Clinical and Pro Bono Programs

Providing clinical and pro bono opportunities to Harvard Law School students

Georgia Voters’ Lawsuit Forces Brian Kemp to Resign Secretary of State Role

Via Protect Democracy

Source: Flickr.com

On November 8, 2018 Georgia gubernatorial candidate Brian Kemp resigned his office as Secretary of State in response to a lawsuit brought by Georgia voters.  The move came moments after a hearing was about to commence in Federal Court in Atlanta on a lawsuit seeking to force Kemp’s removal from any role in overseeing a governor’s race that is still too close to call and has not yet been decided.  Kemp claimed the move was to allow him to begin working on a transition to the governor’s role, but the timing made clear that his move was prompted by the lawsuit.

Larry Schwartztol, Counsel for Protect Democracy, the nonpartisan nonprofit that brought the suit on behalf of five Georgia voters said:

“This is a huge victory for democracy and the rule of law. It is a basic constitutional principle that a person may not be a judge in their own case and that’s what Brian Kemp was attempting to be here. It was manifestly unfair and it is a credit to the voters who stepped forward: LaTosha Brown, Candace Fowler, Jennifer Ide, Chalis Montgomery and Katharine Wilkinson whose bold stand in defense of democracy forced Secretary Kemp’s hand.

It is now critical that the votes be counted fairly and any other irregularities caused by Secretary Kemp’s conflicted role and multiple egregiously unethical and unlawful acts in the management of this election be addressed to the degree that Georgia voters can have full confidence in the result.

And let this be a lesson for the future: government officials may not misuse their offices to unfairly tilt the playing field in elections in which they are a candidate.  Doing so violates the Constitution, and today proves that Americans and our court system stand at the ready to stop that from happening should it ever be attempted again.”

The emergency legal papers in this case, Brown v. Kemp, were filed at 5 PM Tuesday on behalf of five Georgia voters: LaTosha Brown, Jennifer N. Ide and Katharine Wilkinson of Fulton County, Candace Fowler of Dekalb County, and Chalis Montgomery of Barrow County. They are represented in the matter by the nonpartisan nonprofit Protect Democracy, former United States Attorney for the Middle District of Georgia Michael J. Moore, Chuck Byrd, Caroline McGlamry and Wade Tomlinson of Pope McGlamry, and former Department of Justice Voting Rights Section attorney Bryan L. Sells of the Atlanta Law Office of Bryan L. Sells.

More information about the lawsuit is available at protectdemocracy.org/brown-v-kemp/

Protect Democracy is a nonpartisan nonprofit dedicated to preventing American democracy from declining into a more authoritarian form of government.

Michael J. Moore, Chuck Byrd, Caroline McGlamry and Wade Tomlinson are attorneys at the law firm of Pope McGlamry, which has offices in Atlanta and Columbus, Georgia. Mr. Moore previously served as the United States Attorney for the Middle District of Georgia from 2010 to 2015.  He is also a former member of the Georgia Senate, where he served on the Appropriations, Judiciary, Transportation, and Defense Committees.

Bryan L. Sells is the Principal at The Law Office of Bryan J. Sells in Atlanta, Georgia. Before launching his own practice, Bryan served as Special Litigation Counsel in the Voting Section of the Civil Rights Division of the United States Department of Justice from 2010 to 2015.

For press inquiries, contact  press at protectdemocracy.org

A New Harvard Law Building Opens on Mass Ave

Via Harvard Law Today

Credit: NBBJ Boston

By: Clea Simon

Citing its future role in “innovation, deep learning, collegiality, and service,” Dean John F. Manning saluted the opening of the Harvard Law School’s newest building, at 1607 Massachusetts Avenue, on Monday evening. At a joyful reception in the open first floor, guests, faculty and community members nibbled pizza and sweets while taking in enlarged photos of the location’s previous incarnations, watching a time-lapse film of the structure’s 12 months of construction and queuing up for tours of the interior. Raising a glass of champagne, Manning thanked the many individuals from Harvard Law School and the City of Cambridge who had made the building possible, and he hailed the LEED Gold certified building as “designed to inspire and provoke collaboration.”

Indeed, the sleek wood and brick structure, which sits across Everett Street from HLS’s Wasserstein Hall, Caspersen Students Center, and Clinical Wing building, was created to foster and expand the law school’s experiential and clinical learning and tosupport research programs. Along with space for faculty offices and other future uses, 1607 Massachusetts Avenue, the first Harvard Law School project designed by Alex Krieger, a principal of NBBJ and professor at the Harvard Graduate School of Design, will provide elbow room for Harvard Law’s clinical education and research.  It will serve as the new home for the Center for Health Law and Policy Innovation, which includes the Health Law and Policy Clinic and also the Food Law and Policy Clinic. The building will also house the Criminal Justice Institute and the Harvard Defenders, a clinical program and student practice organization, respectively, in which students represent clients in criminal hearings; the Islamic Legal Studies Program: Law and Social Change; the Animal Law & Policy Program; and the Access to Justice Lab.

“This new building reflects a commitment from both former Dean Martha Minow and our current dean to having a law school curriculum that reflects the needs of our law students and the community writ large,” said Clinical Professor Robert Greenwald, director of the Center for Health Law and Policy Innovation.

Clinical or experiential learning, Greenwald said, “needs a very different kind of space” than traditional lecture halls or classrooms. As an example, he described the new Health Law and Policy Clinic space, which features open areas, where students can work collaboratively, as well as more private offices and conference rooms. “A lot of the work happens via Skype and other electronic communication,” he said. “So all of our offices are designed for that.”

 Credit: Lorin Ganger

“The new building will provide invaluable space for the clinical programs and modern facilities to engage in the lawyering advocacy and teaching that are at the heart of the clinical programs,” said Clinical Professor of Law and Vice Dean for Experiential and Clinical Education Daniel L. Nagin. “This space will promote collaboration and enhance the ability of staff and students and faculty to interact and think across boundaries,” he added.

Continue reading.

Thanks for Listening!

Via the Harvard Negotiation & Mediation Clinical Program

Source: Pexels

We are pleased to announce that the Harvard Negotiation & Mediation Clinical Program has been awarded a grant to fund a new podcast series called Thanks for Listening, which will launch in November 2018.

This podcast will spotlight efforts to bridge the political divide in the U.S. through dialogue and collaborative processes, profiling the important and often courageous work of individuals and organizations who are helping citizens engage with one another on challenging topics. Episodes will dive deep into such issues as managing difficult family dynamics and relationships affected by partisan differences, bridging the divides so prominent in Congress, the media and in our social media spaces, training youth to move forward with better conflict management skills, when and how to engage in facilitated dialogue, keeping the conversation going in the midst of extremism and highly emotional issues, and civic engagement and the work of restoring communities. We hope to teach and inspire others to embrace dialogue as a valuable tool to engage productively around disagreement and differences, and to promote collaboration among people and organizations in the field.

We’re so grateful to our grantors, the American Arbitration Association International Centre for Dispute Resolution Foundation, for this opportunity!

Keep your eyes out on our websiteFacebook page, and Twitter for a link!

Heartbreak at the Border: Cindy Zapata on Her Trip to Karnes Detention Center

Via the Harvard Immigration and Refugee  Clinical Program

By: Cindy Zapata

There are some memories that remain so vivid in my mind. Some of them are obvious ones, like the day I got married and the day my son was born. Others are not so obvious, like the time my mother made me pay for a 5 dollar chicken shawarma in dimes and nickels. She laughed hysterically from afar as I ashamedly walked over and paid the man in countless coins. She insisted that it was a life lesson on the value of money – money is money, whether it comes in the form of a bill or a coin.

Often these memories evoke the emotion I felt in that very moment – joy, happiness, embarrassment – but there are some memories that not only evoke the emotion, but, in a way, transport me to the very moment of the experience. An example? Volunteering at the Karnes Family Detention Center.

During the four day stretch we were there, we met with countless fathers and sons. We helped represent some for their credible fear interviews or drafted affidavits. For others, we represented them for their reasonable fear redetermination appeal before an immigration judge. In three days, we had more than ten hearings.

Each had a very unique story, but they all shared a similar sentiment: they were scared of returning to their home country. Each had suffered or witnessed unimaginable horrors – sexual violence, physical assault, and death.

In my work, I’ve visited various different prisons and detention centers. As one can imagine, it’s a challenging experience. They’re physically and emotionally cold, and you can almost feel the desperation and lack of liberty in the very air you breathe.

But Karnes. Seeing fathers and children in detention. Seeing a three-year-boy in detention. It’s an image I can’t get rid of.

There were so many moments in our time there where I saw the law simply not protect the people that it was intended to protect. I saw the law fail miserably in upholding due process and basic fundamental rights. Individuals with valid asylum claims were not even allowed to explain their fear and experiences in court or they were denied interpreters or legal representation despite their affirmative requests. One father told me he had been separated from his five-year-old son – he was simply taken away. During that time of separation, he received his credible fear interview (CFI). I read his CFI and it was clear that this heartbroken man was incapable of understanding the questions before him. The only questions he asked over, and over, and over again were – Do you know where my son is? When will he come back? Can you help me find my son? Questions the asylum officer could not answer.

By the time I met this father, I was helping him finalize his affidavit to request a new interview before the asylum office. He was closing in on approximately three months in detention. He was tired and desperate. Despite having an extremely strong political asylum claim, he just couldn’t handle the thought of him and his son being in detention even a week longer. He was close to giving up.

My return home from Karnes was difficult. I’d see my son playing and I’d be immediately overwhelmed with guilt, knowing that I’d never have to make the impossible decisions these parents have made. I couldn’t shake the thought that at any given moment this father and his son, and countless other parents and children, are in detention.

Whenever I see kids coloring, I sometimes find myself back at Karnes. The kids weren’t allowed to color.

Whenever I see an image or a drawing of a dove, I sometimes find myself back at Karnes. An indigenous boy I met with had drawn a dove on his school folder. He was very talented.

I find that individuals in detention often draw doves.

A symbol of hope for a new beginning.

Cindy Zapata is a Clinical Instructor at HIRC and supervises the HLS Immigration Project (HIP).

Crimmigration Clinic Submits Amicus Brief on Behalf of Immigration Law Scholars

Via the Harvard Immigration and Refugee Clinical Program

HIRC’s Crimmigration Clinic, directed by Philip Torrey, recently co-authored an amicus curiae brief with Professor Kari E. Hong of Boston College Law School on behalf of immigration law scholars. The brief was filed in the Ninth Circuit Court of Appeals in support of a petition asking the full court to reconsider its prior decision in a case that significantly expanded a specific crime-based deportation ground.

The amicus brief argues for a narrow interpretation of the “crime of child abuse” removal ground that is more in line with the ground’s purpose to target child predators for removal. In doing so, the brief illustrates the over-inclusive nature of the removal ground’s current interpretation by immigration authorities, which may sweep in relatively minor conduct, including “free-range” parenting and child endangerment statutes that Congress did not intend to result in the deportation. To be clear, child abuse has no place in our society, but the current broad interpretation of the statute may render the parent who allows an older child to walk a half-mile home from a park a child abuser and, therefore, subject to deportation and permanent separation from her family. The brief argues that Congress did not intend to target that type of conduct.

The full brief is available here.

HIRC Submits Comments on Proposed Expansion of Family Detention

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

On November 6, HIRC, along with the HLS Immigration Project (HIP) and the Immigration Unit of Greater Boston Legal Services (GBLS), submitted comments on the Trump administration’s proposal to end the Flores v. Reno settlement, which requires that the government release children from immigration detention without unnecessary delay to their parents or other adults. The Flores agreement has been in place since 1997.

