythm of the criminal trial process—defendants may be more or less likely to consider striking a deal from moment to moment.

In the question and answer session, Varghese revisited one particular theme that emerged over the course of his talk: the notion of victims and the general public as stakeholders; what it means to consider the interests of victims or stakeholders; and how one even registers or understands those sentiments. Varghese recalled his experiences sitting down with victims of NECC’s fraud. Echoing the principles of active listening taught in the Negotiation Workshop, Varghese insisted on the importance of prosecutors’ efforts to ask open-ended questions about what victims had experienced, and what they wanted going forward.

Varghese’s visit to the Spring Negotiation Workshop is the latest installment in an annual feature of the course in which a prominent real-life negotiator speaks to  students about their professional negotiation experience in an area of practice. Past speakers have included Wendy Sherman (in 2016 and 2018), Sarah Hurwitz, Bob Barnett, Ron Shapiro, Rose Gottemoeller, Grande Lum, and Clifford Sloan. The Negotiation Workshop, offered during the January term and spring semester, combines theory and practice to improve students’ understanding of negotiation and their skills as negotiators.

Sheryl Dickey Named a 2019 Harvard Hero

By: Olivia Klein

OCP and OPIA staff with award winner Sheryl Dickey (middle)

The Office of Clinical and Pro Bono Programs (OCP) is proud to celebrate Sheryl Dickey, Attorney Advisor for the LL.M. Pro Bono Program, as she receives the 2019 Harvard Heroes Award. Sheryl has a been an integral part of the OCP office since she joined Harvard Law School (HLS). She is incredibly deserving of this recognition.

Sheryl joined HLS in 2013. She received her J.D. from American University’s Washington College of Law, and she later earned her LL.M. in Environmental Law from Vermont Law School. For several years, Sheryl worked as a litigator with White & Case LLP where she also represented several pro bono clients on matters related to family law and social security benefits. Sheryl went on to spend five years at Vermont Law School, serving first as a Clinical Fellow in the Environmental and Natural Resources Law Clinic (ENRLC) and then as an Assistant Professor, Acting Director and Consulting Attorney in the Clinic.

At OCP, Sheryl is a strong resource for HLS students interested in law firm pro bono work. She advises LL.M. students interested in in-house clinics, externships, and pro bono opportunities and provides J.D. students with general clinic advising. She has also been a leader on a range of special projects, including the development of an online ethics tutorial in collaboration with clinical faculty and the HLS Library and helping organize the HLS in the Community Event in April 2018 as a part of the HLS Bicentennial Celebration.

Sheryl’s thoughtful, attentive, and cheerful nature has made her an incredible asset to the office. In her glowing nomination, Lisa Dealy, Assistant Dean for Clinical and Pro Bono Programs, noted that Sheryl is “incredibly smart and detail-oriented . . . full of creative ideas and proactively addresses issues before they become problems.” Assistant Dean Dealy also stated that Sheryl is a “natural collaborator, facilitator, and innovative problem solver,” and is sought out as a teammate from others across departments. “Sheryl is the epitome of excellence in everything she does,” Assistant Dean Dealy exclaimed.

In response to receiving this award, Ms. Dickey stated, “I am deeply honored to receive this award. I am so grateful for the opportunity to work with an outstanding team at OCP and across the law school to help students gain practical experience while also serving the community.”

The Harvard Heroes program celebrates high-performing staff across every school, recognizing them for their dedication and accomplishments each school year. Nominated by their departments and peers, these staff members exemplify the best that Harvard has to offer in qualities such as leadership, service, teamwork, and innovation. Only 60 Heroes are named university-wide each year, making it an honor of great prestige.

The Office of Clinical and Pro Bono Programs extends its warmest congratulations to Sheryl!

From Student to Lawyer: My Time in the Environmental Law & Policy Clinic

By: Heather Romero, J.D. ’19

Heather Romero ’19

Looking back at the many opportunities afforded to me as a student at Harvard Law School, the one that was undeniably the most rewarding and impactful to my understanding of how to practice law was participating in the Emmett Environmental Law and Policy Clinic. Coming to law school, I knew that I was interested in environmental law but did not have a strong idea of what my area of focus could be. The Clinic gave me the space to explore different areas of environmental law and develop a set of skills that I can apply to the practice of law in any setting.

I was nervous when I first enrolled in the Clinic. I did not have an academic or professional background in environmental science and in many ways felt like an imposter among my classmates who had dedicated years of study and work to environmental issues. However, my apprehension was unnecessary. The faculty in the Clinic were, and continue to be, incredibly supportive and worked with me to leverage the skill-set I brought with me and build the skills I needed not only to be an effective environmental lawyer, but a strong advocate for my clients in general.

During my first semester in the clinic, I had the opportunity to work on an amicus brief written on behalf of farmers injured by the pesticide dicamba, which was eventually filed in the Ninth Circuit. Though working on the brief taught me much about legal writing, what was most impactful to me was being able to use my legal education to represent the interests of people who suffered real harm. I was also able to explore the ways just one pesticide can have long-lasting, wide-ranging effects. My research on this brief was my first exposure to the effects of modern agricultural practices on wildlife. Though a minor point in the brief, that research motivated me to explore the issue more in depth through two other course papers outside the clinic.

Additionally, one of the experiences in the Clinic I have found most valuable is the opportunity to work on interdisciplinary teams. After my first semester in the Clinic, I enrolled in Professor Jacobs’ Climate Solution Living Lab. The Lab consists of several teams comprised of diverse sets of students: my team included six students from five different Harvard graduate schools and MIT. My team’s assignment was to develop a project to mitigate climate change in the agriculture sector via a behavior change strategy. The Lab was the most challenging class I took at HLS. However, it also taught me the most about how a lawyer can add value beyond just being an advisor on the law—lawyers can offer critical insight on strategy, help manage disparate groups of experts, and ground a project in a way that specifically focuses on the client. My team was able to develop a project that would transition conventional farmland to alley cropping, a practice that can sequester carbon from the atmosphere while providing concrete financial benefits and increased climate resiliency to participating farmers.

Group photo of Heather's Living Lab Team

Group photo of Heather’s Living Lab Team

My experience in the Lab brought me back to the Clinic for both semesters of my 3L year. For my last semester, I am again participating in an interdisciplinary team in which I am the only law student. My team is advising a group of Florida municipalities on formalizing a partnership to develop climate change adaptation strategies. This experience has allowed me to practice the skills I developed in the Lab and build on them even more. I’ve also worked much more closely with our clients than in previous projects, giving me the opportunity to gain experience in working directly with clients. I even will be able to travel to attend our clients’ final stakeholder meeting  of the semester and share our research and advice in person.

Participating in the Environmental Law Clinic has given me my most valuable experiences in law school. No other class has taught me as much about how to be a lawyer in the real world. I feel confident that I am prepared to start my legal career because of the skills I learned in the Clinic and am excited to continue working on issues of climate change mitigation and adaptation.

The Small Victories Mean the Most

By: Gege Wang, J.D. ’19

Gege Wang ’19

Gege Wang ’19

Before leaving law school, I wanted to gain some exposure to public interest and legal services work. I chose to gain this experience through the Employment Law Clinic because it is an important area of law that I wanted to learn before practicing. My clinical placement was at Greater Boston Legal Services (GBLS). It is the most highly respected legal services organization in the Greater Boston area and its employment unit is particularly renowned for its dedication and expertise. While working there, I was under the direct supervision of the head of the employment unit, Mr. Brian Flynn.

One of the most memorable takeaways from my time there is  the passion and belief the staff attorneys bring to their work.  The rapport between the attorneys and their clients is so genuine. The clients that GBLS is devoted to are vulnerable to unfair and exploitative employment practices for one reason or another, whether because they are poor, underrepresented racial minorities, undocumented workers, or people with disabilities. A three-month unemployment benefit that the staff attorneys helped them to fight for might seem like a small victory in monetary terms, but it means so much to low wage workers, who needed to support their family. The attorneys care about their clients’ mental health issues and they spend the time and energy to understand their clients’ community. They discuss how the case strategies in a particular matter can have wider social implications. There is no profit underlying the attorney-client relationship. When the attorneys say they wanted to help their clients, that is truly what they meant.

The most meaningful assignment I worked on at GBLS was a class action suit against a restaurant employer. I spent a lot of time conducting clients intake and collecting material facts that would be later summarized in the facts section of our complaint. I listened to their stories and understood why they feel the system has wronged them. Confronted with such real, raw accounts of hardship, I thought about how I can use the learning and  skills I have gained from law school to be a better advocate for them.

One unique feature about GBLS as a legal services organization is its decision to refuse to give up on using class action as a strategy to promote social changes. The Legal Services Corporation (LSC) has certain restrictions on legal aid programs that are eligible to receive LSC funds, including the restrictions on engaging in class action lawsuits and legislative advocacy. GBLS is committed to fully utilizing all these tools and legal options to provide its clients with the best representation, so it decided to forgo LSC funding. My involvement in this class action case made me think about how class-action suits are such an important device for public interest lawyering, especially in the context of employment law. Employers are typically the repeat players in the larger legal machine. They are the parties who structure the transactions, draft the contracts that govern the employer-employee relationship, and have abundant legal resources to resolve disputes. The employees, on the other hand, are the one-shotters (people who do not use lawsuits often) and they are disadvantaged because of lack of bargaining power and information asymmetry. Using class action and gathering multiple claimants with the same grievances, the balance of the scale is changed. GBLS itself is the repeat player in the employment space, and employees are now in the position where they are afforded with the repeat player advantages, such as litigation expertise and efficiency in litigation expenses. This is why my class action assignment at GBLS is so important to me.

Sometimes, the readings, assignments and exams at the law school can be overwhelming, which is why I was so grateful for clinical experience. Working for the attorneys at GBLS constantly reminded me of why I chose to go to law school and re-charged me with the sense of purpose. I enjoyed the contagious atmosphere at GBLS where everyone is passionately and humbly pursuing what they believe in, and siding with the underdogs and have-nots to make changes to the world. It is a very inspiring experience.

My Time with the Mississippi Delta Project

By: Emanuel Powell, J.D. ’19

From left to right, Emanuel Powell ’19, Sacajawea “saki” Hall, a Environmental Justice Initiative Client at Cooperation Jackson, and Megan Barnes ’19. Students interviewed saki and other community activists, jurists, and lawyers to learn about criminal legal issues in Mississippi.

From left to right, Emanuel Powell ’19, Sacajawea “saki” Hall, a Environmental Justice Initiative Client at Cooperation Jackson, and Megan Barnes ’19. Students interviewed saki and other community activists, jurists, and lawyers to learn about criminal legal issues in Mississippi.

Back in 2015, I decided to become an attorney so I could play my part in what I saw as the continuing efforts of the Mississippi Freedom Struggle. Despite the end of Jim Crow’s form of legalized and explicit racial subordination, my home state still ranks last in “almost every leading health outcome” with a disproportionate burden on Mississippi’s black population and other communities of color, according to the Mississippi State Department of Health. This situation is directly linked to our state’s unique history of discrimination, exclusion, and ongoing lack of investment to radically change the conditions in which people are born, work, grow, and age. I decided to go to law school to explore how I may support those fighting in Mississippi to make my state a home in which poverty, hunger and homelessness were not tolerated, where Dr. King’s “Beloved Community” could finally be realized.

Because of these goals, I asked everyone I could about Harvard Law’s Mississippi Delta Project. The Mississippi Delta Project (MDP) is a student practice organization dedicated to supporting Mississippi-based organizations fighting for racial, economic, and other forms of social justice by providing research and guidance on policy issues. An HLS alum created the project after learning from community partners based in Mississippi that there was a need to support local farmers. I wanted to be part of an organization that not only put the needs of Mississippians first, but met those needs with legal and policy strategies as only an attorney could. The presence of MDP on campus made it easy to choose HLS when the time came to make the decision of where I would spend my three years of law school.

I joined MDP in my first semester, working on our Child and Youth Initiative. Our project focused on exploring ways to invest in advocacy for children in Mississippi. I helped create MDP’s Criminal Justice Initiative to address issues in the criminal legal system in my second year. We collaborated with the MacArthur Justice Center at the University of Mississippi, which advocates for human rights and social justice through litigation, focusing on issues such as police misconduct, wrongful search and seizure, conditions of confinement, and juvenile justice. Through interviews with leading jurists, attorneys, activists, and politicians, we developed a project with MacArthur focused on improving community engagement and advocacy so that Mississippians can advocate for themselves against injustices in the criminal legal system. This initiative has meant a lot to me because I lost my cousin Ronnie “Pie” Shorter in a police shooting during my 1L year. It gives me hope that our project may help Mississippians better advocate  against  injustices  like what happened to Ronnie and continues to happen to so many others in Mississippi and around the  country.

In my time with MDP, we’ve worked with Mississippi-based organizations fighting to get access to the Supplemental Nutrition Assistance Program for those who have served their sentence for felony convictions, improved access to reproductive health for youth, and help make the City of Jackson zero-waste.  I could not have  asked  for a better place to start building my career as a lawyer in the ongoing Freedom Struggle. I am excited to  see MDP continue its great work and look forward to cheering on as an alum.