In their comments, HIRC and GBLS staff and HIP students used client stories to highlight the flawed logic in the Trump administration’s proposal:

“Last year, we represented a 21-year-old Salvadoran woman who, when fleeing abuse in El Salvador at age 17, was held for three days at gunpoint by gang members of Los Zetas in Mexico. Like the young Salvadoran, many of our clients often do not have the luxury of making a choice about whether to leave their home countries. Life-threatening violence related to powerful gangs and abusive security forces is a major problem throughout much of the Northern Triangle. This violence has pushed growing numbers of people from Honduras, Guatemala, and El Salvador to seek asylum. Furthermore, Central American women, children, and families often have no option but to flee the ongoing threat of gang or gender-related violence experienced back at home. New regulations will not deter these individuals who are trying to save their lives and the lives of their children.”

They also emphasized the dire effects of the indefinite detention of children, citing studies that show long-term mental and physical harm suffered by detained children.

The complete comments from HIRC, HIP and GBLS are available here.

Special thanks to Krista Oehlke ’20 for her work on this letter!

Academy of Food Law and Policy Conference at Harvard Law School

Via Center for Health Law and Policy Innovation

Written by Erika Dunyak, FLPC Clinical Fellow and AFLP Conference attendee.

On October 5th, 2018, the Academy of Food Law and Policy (AFLP) held its inaugural conference at Harvard Law School, co-hosted by Harvard Law Food Law and Policy Clinic (FLPC). The conference welcomed over 40 attendees and featured a series of workshops, moderator-led discussion groups, and a lunchtime panel led by past and current AFLP board members. The conference connected the food law and policy community and highlighted parameters of the field through group-driven discussion of scholarship, teaching, and growth of the AFLP.

Championed by Emily Broad Leib, director of the Harvard Law Food Law and Policy Clinic and Susan Schneider, director of the LL.M. Program in Agricultural & Food Law at the University of Arkansas, AFLP seeks to stimulate intellectual discourse, encourage and recognize scholarship, enhance teaching, support student interest, and promote the academic field of food law and policy. Now in its second year, the Academy connects legal faculty from across the globe to create a foundation for the long-term stability of food law as an academic discipline.

As a conference attendee, it was refreshing to be among peers and mentors in the food law space. Academy members gathered to evaluate and labor over each other’s writing in hopes of contributing meaningfully to academic discourse. The conference’s workshops helped attendees develop their positions and find new angles and new resources to strengthen their work. It was an exercise without judgment, and most importantly, will improve the research and writing of authors contributing to the food law academy.

Some AFLP members are adjuncts, teaching in undergraduate programs, clinical professors, or other non-traditional academic roles for the doctrinal legal academy. Other members are tenured faculty; the Academy even counts a dean amongst its members! But at the conference, the traditional academic barriers that exist were broken down; attendees were eager to learn from one another. Conference attendees also noted actions to increase inclusivity as an exciting next step for the legal academy and the future of food law.

Getting to Know You: Kelly Ganon

Via  adMISSIONS: HLS

Kelly Ganon is a current 3L and one of our Admissions Fellows. We recently sat down to hear her reflections on her HLS experience. Read on to learn about how she navigated the opportunities at Harvard, and her advice for prospective students!

Tell us about your path to Harvard Law.

When I was a high school freshman, I joined my high school’s mock trial team. I know how corny this sounds, but it’s true: the first time I stood up in a courtroom and gave a (fake) opening statement, I knew I had found what I wanted to do with my life. As I headed to college, my primary goal was to see the law from as many angles as possible. I attended Northeastern University, in part because the school has a robust internship program built into its undergraduate curriculum. Through that program, I spent half of my third year working for federal prosecutors at the U.S. Attorney’s Office in Boston, and half of my fourth year in Switzerland helping to train public defenders in developing countries with a Geneva-based NGO. When I returned stateside, I finished up my classes and returned to the U.S. Attorney’s Office in Boston full-time as a paralegal. I provided litigation support in the Economic Crimes Unit there for two years before shipping off across the Charles River to start at HLS.

Why did you pick HLS?

Like many prospective HLS students, at the end of my admissions cycle, I was faced with a choice between a Harvard education and some sizable scholarships elsewhere. As fortunate as I felt to be in a position where I couldn’t make a bad choice, for a period of time I was paralyzed with fear that I wouldn’t make the best choice. I reached out to every HLS alum in my personal and professional networks (and even some folks I’d never met before) and asked them for their thoughts. They were at various stages of their careers, but each and every one of them talked about the many doors that this institution had opened for them. They talked about the career flexibility they felt they had as a result of the enormous Harvard network and the top-notch educations they received. In one conversation I’ll never forget, a prominent alumnus I was lucky enough to get on the phone said, “Kelly, let’s get real. If you go anywhere else, you’re going to be sitting in your 1L classes and day dreaming about being at Harvard.” In my heart of hearts, I knew he was right. I’ve never looked back.

Have you been able to work closely with professors? How are those relationships established?

My best working relationship with an instructor came through my 2L fall semester at the Consumer Protection Clinic at Harvard’s Legal Services Center (LSC). Like all of the clinical instructors at LSC, Roger Bertling is both a teacher and a practitioner, so he is able to bring theory and practice together in a way that I found to be incredibly exciting. In my view, the two best things about forging a good relationship with a clinical instructor are first, that they are able to provide immediate and constant feedback on your work in a way that academic professors who give one assessment at the end of a semester cannot, and second, that as they see you growing as an advocate, they are able to give you increasing responsibility in real time. But there are a lot of different ways that students can form close academic and/or professional bonds with professors outside of the clinical setting. For example, I have a friend who hit it off with a professor when she was a student in his 1L reading group. She worked as his Teaching Assistant during the fall of her 2L year, and he later agreed to supervise her independent writing project — so they’ve now worked together in three different capacities. Office hours are always an option, too. Every professor who is teaching in a given semester has office hours weekly, and many do not require students to sign up in advance. So if there is a professor whose work you find particularly interesting, you can often easily seek them out regardless of whether you are taking a class with them.

What do you pursue outside of the classroom? How do you balance activities with coursework?

In addition to giving tours and leading info sessions as an Admissions Fellow, I am an Executive Editor for the Harvard Law & Policy Review and serve as a committee chair for the Women’s Law Association. Off campus, I spend most of my time at the dog park with my 2 year-old Black Lab, Luna, and distance running. Of course, it can be hard to balance law school and extracurriculars. But even during the busiest times of the school year, I have found that I’ve been able to make time for the activities and people I love as long as I am disciplined about it. I block out time in my schedule every week to do non-law school things, and I hold myself to it — no matter if that means staying up a little later or waking up a little earlier to read that one last case before class. And for my fellow runners reading this blog, my best advice is to sign up for a couple of races for weekends during the school year! Having a race entry on the books will keep you motivated to hit the road even when the coursework starts to feel overwhelming.

What is one piece of advice you would give someone who is considering applying to HLS?

Make sure that the person you present through your application materials actually sounds like you! Given the kinds of accomplishments people tend to have if they are competitive candidates for admission at top-tier law schools, putting yourself in the running against them for a spot in the incoming class can feel immensely intimidating. You might be tempted to massage your application materials until you look like a “typical” candidate. But typicality is not a virtue for a school that is focused on being exceptional. Additionally, don’t be too hard on yourself if you feel like you’re not giving off the “I can be a successful law student!” vibe at all times. I was positive I’d blown my chances at Harvard because I made a VERY lame joke in my admissions interview. But here I am, a rising 3L, still making terrible jokes.

Stacie Jonas on the Frontlines in the Fight to Protect Immigrant Survivors of Abuse

The Bernard Koteen Office of Public Interest Advising (OPIA) encourages law school students and lawyers to incorporate an enduring commitment to public service throughout their careers. The office offers advising sessions for students to discuss career options, plans events to expose students to the wide range of public interest opportunities available, and invites public interest leaders and mentors to HLS through its Wasserstein Public Interest Fellows Program.

As a part of National Pro Bono Week, Wasserstein Fellow Stacie Jonas discussed her commitment to serving those on the margins of society through her work in human trafficking. Human trafficking is a growing global epidemic. While sex trafficking is often what captures the media’s attention, labor trafficking is a prevalent problem. Jonas serves as the managing attorney for the Texas RioGrande Legal Aid’s (TRLA) human trafficking team, which aims to protect those who have fallen victim to labor and sex trafficking due, in part, to the gaps in our country’s immigration and labor laws. During her lunch time discussion, Jonas dispelled the myths of human trafficking, distinguished it from smuggling, and discussed how structural policy and legal flaws in labor and immigration are “weaponized” by abusive employers and traffickers that make immigrants more vulnerable to abuse and harm instead of protection.

TRLA provides comprehensive legal services to survivors of labor and sex trafficking in Texas and six other southern states. At TRLA, attorneys help survivors report their trafficking to law enforcement, apply for immigration relief and represent survivors in civil lawsuits and administrative agency proceedings. Survivors of labor and sex trafficking are often reluctant to speak out and engage in a process to hold traffickers accountable out of fear of deportation. Recent policies and rhetoric have caused widespread concern among immigrants, and people are reluctant to report their abuse, fearing that the threat of arrest and deportation is just around the corner, Jonas said. She told Politico EU that “[Traffickers] take complete advantage of the increased climate of fear. So many of them use threatened abuse of the legal process, threats of deportation, threats to report people to law enforcement on phony allegations, like threatening to accuse them of theft, or threats to have their kids taken away from them as a big part of their scheme to coerce someone to work.” TRLA helps these individuals prepare to speak with law enforcement about the trauma they have endured and assists in helping them obtain the legal safeguards to protect their welfare.

Unlawful immigration and/or smuggling may be synonymous to human trafficking for some, but Jonas informed the audience that, under federal law, they are actually quite different. Even U.S. citizens and immigrants who enter the country lawfully can become victims of trafficking. Nearly 70 percent of labor trafficking victims enter the U.S. on lawful visas. Jonas differentiated smuggling, which centers on the unlawful transporting of individuals to a foreign country, from trafficking, which involves the exploitation and coercion of an individual for labor or commercial sexual acts. Jonas also noted in a Texas Standard article, that “Victims of human trafficking are eligible for certain legal remedies and protections that are not always available to people who were smuggled.” Labor trafficked individuals can still be paid, and do not necessarily have restriction of movement. She gave an example of a man who was promised wages and free room and board in exchange for trucking-related work. But the work the man was required to perform was different and more labor intensive and dangerous than original described, and he received less pay than promised. He was injured on the job multiple times. The trafficker and his family also belittled the man, provided him sub-standard housing, and even threatened to get him deported or that he could be harmed if he ever left the job. Other truck drivers noticed signs of the man’s abuse, and he was referred to TRLA for services. Jonas and her team were able to get him out of the situation and helped him successfully apply for various legal remedies.

Jonas also currently works part time with Justice in Motion, helping to ensure that migrants fleeing abuse or violence can remain safely in the U.S. and to reunite migrant parents who were separated from their children while in the U.S. Jonas said that organizations like TRLA, Justice in Motion, and other similar organizations continue working to help trafficked individuals subjected to abuse and harm, who are often times trying to escape poverty, improve their lives, and support their families.

Thank you to OPIA and the Labor and Employment Action Project (LEAP) for putting this event together

Salma Waheedi Co-Authors Article on Muslim Family Law Reform

Via the Human Rights Program

Salma Waheedi, Clinical Instructor and Lecturer on Law at the International Human Rights Clinic and Associate Director of the Islamic Legal Studies Program: Law and Social Change, has co-authored an article in the Harvard Journal of Law and Gender with Kristen A. Stilt, Professor of Law and Director of the Islamic Legal Studies Program, and Swathi Gandhavadi Griffin, practicing attorney. The article, “Ambitions of Muslim Family Law Reform,” examines Islamic legal arguments and strategies used to support family law reform.