Legal Services Center Housing Clinic wins precedent setting case for domestic violence survivors facing eviction

Via the Legal Services Center

Source: flickr

Survivors of domestic violence in Massachusetts and nationwide facing eviction have won a major victory in the Supreme Judicial Court of Massachusetts (SJC)* with a new ruling that the federal Violence Against Women Act (VAWA) protects tenants in federally subsidized housing from being evicted when the cause of eviction is tied to their domestic abuse. The court ruled that a domestic abuse survivor is protected even if he or she reveals the abuse late in the eviction process or after defaulting on an agreed upon payment plan, and that it doesn’t matter when or how the survivor alerts the court and the landlord that she is the subject of abuse.

The new precedent reduces the risk that domestic violence will lead to eviction and homelessness, a decision that has vital implications for survivors of domestic violence who are facing eviction in Massachusetts and across the nation.

The decision marks the end of a multi-year effort by a low-income Boston tenant to stay in her home. The client in this case, Y.A., is a mother of two who had been in an abusive relationship and had been trying to stave off eviction since 2014, when she first received an eviction notice for nonpayment of rent. Her abuser subjected her to physical and emotional abuse and stole the income she earned from her job.

At a hearing in the Eastern Housing Court in January 2018, where she was facing immediate eviction, Y.A. explained that domestic violence caused her to fall behind on her payment plan. Nevertheless, the judge granted the Housing Authority’s motion to forcibly remove Y.A. from her home. In doing so the judge ignored a key provision of VAWA, the landmark 1994 law, which includes protection for tenants and applicants of federally funded subsidized housing from denial of housing or eviction from housing “on the basis that the applicant or tenant is or has been the victim of domestic violence.”

The WilmerHale Legal Services Center of Harvard Law School (LSC) began representing Y.A. after she lost her case in Housing Court and helped her appeal the decision. The SJC took up the appeal of its own accord, and the case received national attention, with 14 advocacy groups filing amicus briefs in support of the survivor. Oral argument was held on January 7, 2019.

The SJC’s May 10, 2019 decision was unambiguous, declaring that: a survivor may raise a VAWA defense to eviction at any time during an eviction proceeding; there is no prescribed method or words needed to do so; there is no restraining order prerequisite to prove eligibility for the defense; domestic violence can be disclosed to the court without first disclosing to the landlord and still form the basis for a defense; the defense can be raised even in instances of chronic non-payment; covered housing providers have an affirmative duty to help survivors and not evict them for reasons directly related to domestic violence; and that judges, upon hearing evidence of domestic violence, are obligated to inquire further to fully evaluate the applicability of VAWA and write findings before issuing decisions.

“Housing is a basic human right, and stable housing is critical to stemming the cycle of the trauma faced by survivors of domestic violence,” said Congresswoman Ayanna Pressley, Representative of the Massachusetts 7th Congressional District. “This ruling is a victory not only for Y.A. and LSC, but for every survivor who has faced housing instability as a result of domestic violence. I’m eternally grateful to Y.A. for her bravery and to LSC for reaffirming protections for survivors.”

Before releasing its full opinion, the SJC issued a brief order reversing the Housing Court’s earlier decision. The order allowed LSC to negotiate a new agreement with the Housing Authority on behalf of Y.A. that will allow her to stay housed and avoid another hearing in Housing Court.

Y.A., who fought her eviction for years without legal representation before finding LSC, expressed her happiness at the decision after a long and difficult fight, saying, “I tried for so long to get help, and to explain my situation. When [the Housing Authority] told me I had to leave the apartment, I cried, night and day. It was wonderful to get help from LSC, and I’m so glad that my case will help others.”

The result represents the culmination of a determined, collaborative effort by LSC’s Housing Clinic, including lecturer and attorney Julia Devanthéry, clinical student Emily Mannheimer ’19, and numerous allies around the state who helped prepare the Clinic for oral argument. Massachusetts-based organizations contributing amicus briefs in the case include the Boston Area Rape Crisis Center, Casa Myrna, the Domestic Violence Institute of Northeastern University School of Law, Greater Boston Legal Services, the Foley Hoag Domestic Violence Prevention Project, Jane Doe Inc., the Massachusetts Law Reform Institute, the Volunteer Lawyers Project, and the Women’s Bar Foundation. In addition, national and out-of-state organizations including the ACLU of Massachusetts, the ACLU Women’s Rights Project, Community Legal Services of Philadelphia, Mid-Minnesota Legal Aid, the National Housing Law Project, the National Network to End Domestic Violence, and the Sargent Shriver National Center on Poverty Law filed amicus briefs with the court.

The SJC’s decision not only had a clear and immediate impact for Y.A. in this case, it also created an important precedent that will be useful to housing advocates in Massachusetts and across the country. Daniel Nagin, Faculty Director of the Legal Service Center, described the decision as “a powerful example of how LSC’s individual representation cases have the potential to make real change for entire communities.”

* Boston Housing Authority v. Y.A

Read the full SJC decision: https://www.mass.gov/files/documents/2019/05/10/12623.pdf

Project on Predatory Student Lending Director Toby Merrill Honored by the American Constitution Society

Via the Project on Predatory Student Lending

Toby Merrill Credit: Martha Stewart

At the American Constitution Society’s National Convention in Washington, D.C. this week, Project on Predatory Student Lending director and founder Toby Merrill was honored as a finalist for the prestigious David Carliner Public Interest Award. The American Constitution Society(ACS) is the nation’s leading progressive legal organization.

David Carliner, whom the award honors, was a champion of justice throughout his career, devoted to protecting civil and human rights and combating injustice on a systemic basis. The award recognizes outstanding public interest lawyers whose work best exemplifies Carliner’s legacy.

Toby has been a fierce advocate for students cheated by for-profit colleges since she founded the Project on Predatory Student Lending in 2012, and has since led the Project’s team of attorneys in winning groundbreaking court victories in landmark cases protecting and advancing the rights of defrauded students. The Project is part of Harvard Law School’s clinical program, and a number of its clinical students have gone on to pursue careers to attacking the big, systemic issues that have allowed such a predatory industry to thrive for so long.

“David Carliner was a true civil rights champion, and I’m honored to to be associated with this award named for him,” Toby said. “The Project’s clients have been treated so unfairly—first by a predatory industry and then by a government that refuses to recognize their rights. This recognition is a testament to their willingness to stand up and fight for their own rights and the rights of the millions of students across this country who were seeking a better life through higher education, and instead were lied to and ripped off by for-profit colleges. The billions of dollars of debt that the government tries to collect from them every day is illegitimate.

“In addition to our clients’ bravery and perseverance, the Project’s work is driven by its dedicated staff and clinical students,” Toby added. “They inspire me every day, and I’m lucky to stand up for our clients with such an amazing team.”

The Project represents thousands of former for-profit college students across the country. The Project has cases against for-profit college companies, and against the Department of Education for enabling and supporting this predatory industry. Many of the Project’s clients are people of color, veterans, and immigrants. Most are the first in their family to attend college. The Project’s work supports its broader goals of economic justice and racial equality.

The Project is part of the Legal Services Center of Harvard Law School (LSC), a community law office and clinical teaching site of the law school. Clinical students join the Project’s staff to litigate cases on behalf of clients, in partnership with community-based and advocacy organizations.

 

FLPC Releases Issue Brief Calling for Federal Legislation to Standardize Date Labels

Via the Center for Health Law and Policy Innovation

The Harvard Law School Food Law and Policy Clinic (FLPC) released an issue brief that outlines the need for federal legislation to standardize date labels on food products. Date Labels: The Case for Federal Action describes existing government and industry efforts to standardize date labels and presents the case for why federal action is needed.

40% of the food in the United States goes uneaten. This wasted food has significant impacts on the economy, food insecurity, and the environment. The majority of food waste happens in consumer homes and consumer-facing businesses, and confusion over date labels is a significant cause of food waste.

Federal law does not regulate the use of date labels on food products, with the exception of infant formula. In the absence of federal regulation, states have developed their own date labeling laws. 41 states require date labels on at least some food products, and 20 states prohibit or restrict the sale or donation of food past the labeled date. Even in states that require date labels, manufacturers have broad discretion over how the dates on foods are selected. Most date labels are indicators of quality; however, many consumers and businesses mistakenly believe they are indicators of food safety. According to a surveyconducted by FLPC, the Johns Hopkins Center for a Livable Future, and the National Consumers League, 84 percent of consumers at least occasionally discard food close to or past the date on its package, and one-third of consumers report they always do so.

Recognizing that confusion over date labels leads to unnecessary food waste, government and industry actors have made significant efforts in recent years to standardize date labeling language on food products. At the state level, eleven states introduced bills in the 2017-2018 legislation session that seek to standardize date labels or eliminate unnecessary date labeling requirements. On the industry side, the most significant industry action was the voluntary Product Code Dating Initiative, launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA). This initiative encourages manufacturers and retailers to use standard date labeling phrases on consumer-facing food packages to indicate quality and safety (read FLPC’s blog post about the initiative here). Most recently, FDA released a letter encouraging the food industry to use the phrase “Best if Used by” on food products to indicate quality. This is the same standard quality date phrase used by the Product Code Dating initiative.

These initiatives represent significant progress, but as the issue brief demonstrates, they are not sufficient to achieve standardization of date labels nationally. Due to the continuing patchwork of state date labeling laws, voluntary initiatives cannot fully cure inconsistent date labeling language. FLPC’s analysis found that the Product Code Dating Initiative conflicts with state laws in 27 states for at least one food product, meaning that manufacturers cannot use the voluntary standard in those states.

Moreover, state and industry initiatives cannot provide consistent education to consumers across the country. Because manufacturers cannot use the same date labeling language everywhere due to state laws, it remains difficult to educate consumers about what date labeling language means.

This issue brief demonstrates that federal legislation is necessary to achieve true standardization of date labels nationally. Federal legislation should require that manufacturers or retailers who choose to use date labels on foods use one of two prescribed labeling phrases: “BEST If Used By” to indicate quality, and “USE By” to indicate safety. These terms are consistent with the voluntary Product Code Dating Initiative. Federal legislation should also preempt state laws that ban the sale or donation of food past the quality date, and create a national consumer education campaign to inform the public about the meaning of these labeling terms.

FLPC has been advocating for the standardization of date labels since the release of its 2013 report, The Dating Game. We are pleased to see so much progress towards standardizing date labels at the state and industry level, but these efforts have limitations. As this issue brief demonstrates, it is time for a federally standardized date labeling system, and we look forward to working with federal and industry partners to develop such a system.

Read Date Labels: The Case for Federal Action.

Public Health and the Law: Planting the Seeds for Healthy Food Access

By: Grace Truong, J.D. ’19

Grace Truong ’19

I joined the Health Law and Policy Clinic because I wanted to experience firsthand how communities use policies to promote a culture of health. As a JD/MPH Joint Degree student at Harvard Law School and Harvard T.H. Chan School of Public Health, I have been exposed to health policy largely in a classroom con- text. My coursework showed me the complexities of the U.S. healthcare system and the barriers to healthcare access that many Americans face. But while my classes taught me the problems associated with this lack of access, I wanted to put my learning to practice by actually implementing policies to address these problems.

Through the Clinic’s Community Approaches to Public Health Projects, I was able to work on both national and local policy to expand access to healthcare for vulnerable populations and reduce health disparities. My projects largely centered on the social determinants of health. In particular, I worked with communities to build a culture of easy access to healthy, affordable food. Food insecurity and overconsumption of unhealthy food is associated with a multitude of negative health outcomes, including: diabetes, cardiovascular disease, cancer, and other chronic diseases. The clinic has worked with national and local advocacy groups across the country to implement innovative policies that reduce sugar consumption and increase healthy food access.

On the national level, our team provided law and policy technical assistance to various state advocacy leaders, empowering these advocates to enact policies that will lower population-level consumption of sugar. I had the chance to meet and work closely  with community champions to build a strategy for short- and long-term policy change. On the local level, my projects focused on broadening access to nutritious and affordable foods. The Clinic gave me the opportunity to travel for site visits around the country, meeting our clients where they were to better understand  their questions and goals. In one site visit, I found myself in a freezer room wearing a hairnet and gloves, surrounded by pack- aged vegetables and fruits. We were meeting with a  community kitchen to build community-use policies that increased access to vital and unique food production resources. In another, I found myself trekking across vegetable fields and herb gardens. We were meeting with a community farm dedicated to providing healthy produce to vulnerable populations and promoting agricultural education opportunities. Together, we created policies for the farm that increased the community’s access to the space for education, recreation, and healthy food production.

The Health Law and Policy Clinic was an incredible experiential learning opportunity. The hands-on experience of shaping health policy has been a unique highlight of my HLS education, and I look forward to honing these skills further throughout my career in law and in public health.

“No Matter What It Takes”

By: Laura Stelianou, J.D. ’19

Laura Stelianou ’19

Before law school, I was a kindergarten teacher and about one third of my students had disabilities. I helped implement and develop plans to meet their individualized needs. I earned a master’s degree in special education. Yet, my coursework did not focus on the law and I was far from fluent in the specific rights of students with disabilities. The families of many of my students similarly did not know all of the rights afforded to children with disabilities and some felt a lack of agency during special education meetings. Our laws nonetheless rely heavily on families to participate in the special education process and, when necessary, advocate for their children’s rights. For families with fewer re- sources, whose home language is not English, or whose children have experienced adverse experiences, it can be particularly daunting to navigate the system. I knew when I started at Harvard Law School that I wanted to participate  in the Education Law Clinic to gain a better understanding of special education law and support families to advocate for their children.

Through the Education Law Clinic, students engage in individual special education advocacy as well as systemic change projects to ensure that children who have endured adverse childhood experiences succeed in school. My clinical experience taught me that knowledge of the law is an incredible, albeit limited, source of power.

In the Clinic, I represented a high school student whose school district failed to provide an appropriate school placement, which left him with minimal access to education for many months. The student, who is incredibly bright, funny, and introspective, said he wanted to graduate “no matter what it takes.” This would be impossible without an  appropriate placement. With the help of an expert and the support of the Education Law Clinic, the student is now closer to achieving his goal of graduating. For our systemic change project, students in the clinic traveled to community service agencies across the state, including agencies in Lawrence, Taunton, and Dorchester, to give trainings on education law. We trained providers such as family partners and care coordinators, who teach and assist families to access re- sources and services including special education. I was struck by the strong engagement of the providers at the trainings. More than once, after we presented an aspect of the law, providers expressed surprise that certain rights existed or shared anecdotes of schools’ failure to comply with students’ rights. Many expressed a sense of empowerment and shared their plans to reference aspects of the law in the future to support students.

Knowledge of special education law was a source of power in my clinic work, but educational inequities remain even when families are equipped with knowledge. In our clinical course, we discussed ways that education laws operate unequally. For example, while some families can ensure appropriate placements for their children by changing a placement immediately, paying for it themselves, and later advocating for reimbursement from the school district, many families lack the resources to pursue that option. Independent evaluations help inform students’ placements. Families with knowledge and resources can access experts for independent evaluations, while others face long waitlists or cannot afford high quality experts. In our clinical course, we also discussed racial inequities in education, including disparate rates of school discipline for students of color. Relatedly, I observed the way that educational disparities influence children’s experiences when I interned with a juvenile judge through Harvard’s Child Advocacy Clinic. I witnessed several instances in which children’s educational opportunities were tied to their involvement with the juvenile justice or child welfare systems.

My experience in Harvard’s clinics has empowered me with a fluency in special education law that I can now use to both enforce rights and teach others. After law school, I plan to work in education law and advocate for educational equity broadly. On an individual level, if I have children, this will mean making appropriate choices about where they go to school and advocating for all children in the school. I encourage my fellow graduates to join me in considering their role in promoting educational equity as they educate their own families.

 

Lynn Weissberg receives an honor from the Massachusetts Chapter for the National Lawyers Guild

By: Alexis Farmer

Lynn Weissberg

On May 17, 2019 the National Lawyers Guild – Massachusetts Chapter (NLG) celebrated its fifty year anniversary at St. Paul African Methodist Life Center in Cambridge. The NLG celebrated its achievements in supporting social movements over the years, from defending anti-war demonstrators against criminal charges in the late 1960s to representing labor unions, prison activists, tenants with substandard housing conditions, and tenants in eviction proceedings more recently. During the celebration, the organization honored long-time activist and former clinical instructor at Harvard Law School Lynn Weissberg.

Lynn Weissberg has been a fierce advocate for social justice throughout her forty-year legal career. At Weissberg & Garin LLP, Weissberg vigorously fought on behalf of her clients in a wide variety of employment cases, representing academics and professionals, low-wage workers, and women facing discrimination in non-traditional jobs such as firefighters and heavy machine operators. She is a founding member of the Massachusetts Employment Lawyers Association and was an Executive Committee member and committee chair until her retirement.

Weissberg has often been politically active since her college days. While at Brandeis University, she worked on Al Lowenstein’s congressional campaign and after graduating cum laude in 1969, she worked for former New York City Mayor John Lindsay. Believing teaching was a way to promote social change, she received her Masters of Arts in Teaching from Harvard in 1972 and taught for five years at the George Bancroft School, an alternative public school in Boston’s South End. After graduating cum laude from Boston College Law School in 1979, Weissberg worked as a staff attorney at the Massachusetts Commission Against Discrimination, representing people who had been discriminated against in employment and housing.

For over 35 years at the Tenant Advocacy Project, Weissberg supervised law students who represent public housing tenants in eviction cases and Section 8 tenants in subsidy termination cases. Through her work at TAP, hundreds of tenants were able to keep their homes. Many law students gained practical experience and a wonderful mentor and role model under Weissberg’s guidance.

Congratulations to Lynn Weissberg on a well-deserved honor. We are profoundly grateful for all of your years of service supervising and mentoring students, and advancing access to affordable housing for people in Greater Boston.

Lynn joins a list of other Harvard Law School clinicians honored by the National Lawyers Guild Massachusetts Chapter, including Deborah Anker, David Grossman, Nancy Kelly, John Willshire-Carrera, and John Salsberg.

Two Clinical Staff Members Receive the Dean’s Award for Excellence

Congratulations to Dana Walters and Carol Flores, who are recipients of the 2019 Dean’s Award for Excellence. The award honors staff members who exemplify the spirit of excellence in the Harvard Law School community through leadership, collaboration, commitment and innovation.

Carol Flores, Administrative Coordinator, Criminal Justice Institute (CJI)

Carol Flores

Since August 2016, Carol Flores has managed the logistics of both the Fall and Winter Trial Advocacy Workshops, each of which consists of about 100+ students, 90+ visiting faculty members, and 30-60 volunteers.  When a new Trial Advocacy winter session course was announced as part of the Law School’s 1L January Experiential Term, Carol jumped in to help.

With the spirit of innovation and collaboration, Carol partnered with the program’s director and other team members, created monthly and weekly meetings to keep things organized, took on extra work, and brought everything together to support the creation of the inaugural 1L Introduction to Trial Advocacy Workshop. She did all of this on top of maintaining her roles as faculty assistant and administrative coordinator to CJI and pursuing a degree in Legal Studies at the Extension School. Carol also recently became the first-ever staff member to receive the Harvard Women’s Law Association Shatter the Ceiling Award, which recognized her strong impact on the student body. Her nominators note, “Carol’s positive can-do attitude is undoubtedly reliable, and her work product is seamless. Her dedication and drive are both forces to be reckoned with. Carol is always reflecting and looking for ways to do things even better the next time. She is humble, dedicated, hardworking, and driven to make sure whatever she touches is the best it can be.”

 

Dana Walters, Program and Communications Coordinator, Human Rights Program (HRP)

Dana Walters and Dean John Manning at the Dean’s Award for Excellence Ceremony on May 22. Credit: Martha Stewart

Dana joined the Human Rights Program in 2017, and quickly established herself as an exemplary colleague. She works collaboratively, innovates to increase impact and efficiency, and leads important aspects of the Human Rights Program. Supporting both the clinic and the academic program, Dana also took on communications responsibilities when a colleague left and did so with seamless transition. Since then, she has started an Instagram account and has significantly expanded the HRP presence and reach across numerous platforms, tailoring our outreach to different constituents and increasing engagement with HRP’s work.

Because of her collaborative nature and creative problem-solving skills, Professor Giannini asked Dana to work with him on innovative pedagogy projects. She has supported HRP’s advanced human rights clinical seminar and J-term courses where she actively facilitates group activities and helps design sessions. Her nominators describe her as “exceptional” and note that they “feel privileged to work alongside such a dedicated and creative colleague, highlighting that, “Dana has excelled in promoting a culture of collaboration across the Program, and is committed to seeing challenging tasks through to completion.”

Becoming a Cyberlaw Advocate

By: Alexandra Noonan, J.D. ’19

Alexandra Noonan, J.D. ’19

I have had two wonderful opportunities to work with the Cyberlaw Clinic. Reflecting back on my time at Harvard Law School, both of these opportunities shaped me as a lawyer and as an advocate.

I originally decided to participate in the clinic because its work aligned with my interests and values. I entered HLS very interested in intellectual property, digital civil liberties, and privacy and wanted a chance to learn about these areas in a hands-on way. During my first project, I worked primarily on my client-counseling skills as my partner and I helped a city develop its first data privacy policy. Professor Susan Crawford supervised us but let us define the scope of the project, work directly with our clients, and interview other city officials all over the world.

It was during my advanced clinical with the Cyberlaw Clinic  that I developed enough ownership in my work to consider myself an advocate. Over the 2019 winter term, I drafted an amicus brief for a group of former United States Magistrate Judges advocating for the unsealing of government surveillance orders  and applications. Jason Leopold, a BuzzFeed News journalist, and the Reporters Committee for Freedom of the Press appealed a district court decision granting the parties only limited access to the old sealed applications and orders for pen registers, trap and trace devices, and other types of surveillance for which Leopold had petitioned. As amici, the United States Magistrate Judges wanted to help the D.C. Circuit understand why unsealing these old surveillance applications and orders would not place undue administrative burdens on the judges who would actually process them. They also wanted to explain why focusing on administrative burdens place undue limits on the public’s common law right of access to judicial records.

This project was my first opportunity to write a brief from start to finish. Although I had assisted with parts of briefs in the past, this was my first opportunity to define the main arguments and structure, draft the brief in full, and refine it with my clients. In just a few weeks, I learned everything about sealed surveillance applications and orders, from the law governing their approval and use to what judges on the ground do when they receive them. Each of my clients had tens of years of experience on  the bench and with sealed orders, but they were extremely gracious and appreciative of my work. At the same time, my supervisors Kendra Albert and Mason Kortz helped me work on  structuring an amicus brief and improving my prose, even though we were up against a very tight deadline. I have worked on a lot of projects in my time at HLS, but this one in particular took me from law student to lawyer.

I am so grateful for my time in the Cyberlaw Clinic and for the incredible instruction I received there. The projects I have worked on were exactly the kind of work I had hoped to do when I decided to attend HLS. Although I plan to practice patent litigation next year at a law firm, the skills that I have acquired in the clinic have helped me become a more confident lawyer and more effective advocate.

Tackling Legal Questions for Start-Up Clients with HLEP Defined by Law School Experience

By: VJ Vesnaver, J.D. ’19

VJ Vesnaver, J.D. ’19

Working with The Harvard Law Entrepreneurship Project (HLEP) was one my most meaningful and fulfilling experiences during my time at HLS. I came to law school with the intention of gaining the skills necessary to help early stage companies navigate mission critical legal questions. HLEP gave me an opportunity to develop and hone those skills almost from day one. 1L year can be a bit of a grind. For students interested in corporate and transactional law, it can be especially draining since the required curriculum has limited relevance to your career interests. SPOs like HLEP offer a phenomenal opportunity  to step outside of the classroom as a first-year while using your newly acquired legal knowledge to add value on real client projects with help from actual practicing attorneys at firms like Cooley, Goodwin, Fenwick, and Wilson Sonsini.

During my first semester of law school, I worked with a group of four other students as a team leader on my first HLEP project. Our client was an early stage non-profit organization working to build a legal-tech platform that enabled prisoners to easily file post-conviction petitions with the court. Their product allowed prisoners to continue their legal process on their timeline and with limited resources. Our client had tons of interesting questions about how to build their product in a compliant fashion and we were thrilled to be able to help so early in our legal careers. We also were incredibly lucky to be working with two seasoned attorneys from Cooley on this project. We were learning and developing new skills every step of the way. Our client was ultimately able to use our advice to shape the development of their product and to assist in fundraising efforts with outside donors. Seeing the immediate impact of our work on an actual client’s business model was truly inspirational. I was hooked.

After my rewarding experience as a team leader during the fall semester, I joined the HLEP board as the Director of Operations that following spring. This gave me the incredible opportunity to serve in a leadership position as a first-year student, while also providing exposure to the full range of interesting projects that were coming through our doors at HLEP. In my time as Director of Operations (and later as President), I was repeatedly blown away by the diversity of clients that our students were working with. We had clients ranging from a company working to launch a network of satellites into space (my first introduction to “space law”), to a team at Harvard College working to re-imagine how we interact with online news media, to a founder launching a children’s clothing line. We’ve had students join client teams as co-founders and client companies fall apart and disappear mid-project. There was truly never a dull moment.

I was drawn to HLEP because of the amazing exposure to interesting startups and hands-on legal work, but there is no doubt that I stayed because of the people. HLS is a huge place with seemingly unlimited opportunities to engage and learn. It’s completely amazing, but it can also be a little overwhelming. Finding a group of students with similar interests was crucial to my well-being and made me instantly feel that I had a community to return to whenever I began entertaining creeping doubts about my path at school or in my career. I made many of my best law school friends through HLEP, and found that there was truly no better way to engage with other people interested in the world of innovative startups and the unique legal challenges they face.