The co-authors state:

“Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with both intensity and controversy. In general, this change has been considered “reform,” defined loosely as the amendment of existing family laws that are based on or justified by Islamic legal rules in an effort to improve the rights of women and children. Advocates seeking to reform family law typically make legal arguments grounded in Islamic law, thus explicitly or implicitly conceding the Islamic characterization of family law. This ‘reform from within’ approach has grown in recent years and the legal arguments have become more ambitious as women’s groups have become more involved and vocal.”

The article identifies and examines the landscape of legal arguments that are used and are needed to support change and analyzes the ambitious, possibilities, and limitations of reform in Muslim family law today.

Clinic Students Support International Advocacy to Advance Rights of Women in Mauritius

Via the International Human Rights Clinic 

In October, the Musawah Movement for Equality in the Muslim Family submitted a thematic report to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Committee advocating for codification of family law provisions to protect the rights of Muslim women in Mauritius. International Human Rights Clinic students Samantha Lint JD’20 and Natalie McCauley JD’19 contributed to drafting the report and developing its legal recommendations, working in close collaboration with Mauritian attorney and family law expert, Narghis Bundhun.

As the report notes, a major cause of the lack of rights protection and inequality for Muslim women in Mauritius is the absence of a clear legal framework that protects rights in the context of religious marriages. The report highlights this legal ambiguity and key resulting inequalities that harm Muslim Mauritian women and in turn damage families, communities, and society as a whole. The report encourages the State of Mauritius to leverage its robust framework of diversity and inclusion to promote equality for Muslim women and take concrete steps to ensure all women in Mauritius enjoy full legal protection.

The report will be considered by the CEDAW Committee in its Constructive Dialogue with the Government of Mauritius.

Health Groups Upgrade R.I. Hepatitis C Medicaid Access to ‘A-’

Via the Center for Health Law and Policy Innovation

Source: Pexels

Originally published by the Providence News Journal on October 29, 2018. Written by Rob Borkowski.

The R.I. Executive Office of Health and Human Services removed all restrictions on curative hepatitis C treatments for its Medicaid patients on July 12, a move that the National Viral Hepatitis Roundtable and the Center for Health and Law Policy Innovation at Harvard Law School took note of in upgrading the state’s report card for the Hepatitis C: The State of Medicaid Access project from a “D-” to an “A-”.

Rhode Island’s decision improved access to the treatments for Medicaid patients in both its Fee-for-Service and Managed Care Organization Medicaid programs. Previously, the state restrictions on access to hepatitis C treatments were not in line with federal medical necessity requirements for Medicaid.

But the state worked in conjunction with the Center for Health and Law Policy Innovation, the Rhode Island Center for Justice and other community partners to make the policy change.

“We commend Rhode Island for expanding access to hepatitis C medications for all Medicaid beneficiaries, ensuring that more Rhode Islanders can receive curative treatments. CHLPI encourages other states to follow in Rhode Island’s footsteps and remove their discriminatory restrictions,” said Robert Greenwald, clinical professor of law at Harvard Law School and the director of CHLPI.

Rhode Island’s Fee-For-Service program previously required hepatitis C patients to demonstrate severe liver damage (a fibrosis score of F3 or greater), undergo screening and concurrent alcohol and substance use counseling for beneficiaries actively using, and obtain a prescription from a specialist that is approved by the R.I. Executive Office of Health and Human Services. With these restrictions in place, very few patients diagnosed with hepatitis C had access to treatment. Each year, it is estimated that only 250 Rhode Islanders who are Medicaid beneficiaries receive access to curative hepatitis C medications.

“After years of strong advocacy efforts in Rhode Island, all Medicaid patients diagnosed with hepatitis C can now receive access to treatment without restrictions. We continue to encourage all Medicaid patients at risk to undergo screening and learn about available treatment options,” said Tina Broder, interim executive director of the National Viral Hepatitis Roundtable.

Community Enterprise Project Participates in Boston Ujima Project’s Citywide Assembly

Boston Ujima Project citywide assembly, October 6th – October 7th 2018

By: Samy Rais

Over Indigenous Peoples’ Day weekend, more than a hundred community members, business owners and activists assembled to celebrate and participate in the Boston Ujima Project’s second official citywide assembly. The Ujima Project was founded in 2017 with the mission to create a new community-controlled economy in Greater Boston, initially focusing on[1]:

  1. Good Business Certification and Alliance: establishing community standards (and supporting businesses) that consider business practices like living wages, Criminal Offender Record Information (CORI)-friendly hiring, local purchasing, environmental impact and affordability.

 

  1. Community Capital Fund: pooling savings and investments to engage in participatory budgeting to meet the enterprise, housing and consumer needs of the community. The fund will be democratically governed by historically divested communities, giving every member an equal vote on the fund’s investment priorities, loans and equity transactions.

 

  1. Worker Services Network: growing employee satisfaction and security by organizing human resource programs.

 

  1. Alternative Local Currencies: establishing alternative local currencies (like time banking) that would allow members to trade their skills and labor and incentivize circulation of resources within the community.

 

  1. Anchor Institution Advocacy: building community power and advancing campaigns for the City, State and large nonprofits to direct investment, subsidy and procurement dollars to Ujima’s network of certified good businesses and developers.

 

Since early 2016, the Community Enterprise Project (CEP) of Harvard’s Transactional Law Clinics has been supporting the Ujima Project’s inception and community-driven mission. CEP students have provided the Ujima Project with legal analysis on various transactional matters, namely corporate and nonprofit law, corporate governance structures, 1940 Investment Company Act and securities laws implications, consumer protection laws, and secured transactions. These areas of law are customarily associated with the law firm-world, but are a critical need in the public interest space. Currently, CEP students are building on work completed last semester by helping to finalize the initial documents for the Ujima Project’s Community Capital Fund to begin making investments in community-supported businesses.

As part of CEP’s support of the Ujima Project, I attended the citywide assembly with CEP director and clinical instructor, Carlos Teuscher. CEP’s attendance at the citywide assembly had two purposes: first, in following the community and movement lawyering approach, CEP believes in supporting organizations that are working to dismantle and radically restructure current systems of law and power, and it is essential to be present in order to be in solidarity with such movements; and second, it was critical to hear the voices of the community that the Ujima Project was supporting and are the most impacted, in order to effectively prepare the Ujima Project’s Community Capital Fund loan documents.

As mentioned above, the Ujima Project is creating the first-of-its-kind investment fund that is controlled by the community. While my involvement in transactional cases generally consists of undertaking legal research, drafting contracts, or forming a legal entity, it was obvious from the start that working with the Ujima Project was going to be different. Because of its community-driven approach, as its legal counsel, we need to ensure that the Ujima Project’s legal documents are able to adapt to its members’ ideas, struggles and demands, no matter how unconventional.

In that sense, the Ujima Project is both a unique project and a large-scale illustration of recurrent challenges in our work at CEP. This semester, student advocates in CEP have been advising several groups looking to form worker cooperatives in Greater Boston, which, like the Ujima Project, require democratic voting. By giving workers collective ownership in their business, worker cooperatives enable collaborative entrepreneurship and help tackle many of the issues poverty lawyers interact with on a day-to-day basis – wage-and-hour violations, health and environmental issues, immigration, criminal justice, and many others. As with the case in the Ujima Project, we need to ensure that the voices of all the members in the cooperative (undocumented/documented, low-wage workers/management, reentering citizens, etc.) are heard and reflected. At the same time, it is challenging to balance the need for urgency in the day-to-day operations and democratic management.

As we pass the mid-point of the semester, I am excited to have been able to interact with communities experimenting with and implementing alternative economic models. As an aspiring lawyer, I have appreciated the need to better understand the community you work for and their needs. Further, as a foreign student at Harvard Law School for the semester, I discovered communities in the United States, who, although being disadvantaged, gather and spare no effort or ingenuity to fight and overcome the systemic struggles they face.

[1]Ujima Concept Paper available at https://docs.wixstatic.com/ugd/40c717_f16102d86a644584af4c47c72ea2794b.pdf.

National Institutes of Health will study “Food is Medicine”

Via the Center for Health Law and Policy Innovation

Source: Pexels

Written by Hanh Nguyen, Whole Person Care Project Assistant. 

When the Committee on Appropriations recently passed H.R. 6557, The Department of Defense and Labor, Health and Human Services, and Education Appropriations Act for 2019, they also submitted a report accompanying the bill that encouraged the Office of Director of the NIH to work with Institutions and Centers, including NIDDKNHLBINIA, and NICHD, to report on research that has been conducted on Food is Medicine related topics. This may include “medically tailored meals, meal nutrition therapy, produce prescription programs, the role of proper nutrition in aging, and the role of proper nutrition in reproductive health”.

The report also draws attention to the access challenges and out-of-pocket costs of prescribed medical diets. The Committee encouraged the Center for Medicaid and Medicare Services to work proactively with stakeholder communities to identify and address improper barriers to nutritious food access.

CHLPI is excited to see the language of Food is Medicine (FIM) used among policymakers. We are hopeful that a focus on nutrition research will improve our health care delivery system.

There is a growing body of research that demonstrates the impressive results of FIM interventions in improving health outcomes, increasing patient satisfaction in health care, and reducing health costs. In a recent congressional briefing, it was reported that patients who received home-delivered medically tailored meals showed a 16% net reduction in monthly healthcare spendings. Likewise, a new study from Project Angel Heart, a non-profit food and nutrition program serving individuals living with life-threatening illnesses in Colorado, reported that the provision of medically tailored meals resulted in a 13% drop in hospital admissions and 24% overall cost reduction for patients with diabetes, chronic obstructive pulmonary disease, and congestive heart failure.

Despite such results, there is still not a federal funding stream dedicated to medically tailored food and nutrition within healthcare, leaving those who chronically ill, too sick to shop and cook for themselves, or too poor to afford nutritious food at risk for life-threatening conditions that are preventable with proper nutrition.

We believe that a critical analysis of existing FIM research will set the stage for future innovative policies that will increase access to medically tailored meals. Check out our FIM State Plan to learn more about how CHLPI is working to increase access to FIM interventions in the Commonwealth!

A Victory for Software Preservation: DMCA Exemption Granted for SPN

Via the Cyberlaw Clinic

Source: Pixabay

By: Kendra Albert

The Library of Congress handed a significant win to digital preservationists. On October 26, 2018, the Library of Congress granted an exemption to the DMCA’s anti-circumvention provision for libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired software for the purposes of preserving software and materials that depend on it. This exemption will significantly reduce the legal risk involved in preserving software that is no longer available for purchase. The new exemptions [went] into effect on October 28, 2018. The announcement came after a year of rulemaking proceedings before the Copyright Office, and the involvement of several semesters of Clinic students, including Evelyn Chang, Anderson Grossman, Jillian Goodman, Erika Herrera, Austin Bohn, and Erin Thomas. You can read our previous blog posts about the Clinic’s involvement here and here.

Background

17 U.S.C. § 1201 prohibits circumvention of a “technical measure that effectively controls access” to a copyrighted work. This provision has the effect of forbidding someone from breaking “digital rights management” or “DRM” technology – think, for example, of the copy-control technologies that restrict copying of DVDs or CDs (containing film or software). Under Section 1201, the circumvention of the access control measure is itself a violation — one can be held liable for violating Section 1201 by breaking DRM even if the underlying use of the work protected by that DRM is lawful. This can lead to strange results — e.g., someone copies a clip from a DVD for educational purposes (clearly a fair use under Section 107 of the Copyright Act, no liability) but breaks DRM on the DVD in doing so (thus violating Section 1201 and incurring potential liability for that violation).