I’m incredibly grateful to have had the opporutnity to be a part of such an awesome orgniazation while at HLS. I’m headed to BCG in Seattle after HLS to work as a management consultant. While this is a bit of a pivot outside of the world of start-up law, the client management skills, creative problem solving practice, and leadership experience I gained through my work with HLEP will be an invaluable resource as I embark on this next phase in my career. Thanks so much to Linda Cole and everyone within the TLC and OCP for helping us build such an impactful organization at HLS. I can’t wait to continue working with HLEP as alum in the years to come.

Asseret Frausto J.D. ’19 wins CLEA’s Outstanding Clinical Student Award

By: Lee Mestre

Asseret Frausto ’19. Credit: Lorin Granger.

Asseret Frausto ’19 is the winner of the Outstanding Clinical Student Award from the Clinical Legal Education Association (CLEA). The award is presented annually to one student from each law school for outstanding clinical coursework and contributions to the clinical community. Students are nominated by full-time clinical faculty at each law school with faculty who are members of CLEA.

Those who nominated Frausto cited her persistence, thoroughness, and thoughtfulness in making her a truly outstanding clinical student and advocate. In the Family Law and Domestic Violence Clinic and multiple semesters in the Harvard Immigration and Refugee Clinical Program (HIRC), she earned Honors and Dean’s Scholar prizes in both clinical and coursework. Her nominators from HIRC proudly claim, “Throughout our work with her, Asseret has displayed exceptional creativity, sharp intellect, and unwavering dedication to social justice.”

In the Immigration and Refugee Clinic, she performed exceptionally well and demonstrated herself to be a skilled and extremely conscientious advocate with an unparalleled command of the humanitarian protections she helped her clients apply for. Instead of focusing on just one area of the law, Asseret tackled multiple cases involving a diverse array of legal protections, including asylum, withholding of removal, protection under the Torture Convention, and U visas. With all of these cases, she had to contend with learning complicated new material, while at the same time balancing client crises and needs.

According to her nominators, Asseret, a first-generation Mexican-American student who was raised on both sides of the Tijuana-San Diego border and learned English as a second language, excelled at building rapport with asylum seekers and leading client meetings. They said she consistently went above and beyond to make her clients and their families feel comfortable and, as a result, was able to elicit sensitive and critical information central to the development of asylum claims and prepare clients for tough questioning. She worked closely with each client, spending hundreds of hours preparing for immigration court hearings and was, in their estimation, one of the best students HIRC has seen at direct and cross-examination, possessing an excellent ability to appreciate different viewpoints and the capacity to thrive in a variety of different spaces.

Prior to law school, she worked at the tech company Oracle in Silicon Valley. She spent her 1L summer as a Diversity Fellow at White & Case in Los Angeles and at Facebook’s HQ in Menlo Park. She spent her 2L summer at O’Melveny in Los Angeles and in D.C. At HLS, she served as the Co-President of La Alianza, a student attorney with the Prison Legal Assistance Project (PLAP), a board member of HL Central, and a member of the Women’s Law Association (WLA). Next year Asseret will clerk with Judge Mendez in the Eastern District of California.

 

Refugee Protection at Risk: Remain in Mexico and Other Efforts to Undermine the U.S. Asylum System

Via Harvard Law Review Blog 

Tijuana, Mexico – Long lines of both cars and pedestrians wait on the Mexican side of the border to cross from Tijuana to San Ysidro, California. The Tijuana – San Ysidro crossing is widely considered to be the world’s busiest land border crossing. Otay Mexico border crossing, U.S. Customs and Border Protection Otay Mesa Port of Entry.
Source: iStock

By: Sabrineh Ardalan

For the past year, the Trump administration has been hard at work trying to unilaterally rewrite asylum law.  Its latest attempt, the so-called Migrant Protection Protocols, informally known as Remain in Mexico, is yet another unlawful gambit.

Announced in January by former Secretary of Homeland Security Kirstjen M. Nielsen, Remain in Mexico requires that certain asylum seekers leave the U.S. and wait in Mexico while their cases are pending in U.S. immigration court.  The policy makes it almost impossible for these individuals to access counsel and precludes them from effectively presenting their claims for relief in court.

The U.S. government has sent around 6,000 asylum seekers back to Mexico since this policy was first enacted. The asylum seekers, many of them families from Central America who have suffered brutal violence and threats of death, are then forced to wait in Mexico for the duration of their court proceedings.

Given the current backlog in the immigration system, the policy could mean years without a place to call home, under precarious conditions in Mexico, where migrants are often targeted for kidnapping and attack.  And given Mexico’s aggressive practice of rounding up and deporting Central American migrants, this new policy puts these asylum seekers at significant risk of return to torture or death in their countries of origin.

The Remain in Mexico policy is legally problematic on any number of fronts, but I will focus on three here.  First, it flies in the face of U.S. obligations under the Refugee Act of 1980 and the Protocol to the Refugee Convention, as well as under the UN Convention Against Torture, which require the U.S. not to return individuals to countries where they face persecution or torture.

Second, the policy undermines due process protections for asylum seekers by imposing barriers to legal representation and violating their right to counsel. The policy also significantly increases the risk of missed hearings due to bureaucratic failures to transport asylum seekers to immigration court, potentially leading to in absentia removal orders.

Third, the new procedures for screening asylum seekers’ fears of return to Mexico set forth in the policy are arbitrary and capricious and violate the Administrative Procedures Act (APA).  The procedures deviate from well-established practice without explanation or acknowledgement and fail to comply with the APA’s notice and comment requirements.

The administration insists that these new procedures are necessary to “reduce threats to life, national security, and public safety” due to “the urgent humanitarian and security crisis at the Southern border.”  But longstanding processes we have in place already address concerns about border security.  The expedited removal system set forth in Section 235(b)(1) of the INA was specifically designed to remove individuals who are inadmissible to the U.S. because they lack documents or have fraudulent documents, unless they express a fear persecution or torture.

Moreover, establishing eligibility for asylum is already difficult to do.  People often leave their home countries in a hurry, with little or no proof of what they’ve experienced.  Or, they may lose whatever they have on their journey to the U.S.  Although both U.S. and international law dictate that asylum seekers be afforded the benefit of the doubt, adjudicators often impose unreasonable credibility and corroboration requirements.  In some U.S. immigration courts, grant rates are as low as two percent.

A Court Challenge

As with so many of the Trump administration’s attempts to undermine protections for asylum seekers, Remain in Mexico was immediately challenged in the courts as unlawful, relying on some of the arguments I’ve outlined above.

On April 8, 2019, a federal court enjoined the program’s implementation, in response to a lawsuit filed by a coalition of nonprofits and asylum seekers from Central America forced to remain in Mexico under the policy.  Judge Richard Seeborg of the Northern District of California found that the government improperly relied on section 235 of the INA as a basis for the program.

Indeed, as the district court emphasized, Remain in Mexico ignores the plain language of the statute.  Section 235(b)(2)(C), on which DHS relies, provides that individuals “described in subparagraph (A),” arriving “from a foreign territory contiguous to the United States,” “may [be] return[ed] . . . to that territory” pending immigration court proceedings.  Yet, subparagraph (A) prescribes that “its application is subject to subparagraphs (B) and (C).”  Subparagraph (B), in turn, explicitly states that “Subparagraph (A) shall not apply to an alien . . . to whom paragraph (1) applies”—namely, the expedited removal provision, which describes the procedures that govern the treatment of migrants subject to the policy.

The district court also determined that the government failed to establish adequate procedures to comply with the nonrefoulement provisions in U.S. law and safeguard those who feared for their lives in Mexico.

When the government appealed, the Ninth Circuit temporarily stayed the district court’s decision, allowing the program to take effect, pending a ruling on the validity of the injunction.  At oral argument on April 24, two of the judges questioned the statutory basis for the policy and expressed concern that the program was arbitrary and capricious in its failure to ask those affected whether they feared return to Mexico.  Despite these concerns, the motions panel subsequently granted the government’s emergency motion for a stay of the injunction on May 7, pending appeal.

Two harsh concurrences, one by Judge William A. Fletcher, the other by Judge Paul J. Watford, accompanied the per curiam ruling.  And, despite concurring, Judge Fletcher wrote in a dissenting style, underscoring his strong disagreement with his colleagues.

Judge Fletcher rejected the government’s statutory arguments as “baseless” and emphasized that “[u]nder a plain-meaning reading of the text, as well as the Government’s longstanding and consistent practice, the statutory authority upon which the Government now relies simply does not exist.” He lambasted the government for putting forward “an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated” and expressed “hope[] that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are[.]”

Judge Watford focused his criticism on the policy’s failure to comply with U.S. nonrefoulement obligations, noting that “DHS will end up violating the United States’ treaty obligations by returning some number of asylum seekers to Mexico who should have been allowed to remain in the United States” and concluding that “it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious.”

Litigation is ongoing, and it remains to be seen who will ultimately prevail on the merits.

The Administration’s Efforts to Deter Asylum Seekers from Coming to the U.S.

Remain in Mexico is only part of the Trump administration’s larger plan to gut the U.S. asylum system.  While the administration has long been openly hostile to Central American migrants, its assault on the asylum system ramped up last spring when the administration implemented its draconian “zero-tolerance” family separation policy.  The administration based that policy, like the ones that have followed, on the misguided assumption that introducing barriers to asylum would deter families who fear for their lives from coming to the U.S.

Then, last summer, former Attorney General Jeff Sessions issued a decision in Matter of A-B-, asserting, without basis,that people fleeing domestic violence and violence at the hands of gangs are generally not eligible for asylum.  From there, the president’s unlawful proclamation addressing “mass migration” in November (which he has since extended) sought to foreclose individuals crossing the border between ports of entry from applying for asylum.

Now the president has issued a memorandum mandating that the Department of Homeland Security (DHS) propose regulations barring asylum seekers who enter the U.S. without proper documentation from applying for work authorization, and imposing a fee for asylum applications and for work authorization for those still eligible to apply for it. The memo also calls for the “reprioritization” of officers within DHS, which would allow Customs and Border Protection (CBP) agents, or others, to adjudicate whether or not individuals have a credible fear of return to their countries of origin.

The current credible fear process requires that asylum officers, not CBP agents, do the screening and for good reason.  These officers undergo extensive training, including in trauma sensitivity, cross-cultural communication, and working with interpreters, all of which are skills critical to conducting fair and effective interviews.  Assigning CBP agents to the task would eviscerate procedures safeguarding individuals from return to persecution or torture.

In a further move to undermine the credible fear screening process, the government just revised its training materials for those interviews, mandating greater scrutiny of asylum seekers’ credibility and a written case analysis explaining the basis for a credibility finding. According to the new guidance, officers must probe inconsistencies in testimony, including discrepancies between statements documented by CBP and those made during the credible fear interview—despite long-standing recognition that the sworn statements completed by CBP are often rife with errors.

Fear-mongering and false facts

These policy changes are taking place against the backdrop of the president’s fear-mongering rhetoric and his repeated references to the asylum system as a loophole or a scam.  The administration and media alike have fanned fears about the number of migrants coming from Central America, regularly invoking the concept of a national emergency and suggesting the U.S. immigration system is at a breaking point.

Yet, fewer migrants are coming to the U.S. border now than a decade ago. In 2018, Border Patrol apprehended the fifth lowest number of migrants at the U.S.-Mexico border since 1973.

The administration also regularly conflates asylum seekers with criminals and gang members—incendiary rhetoric that ignores reality.  Many recent arrivals are Central American families, who have escaped violence and threats and fear torture or death if forced to return.  Moreover, the existing bars to asylum already screen out individuals who present a danger to the U.S., including those who have committed serious crimes or engaged in terrorist activities.  In fact, those existing bars are themselves overbroad in their application and implementation in the U.S.

So we find ourselves yet again facing an administration that struggles with both the facts and the law.  This country has long been committed to providing humanitarian protection to those who fear return to their home countries.  Through fear mongering, xenophobia, and racism, the administration is betraying that commitment and, with it, our standing in the world.

Mission Hill landlord-tenant relations highlight changes in Boston real estate

Clinical instructor Maureen McDonagh was quoted in  The Huntington News’s article by Ava Sasani about the rising costs and maintenance issues that have caused frustrations among residents in Mission Hill. The excerpt reads:

Maureen McDonagh, a lecturer at Harvard Law School, works with law students at the Harvard Legal Services Center’s Housing Law Clinic to advise tenants facing eviction cases. McDonagh said it is difficult to gauge the frequency of landlord retaliation cases because of the inherently subjective nature of retaliation allegations.

“It’s difficult to determine because it’s not like people say, ‘I’m going to evict you because you complained!’ The jury or judge has to look into the landlord’s head and try to figure out why they did what they did,” McDonagh said. “We do see retaliation cases fairly regularly, or allegations of retaliation.”

Read the full article here.

Empowering the Powerless on Death Row

Credit: Fabiola Perez Castro J.D. ’19

By: Fabiola Perez Castro, J.D. ’19

When I set foot inside the Allen B. Polunsky Unit in Texas, my heartbeat was sent into overdrive, despite the calm demeanor I worked so hard to emit. It was only my third day on the job with my clinic supervisor, Gretchen Sween. We left Austin at 6am and drove four hours through the barren Texas countryside to the prison. In my slightly tremoring hand was a list of questions I was prepared to  ask my client in Spanish. I had never met a client, much less one on death row, and my restlessness stemmed not just  from my fear of collecting the right information, but of being able to establish rapport with a person with whom I believed to have little in common.

And yet the next seven hours, during which I met my first client and three others, proved to be a transformative experience for which I never could have truly prepared myself. Despite my nervousness and fear about meeting my Spanish-speaking client, I felt at ease from the moment I picked up the phone on the wall to start our meeting. Through a glass barrier, we discussed not only the inter- view questions, but also topics spanning family, religion, and our Latino backgrounds. We spent hours building a level of rapport that easily carried over when I visited for a second time towards the end of my clinic, and we picked up right where we left off. I met seven clients during both visits to the Polunsky Unit, and the hours we spent together felt like a time warp during which I learned more than I could’ve hoped about the humanity behind the legal cases we so deeply engage with.

Credit: Fabiola Perez Castro, J.D. ’19

The work I did for the clinic varied widely, ranging from high-level tasks such as reviewing a comprehensive, 150-page omnibus brief attacking all aspects of Texas death penalty jurisprudence, to investigative, on-the-ground, fact-finding tasks. Working with Gretchen gave me an experience in the legal profession unlike any I had encountered before. Her recent foray into solo practice provided me a level of one-on-one mentorship and camaraderie that I have always craved in a work environment, as well as a wealth of legal knowledge to  pick her brain from given  her extensive experience as a brilliant trial lawyer. Even the drives to and from Polunsky felt like educational adventures of the greatest kind, and her energy and enthusiasm for the work was nothing short of contagious.

Perhaps my favorite experience of the clinic was traveling back to Texas in April to continue work on our Spanish-speaking client’s case. Working on a claim to show intellectual disability on the part of our client, we decided to drop in on his estranged siblings, to interview them about our client’s childhood. Without pre-arranged meetings, we managed to locate, interview, and obtain declarations from all three siblings—including two in Spanish requiring English translations. Throughout the trip, Gretchen and I were presented with a number of obstacles—for example, one sibling was hesitant to meet us in his own home and would ask us to meet him in a number of obscure locations, the last of which was a meat market. Yet by the end, our sense of accomplishment was tremendous not only because we obtained the declarations, but also because we gave a voice to these family members who had spent years feeling powerless in the face of the criminal justice system. Their tears of joy and excitement in relaying critical details about their childhoods demonstrated an empowerment that they had lacked throughout their brother’s trial phase and, possibly, throughout their entire lives.

The second part of my trip back to Texas involved another visit to Polunsky, to visit our client and prepare him for an expert’s assessment. I welcomed the chance to play a crucial part of pushing the case forward.

This clinic was perhaps the most impactful aspect of my law school career. The training we receive in law school classes provides a strong intellectual backbone to our future legal practice, and yet the Capital Punishment Clinic provided me with a window into the human, interpersonal aspect of the law that we so often forget about in our studies—an insight which I know will serve me immensely going forward.

In the Fight for Student Loan Relief

By: Drew Henderson, J.D. ’19

Drew Henderson, J.D. ’19

For years, Corinthian Colleges, a network of over one hundred for-profit schools, defrauded students to rake in profits from taxpayer-funded federal student aid. Tens of thousands of students—many the first in their families to seek out higher education—were promised serious career training and job prospects, but left Corinthian’s campuses with little more than thousands of dollars in debt. The company’s bankruptcy in 2015 followed a series of investigations into the fraud that the school inflicted nationwide. But for many who were victimized by Corinthian’s practices, relief has yet to arrive. Over 100,000 applications for loan discharge remain pending at the Department of Education, with tens of thousands coming from Corinthian students.

The Project on Predatory Student Lending at Harvard’s Legal Services Center has long represented students who attended Corinthian schools. When I first joined the Predatory Lending and Consumer Protection Clinic, in the spring semester of 2018, the Project was involved in at least three lawsuits against the Department of Education for its failure to provide legally mandated relief on the federal loans of former Corinthian students. One of those lawsuits, Calvillo Manriquez v. DeVos, was a class action involving Corinthian borrowers whose applications for relief remain pending. Under a summary process established in the previous administration, those borrowers are entitled to prompt and full discharge of their debts.

A few weeks after the clinic started, I began working on Calvillo Manriquez. Corinthian students were beginning to hear back on their claims—but they were receiving much less than the full relief they had been promised. This news was concerning: not only would these partial denials require that our clients be forced to pay back unjust loans  that they could not afford, but the adjudication of their claims also meant that they would face collection soon, before we could challenge the Department’s actions in court.

Project directors and attorneys, Eileen Connor, Toby Merrill, and Josh Rovenger, decided to amend our complaint to challenge the Department’s new methodology for partially denying students’ discharge applications. And to prevent the Department from collecting on our clients in the meantime, we would also file for a preliminary injunction. The expedited schedule of a motion for preliminary injunction meant that I would get to file our motion and attend oral argument in the Northern District of California before the end of my semester in the clinic.

To amend our complaint, we would need additional named plaintiffs who themselves had received partial denial of their claims. These individuals would need to be able to convey to the court why the Department’s illegal policy shift threatened to cause them irreparable harm, such that it should be enjoined. Ordinarily, such preliminary relief is not available when money is at stake, but an exception exists for extreme financial hardship.

We had received word from legal aid colleagues in Los Angeles that one of their clients might be willing to serve as a named plaintiff in our lawsuit. When I spoke with the client last March, she explained how she had attended a Corinthian program after school recruiters promised that her degree would qualify her for a job in medical billing. She graduated on-time from the program, only a few months before Corinthian shut down. She never even received her diploma. Since that time, she has found that deficiencies in the school’s curriculum meant that she cannot obtain a job like she was promised. Only a week before our call, the Department had told her that she would receive only twenty percent discharge of her loans. Alongside the expenses of caring for three children, this partial denial would be a tremendous burden for her family. Her story was one of hope for a brighter future that  sadly turned to disappointment, and it is one that I heard many times during my clinical semester.

I worked to capture the client’s story in a declaration attached to our motion for preliminary injunction. In April, when I attended the oral argument in San Francisco, it was reassuring to hear the court reject the argument that our client had not faced irreparable harm — her story had  been heard. It was similarly gratifying a few weeks later, when the court ruled in our clients’ favor, enjoining the Department from implementing its partial-denial policy. But the reality is that for these students, staving off collection is not enough: long after Corinthian closed, their debts remain.

The fight continues.

Learning to Serve

Casey Connolly, J.D. ’19 and Laurel Fresquez, J.D. ’19

By: Casey Connolly, J.D. ’19

I distinctly recall Betsy Gwin, a clinical instructor in the Veterans Legal Clinic, telling us on our first day: “You’ll never forget your first client.”

I was admittedly nervous to meet mine.  As a law student planning to enter the JAG Corps post-graduation with no prior military experience, I hoped that working in the Clinic would help me better understand and address the legal issues faced by service-members, veterans, and their families.  And the first step towards accomplishing those goals was actually meeting with a veteran and helping them work through their legal issues–a level of responsibility that felt overwhelming as a 2L who had never engaged in direct legal services before.  But with the training and support of the Clinic–which included extensive reading, exercises, and conversations with my clinical instructors and fellow students–I was able to feel more confident when walking into the room to meet with a client for the first time.  We started chatting, and soon I found myself mesmerized by the strength and optimism of a veteran who had faced unimaginable struggles in their lifetime.

From that day, I spent the next two years working with many other clients in a variety of ways that helped me hone my skills as a lawyer.  I performed client intake; interviewed witnesses; collected records; drafted letters of support, administrative appeals, and discharge upgrade petitions; and argued in an administrative hearing.

Then, in December 2018, the U.S. Court of Appeals for Veterans Claims issued an order scheduling oral argument for two plaintiffs and a proposed class of veterans represented by the Harvard Veterans Legal Clinic and co-counsel Chisholm Chisholm & Kilpatrick.  The argument was scheduled for February 1st, so when the Clinic offered me and Laurel Fresquez ’19 the opportunity to argue the case, we had six weeks to prepare.  This seemed like a daunting task given that neither of us had previously worked on the case.  But under the guidance of our supervising attorneys, we spent those next six weeks poring over briefing and case law, debating strategy, and building and mooting arguments.  This process allowed us both to further develop our skills as lawyers, and to gain deeper insight into the convoluted world of veterans law.

Our case tried to cut to the heart of that convolution by asking the Court to exercise its newly-announced class action powers to grant relief to a group of veterans who have been harmed by the VA Secretary’s application of an unlawful standard.  It was an honor to represent these veterans, who had the right to have their claims adjudicated under the correct standard–and who might not otherwise see that right fully vindicated without the class action mechanism.  I am grateful to the Veterans Legal Clinic and CCK for the chance to argue such an important and historic case alongside an incredible group of co-counsel and supervising attorneys.

And while this case was the most exciting and high-profile of the cases that I worked on with the Clinic, Betsy was right: I’ll never forget my first client.  In fact, that first client was also my last.  In spring of 2019, we received news from the VA that we had won that client’s administrative appeal after nearly 3 years of fighting (culminating in an extremely adversarial hearing that tested all of our resolve).  Walking into the local VA hospital with Betsy and the client to help them gain access to their newly awarded benefits was the quiet highlight of my law school career.  I am thankful to the Clinic and the client for trusting me with the sometimes-terrifying, sometimes-thrilling, always-rewarding responsibility of being an advocate.

Take Care of Soldiers, and Things Fall Into Place

By: Joshua Mathew, J.D. ’19

Josh Mathew, J.D. ’19

My involvement with the Veterans Legal Clinic (VLC) has been, by far, my most rewarding experience at Harvard Law School. Through the VLC, I supported diverse cases, developed a broad range of legal skills, found my passion for advocating for others as a litigator, and made some of my closest friends at Harvard.

A Broad Range of Cases and Skills

As a student advocate with the VLC, I worked on a variety of matters, including an Army veteran’s appeal of the VA’s denial of his G.I. Bill benefits, a former Marine’s application for VA healthcare and an honorable characterization of his service, and oral arguments on behalf of Massachusetts veterans who were wrongfully denied the Welcome Home Bonus. In addition, my work with the VLC and conversations with instructors at Harvard’s Predatory Lending and Consumer Protection Clinic motivated me to pursue independent research, under Professor Dan Nagin’s supervision, on California’s regulations aimed at guarding veterans against exploitation by for-profit colleges.

My diverse caseload at the VLC allowed me to build a set of skills that I know will make me a more effective advocate for others. Drafting the appeal for my client’s G.I. Bill benefits enabled me to develop my legal writing and research skills. Presenting oral arguments in the Welcome Home Bonus case with my classmate Laurel Fresquez ’19 substantially improved our oral appellate advocacy skills. We learned how to organize a concise outline of arguments and incorporate feedback from numerous moots. And throughout all of my cases, I developed my ability to interact with clients, solicit their intent, and ensure that our case strategy reflected their long-term goals and interests.

From left to right, Jack Regan, Dana Montalto, Josh Mathew, Laurel Fresquez ’19, a client in the case, and Dan Nagin.

Helping Ensure That All Are Welcomed Home

Presenting oral arguments with Laurel in the Welcome Home Bonus case at Suffolk Superior Court was certainly my favorite experience at the VLC. You can read more about the case and the favorable ruling here and here. Preparing for the hearing served as a reminder that no one gets there alone: Laurel and I spent countless hours brainstorming and debating how to craft the most effective opening and closing arguments. We rehearsed those arguments over and over again in front of our supervisors, others VLC students, and WilmerHale attorneys. These moots and the VLC’s supportive community of instructors, students, and friends provided the feedback that we needed to identify our most powerful arguments and address our blind spots.

Engaging with our clients was also a treat. When we received a positive decision from the judge in late December, it was a pleasure for me and Laurel to call our clients with the good news. Those phone calls, full of gratitude and warmth, are some of my fondest memories at Harvard Law.

Finding Purpose and Friends

Lastly, the VLC has had tremendous personal benefits for me. When I left the Army, I saw law school as a reset switch, and I did not have a clear vision of what I wanted to do as a lawyer. I enrolled in the VLC, in part, to find that purpose. A wise platoon sergeant had once advised me, “Take care of soldiers, and everything else falls into place.” As a platoon leader, I found deep satisfaction in supporting my soldiers, and through the VLC, I have found similar fulfillment in supporting veterans’ claims for education, healthcare, and disability benefits. In addition, through challenging and meaningful casework, I have discovered my passion for litigation as a means of advocating for others.