Recognizing this problem, the law provides that the Copyright Office shall conduct a rulemaking proceeding every three years to consider requests for exemptions from liability under Section 1201. Since the Notice of Proposed Rulemaking initiating the seventh triennial Digital Millennium Copyright Act (DMCA) rulemaking proceedings last fall, the Cyberlaw Clinic has represented the Software Preservation Network (SPN) before the Copyright Office. The SPN and the Library Copyright Alliance (LCA) sought an exemption to the DMCA anti-circumvention provisions to allow libraries, archivists, museums, and other cultural heritage institutions to preserve software and software-dependent materials. SPN is an organization dedicated to digital preservation and ensuring long term access to software. The LCA represents librarians in the United States and Canada in addressing copyright and related IP issues.

Why Software Preservation Matters

Software is an important part of our daily lives, and it has changed how we interact with the world. Many writers turn to word processing software instead of the typewriter, and many artists turn to graphics tablets instead of the canvas. As a result, many creative works today are “born digital,” unlike traditionally analog works like literary manuscripts or paintings. We even rely on software to create digital copies of these old analog works to protect their contents from the inevitable degradation of the physical media.

This increased dependence on software as a medium for creative expression has led to increased efforts for preservation of software and software-dependent materials by university libraries and research institutions. Preservation of these works indisputably serves two laudable purposes: to allow historians to document an important aspect of modern culture, and to enable researchers to understand how older software worked and how past users experienced that software.

But the unrelenting march of technology stymies the efforts of digital preservationists. New software products become outdated and obsolete rapidly due to continuing advancements in hardware and software. The modern practice in the software industry of periodically releasing new products and versions while dropping support for old products and versions means that archivists and preservationists may never be able to obtain copies of certain software for preservation purposes. And since computer programs often use proprietary file formats that can change across versions, losing access to software also means losing access to digital files that can only be opened using that software. For example, current versions of AutoCAD do not support opening old AutoCAD files. And even if some computer programs currently support backward compatibility, there is no guarantee that they will continue to support old filetypes going forward.

How the Law Gets in the Way of Preserving Software

Despite the importance of software preservation and the known technological challenges faced by digital preservationists, current legal frameworks frustrate, rather than facilitate, preservation efforts. Even if a copy of old software can be located, preservationists may have difficulty seeking licenses or permissions because the current holders of rights to the old software may not be identifiable. The older the software, the more difficult. And even if rightsholders can be located, they may have little incentive to incur the transaction costs associated with licensing their old software because no market exists for the software.

Legally obtaining copies of old computer programs is not the end of preservationists’ troubles. Computer programs often include built-in technological protection measures (TPMs) to prevent access by unauthorized users. TPMs may require the user to provide product keys or passwords, insert a CD or dongle, or connect to an Internet server for authentication. But preservationists may not be able to access the software using TPMs in the manner intended by the developers, especially for older software. Old TPMs may require using obsolete operating systems, or inserting floppy disks despite modern computers no longer supporting floppy disk drives. If librarians or preservationists circumvent these TPMs in their efforts to study and preserve old computer programs and files, they would be subject to legal liability under the DMCA. Even if rightsholders never actually bring lawsuits against preservationists for circumventing TPMs, as friend of the Clinic Brandon Butler’s recent report suggests, the mere threat of legal liability causes a chilling effect. The consequence is forever losing software and software-dependent materials to the ages.

The Exemption

Most parties, including the opponents, agreed that software preservation is a worthwhile endeavor. While the opponents objected to the broad scope of SPN’s proposed exemption, the Acting Register of Copyrights agreed that librarians, archivists, and preservationists need more latitude in their ability to access computer programs and computer program-dependent materials. And after a year of public comments and hearings, the Librarian of Congress, adopting the recommendation of the Register of Copyrights, issued a final rule containing an exemption that encompasses much of what the SPN requested.

The final rule allows eligible libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired computer programs (including video games) to preserve computer programs and computer program-dependent materials. The final rule includes the SPN’s suggestion, in consideration of the opponents’ concerns about breadth, that the exemption be limited to computer programs that are no longer reasonably available in the commercial marketplace. The Library of Congress did create some limitations on the exemption, requiring that the computer program is not distributed outside the physical premises of the eligible library, archives, or museum.

Conclusion

On the whole, the new exemption gives digital preservationists significantly more leeway to continue their important work without living under a cloud of litigation risk. The Cyberlaw Clinic will continue to work with the SPN and other software preservation groups to ensure that the law does not inhibit continued access to software for scholarship and research, and will release a more comprehensive guide to the new exemption for preservationists in the coming weeks.

Veterans Legal Clinic Welcomes DAV General Counsel for Conversation About His Role & Career Path

Via the Legal Services Center 

Christopher J. Clay, General Counsel of Disabled American Veterans (DAV), shared his perspectives on current challenges facing disabled veterans and his experiences as general counsel of national non-profit organization during a talk at Harvard Law School on October 2. The event was hosted by the Veterans Legal Clinic of the Legal Services Center of Harvard Law School, and was cosponsored by the Harvard Law School Project on Disability, Armed Forces Association, National Security and Law Association, and The Transactional Law Clinics.

Clinical Professor Daniel Nagin—director of the Veterans Legal Clinic—gave opening remarks, introducing both Mr. Clay and Richard E. Marbes, Chair of the Board of Directors of the DAV Charitable Service Trust, who was in attendance at the event. Nagin described DAV’s role as an important resource for veterans seeking access to benefits and supportive services. This year marks the sixth year that the DAV Charitable Service Trust has provided funding to support the work of the Veterans Legal Clinic.

Mr. Clay—a Ph.D-trained philosopher turned lawyer—spoke about his background, his unique career path, and his duties as the general counsel of a large nonprofit.  He answered questions from the audience on a wide range of topics, including how DAV collaborates with other veterans organizations, DAV’s relationship with the Department of Veterans Affairs (VA), and whether the role of general counsel differs between non-profit and for-profit organizations.

Mr. Clay also discussed DAV’s origins, structure, and accomplishments. DAV is a congressionally-chartered organization that was founded in Cincinnati with about 20 members and has now grown to over 1 million members. DAV offers a range of services to veterans, from no-cost advocacy before the VA to free rides to medical appointments. According to Mr. Clay, DAV handled over 250,000 VA disability claims last year and has donated over 4,000 vans and countless volunteer hours over the past few years to transport veterans to medical appointments at VA medical centers nationwide.

In addition to helping veterans access benefits and services, Mr. Clay discussed how DAV has sought to encourage veterans to live fuller lives. One program brings together severely disabled veterans to participate in winter sports and other activities that, Mr. Clay said, help veterans feel that “if I can do this, I can do anything.” Finally, he emphasized that the DAV’s veteran members are the ones that ultimately run DAV, which “ensures that the passion that began DAV remains with DAV.”

Lessons Learned: Facilitating a Conversation about Remembrance

Via the Harvard Negotiation & Mediation Clinical Program 

Source: Pexels

By: Neha Singh ’19

When Zikaron BaSalon first asked me to facilitate a discussion about Holocaust Remembrance on Holocaust Memorial Day, the task seemed easy even though the subject matter was weighty. After all, many people who were similarly inexperienced in leading group discussions had successfully hosted similar events with Zikaron BaSalon in the past. Moreover, I was working with a great team of fellow students and mentors in the Harvard alternative dispute resolution (ADR) community who would help me make the discussion a success. And I had learned about facilitating conversations in my classes taught by expert facilitators.  With so much going for me, how could I not be an amazing facilitator?

Well, pride goes before the fall.

The more I prepared for the event, the more nervous I became. Despite receiving support from Zikaron BaSalon, despite the help of my team, and despite all my coursework in this area, I felt out of my depth. I had two major concerns with whether I could facilitate the upcoming discussion well.

My first concern was that maybe I was just the wrong person to be facilitating this discussion. How could I, a non-Jewish person with no family connections to the Holocaust possibly do justice to such an important topic? What could I, a second-year law student with nothing but book knowledge about ADR principles, have to offer to people with rich and deep connections to the Holocaust? Who was I to tell them how to share their feelings with each other? I seriously considered the idea that my most useful contribution to this event could be just remaining silent for an hour while others talked.  Unfortunately, remaining silent, while tempting, would not solve my second concern.

My second concern was that I would be unable to stop the discussion from becoming heated in a manner that would be counterproductive to our goal of encouraging Holocaust Remembrance. It was all too easy to imagine the conversation transforming into an angry yelling match. What would I do if people began to discuss and have intense political disagreements about Israel-Palestine relations? Or about the political climate in the US? Or about the refugee crisis in Germany? All of these are topics worth discussing in detail, but I was unconvinced that heated discussions on these topics would further our goal of Holocaust Remembrance.

Eventually, I was able to address both my concerns and facilitate a discussion that I thought was honest, welcoming, and respectful. While I will not pretend I did everything perfectly, it was a rewarding experience that taught me a lot. If I were to host an event like this again, I would make some changes that I think would make the discussion even better.

To address my first concern of not having the right background to facilitate this discussion, I asked for help from a colleague who had a different background that complemented mine. Specifically, one of my former Teaching Assistant colleagues, Max, was available to help facilitate the event with me. Max brought with him his lived experience as a Jewish person and his history of facilitating conversations about the Holocaust in other contexts; this made him an invaluable addition to the team, as he was able to suggest facilitation strategies that created an environment that was conducive to a rewarding discussion. In addition, the two of us as facilitators made a good team because we could model for the rest of the group how Jewish and non-Jewish people could talk together about the Holocaust. During the event itself, no one questioned or seemed offended by the fact that I was co-facilitating the discussion, which I took as a sign that I had addressed my first concern well enough.

To address my second concern of not wanting the discussion to turn into a heated argument, Max and I worked together to prepare a plan for how we would stop off-topic heated arguments, if those occurred. A big part of this process was deciding what counted as “off-topic” in the first place. After all, people have different thoughts about the subject of the Holocaust, and we did not want to stifle any expression that was respectful and sincere. We ended up creating a list of topics that we thought were off-topic and would lead to arguments, and decided that if the discussion veered into these topics, we would re-direct the conversation by asking a new question or prompting a different participant to speak. I was the major driving force behind this strategy, because I felt uncomfortable with allowing conflict in a discussion that I was facilitating. I was uncomfortable because I would hold myself responsible if a participant in my discussion felt disrespected or offended; thus, I wanted to eliminate the chance that any participant would have to participate in a conflict that could lead to disrespect or offense. In retrospect, I think I could have handled this concern better. We were lucky that no heated arguments came up during our discussion, but if one had, I do not think our proposed approach would have been the best way to deal with it. If such an argument had come up, we would have changed the topic, which may have led to resentment at being cut off, confusion about why we were not allowing the discussion to continue organically, and unwillingness to participate further. I think a better approach would have been to be more open about my discomfort and thought process. For example, I could have told the participants that I felt conversations about X, Y and Z topics would lead to heated arguments that I wanted to avoid, and then allowed them to respond regarding whether they agreed with me or not. This way, the discussion would be more democratic, instead of being restricted to topics that I thought would not generate conflict that made me uncomfortable. This more open process would take the burden of guiding the conversation off my shoulders, and allow all participants to feel responsible for the direction of the conversation.

I still treasure the discussion we had that night. Many attendees offered constructive feedback about changes we could have made, but all attendees appreciated the chance to have had such a meaningful discussion. However, looking back on the experience with the benefit of hindsight, my biggest takeaway from hosting the Zikaron BaSalon event is not that I managed to pull it off. My most powerful learning comes from all the questions I still think about. How do I best connect with people who have different histories than me, and help them talk freely with me? How do I handle heated, but important, discussions? I found a way to address my concerns for the duration of the Zikaron BaSalon event, and I am grateful to have had the chance to see how wonderful conversations can be when these questions are considered and engaged.

The Art of Listening: A Mediator’s Experience

HMP students Quent Fox, Laura Bloomer, Pratik Mehta, and Margaret Huang with Clinical Instructor Cathy Modell at Harvard Law School’s Bicentennial Celebration event showcasing clinical programs and student practice organizations.
Credit: Martha Stewart

By: Laura Bloomer, J.D. /MPP ’19

Two years ago, I would not have listed “great listening skills” as one of my top attributes. Yet at its core, being a good mediator requires you to be an active, engaged listener. We listen to what the parties are telling us and use that information to move the conversation forward. We help the two people sitting across from us create their own resolution to whatever issue brought them into court that day. The model we use at Harvard Mediation Program (HMP) discourages offering solutions and taking sides. Instead, we empower parties to develop and agree upon solutions themselves.

We’re not always successful, in which case the parties can return to the court and have their case heard by the clerk magistrate. But when we are successful, parties sign an agreement of their own making and can walk out of court a few minutes later after getting approval from the clerk. As opposed to a blunt solution imposed by the court, the mediated agreement can be flexible and tailored to the parties themselves. We add efficiency to the court system, sure, but we also strive to add a space for people to talk and to better understand each other. We believe that when parties create their own solution to a problem, they are more likely to feel that the result is equitable and will be more likely to abide by the requirements in the future.

I joined HMP for two reasons. On a personal level, I wanted to improve my listening and facilitation skills. On a professional level, I believe in alternative dispute resolution and wanted to get hands-on experience in the field. Over the past couple years, I keep returning to HMP for those same reasons, as well as a third: some of the most caring, thoughtful, and fun students at the law school are also members of HMP. After all, many of the best listeners find their way to mediation, meaning HMP has an incredible support system. It’s also a place of engaging conversation, where discussions range from how to build stronger relationships to improvements to the legal system that would lead to a more inclusive, fairer process.

Since I began training with HMP, I’m confident that not only have my listening skills improved, but also, I now have a greater understanding of the legal system and its effect on people’s lives. I’ve mediated a variety of different disputes: landlord-tenant, small claims, and harassment prevention orders. Some cases are as simple as the parties seeking a payment plan to ensure the money owed gets paid in a reasonable time period. Some are incredibly difficult and involve decades of fraught relationships coming to a head. Many are in between the two extremes.

As mediators, we have to be comfortable with whatever level of emotions parties bring to the table. We strive to acknowledge their feelings and allow the parties to be heard. One of the greatest privileges of HMP is the chance to serve as a trusted neutral through which parties will share their experiences and put genuine effort into trying to reach a resolution that feels fair to both sides.

For many people, this day in their local court will be the only time they directly interact with the legal system. Mediation can redefine this day for them. It brings parties away from the hierarchy of the court room, where the judge sits behind a bench higher than the parties, Latin and antiquated words are intermixed with English, and only the lawyers may freely step in front of the bar. Mediation brings folks to a table to sit together and engage in a productive discussion. Being a small part of making the legal system more accessible by all members of society has been one of the most rewarding aspects of my time at HLS. I hope to continue this type of work in the future and to keep practicing my listening skills, whether through mediation directly or other activities.

A Winning Streak for Student Borrowers

Source: Pexels

By: Casey McTiernan

Students Won Several Major Victories This Month Against the Department of Education.

After years of delay by the Department of Education, student borrowers represented by the Project on Predatory Student Lending are finally winning their rights in courts. On four separate occasions this month, judges rebuked the Department, struck down illegal policies, and ruled in favor of students.

These recent rulings and decisions demonstrate that student borrowers have, and can enforce, their rights against the Department of Education and predatory for-profit colleges. These wins are a testament to our clients’ perseverance and willingness to stand up to the Department and drive change for student borrowers who attended for-profit colleges across the nation.

In the past three weeks alone, student borrowers won the following cases:

The 2016 Borrower Defense Rule is Now in Effect.

Students thwarted the Department of Education and the for-profit college industry’s attempts to prevent the implementation of the 2016 borrower defense rule. This rule includes a set of important protections for student loan borrowers from predatory schools, including their right to bring their claims in courts instead of in arbitration if their school participates in the federal student loan program. The Department finally backed down from its stubborn delays after all of its arguments were rejected by the court. The judge also rejected an industry attempt to stop the 2016 borrower defense rules from taking effect. As a result, the rule took effect on October 16, 2018 after more than a year of illegal delays.

These victories are a rebuke to both the Department of Education and the for-profit college industry. Students did not stop fighting to get this rule implemented, and now, because of their willingness to fight, these important and long-delayed rules are in effect.

Read more about the borrower defense rulings and the cases Bauer v. DeVos and CAPPS v. DeVos.

The Department Cannot Seize Tax Refunds from Borrower Defense Applicants.

On October 25, 2018, a federal judge ruled that the Department of Education had illegally taken the tax refunds of two former Corinthian College students to pay their student loans, without addressing the assertion, made in borrower defense applications, that their loans are fraudulent and unenforceable. As a result of this ruling, all student loan borrowers are protected from having their income tax credit seized to pay their federal student loans while their borrower defense applications are pending. This win is one step toward stopping the Department’s long-standing and utter disregard for the rights of students who have been subjected to the harmful practices of the predatory for-profit college industry.

Read more about the victory in Williams v. DeVos.

Corinthian Colleges Students Win Class Certification, and Elected Officials Call on the Department to Cancel All Corinthian Debt.

On October 15, a judge certified a class of Corinthian Colleges borrowers, allowing these students to team up to fight for the full loan cancellation they legally are owed. The Project on Predatory Student Lending and Housing and Economic Rights Advocates (HERA) represent the students in the class action lawsuit Calvillo Manriquez v. DeVos.

That same day, a group of elected officials and organizations from across the country called on the Department of Education to cancel the debts of all Corinthian College students once and for all.

Read more about the #CancelCorinthian campaign.

Should We Just Ban “Best By” Labels on Food?

Via the Center for Health Law and Policy Innovation 

Source: Flickr.com 

Originally published by Modern Farmer on October 12, 2018. Written by 

Food labels, as we’ve written about before, are awful: they can be misleading, outright lies, not include enough information, or, in the case of one particular label, encourage bad habits.

Tesco, one of the UK’s biggest supermarket chains, announced this week that it will remove “best by” date labels from 116 fruit and vegetable items. The move builds on a smaller reduction in the label earlier this year. So why are those labels bad?

The “best by” label, along with its siblings “best before” and “best if used by,” are not federally regulated in any way; they are not only not required, but there aren’t even any rules about how to determine which product gets which date. (It’s sometimes done by anecdotal evidence, sometimes by lab tests, more often by just following other labels and assuming that, say, the best time to drink milk is earlier than two weeks after it was processed.)

But over the past few years, resistance to the “best by” label has grown. A 2016 survey from the Harvard Food Law and Policy Clinic found that 84 percent of respondents occasionally throw away food that’s past its labeled date, and a third of respondents “usually” or “always” do. This is a significant issue because that food isn’t actually bad; the “best by” date is not the same as a spoilage date. The “best by” label is, unexpectedly, a major contributor to food waste, and food waste is so rampant in the US that an estimated 40 percent of the entire country’s food never makes it to the plate.

Tesco’s own research indicated that 69 percent of respondents supported removing the “best by” label, with more than half stating that they believed it would reduce food waste. This isn’t a trick to get you to buy spoiled food; you can tell if a tomato is rotten, or about to be rotten, in a way that’s much more precise than a stamped generic label. It’s a way to discourage people from walking past food that’s perfectly good.

Lawyers: Forget The Client, Welcome The Community. How Chicago Is Working For Justice For All.

Via Forbes

By: Ashoka


Forbes interviewed social entrepreneur and HLS alum Lam Nguyen Ho ’08 on his work to get legal aid powered by the community through working with community-allied lawyers and community groups in Chicago.  Ho is the executive director of the Community Activism Law Alliance (CALA), which he founded with an HLS Public Service Fund Venture Grant.  CALA unites lawyers and activists to help their communities access justice and pursue social change. In 2017, Ho received the Gary Bellow Public Service Award for his efforts to improve the legal aid industry and  he contributions of over 3000 pro-bono hours in service to clients.

Read a snapshot of the interview about his work with CALA below:

Q: In broad brush strokes, how does legal aid work now?

A: Legal Services Corporation, a federal government program set up in 1974, largely controls what we know as legal aid in this country and funds it about half a billion dollars every year. It serves a great good and reaches many low-income people and communities. I’ve worked as a legal aid lawyer for more than a decade and I’ve seen and done remarkable work with LSC support. But there are big and growing gaps. One is that overall funding has dropped 60 percent in the past decade, making the system and its lawyers completely overstretched and locking out many who urgently need legal help. Even beyond funding, though, there are real structural limitations in how legal aid operates.

Q: What are the limitations?

A: For one, legal aid lawyers and organizations funded through this system can take on only some cases. Over 20 case “types” are excluded, including people facing gross injustices and civil liberty infringements like undocumented immigrants, sex workers, anyone who’s in prison. Class action lawsuits and anything related to organizing are also excluded which basically limits lawyers to individual not systemic level legal work. Another excluded case type is school segregation — I mean, it’s 2018 and if a legal aid lawyer sees a case with school segregation issues, they can’t be involved in it.

Q: What’s the relationship of lawyer to community?

A: Lawyers and legal aid programs tend to work by themselves, in silos, not really connecting to the communities they support or the changemakers working on the bigger changes. What I saw in my time in traditional legal aid was basically this: we’d take on individual cases and we would “solve” somebody’s eviction, we would “solve” their domestic violence situation. But we would never connect with those groups working at the systemic level to correct, say, gentrification causing displacement and mass evictions of entire communities, or cultural currents that make violence at home more likely. So the relationship of  lawyer and community is critical and we’re missing opportunities for impact. It’s where we see the biggest chance for change.

Q: So what you are proposing… how does Community Activism Law Alliance step in?

A: At CALA, we believe the law should be a vehicle of social change. In our model, legal aid is community located, community operated and, most importantly, community directed. This means that everything we do — deciding who gets legal services, what types of cases we handle, what hours, what location — is co-created with and ultimately directed by the community partner. Why? Because our partners are the ones connected to social movements. By letting them lead we end up leveraging the movement work and the movement priorities. This adds up to bigger impact, beyond what most individual cases can contribute. It also shifts the power of the law into the hands of communities and people most directly impacted.

Q: You started CALA in 2015 in one community, Little Village in Chicago. What’s your reach now?

A: We’re working in and with 16 community groups and 20 programs across Chicago and Lake County, and we have more demand than we can meet at current capacity. The work is philanthropically supported, giving us more freedom to do what we know is needed most. And because we’re embedded with communities, we are supported with office space, language and translation services, and administrative support, making this model cost effective, with greater potential to scale nationally. We’re starting to build our vision of an alternative network of legal programs that are powered by the people, by the community.

Continue reading.

Corruption-fighting AG? Easy to say, harder to do.

Via Crain’s Chicago Business

Source: Flickr.com

By: Tim Jones

Come election time, it’s popular for Illinois Republicans and Democrats, when political circumstances suit them, to clamor for the state’s top lawyer to investigate corruption—almost always, to no avail.

But a few weeks ago, Democratic Attorney General Lisa Madigan began investigating the Rauner administration over how it handled a spate of Legionnaires’ Disease-related deaths at the state home for veterans in Quincy.

And the GOP cried foul.

“Clearly partisan,” charged Travis Sterling, executive director of the Illinois Republican Party.

Even though 14 people have died, and WBEZ news reports show the Rauner administration waited nearly a week to notify the public about the initial outbreak, the Quincy case vividly illustrates why laws in Illinois and almost all other states make it very difficult for elected attorneys general to lead the very anti-corruption crusades partisans often call for.