In the process, I have made some of my closest friends at Harvard Law. It might be that the Legal Services Center attracts exceptionally kind students, or that its instructors do a great job of fostering a supportive environment. In any case, I am grateful to have gained that community, and I look forward to staying in touch.

Mamani: Lessons and Learning From a Decade-Long Struggle for Justice

From L to R: Nicole Antoine (’18), Lindsay, Elisa, Kelsey Jost- Creegan (’17), Amy Volz (’18), and Lisandra outside of the court- house in Fort Lauderdale. Antoine, Jost-Creegan, and Volz previ- ously worked on the case.

From L to R: Nicole Antoine (’18), Lindsay, Elisa, Kelsey Jost- Creegan (’17), Amy Volz (’18), and Lisandra outside of the courthouse in Fort Lauderdale. Antoine, Jost-Creegan, and Volz previously worked on the case.

By: Lindsay Bailey, J.D. ’19, Lisandra Novo, J.D. ’19, and Elisa Quiroz, J.D. ’19

Having grown up, lived, or worked abroad for several years in Ghana, Chile, and Cuba, among other locations, the three of us came to Harvard Law School excited about pursuing international law. We had ideas about what a career in this field might look like and were eager to get involved with clinics and student practice organizations. But prior to joining the International Human Rights Clinic and working on the Mamani case, we didn’t really understand what practicing intentional human rights law meant.

Since the fall of our 2L years, we have worked together on Mamani et al v. Sánchez de Lozada and Sánchez Berzaín, a federal lawsuit against the former president of Bolivia, Gonzalo Sánchez de Lozada, and the former Minister of Defense, Carlos Sánchez Berzaín, for their respective roles in planning and ordering security forces to use deadly military force against unarmed civilians to suppress popular protests against government policies. In 2003, security forces under their leadership slaughtered 58 citizens and injured more than 400, almost all from indigenous Aymara communities.

On April 3, 2018, following a month-long trial, the jury issued a historic verdict and found both men liable for extrajudicial killings under the Torture Victim Protection Act, awarding our plaintiffs—the parents, husbands, wives, and siblings of individuals who were killed—$10 million in damages. The judge subsequently overturned the jury’s verdict after a Rule 50 motion, and the case is currently on appeal in the Eleventh Circuit.

We have continued to work on the appeal well into our last semester as HLS students. And though our time on the case will at some point come to an end, we are certain the long- lasting effects of this experience will continue to shape our lives and careers.

Our time on Mamani contributed significantly to our lawyering skills and career paths. Between the three of us, we traveled to Bolivia to conduct interviews of witnesses that would testify at trial; helped lawyers from HLS and Akin Gump  take and defend depositions of expert and lay witnesses prior to trial, in locations ranging from Washington D.C. to Ecuador; and spent, collectively, hundreds of hours in two weeks between the hotel “war room” and the federal courthouse in Fort  Lauderdale,  Florida, working on the first civil trial in U.S. courts against a living former head of state for human rights abuses committed abroad. We learned how to interview plaintiffs, conduct depositions, review evidence, and prepare nervous witnesses, who had traveled thousands of miles to an unfamiliar place, for a historic trial.

More importantly, however, Mamani shaped our identities as lawyers. With our clinical instructors – Susan Farbstein, Tyler Giannini and Thomas Becker – we were lucky to experience firsthand how to be an effective lawyer while retaining compassion, humility, and humanity. We observed Thomas treating plaintiffs and witnesses not just as clients, but as equals and friends. We watched how Tyler was able to bring peace of mind to a nervous plaintiff, who had witnessed the death of his father, and remind him that the truth was his  own. We learned from Susan about the importance of caring for each other during tough times and working as a team, which became a true family.

Our time in the human rights clinic confirmed our passion for and commitment to international law. Next year we will be pursuing a Fulbright in Spain to research the creation of a Truth Commission to investigate Franco-era crimes; litigating cases of universal jurisdiction in Geneva, Switzerland; and continuing to pursue human rights litigation in U.S. courts. Through these new and challenging experiences, we will bring with us the frustrations, joys and lessons we learned on Mamani wherever we go.

HIRC wins case for Guatemalan family

Via the Harvard Immigration and Refugee Clinical Program

Nate MacKenzie and Nora Picasso Uvalle, LLM ’19 (far right) pictured with their clients

On May 9th, Temporary Clinical Instructor Nate MacKenzie and clinical students Nora Picasso Uvalle LLM ’19 and Carolina Perez Feuerstein arrived at the Boston Immigration Court with their client and her family. They had submitted a massive, 650 page file that detailed how Isabel* and her children had faced severe persecution at the hands of corrupt government officials in their home country of Guatemala, and they we were ready to defend their case in court. However, just as they were beginning the trial, the judge did something unusual.

“The judge basically told the trial attorney that it was an incredibly well-documented case and pushed her to concede,” MacKenzie explained.

It was a joyful moment not only for Isabel and her family, but also Picasso and Perez Feuerstein, who had spent the entire semester helping build Isabel’s case, from preparing affidavits to researching country conditions to locating expert witnesses. MacKenzie noted that this is a true example of how, as he put it, “the real work is in the paper.”

Still, the students faced challenges in the case. As part of their preparation for trial, Picasso and Perez Feuerstein had to interview each of the clients numerous times. Tiny details, such as whether to translate a word as “village” or “town,” can affect the trajectory of a case so Isabel’s legal team had to ensure that they knew every aspect of her story. However, in the beginning, Isabel and her children felt frustrated when the students and attorneys asked them repeatedly about the same stories and events. Sensing this tension, Isabel’s attorneys and students decided to try to describe their legal strategy in a new way.

Picasso explained, “We just sat down and told them ‘We need to ask you these questions over and over again because we need to write a book about your lives and, for that matter, we need every single detail.’” With this new concept in mind, Isabel began to open up to the students and, ultimately, this helped Isabel’s legal team win her case in court. Picasso smiled as she recalled that, as they were leaving the courthouse, Isabel’s son said that now he wanted to write a story about his family and their lives.

Every day, clients like Isabel are required to share intimate details of their lives in order to seek refuge in the United States. Those seeking asylum and Withholding of Removal must provide proof of future harm, which often means recounting some of the most traumatic moments they have ever experienced. Both attorneys and students alike were inspired by Isabel’s courage to speak her truth in order to provide a better life for herself and her family here in the U.S.

“I think that I will never forget how much Isabel and her kids have taught me. Especially their strength and resilience in facing difficulties. It is an example that I will always have in mind when going through hard times,” Perez Feuerstein said.

*Client’s name has been changed to respect her privacy

Our Semester in Washington

Source: Pexels

By: Jonathan Wroblewski

Lecturer on Law Jonathan Wroblewski recaps the 2019 Semester in Washington Program for his students.

The 2019 edition of the Harvard Law School Semester in Washington Program has now ended. The semester began with the longest government shutdown in U.S. history; and it ended with a report detailing extensive foreign interference with our presidential election, and Democrats debating whether to begin impeachment proceedings against the President. In days gone by, the events of the last two weeks would be considered historic by all, and we’d be glued to our TVs watching hearings and wondering what would come next. But in the age of daily presidential tweet storms, 24-7 cable news rants, and leadership across the city not quite sure how to deal with it all, Congress is completing a two-week recess and it all seems a bit too routine and somehow not at all shocking.

But what was indeed particularly noteworthy for us this semester — and something which was not in any way routine — were the actions we witnessed by some very prominent government lawyers. From the beginning, the Trump presidency has brought with it many ethical challenges for the government lawyer.  Who do we work for?  What does the “rule of law” really mean? How do we advise our political leaders and stay faithful to our larger obligations?  When should we strive to get to “yes,” and when do we simply need to say, “no.” But this was the year when we saw these challenges being faced head-on and being met (at least partially) at the highest levels. This was the semester where we were brought inside the White House by the Mueller report and saw the White House Counsel refuse a presidential order to obstruct justice. This was the semester where we saw Department of Homeland Security lawyers refuse to implement illegal policies around immigration for political purposes. And this was the semester where we saw lawyers in the Special Counsel’s office both vigorously investigate allegations of wrongdoing by the President and his associates, but also show restraint (right or wrong) in not bringing charges where they were not warranted under the law. The lawyers have stepped up; and it seems to me that the rule of law is holding.

In these last three months, we have both been following it all and trying to model and learn from the great — and not so great — government policy lawyers and professionals. We’ve done so by exploring the headlines, but also by exploring issues arising from our placements and our work in government, from our own interests, and from the interests of our classmates. We read about leadership and how each of us needs to grapple with what we believe in, if we are to effectively lead others. We read about the dynamics of bureaucracy and thought about how it applied to our placements and other government institutions.   We learned from one another, from government lawyers and policy makers in our placements, and from leaders in government, and the not-for-profit world.  We met some fascinating people, including Chiraag Bains and his colleagues at Demos, Retired General David Petraeus, former FBI General Counsel Jim Baker, and head of the Leadership Conference on Civil and Human Rights Vanita Gupta.  We heard Justice Sotomayor reflect on her life and career. And we heard from a dozen or so SiW alumni who shared what they have been doing since the Program and also a nugget or two of wisdom.

As always, what was most gratifying for me was the chance to get to know each of you a bit and to create a small community of learning here in DC. I enjoyed learning from you and seeing your energy and passion for justice and for our country over the past three months. I hope I helped channel that energy and passion and that you will now take your places as leaders who will contribute in real and measurable ways to improving our country and our world. In whatever you do next and throughout your career, there will be opportunities for you to serve. I am grateful that I got to spend the last three months with all of you. As I said tonight at our end-of-semester dinner, you are the antidote to cynicism and distress. You keep me grounded and balanced. Thank you.

Taxi industry insiders — not Uber — created New York City’s cab-tastrophe

Via The Hustle 

Source: Pexels

By: Conor Grant

Since the New York City taxi medallion market crashed in 2014, 950 cab drivers have declared bankruptcy, causing criticism of Uber and Lyft.

But, a damning report from The New York Times reveals that ridesharing companies weren’t responsible for New York’s cab crash — instead, it was industry insiders who systematically drove up the price of medallions.

A bubble in the medallion market

New York City created taxi medallions in 1937 to cap the number of taxis, creating a market where medallions were exchanged like stocks.

But between 2002 and 2014, brokers, lawyers, fleet owners, and debt collectors drove up medallion prices to increase profits.

Although medallion prices quintupled from $200k to more than $1m, cab drivers’ salaries stayed the same, so lenders offered drivers predatory loans to buy medallions.

“I don’t think I could concoct a more predatory scheme if I tried,” Roger Bertling, an expert on predatory lending from Harvard, told the NYT. “This was modern-day indentured servitude.”

Downfall of the drivers

Lending companies targeted low-income immigrants who didn’t understand the terms, suckering cab drivers making $30k into $1.7m loans. Some drivers — who often spent half their income paying off these loans — took their own lives.

Yet the “taxi tycoons” who sold them their medallions made enough money to buy yachts or hire Nicki Minaj to perform at a kid’s party.

So, how did manipulative medallion merchants avoid scrutiny? 

Easy — they directed all the blame at Uber and Lyft, whose negative reputations made them easy targets.

Since Uber arrived in New York in 2011, cab revenues have fallen 10% due to the new competition — but medallion prices have lost more than 90% of their value.

Last year, New York City officials capped the number of rideshares allowed in the city in an apparent effort to protect cab drivers.

But behind the scenes, city officials helped create the medallion mayhem by advertising medallion sales — which earned $855m for the city under mayors Bloomberg and de Blasio — and then turning a blind eye to extortionate lending practices as they screwed over drivers.

Key Takeaways from Day Two of WasteExpo 2019

Waste 360’s recap of the second day of WasteExpo 2019 written by Cristina Commendatore, Mallory Szczepanski, and Arlene Karidis highlights a panel featuring Katie Sandson of Harvard’s Food Law and Policy Clinic. This excerpt of the article reads: 

In a session called “Organic Waste Bans, Mandatory Organics Recycling Laws, and Related Strategies for Food Waste Management,” Katie Sandson of Harvard’s Food Law and Policy Clinic Center for Health Law and Policy Innovation and Lorenzo Macaluso with the Center for EcoTechnology (CET) dove into what’s going on with the five states with food waste bans. They talked of a flurry of legislative activity suggesting more local governments may adopt similar policies. And they shed light on what’s entailed in setting up infrastructure to make a ban work.

The states that have some form of a food waste ban are California, Connecticut, Massachusetts, Rhode Island and Vermont—and in 2022, New York will adopt a policy that includes a ban for some businesses. In the most recent legislative session, another 30 states had bills addressing food waste “so it’s on state policymakers’ minds,” Sandson told a captive crowd.

There are issues around developing infrastructure. And bans often present a chicken-and-egg scenario; no one wants to build capacity without guaranteed feedstock, but governments hesitate to take the policy plunge without knowing the waste will have a place to go.