What one party may hail as a righteous quest for justice, the other likely will condemn as a politically tainted abuse of power.

Yet candidates often cannot resist taking up the cudgel of anti-corruption, sometimes identifying their targets by name.

“If I say, ‘Elect me and I’ll go after Donald Trump or Speaker (Mike) Madigan or Jared Kushner,’ anyone who says that is absolutely wrong,” said James Tierney, former attorney general of Maine and now a lecturer at Harvard Law School. “That is the opposite of what our criminal justice system is supposed to be about.”

Read the full article here.

Humanizing Individuals in the Criminal Justice System

PLAP students representing a client in a parole hearing

By: Regina Powers, J.D. ’19

I joined the Prison Legal Assistance Project (PLAP) the fall of my 1L year at a time when I knew very little about the criminal justice system. I knew, however, that PLAP provided important services to prisoners in Massachusetts. These services include representing prisoners in disciplinary hearings and in their bids for parole before the Massachusetts Parole Board.

In January of my 1L year, I took my first case. When I visited my client, he was only able to speak to me behind a glass wall and in handcuffs. I learned he was in “segregation,” which is a term the Department of Corrections (DOC) uses to describe the Massachusetts system of solitary confinement. Those in solitary usually receive one hour of recreation a day, while spending the remaining 23 hours in a small cell. I could not witness a client handcuffed behind a glass wall while speaking with his student attorney without becoming enraged and devoting my time in law school to this work. Our criminal justice system is used as a tool of racial oppression and the horrors of solitary confinement and other terrible conditions in prisons are inflicted disproportionately on men and women of color.

I continued in PLAP throughout the rest of my 1L and 2L year, and I was fortunate enough to represent a client before the Massachusetts Parole Board. PLAP represents “lifers,” or clients with life sentences who are eligible for parole. Many of these men have been imprisoned for decades, and they often committed a crime as teenagers or young adults––a time before the brain is fully developed. My representation included developing a detailed memorandum asking for parole, gathering letters from friends and family members, extensively preparing my client for opening and closing statements, and preparing a closing statement myself. Through this, I developed skills in client interviewing, which can be a particularly difficult skill to gain during law school because of limited opportunities to interact with clients. Additionally, I developed the type of skills relevant to trial work, as I prepared arguments and presented them before a panel.

I describe this as a fortunate experience for me because of the opportunity to meet and spend time with my client, and the honor bestowed upon me in advocating for him. Although society marginalizes and demonizes prisoners, and especially prisoners serving life sentences, many of our students, including myself, view our clients as genuine, wonderful people. Most importantly, we view our clients as humans deserving of fundamental rights. It is horrifying and demoralizing that the rest of society does not view them as such. Students should join PLAP for the privilege it is to advocate for prisoners. You will learn not only about the criminal justice system, but also the wisdom of those who have spent countless years in prison.

My experience in PLAP has been the single most important experience during my time in law school. It has led me to fully realize the level of injustice present in our criminal justice system as a whole, as well as the inhumane conditions in our prison system. I plan to pursue criminal justice work and hopefully prisoners’ rights work more specifically. Many other PLAPers attribute their passion for this work to our organization, and I encourage students to consider joining. Several students staff each office hour under the direction of student mentors, who offer mentorship about the work and law school advice in general. PLAP also hosts happy hours, speaker series, and other bonding events, which fosters a unique community for those who want to work in criminal justice and more specifically on prisoners’ rights.

 

Hipper Than HIP: Harvard Law School’s Immigration SPO

HIP students participating in Citizenship Day in Boston on September 23, 2018

By: Austin Davis, J.D. ’19

The Harvard Law School Immigration Project (HIP) has been the best part of my law school experience. Nothing but respect for the other SPOs – HIP just can’t compete with calling a social event “PLAPpy Hour” – but I’ve found the most engaged, dependable, and passionate students anywhere at HIP.

I joined HIP because immigrants are the cornerstone of my family and my country, and immigrant rights are under siege. But I also joined because spending all my time in the classroom was giving me hives. I wanted to work with an actual person, dive into their story, and help bring some humanity to law.

HIP’s work provides the perfect outlet for that energy. Some members assist families with byzantine green card applications or work authorization forms. Others represent indigent clients at bond hearings, or provide Know Your Rights presentations to groups of non– United States citizens at local community centers.

Personally, I’ve spent most of my time working with HIP’s chapter of the International Refugee Assistance Project (IRAP). It’s an international organization with chapters at 28 law schools that works with refugees abroad and former war-zone translators for the United States. And during my 1L year, I had the chance to work on a case with a fellow 1L partner and lawyers from the New York City firm Cleary Gottlieb.

The stakes were high. Our clients were a same-sex couple tortured by their government and abused by their families in their country of origin. They had fled to a second country, where the revelation of their sexual orientation had led to further physical and sexual assaults. They were broke, they didn’t speak the language, and suffered ongoing harassment and violence.

As lawyers in touch via Skype and living an ocean away, our role was soberingly limited. But we could help them push through the refugee system, to get out of their situation and receive resettlement clearance for Europe or the United States. And to that end, we did successfully petition the United Nations for our clients to receive an expedited refugee determination. That was the first step they needed in order to activate the international resettlement mechanisms, and we cut their resettlement wait time down by well over a year – a year which, by our clients’ account, would have proved very dangerous.

But this case makes up just one part of my HIP involvement. I’ve also had the opportunity to attend “advice and counsel” sessions organized by HIP’s Community Outreach Initiative (COI). On one occasion, we students and our legal supervisors spent a couple hours in a Chelsea church basement talking with a gathered group of Haitian noncitizens. We helped provide honest, on-the-fly assessments of whatever concerns they had: their immigration status, the visa risks of leaving the country, or the president’s mood.

In addition, I’ve participated in Boston’s Citizenship Day with HIP’s Immigration Services Project (ISP), where we worked through the fine details of certain US citizenship forms with people preparing their applications. All in all, everything I’ve done through HIP has been client-centered, challenging, and immensely rewarding.

Plus, back at school, it’s been a delight to be surrounded by so many law students looking to do real work in the world. It was an essential community for me as a 1L, trying to navigate this gigantic law school. And over my three years with HIP, I’ve really valued how our members bring so many different perspectives, experiences, and motivations. It’s rarer than it should be to have people with a professional focus on the Central American humanitarian crises engaging with people focused on the Syrian civil war. In HIP, they come together, and we learn so much from each other.

HIP has provided the most meaningful experiences for me at law school, through the legal service work or making great friends. It doesn’t matter what year in law school you are or your background in immigration law: I’d highly recommend that all HLS students consider joining HIP.

 

Why TAP Defined My Law School Experience

Elizabeth Gyori J.D. ’19

By: Elizabeth Gyori, J.D. ’19

The notice came in a white envelope, hand-delivered by a staffer at the project-based Section 8 development that my elderly grandparents lived in. From the outside, it looked like it could be a notice that they received on a weekly basis. However, this was a “Notice to Cease.” From what my immigrant Chinese family could tell, it meant eviction. Then about to enter my first year of law school at Harvard Law School (HLS), I took charge of the situation. I knew nothing about subsidized housing and the rights afforded to my grandparents who spoke no English. Fumbling my way through preserving affordable housing for my grandparents and noticing the lack of culturally-competent legal services afforded to low-income tenants pushed me to join the Tenant Advocacy Project (TAP) as a 1L. My transformative time in TAP has not only led me to serve as the organization’s Co-President, but I hope to continue the fight for housing justice after graduation.

TAP is a student practice organization that provides representation and advice to tenants of subsidized housing who are facing eviction, subsidy termination, application denial or transfer denial. Every year, approximately 40 law students conduct a wide array of legal advocacy before local housing authorities. This ranges from reasonable accommodation requests for tenants with disabilities to representing clients at administrative hearings—a more informal, court-like proceeding—about eviction or termination of a rent subsidy. The ultimate goal of TAP’s practice is not only to ensure that tenants remain housed, but also that they are able to thrive in their affordable housing. Thus, student advocates work closely with social service providers in the Greater Boston area and conduct advocacy on policy issues that affect TAP’s client population. TAP’s intake process, run by a nine-student Intake Review Committee, allows advocates to shape the priorities and caseload of the organization. At the end of their time in TAP, students will have amassed a wealth of knowledge about many areas of the law and developed their trial advocacy, negotiation, legal research and writing, and client interviewing skills.

This skill acquisition is not the only reason why students join or return to TAP year after year. Students are also interested in housing justice and how it intersects with other pressing social issues. For example, one of my clients, who is elderly and disabled, was facing voucher termination because her son became addicted to opioids after a surgery and was arrested for possession of drugs. The arrest was not near her apartment and her son was actually away at college at the time. She had no idea about her son’s addiction, and in the years since, her son had turned his life around. Even still, the overlapping web of the criminal justice system, the nation’s opioid crisis, and other public health issues threatened my client’s stable housing. My colleagues and I worked with the son’s public defender, filed reasonable accommodation requests for my client’s disabilities, represented her at several hearings about her termination, and referred her to social services. Like every advocate, I grew immensely by getting to know and working closely with my client. I developed my legal research and writing skills, my understanding of how the administrative process is related to later court practice (i.e., preserving the record), and my ability to work effectively with clients with disabilities, especially translating complex legal concepts into everyday language. Personally, I was moved by the trusting relationships that organically formed between my client, her son, and me. Their resilience re-energized me. Further, I was grateful to have the opportunity to see and trace first-hand how housing justice is deeply linked to many other areas of law and policy, including disability law, criminal law, economic justice and public health. This front-row seat allows TAPpers to become passionate and effective legal aid and community lawyers, policymakers, and impact litigators, among many other career paths after graduation.

Moreover, TAP’s vibrant community, which gives students a space to engage with the Greater Boston community, discuss various social issues and reflect on law school, is where many TAPpers make life-long friends. Key to this community has been TAP’s long-time Clinical Instructors, Lynn Weissberg and Marcia Peters, who have supervised students for over 30 years. Lynn, who founded TAP in 1981, has been a strong advocate for housing justice in the Greater Boston area, from the days of rent control until today. Marcia, who joined TAP a few years after TAP’s founding, has similarly fiercely fought for the rights of low-income tenants. On each case that they supervised, Marcia and Lynn not only brought wisdom and legal insight, but they have taught, by example, generations of TAPpers what it means to zealously advocate for your client. Though Marcia retired this past April and Lynn retired in October, TAP’s community is only expanding. We are excited to welcome Shelley Barron to the TAP family as our new Clinical Instructor. Since her start this past June, we have seen how her background in housing law, family law and working with survivors of domestic violence has strengthened our advocacy for clients.

In the summer before law school, I was able to help my grandparents remain in their affordable housing. But as I have explored housing justice more and more throughout law school, I have realized that lack of culturally-competent representation is not the only barrier to affordable housing. Rather, sheer lack of enough affordable housing, housing policies and laws that clash with communities’ differing conceptions of family and dignified living, and the effect of intersecting issues like economic injustice prevent the fulfillment of housing as a human right in the United States. I hope to bring my skills, experiences, personal background and understanding of the Asian American community to my future work in housing justice. As I look towards graduation and practicing law in the “real world,” I only hope that I can be as brave and resilient and my TAP clients, as fierce and compassionate as Lynn, Marcia and Shelley, and as dedicated to housing and social justice as my fellow TAPpers.

Students Receive Wisdom on Building a Pro Bono Practice in a Large Law Firm

Pictured from left to right: Sue Finegan, MintzLevin, William (Rob) Roberts ’10, Ropes & Gray, and Tory Hartmann ’17, WilmerHale

Three influential law firm attorneys committed to serving their community spoke to a room full of students about how law firm associates can get involved in pro bono work at a large law firm. Susan (Sue) Finegan is a nationally recognized pro bono leader. She is the Pro Bono Partner at Mintz Levin, and was driven to the law profession to help people. She has served as the lead counsel in a number of high profile litigation matters, such as the Trump administration’s travel ban and seeing through the passage of a Massachusetts restraining order law for sexual assault survivors. She current serves as co-chair of the Massachusetts Access to Justice Commission. The two other panelists, William (Rob) Roberts ’10 and Victoria (Tory) Hartmann ’17, are HLS alums who built a foundation for their pro bono work throughout their time at HLS. Roberts, who is an associate in the Litigation and Enforcement group at Ropes & Gray, participated in the Predatory Student Lending Clinic as a student. His current practice at Ropes focuses on complex commercial disputes, bankruptcy litigation, and Foreign Corrupt Practices Act compliance. He also serves as the family law team leader for the firm’s partnership with Dorchester House. Tory Hartmann is an alum of the Food Law and Policy Clinic. Now at WilmerHale, Hartmann advises public and private companies on an array of corporate matters, including strategic investments, cross-border outsourcing deals, and SEC filings. Each of the panelists spoke to the breadth of issues they have worked on in their pro bono portfolio, ranging from protecting Deferred Action for Childhood Arrivals (DACA), reuniting separated families, working with domestic abuse survivors and homeless women, to helping farmers and other individuals and entities providing food get established. The panelists described how their intentional efforts to get involved in pro bono work and their firm’s support of that work allowed them to frequently engage in public service opportunities.

Finegan emphasized that the three firms represented on the panel had a long history of commitment to the community and are strategic about hiring lawyers with special skills that can be helpful in serving the community: “I think a lot of these firms, and these three in particular, have decades long commitment to certain initiatives in the community of Boston and in other cities that we operate in. Even before pro bono was a defined thing, the founders of our firms were doing things in the community for free . . . There’s a real obligation as lawyers, [and] as professionals, to use [these special] skills in any way we can.”

Roberts agreed that law firms believe in doing meaningful pro bono work, stating that, “Firms are looking for these types of issues that make an impact.” Roberts recounted a year where he performed an impressive 1,100 hours of pro bono work, exceeding his billable hours. When asked about how the firm viewed this imbalance, he replied, “at the end of the day people see if you’re doing good work and they appreciate the work you’re doing whether it’s pro bono or billable.” The challenge, he said, is in maintaining organization and flexibility to bounce between different issues.

There can be tremendous leadership growth for associates to initiate a pro bono project and take the helms of leading a case. Finegan said that it is a great professional development opportunity for associates to be primarily responsible for someone’s well-being when leading a pro bono project, a chance that occurs less frequently in some of the firm’s bigger cases when the partners largely drive the work. The panelists encouraged students to get the experience and exposure of leading a project and driving a litigation strategy early on in one’s career.

Hartmann encouraged students who were planning to work in law firms, but have a strong inclination for public interest, to ask the firms up front about their pro bono work. She encouraged students to ask summer associates during interviews and meet and greet sessions about the kinds of pro bono projects they had worked on. “Everyone should have an answer,” she declared. She also encouraged students to ask if pro bono hours count the same as billable hours and to make sure the projects include challenging and substantive work. That way, she said, a student can tell how much a firm values their pro bono practice. Finegan highlighted that at Mintz Levin, “Our pro bono matters are just as important as our client matters, and in some ways, in my perspective more important because these are clients who would otherwise not get helped.”

Thank you to the Harvard Women’s Law Association for co-sponsoring the event.

Climate Defense Project Emphasizes Movement Lawyering to Empower and Protect Climate Activists

Pictured left to right: Climate Defense Project Co-Founders Alice Cherry ’16 and Ted Hamilton ‘16

“We like to think of ourselves as climate activists with bar licenses . . .” said Ted Hamilton, one of the co-founders of the Climate Defense Project (CDP). CDP was founded in 2016 by three HLS alumni (Alice Cherry ’16, Ted Hamilton ’16, and Kelsey Skaggs ‘16) to “use the legal system as its own avenue of activism” in climate defense work. Since its founding, the organization has represented a number of climate activists who engage in nonviolent civil disobedience to combat climate change, who would otherwise lack access to reliable legal support. CDP addresses this need by providing legal support for activists, connecting attorneys with communities and campaigns, and pursuing climate impact litigation.

Before CDP was born, the founders themselves were active participants in the climate movement. In 2014, seven students, including the three founders, filed a lawsuit against Harvard University over its fossil fuel investments. The plaintiffs claimed that Harvard was violating its charitable mission by contributing to environmentally and socially harmful activities through investing in fossil fuel companies’ business actions. The group knew their chances of success were slim, but still found it important to put political pressure on the university to take immediate action to reduce its dependence on fossil fuels. The case was dismissed by the Massachusetts Appeal Court nearly two years later, but Cherry and Hamilton said that the experience of litigating, speaking to the press, and making political arguments in the court and the court of public opinion prepared them for their current roles in running a nonprofit. From their experience pursuing litigation, Hamilton said, “We realized there was a real need for this sort of proactive movement lawyering for the climate movement . . . . and to proactively use the legal system and legal ideas to advance the movement’s goals.”

CDP primarily provides criminal defense for climate activists. Increasingly, climate activists are using civil disobedience tactics as a call to action, urging politicians and other powerful decision makers to immediately address the problems contributing the climate’s deterioration. “The planet is dying and our clients are getting arrested for trying to do something about that,” Cherry remarked. In their cases, CDP often uses the climate necessity defense, a common technique used by climate activists, which states that a person’s actions were justified by the climate emergency, or the need for drastic action to reduce the need for fossil fuels. In one such case, protestors were arrested for demonstrating against a liquid natural gas plant in Tacoma, Washington that was built on indigenous land. CDP spoke to a local indigenous elder, who served as an expert witness in the case. She gave a history of the land and the violations of treaties over the land throughout the years. Her testimony, in addition to fact that the indigenous group granted permission for the protestors to take action, helped the protestors to be cleared of the trespass and obstruction charges against them. CDP was also involved in a case in Minnesota, where the activists from Oregon and Washington, known as the “Valve Turners” manually shut off the emergency valves on the tar-sands pipelines that transports tar-sands oil from Canada to the U.S. The activists justified their actions as necessary because of the imminent threat that fossil fuels pose. Three of the five protestors were tried and convicted of felony charges, but in a win for the activists, a state judge dismissed all charges earlier this month.

These court cases, victorious or not, often helps to spread a message and adds legitimacy to the climate action movement, Cherry said. The two also discussed that political trials provide a forum and process for fact finding, adds procedural safeguards and opportunities to vet information, and can facilitate democratic deliberation on important social issues. Cherry stated, “Through jury verdicts, people get to be the voice of the community. They get to participate in a form of direct democracy at a time people are kind of shut out of other democratic institutions.”

Cherry also discussed the intersection of climate change with other issues. “You really can’t understand climate injustice without understanding racial and gender injustice, and of course, capitalism. We exploit people as well as resources.” She said that intersectionality is going to be key for the climate movement going forward to make climate change feel “immediate, tangible, and morally compelling for people.”

Both Hamilton and Cherry spoke highly of the decision to start their own organization, and encouraged students to do so also if there was a need they felt was currently unaddressed. They shared the challenges of building a nonprofit, but also how having connections both within and outside of Harvard gave them the support and resources to be successful.

Thank you to the Harvard Environmental Law Society for co-sponsoring this event.

Protecting Civil Liberties and Rights with Oren Nimni of Lawyers for Civil Rights Boston

Pictured left to right: Harvard Law School Professor Nikolas Bowie ’14 and Oren Nimni, Lawyers for Civil Rights

Harvard Law Professor Nikolas Bowie ’14 and Oren Nimni of Lawyers for Civil Rights (LCR) Boston sat down to have a conversation about the LCR’s recent litigation efforts to advance civil rights and economic justice. Nimni spoke about his commitment to advancing justice for people of color and immigrants and described his grassroots approach to developing legal strategies.

Nimni is currently litigating a case against the Trump administration to protect immigrants from Haiti, Honduras, and El Salvador with Temporary Protected Status (TPS). In the mid-summer of 2018, the Trump administration announced it was terminating TPS status for El Salvador, Haiti, Honduras, Nicaragua, Nepal, and Sudan. In light of the announcement, immigration and civil rights advocacy groups like the LCR initiated litigation to prevent the terminations. They claimed that the cancellation of the program had a discriminatory motive that violated the law. In early October, U.S. District Judge Edward Chen ordered the administration to halt its plan, ruling that the administration violated the Equal Protection Clause by basing its decision “on animus against non-white, non-European immigrants.” Nimni emphasized the importance of the decision nationwide, but especially in Boston which has a high immigrant population. He highlighted that speaking with community members and prioritizing their needs was central to developing the legal theories they pursued.

Nimni has also been involved in other efforts to combat racial discrimination, including LCR Boston’s suits against the Boston Police Department (BPD) for racial profiling and internal discrimination within employment. He has also helped with reunifying families who were separated at the border due to the Trump administration’s “zero tolerance” policy. LCR filed a lawsuit on behalf of children seeking damages from federal officials for forcibly separating families. Nimni was quoted in WBUR 90.9 saying that the lawsuit seeks to “hold the government accountable” and petition for “. . . the government [to] attempt to repair some of the harm that they’ve done to these kids.”

Nimni distinguished LCR as an organization that embodies the community-lawyering approach, letting communities drive the litigation. It is a model that appealed to him and one that he uses as he develops new legal strategies. He also said the organization had a strict focus on protecting the rights and interests of marginalized communities. “We’re in a really particular moment right now in the law where things are really bad and that provides a pretty sober reminder of the way that law works,” he told the audience. But, Nimni said, there are a number of organizations nationally and in Boston that are engaging in exciting and creative litigation strategies around immigration, mass incarceration, and education, among others. Nimni concluded by encouraging students to participate in direct services work through clinics or other opportunities. He also advocated that students stay in Boston, arguing that there are underserved communities in cities that are not well-established civil rights hubs that need creative, and talented lawyers to help defend their interests.

Thank you to the National Lawyers Guild – HLS Chapter for co-sponsoring this event.

Regulatory Hackers Aren’t Fixing Society. They’re Getting Rich

Via Wired.com 

Source: Pixabay

By: Susan Crawford

Recently I was invited to join a panel to discuss Regulatory Hacking: A Playbook for Startups, a new book by venture capitalist Evan Burfield. The book is sort of a guide for new companies looking for a win-win—doing good by doing well—in highly regulated sectors like health and education. It argues that startups have the opportunity to make trillions of dollars solving global challenges that, in the past, would have been addressed by governments or nonprofits.

Burfield sat at the center of our semicircle of five speakers, all female save for him. He’s a large-framed, confidence-radiating man with a light English accent—an earlier generation might have called him “clubbable.” His message was one of intelligent cooperation by startups with government. He urged the small crowd of students to “map power dynamics” when they launch their businesses. The book’s introduction says it “provides a history of Elon Musk as the ultimate regulatory hacker,” but Musk’s name didn’t come up—maybe because the Musk news of late hasn’t been that adulatory.

The panel discussion took place on sunny afternoon, in a high-floor classroom that looked east over the towers of upper Manhattan. Burfield spoke easily and at length, and as he did I watched a large private helicopter loop lazily toward its landing pad by the East River.

Once the event petered to a close, he ran off to catch a plane. He’s a busy, successful person, a family man as well, with a daughter named Endeavour. (She makes an appearance in the first sentence of the book, asking Alexa to play a song for her.)