The Food Law and Policy Clinic is releasing a toolkit in the next few weeks to help with some of the challenges, incorporating some ideas that came from speaking to states that have taken the lead.

One reality that became clear to Sandson and her colleagues is as new policy evolves, permitting requires more thought.

“Rhode Island revised its original permit regulations. It developed a permit structure with a tier system based on throughput. Those at the lower end of the tier have the least amount of obligations and risk. The more food waste, the stricter the permit regulations,” she said.

There can be back-and-forth conversations over multiple issues, as she pointed out New York, whose ban just passed late April.

“It’s been a long process,” she explained. “Among issues they needed to work out is a distance exemption [whereby generators beyond a certain distance from a processor do not have to participate.]”

Read the full article here.

Radhika Kapoor: ‘I want to be able to help develop transitional justice norms’

Via Harvard Law Today

Credit: Heratch Photography

By: Audrey Kunycky

After consecutive internships at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court, Radhika Kapoor LL.M. ’19 came to HLS to take advantage of Harvard’s institutional expertise in international law, humanitarian law, and post-conflict stability. “I really wanted to equip myself with tools that would let me explore questions that had come up during my internships. For example, I think there are a lot of countries that have concerns about acceding to international instruments like the Rome Statute of the International Criminal Court. How could they be self-sufficient in addressing issues of transitional justice?” Kapoor asks.

As she wraps up her LL.M. studies, Kapoor can readily identify the ways in which her LL.M. coursework has sharpened her thinking. She took a course on the Nuremburg trials, with Professor of Practice Alex Whiting, which “asked the question of whether an international court is the best stage to process large-scale humanitarian or human rights violations. I came away from it thinking that courts are perhaps best seen as a complement to a system of transitional justice and not necessarily the only way forward.” Kapoor also especially enjoyed a class on “Geopolitics, Human Rights and Statecraft,” with Professor of Practice and former U.N. Ambassador Samantha Power. “I learned that it’s possible to think about foreign policy in humanistic terms,” she recalls, adding with a laugh that “we got to see somebody we had only seen on TV, in class, cold-calling on us.”

She also immersed herself in clinical opportunities at HLS. Last fall, for HLS Advocates for Human Rights, one of the law school’s student practice organizations, she led a team monitoring the trial of Laurent Gbagbo, the former president of the Côte d’Ivoire, for crimes against humanity. This spring, in the law school’s International Human Rights Clinic, she worked on two projects, both conflict-related and related to gender, but through very different lenses. One of the projects concerned accountability for sexual violence perpetrated against detained men and boys in conflict situations. The other was an arms and gender project that brought her, classmate Terence Flyte LL.M. ’19, and their clinical instructor, Anna Crowe LL.M. ’12, to Geneva, Switzerland, where they joined signatories and NGOs in working meetings to discuss ways forward for implementing the United Nations’ landmark Arms Trade Treaty. At the conference, Crowe presented “Interpreting the Arms Trade Treaty: International Human Rights Law and Gender-based Violence in Article 7 Risk Assessments,” a paper co-authored by Kapoor and three other HLS students enrolled in the International Human Rights Clinic. The clinic has been collaborating with ControlArms, an international NGO, in advocating for countries to restrict arms exports if there is a risk that the weapons will be used to commit or facilitate serious violations of international human rights law, with a specific focus on gender-based violence.

Credit: International Human Rights Clinic Radhika Kapoor LL.M. ’19 and Terry Flyte LL.M. ’19 at the Working Group Meetings of the 5th Conference of States Parties to the Arms Trade Treaty.

Credit: International Human Rights Clinic
Radhika Kapoor LL.M. ’19 and Terry Flyte LL.M. ’19 at the Working Group Meetings of the 5th Conference of States Parties to the Arms Trade Treaty.

Participating in these working sessions “really brought to the fore how important it is to really listen to different countries’ concerns and circumstances when it comes to helping them implement treaty provisions. We got to know concerns that we hadn’t known about before, like constraints that operate, and different shackles [on] political capacity even when there is political will. I went away with a much more comprehensive understanding of why states behave the way they do,” Kapoor observes. “Being in that conference room in Geneva, while states actively debated how to interpret the treaty, was a mind-blowing experience,” she adds. “The clinic gives you opportunities to do things that you would otherwise only engage in at an advanced stage of your career.”

This spring, in another partnership with ControlArms, Kapoor and the IHRC clinical team travelled to Latvia to deliver a training to Eastern and Central European weapons export officials on how to implement the gender-violence provisions of the Arms Trade Treaty.

These types of opportunities were not even on Kapoor’s radar when she started her studies. In fact, she first decided to study law because of her love of reading. As a child growing up in Lucknow in northern India, “I was really into Roald Dahl and Enid Blyton,” she recalls. Later, “I went on a crusade where I only read authors of color. These were the best two reading years that I had, because I came across so many new treasures of literature.” So when it came to university, “I knew I wanted to study something where I could read a lot, and law of course allows you to do that,” she explains. When she enrolled in the B.A./LL.B. program at the National Law School of India University (NLSIU), “I wasn’t really sure what to expect, because nobody in my family was a lawyer. But it was love at first sight.”

While at NLSIU, “I started thinking about conflict, and how countries grapple with it. That’s what led me down the path that I’m on now,” Kapoor adds. Armed conflict is “rampant in Asia, where I’m from. What struck me was that often when these conflicts were over, there was hardly any thinking on how to move past it. These conflicts were often bloody; they involved extreme factionalism, or ethnic or religious hatred; it’s not as though these things are just buried. They’re going to flare up again. What happens after the conflict is over?”

After graduation, she expects to focus on this question, working on projects relating to Sudan and Myanmar. Recently named a Public Service Venture Fund Kaufman Fellow, Kapoor plans to work at Public International Law and Policy Group in Washington, D.C., a global pro bono law firm that works with clients to further their capacity to achieve transitional justice.

Outside of class, she has continued to read voluminously, turning more to nonfiction while at HLS. She also found time to feed her lifelong love of travel, joining friends on a spring break road trip to Charleston, Memphis, Nashville, Atlanta and New Orleans over spring break. “It was so amazing, because I’ve read a lot of books about growing up in the American South. There was so much natural beauty there — and so much history.”

All of these experiences have been deeply meaningful for Kapoor. “I want to be able to carry forward the learning from this year, which has been immense, and establish a career in my home country, or my home region, in helping to develop transitional justice norms,” she explains. Looking back, “it really has been the best year of my life.”

A Guide to Fourth Estate v. Wall-Street.com

Via Cyberlaw Clinic 

Source: Pixabay

By: Sylvia Zhang, J.D. ’19

Section 411(a) of the Copyright Act states that “no civil action for [copyright] infringement…shall be instituted until preregistration or registration of the copyright claim has been made.”[1] In other words, copyright owners must “register” their copyrights before suing for copyright infringement. In Fourth Estate v. Wall-Street.com, decided in March 2019, the Supreme Court clarified that “registration” for the purposes of Section 411(a) occurs only when the Copyright Office registers a copyright and provides a certificate of registration and not when an applicant files for copyright registration.[2] Under this decision, copyright owners must wait for the Copyright Office to decide on their registrations before they are allowed to sue others for infringement. This decision could potentially create a substantial time lag during which copyright owners, especially those with limited budgets, are able to enforce their copyrights. This blog post summarizes the Fourth Estate case and its reasoning, the implications of the new rule, and some ways for copyright owners to respond, including how to register for copyright.

Summary of the Case

Fourth Estate is a news organization that licensed journalistic works to Wall-Street.com, a news website. Wall-Street eventually canceled the licenses but continued to display Fourth Estate’s works on its website without Fourth Estate’s consent. Fourth Estate then submitted copyright registration applications for these works and immediately sued Wall-Street for infringement. Wall-Street moved to dismiss the suit because the Copyright Office had not yet acted on Fourth Estate’s applications. The key dispute of this case is whether the Section 411(a) requirement of “registration” was met when Fourth Estate submitted a completed registration application or would only be met when the Copyright Office actually acted on the application. The Supreme Court sided with Wall-Street, holding that registration only occurs when the Copyright Office acts.

Circuit Split

Before the Fourth Estate decision, there existed a circuit split on this question. Some courts in the Fifth, Eighth, and Ninth Circuits followed the “application approach,” where the submission of a completed application to the Copyright Office was sufficient to meet the Section 411(a) requirement that “registration…has been made.”[3] Fourth Estate was a proponent of the “application approach.”

On the other hand, the Tenth and Eleventh Circuits followed the “registration approach,” which required the Copyright Office to make a decision on the application to meet the Section 411(a) requirement.[4] Wall-Street was a proponent of the “registration approach.” Because the Fourth Estatecase was originally brought in the Eleventh Circuit, the trial court and court of appeals both followed the “registration approach” and ruled in favor of Wall-Street.[5]

Supreme Court’s Reasoning

In Fourth Estate, the Supreme Court resolved the circuit split in favor of the “registration approach.” In a unanimous opinion authored by Justice Ginsburg,[6] the Court’s reasoning focused primarily on the statutory interpretation of Section 411(a) and the legislative history of the Copyright Act.

First, the Court focused on the basic statutory interpretation principle of keeping definitions consistent within a single statutory provision. The first sentence of Section 411(a) prohibits the initiation of an infringement suit until “registration…has been made.” The second sentence of Section 411(a) allows for the copyright applicant to initiate an infringement suit even if “registration has been refused” as long as the applicant serves notice to the Copyright Office.[7] In the second sentence, registration can only be refused if the word “registration” refers to a decision by the Copyright Office. Therefore, consistent with the principle that words within a single statutory provision should retain the same meaning, the Court reasoned that “registration” in the first sentence of Section 411(a) mustrequire a registration decision by the Copyright Office, and cannot refer to the mere submission of a registration application.[8] The Court also looked to other Copyright Act provisions that use the term “registration” to support its interpretation and applied the principle of avoiding statutory interpretations that create superfluous language.[9]

Second, the Court looked to legislative history. It found that, when Congress revised the Copyright Act in 1976, it endorsed the rule that an action by the Copyright Office is required to trigger a copyright applicant’s entitlement to sue.[10] Specifically, the addition of the second sentence of Section 411(a) in the 1976 revisions would be unnecessary if Congress meant to allow copyright owners to sue upon submitting an application. In addition, in 1993, Congress considered but declined to adopt a change that would allow a copyright applicant to sue immediately after submitting a registration application.[11] These pieces of legislative history supported the Court’s decision in favor of Wall-Street.com

The Court also dismissed Fourth Estate’s policy arguments. It found that waiting for registration from the Copyright Office would not deprive copyright owners of their rights, because once the Copyright Office decided on the application the applicant could still win damages for past infringements that occurred before registration.[12] The Court also pointed to preregistration (discussed in more detail below) as a way for time-sensitive works to acquire more protection.[13] Lastly, the Court noted that the long registration processing times at the Copyright Office cannot be a reason to interpret §411(a) differently. It said that the backlog is due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”[14]

In sum, the Supreme Court adopted the “registration approach,” which means that copyright owners do not automatically have the right to sue once they submit a completed registration application but, rather, must wait until the Copyright Office actually provides a certificate of registration (or denial thereof).[15]

Implications

The Fourth Estate decision is likely to have at least five major sets of implications:

  • Impact on Copyright Owners. One crucial implication of the Fourth Estate decision is that it reduces the leverage of copyright owners by taking away their ability to threaten and initiate immediate legal action if they have not yet obtained registration decisions from the Copyright Office. Currently, it takes between one and seven months, with an average of five months, for the Copyright Office to process an application.[16] Copyright owners may be unable to seek preliminary injunctions that prohibit alleged infringers from using their work during that time. However, as the Supreme Court noted, the decision does not change the ability of copyright owners to eventually recover damages from infringement that occurred before registration and from the infringer’s profits.[17]

 

  • Inequitable Impact on Small Copyright Owners. Although the Fourth Estate rule applies to all copyright owners, the impact of the rule may disproportionately harm small copyright owners. As explained below, the Copyright Office offers an “expedited process” that costs $800 per registration and provides a registration decision much more quickly than the regular process. When faced with infringement, deep-pocketed corporate copyright owners are much more likely to be able to afford the expedited process than small and individual copyright owners. Moreover, the Fourth Estate registration rule favors copyright owners that have the resources to consistently register their works for copyright over those who would be hard-pressed to register each of their works.

 

  • DMCA Takedowns. It may also be more difficult for copyright owners to sustain a DMCA takedown request. After a copyright owner files a DMCA takedown to remove allegedly infringing work from the Internet,[18] an alleged infringer can file a counter-notice and have the work reinstated.[19] After a counter-notice has been filed, platforms or Internet service providers may refuse to respond to a second DMCA takedown notice unless the copyright owner presents proof that it has initiated a court proceeding. If a copyright owner cannot initiate court proceedings absent a copyright registration, the intermediary may put content back up before a lawsuit can be commenced.