Two other speakers on that panel were women with experience as New York City employees—one current, one former— who talked about weaving startups into the workings of government in various ways. They too were confident and competent, as was the woman entrepreneur who, with me, rounded out the panel. We were all appropriately deferential to Burfield; it was his book, after all. (The New York Times, in its review of Regulatory Hacking, called it “chock-full of checklists, matrices, diagrams and jargon all of uneven usefulness.”)

But the talk and the helicopter darkened my mood. It’s tough to find moments of clarity in the calamitous, disorienting era we’re in, but for me that afternoon stands out. Something was off.

By temperament and by training, I am optimistic most of the time. In that room, though, I sensed the assumptions of our age operating in high, silent gear: Business is the most important agent of change in society; government exists to “cooperate” and is mostly incapable and toothless (while simultaneously, if ineptly, threatening); nothing is going to be done about the harrowing, multiple, structural unfairnesses of our time; women who want to survive and be invited to future panel discussions need to be appropriately deferential; and our destiny as a society is being charted by people who never use public transportation. Or fly commercial.

I did speak up, politely, that afternoon. I said many things are profoundly wrong with the way we live in America, and that what we really need to do is make sure government has the capacity and resources to ensure—using technology as a tool, but mostly through sound policy—that everyone with a belly button can lead a thriving life. I urged the students in the audience to spend some time working in government themselves, so that they could see how many people at City Hall are doing their best against impossible odds. I smiled as I spoke; I don’t like sounding like a crank. But it was both saddening and alarming.

Luckily, someone seemingly at the very heart of the Aspen-Davos-Harvard win-win consensus has emerged with a terrific book that takes up many of these themes: Anand Giridharadas, with Winners Take All: The Elite Charade of Changing the World. Giridharadas’ work gives me hope that we can start marking a cut in the continuous history we inhabit. We may be launching a new historical narrative.

Giridharadas is an insider. He’s been on the TED stage, at the Aspen Ideas Festival, at the Harvard Kennedy School. (Although I teach at Harvard, I’ve never met him.) And he, like me, is horrified by the blinkered, superficial, and self-serving rhetoric of the privileged class as it looks to avoid personal pain in a thoroughly unfair world.

Giridharadas crisply categorizes the breathless rhetoric of individual startuppy idealism that rolls out from the stages of conferences on the social enterprise circuit. The language routinely used by startup leaders claiming to improve people’s lives—”we will change the world!”—masks a profound desire to avoid confrontation with the unfair and unequal status quo experienced by many Americans. The way things are, after all, is serving the interests of the well-born and well-connected.

One jarring anecdote in Winners Take All has a budgeting startup called Even doing some user-centered-design-ish interviewing of a gig-economy worker, named Heather Jacobs. Jacobs is barely making it, panicked by a punishing commute, staggering student debt, and insecure work hours. The interviewer wants to make sure that Even will meet Jacob’s needs. Could a subscription app help smooth Heather’s jagged paychecks, ensuring by automatic saving of excess incoming cash that she had enough money each month to cover her bills?

“If you asked the question, ‘What is the best way to help Heather Jacobs?’ the honest answer probably wouldn’t be to charge her $260 a year to smooth her income,” Giridharadas writes. He points out that you might, instead, try to fix the systems that are keeping Heather Jacobs poor—you would want to make sure that transit, affordable housing, and student loan assistance were part of the fabric of American life. But then you wouldn’t have much of a startup.

Giridharadas’ message is that the world could be arranged in different ways. But no one in the well-connected world he documents is interested in that restructuring. The people Giridharadas writes about are looking to make a pile of money from doing good, assisted by thought leaders, most foundations, and a guileless, money-oriented public. They face little foundational, structural criticism; no one on the conference circuit wants to be a harsh critic or a genuine public intellectual. Who wants to attack the people who have flown you in to speak?

Most of the time, we are ants crawling across a vast tablecloth, unaware of our context or our destiny. But right now things are off enough that we might want to raise our heads to look around. Hacking is not going to cut it.

Student Reflections From the Border

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

In August, HLS students Alessandra De La Tejera ’20, Josephine Herman ’20, Evan Hindman ’19, and Andrew Patterson ’20, and HIRC attorneys Sabi Ardalan and Cindy Zapata spent a week in Texas volunteering with RAICES, an organization that offers free and low-cost immigration legal services in Central and South Texas. They worked at the Karnes Detention Center, where they met with fathers and sons who had been forcibly separated from each other under President Trump’s zero-tolerance policy. Three students have offered their thoughts on this powerful and eye-opening experience.

Alessandra De La Tejera ‘20:

Judges have the discretion to hear the cases before them with cynicism or with humanity and empathy. People often disagree about which should be applied when victim’s advocacy organizations disparage progressive Philadelphia District Attorney Larry Krasner when he reduces standards for the lengths of sentences and probationary periods, or comparable organizations are outraged when a college rapist is let off with a slap on the wrist, quite transparently because of his status and race. Asylum, however, is one area of the law that is, by definition, humanitarian. Naturally, then, I would expect the treatment of asylum-seekers to be humanitarian. It is not.

I stood next to Alberto*, a client I represented in a hearing to review his credible fear finding, and watched helpless as the Judge essentially cross-examined my client over every tiny discrepancy or omission in his Credible Fear Interview (CFI). Alberto told the Judge about his issues with the interpreter, who was switched halfway through the interview, and who continuously interrupted and talked over him. He told the Judge about how he cannot read or write and his difficulty understanding the questions. He told the Judge about how his son was brought in toward the end of the interview, distracting him before he could mention his fear over working for a political party.

In response, the Judge rattled off the boilerplate questions, barely giving Alberto a chance to nod between each question:

“You were asked, ‘Did you understand my questions today?’ and you said yes.”

“You were also read a summary of your claim, and they asked if it was correct, and you said yes.”

“You were asked if there were any changes you wanted to make, or if you wanted to add anything, and you said no.”

“You were asked if there was anything else that was important to your claim that you hadn’t discussed, and you said no.”

He then found Alberto not credible, and affirmed his negative credible fear finding.

Considering the context Alberto was in, it’s understandable that he was unable to truly comprehending the significance of those questions. Still, in this preliminary review, for which he only needed to provide some evidence that he could prevail on an asylum claim if it were adjudicated, none of that reasonable compassion was extended to him.

The asylum system is failing in its core purpose of humanitarianism. Direct representation is critical because these individuals want and deserve an advocate, or at the very least a companion to walk them through this process. Still, that company is only so helpful, and it does not compensate for the fact that even with representation, many lose. Policy work is then critical because the laws and their application need to change in order for representation to become effective. Policy work can only do so much, however, when the laws as they stand do nothing to prevent judges and other immigration officials from using their discretion to reject statutorily valid asylum claims. Representation of compassionate perspectives in the judiciary is then critical, so that those with discretionary power wield it with empathy. In short, as I left the Karnes Detention Center, my somber takeaway was that there is a lot of work to do, and everywhere.

*Client’s name has been changed to maintain confidentiality.

Josephine Herman ‘20:

Karnes is a family detention center, which means that it houses adults and their minor children during the early stages of the asylum process during which credible fear interviews (CFIs) are conducted. Although there are toys in the visitation area and colorful posters on the walls, it is impossible to ignore that Karnes was built as a prison for adults. Clients are called in groups to meet with lawyers, legal assistants, and volunteers about their cases. Although the staff try to use the private rooms to discuss clients’ personal cases, often they are full and so a client and a volunteer sit in the crowded, loud visitation room to discuss the clients’ asylum claim—which usually means hearing about the worst experiences of their lives.

“Part one: the harm you have suffered.” Clients discuss sexual and domestic violence, beatings, shootings, stabbings, extortion, threats to their lives, threats to their children’s lives, threats to kill their whole families. They talk about men in loose clothing and tattoos (a sign of gangs) who lurk outside of their homes. For the sake of time and the law, I move quickly past the persecution element. This is not usually where people have trouble in their cases—the vast majority show horrific harm and threats.

“Part two: the motive of the harm.” This is where most claims fail, but often a client does have a way to meet the motive, or nexus, element—it’s just that it is unclear to the adjudicator. I ask about their religion and whether they go to church. I ask what the person who raped them said while he did it. I ask them about whether there is something different about them, or about their family, that people don’t like.

“Part three: why the police or government can’t or won’t help you.” Sometimes, this question is met with incredulity. Of course, the police won’t help in countries where they are in league with the gangs, or against a certain political party, or abusers themselves. It can be challenging to ask a client to explain something that is just a fact of life in his or her home country. Often, when I ask them how they know that the police won’t help, the answer is simple, “everyone knows.”

“Part four: why isn’t it safe in your home country? Why can’t you hide?” The gangs have contacts all over. My abuser is a powerful man. The government is against my party. I don’t know anyone else. The city is even more dangerous. I was a farmer, I don’t have a way to work that’s not my land. I tried to move and they found me. They even found me in another country.

Although each story is unique, and has its own tragic and horrifying details, the days are long and they start to blend together. RAICES staff arrive at 10 a.m. and leave when the visitation room closes at 8 p.m. Then, there is the long drive back to San Antonio and preparations for the next day. Volunteers help them to work more efficiently on complex cases and on getting through the dozens of people that might pass through visitation daily. The days are both repetitive and unpredictable. This summer, with the family separations, staff dealt with unexpected transfers and retaliations by ICE against protesting fathers.

They are still there, still doing the work, day in and day out.

Andrew Patterson ‘20:

Over the course of three days volunteering at the Karnes Detention Center in Texas, we watched the soul drain from an immigration judge’s body. We had all heard the stories of judges in these proceedings haranguing asylum-seekers, silencing advocates, and summarily denying claims. We would learn that those stories told of a system whose injustices run too deep for any one government official to escape with their humanity fully intact.

During the first day of hearings to review negative credible fear findings, the judge was reasonable, and while he mostly denied relief, he was at least pretending to apply the law correctly and was treating both advocates and their clients with dignity and respect. He respectfully and thoroughly detailed his disagreement with the lawyers’ arguments and explained his decisions.

By the second day, we observed a shift. He was moving through hearings more quickly. His mood had darkened and, in his impatient declarations that the lawyers were only present and speaking “at his discretion,” we began to see the process wearing him down. He was misstating the legal standards, mixing up the higher bar for those who had already been previously deported from United States with the lower one for those who had just entered for the first time. The interpreter also began making serious mistakes – she repeatedly mistranslated things in ways that were actually prejudicial to one of my clients and made it seem as though he was a criminal, and my deferential protests seemed to infuriate both interpreter and judge. By this time, he must have sat through more than a dozen hearings, each lasting about 45 minutes, listening to horrific stories of violence in Central America. He had repeated this process all day, for at least two days straight, for at least eight hours each day. At least the lawyers, sleep-deprived and harried as we were, did not have to shoulder the weight of making decisions about people’s horrifying circumstances for hours and days on end.

On day three, the judge was exhausted and irritable and had abandoned all pretense of justice. My client, mentioned above, who had the most obviously defective credible fear interview that I encountered that week, compellingly recounted his story of horrific persecution on account of his race only for the judge to declare, inexplicably, that he had not testified that he was persecuted on account of his race. Later that day, one of my colleagues was actually shut out of the courtroom as she tried to protest the fact that her client was being forced to go forward without an interpreter who spoke her client’s native language. The transformation from two days prior stunned all of us.

It is unfair to everyone to require judges to make these life-and-death decisions under these conditions. I doubt whether anyone can maintain their humanity when called upon to preside over this procession of human misery for days at a time, with no respite, trying to perform the delicate task of questioning human beings about the worst experiences of their lives in order to make a judgment about whether those experiences satisfy the strictures of the asylum statute. It was sobering to witness the human costs of forcing immigration judges to adjudicate “what amount to death penalty cases… in traffic court settings.” Unfortunately, the government actors near our southern border are more interested in the efficient denial of claims than weighing them justly.

Please note that these entries have been edited for brevity.

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