 

  • More Registrations. Now that merely filing a registration application is not enough to bring suit, copyright owners are more incentivized to apply for registration as soon as possible. Before Fourth Estate, some copyright owners filed for registration only when they were planning to sue for infringement. Now, the Fourth Estate rule may cause an influx of registrations (both regular and expedited) at the Copyright Office, which could cause processing times to increase beyond the current average of five months. On the other hand, Fourth Estate has brought the issue of administrative lag at the Copyright Office to the attention of some senators, and could potentially lead to Congress’s provision of more resources to the Office and relieving some of the backlog.[20]

 

  • Less Forum Shopping and Fewer Frivolous Claims. Under Fourth Estate, the registration rule is now consistent throughout the country, which means that plaintiffs will no longer have an incentive to bring infringement cases in circuits where the rule was favorable to them. Moreover, the higher barrier to bringing copyright infringement suits may stop plaintiffs from bringing frivolous or peripheral copyright claims in order to threaten high statutory damages.

All in all, Fourth Estate does not change the copyright landscape drastically, because copyright owners have always had to register their works before suing for infringement and they can still recover all monetary damages, even those incurred before registration. The primary difference now is that there may be a substantial delay between application for registration and filing an infringement suit.

How Should Copyright Owners React? Register for Copyright.

Under Fourth Estate, a copyright owner must have a registration decision from the Copyright Office before it can sue someone for infringing its copyrightable work. If a copyright owner applies for registration only after it finds out about the infringement, the copyright owner could be waiting five or more months before the Copyright Office registers your work.

There are three ways for copyright owners to avoid the wait.

First, a copyright owner can apply for registration as soon as its works are published, so that it will have a registration decision from the Copyright Office at the ready. Early submission of registration applications may turn out to be the best and simplest approach for copyright owners in the wake of the Fourth Estate. Although this will not necessarily decrease the copyright owner’s total wait time, it could mean that the copyright owner will have a certificate of registration ready if its work is ever infringed, and it will not feel pressured to expedite the registration process. Moreover, registration also provides other benefits. For example:

    • Registration is prima facie evidence of the validity of copyright, which means that courts will presume that that the copyright owner’s work is protected by copyright.
    • When registration is made within the first three months of publication, the copyright owner will be eligible to win statutory damages and attorneys’ fees in an infringement suit, potentially making the threat of a lawsuit more alarming for the infringer.
    • Registration creates a public notice of the fact that a work is protected and of the identity of the copyright owner. This could help people who want to license the work to find the copyright owner.[21]

Registrations can be done online through the Electronic Copyright Office Registration System (called eCO) as well as through mail-in paper applications. Electronic applications are, however, cheaper and are reviewed faster than paper applications. Currently, the most basic application, which is for a single work owned by a single claimant who is also the author of that work, costs $35. Other online filings cost $55, while paper applications cost $85 or more. Photographers may be able to register up to 750 published photographs in one application under the Group Registration for Published Photographs procedure, as long as they were created by the same author in the same calendar year. For more information on how to register copyrights, see the two following guidance documents published by the Copyright Office: “Registering a Copyright with the U.S. Copyright Office” and “Copyright Office Fees (Circular 4).”

Second, for certain types of time-sensitive works, a copyright owner can apply for preregistration, which allows one to sue for infringement even before the works are published. Like registration, preregistration allows a copyright owner to initiate an infringement suit.[22] But, preregistration is limited to only a few types of works that tend to be infringed prior to authorized commercial distribution—specifically motion pictures, sound recordings, musical compositions, books, computer programs, and advertising or marketing photographs.[23] Other types of works are not available for preregistration. Moreover, preregistration is not a replacement for normal registration, so a copyright owner must still complete a registration application after publication. Preregistration is only available online and currently costs $140 per application.[24] For more information on preregistration, see the Copyright Office’s webpage.

Lastly, if necessary, a copyright owner can utilize the expedited application process and obtain a decision from the Copyright Office with much less delay. Expedited registration — which the Copyright Office calls “special handling” — is available for all types of works but is only granted in some specific circumstances. One such circumstance is where there is pending or prospective litigation.[25] For a registration with a special handling request, the Copyright Office “will make every effort to complete its examination of the claim…within five working days” of the request being made. But, it cannot guarantee that every claim will be registered within that time frame.[26] A copyright owner can request special handling when it first submits an application, as well as for an application that is already submitted.[27] Special handling for registration currently costs a hefty $800 per claim in addition to the regular application fee.[28] For more information on special handling, see the guidance document “Special Handling (Circular 10)” published by the Copyright Office.

Sylvia Zhang (HLS JD 2019) was an advanced clinical student in the Cyberlaw Clinic during the spring semester 2019. Note:  This post is informational and does not constitute legal advice; if you have questions about the applicability of the Fourth Estate decision to your own copyright registration activities, please consult a lawyer.

[1] 17 U.S.C. § 411(a) (2017).

[2] 139 S. Ct. 881, 892.

[3] See, e.g., Apple Barrel Prods. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006); Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir. 2010).

[4] See, e.g., LaResolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200-01 (10th Cir. 2005); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 note 4 (11th Cir. 1986).

[5] See Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, No. 16-60597, 2016 U.S. Dist. LEXIS 187499, at *3 (S.D. Fla. Mar. 23, 2016); Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1341 (11th Cir 2017).

[6] Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).

[7] 17 U.S.C. § 411(a).

[8] See Fourth Estate, 139 S. Ct.at 889.

[9] See id.

[10] See id. at 890-91.

[11] Id. at 891.

[12] See id. at 891.

[13] See id. at 892.

[14] Id. at 892.

[15] If the Copyright Office refuses registration, the applicant is allowed to sue for infringement as long as it serves a copy of the complaint to the Register of Copyrights (i.e. the director of the Copyright Office). In such a suit, the presiding court will also decide on the issue of registrability. See17 U.S.C. § 411(a) (2017).

[16] Registration Processing Times, U.S. Copyright Office (2019), https://www.copyright.gov/registration/d…See also FAQs, Copyright Office, https://www.copyright.gov/help/faq/faq-w… (last visited May 19, 2019).

[17] See Fourth Estate, 139 S. Ct. at 891; 17 U.S.C. § 504 (2017).

[18] See 17 U.S.C. § 512(c)(3) (2017).

[19] See id. at § 512(g)(3).

[20] See Steve Brachmann, Senators Tillis and Coons Express Concerns with Fourth Estate in Letter to Copyright Office, IP Watchdog (Mar. 26, 2019), https://www.ipwatchdog.com/2019/03/26/senators-tillis-coons-express-concerns-fourth-estate-letter-copyright-office/id=107697/See also Letter from Sen. Thom Tillis and Sen. Christopher Coons to Karyn Temple, Acting Register of Copyright (Mar. 14, 2019), [21] See U.S. Copyright Office, Circular 1: Copyright Basics 5 (2017), https://www.copyright.gov/circs/circ01.pdf.

[22] 17 U.S.C. § 411(a).

[23] Preregistration, U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-prereg.html (last visited May 19, 2019).

[24] U.S. Copyright Office, Circular 4: Copyright Office Fees 3 (2018), https://www.copyright.gov/circs/circ04.pdf.

[25] U.S. Copyright Office, Circular 10: Special Handling 1 (2017), https://www.copyright.gov/circs/circ10.pdf.

[26] Id. at 2.

[27] Id. at 5.

[28] Id. at 2.

Clinic Submits Comments on EPA’s Proposed IRIS Assessment Plan for Methylmercury

Via the Emmett Environmental Law and Policy Clinic

The Clinic submitted comments  [earlier this month] on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury.

The Clinic submitted the comments on behalf of Philippe Grandjean, Elsie M. Sunderland, David C. Bellinger, Joel D. Blum, Esben Budtz-Jørgensen, Laurie H.M. Chan, Celia Y. Chen, Charles T. Driscoll. Jr., David C. Evers, Kathy Fallon Lambert, Irva Hertz-Picciotto, Margaret Karagas, Sally Ann Lederman, Gina Muckle, Frederica Perera, and Ellen K. Silbergeld.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho as well as Professors Grandjean and Sunderland.

The IRIS Program allows staff in EPA’s Office of Research and Development to assess the toxicity of chemicals independently of any specific regulatory program.  The results of IRIS Assessments then serve as a key source of toxicity information for EPA as well as state and local health agencies and other federal agencies.  At the conclusion of an assessment, EPA may establish a Reference Dose (RfD)—an estimate of the “daily oral exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime.”

Methylmercury is a highly toxic and bioaccumulative contaminant.  People are exposed to methylmercury primarily through consuming seafood and freshwater fish.  EPA last completed an IRIS Assessment for methylmercury in 2001.

Our comments:

  • Commend EPA for deciding to reassess the methylmercury RfD. We agree with EPA that a reassessment of the developmental neurotoxicity reference dose is “justified by recent epidemiological studies that analyzed effects at lower methylmercury exposure levels than those in studies used to derive the existing RfD.”
  • Urge EPA to acknowledge the imprecisions in exposure measurements that have deflated the RfD level, and account for such biomarker imprecisions in the reassessment.
  • Recommend that EPA account for genetic differences in susceptibility to methylmercury toxicity both in setting the RfD and in deriving the dose response relationship for developmental neurotoxicity outcomes.
  • Support EPA’s proposal to study a variety of DNT outcomes, including cognitive function and behavioral, structural, and electrophysiological effects, when setting the RfD. Specifically, IQ is not the optimal neurobehavioral outcome measurement for DNT effects of methylmercury.
  • Argue that EPA should include cardiovascular impacts in the IRIS assessment.
  • Advise EPA to be mindful of the possible complexities created by the confounding effects when interpreting studies of methylmercury exposure from fish consumption.

The Clinic’s comments are available here.

Learning by Doing: A Student’s Perspective from LSC’s Safety Net Project

Via the Legal Services Center

By: Bryan Sohn

Bryan Sohn, center, pictured with attorney David Young (left) and LSC Tax Clinic Director Keith Fogg at LSC’s 40th Anniversary on April 5, 2019.

Bryan Sohn, center, pictured with attorney David Young (left) and LSC Tax Clinic Director Keith Fogg at LSC’s 40th Anniversary on April 5, 2019.

Before law school, I spent four years working in the education and non-profit world. By the end of my 1L year, I was feeling frustrated about being trapped in the “HLS bubble.” Without a doubt, my courses were fascinating and my professors wonderful. But I felt disconnected. And so I decided to seek out clinics. I considered the education law and child advocacy clinics but realized that I should branch out beyond my comfort zone. I signed up for the Veterans Law and Disability Benefits Clinic at the Legal Services Center (LSC) in large part because it reminded me of my students (from my high school teaching days) who have gone on to join the armed forces. And I ended up making the best decision of my law school career so far. My time at the clinic has been extraordinarily formative: in fact, the wonderful team at LSC couldn’t get rid of me and I’m now back for a second semester as an advanced clinical student!

The Veterans Law and Disability Benefits Clinic is divided into three projects: the Veterans Justice Project, the Estate Planning Project, and the Safety Net Project. I signed up for the Safety Net Project, which focuses primarily on Social Security benefits litigation. My wonderful supervisor, Julie McCormack, wasted no time in throwing me straight into the deep end. On my first day at the LSC, I was informed that I had a hearing in front of an administrative law judge (ALJ) the following week: I needed to get up to speed on Social Security law and draft that 15-page brief right away!

I quickly learned that this is a huge part of what makes the Safety Net Project and the Veterans Law Clinic so special. There is very little hand-holding. Students learn by doing. I was expected to the take the lead in building client relationships, building up medical records, and defining case strategies. Once I got staffed on a new case, I would spend several days wrestling with the facts and the law, shuttling back and forth between my carrel and Julie’s office. I would take the lead, but Julie was always available to share her support, wisdom, and incredible feedback despite having (at least) a gazillion other cases on her docket. Rinse and repeat. In my first semester, I ended up handling four ALJ hearings and three cases at the Appeals Council. The experience has supercharged my legal research and writing skills. I like to describe the LSC as a high-powered litigation boutique with a twist. Students take full responsibility for their cases and learn by tackling their cases head-on. But it’s a litigation boutique where the partners actually care about you. In fact, they are there precisely to support you. And most importantly, it’s a firm where the work itself is extraordinarily meaningful.

Above all, I will continue to treasure the relationships that I’ve built with our clients. My time at LSC has taught me what it means to lawyer as friend. So many moments come to mind: giving our client a hug after she broke down at the end of a successful hearing, finding out that a client who had suffered through post-traumatic stress disorder and over two dozen reconstructive surgeries would not lose her home because she had just won her benefits, and so much more. I’m so incredibly grateful to our clients for giving me the opportunity to be a part of their stories.

In my second semester at the clinic, I have continued to handle ALJ and Appeals Council cases. I am also partnering with a student at the Harvard Legal Aid Bureau as we prepare to argue a Social Security appeal at federal district court. Briefs have been submitted and oral argument is scheduled for September. I am incredibly excited to continue my LSC journey and get our clients the results that they deserve!

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