Clinical and Pro Bono Programs

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Obamacare architect: Dire consequences for Massachusetts

Via The Boston Herald 

By: Jordan Graham

The architect of Obamacare warned the Affordable Care Act could die if the U.S. Supreme Court backs a ruling by a Texas judge calling the law unconstitutional — a decision that would force Massachusetts to strip coverage or pay astronomical bills.

“It’s got very important financial implications for Massachusetts,” said Jonathan Gruber, an economist who has been described as the engineer of the law. “If the Affordable Care Act goes away, it means Massachusetts will have to bear all the costs of covering these people.”

The ruling by U.S. District Judge Reed O’Connor hands a victory to 20 Republican governors and state attorneys general who sued to wipe out the 2010 health care law, widely known as Obamacare. If the ACA is eliminated, Massachusetts’ requirements for insurance would be unchanged, but it would mean an end to federal contributions to states that have expanded Medicaid, as Massachusetts does.

Robert Greenwald, director of the Center for Health Law and Policy Innovation at Harvard Law School, said nothing will change immediately as a result of the decision by the Texas judge that found the law to be unconstitutional and invalid .

“This is certainly not the final word on the Affordable Care Act,” Greenwald said. “Obviously it’s going to be appealed, it’s going to be a long slog on this and other challenges to the ACA.”

O’Connor, a conservative judge appointed by President George W. Bush, had been widely expected to rule against the law, at least in part. His ruling, however, swept more broadly than many had expected, striking down the entirety of the health care law, including its provisions that have allowed California and 31 other states to expand Medicaid to 15 million Americans and the subsidies that keep insurance affordable for millions of others who do not get health care coverage through their employers.

The judge did not issue an injunction ordering the government to stop carrying out the law, however, meaning that its provisions will remain in effect pending further action.

The Trump administration had partially backed the suit by the conservative states, not endorsing their request to declare the entire law invalid. Instead, the administration had declined to defend the health care law and asked the judge to eliminate its guarantee of coverage for people with pre-existing health conditions.

A group of left-leaning states, led by California, that have stepped in to defend the health care law, quickly said they would appeal O’Connor’s ruling.

President Trump praised the judge’s ruling but health care groups denounced it. The American Medical Association said it would back an appeal, warning that the judge’s ruling would move the U.S. back toward the days when 20 percent of the population lacked insurance.

The states likely will appeal to the 5th U.S. Circuit Court of Appeals. Eventually, the case could wind up back at the Supreme Court, which has twice ruled in favor of the law.

Report: Australia Should Join Nuclear Weapons Ban Treaty

Via the International Human Rights Clinic

Source: Pixabay

Australia’s alliance with the United States need not stand in the way of Australia joining the 2017 treaty banning nuclear weapons, Harvard Law School’s International Human Rights Clinic said in a report released today.

The Treaty on the Prohibition of Nuclear Weapons (TPNW) would require Australia to end its reliance on US nuclear arms for defense. But it would not undermine the countries’ broader collective security agreement established under the 1951 ANZUS Treaty.

“Australia has long claimed to support nuclear disarmament,” said Bonnie Docherty, lead author of the report and the Clinic’s associate director of armed conflict and civilian protection. “Joining the ban treaty would advance that goal without creating insurmountable legal obstacles to ongoing military relations with the US.”

The 13-page report “Australia and the Treaty on the Prohibition of Nuclear Weapons” explains why Australia can renounce its nuclear defense arrangement with the US (under the so-called “nuclear umbrella”) while maintaining military ties to its ally. The report also shows the compatibility of the treaty with Australia’s disarmament commitments under other treaties and policies.

The Labor Party is expected to discuss the TPNW at its national conference from December 16 to 18, 2018. The conference will provide a forum for Labor to develop a new party platform.  In its last platform, adopted in 2015, the Labor Party called for negotiations of a treaty banning nuclear weapons.

“Labor should continue to back a nuclear weapons ban and urge Australia to sign and ratify this landmark treaty,” Docherty said.

The TPNW was adopted at the UN by 122 countries on July 7, 2018. The United States, Australia, and most other nuclear-armed and nuclear umbrella states boycotted the negotiations.

Nevertheless, many Australian parliamentarians and the larger public have expressed support for the ban treaty. In 2017, the Senate passed a Labor-initiated motion urging the government to participate in the negotiations. Since then, two-thirds of the current Shadow Ministry have pledged to work toward the treaty’s signature and ratification. A survey of Australians, released last month, found that almost 80 percent of the public supported joining the treaty.

The TPNW requires its states parties to renounce their nuclear umbrella arrangements. Such arrangements would violate the treaty’s prohibition on encouraging other countries to possess nuclear weapons.

But as the Clinic’s new report explains, the ANZUS Treaty makes no reference to nuclear weapons. Australia’s public claims to protection under the nuclear umbrella are based on policy statements that began in 1994.

An affirmative rejection of the nuclear umbrella would not breach Australia’s ANZUS Treaty commitment “to act to meet the common danger” in the case of an attack on an alliance member or in the Pacific. It would also allow Australia to comply with the relevant TPNW prohibition. While the US could object to Australia’s new position and use nuclear weapons in Australia’s defense, the TPNW does not hold states parties responsible for their allies’ choice of weapons.

The TPNW allows parties to participate in military alliances and joint operations with nuclear armed states.  If Australia ratified the treaty, it could not assist the US with certain nuclear-weapon-related activities, such as the planning of strikes with nuclear weapons. But it could continue to provide intelligence for counter-terrorism efforts or engage in non-nuclear military operations, such as those of the US-led coalition in Afghanistan.

According to the new report, the TPNW is consistent with some of Australia’s other legal and policy commitments. The TPNW helps states parties, such as Australia, meet their obligation under the Nuclear Non-Proliferation Treaty (NPT) to work toward nuclear disarmament, including in the form of a treaty. The TPNW strengthens the NPT’s safeguard measures to ensure countries do not develop nuclear weapons.

Australia has also committed to nuclear disarmament through government policy papers and ratification of the Treaty of Rarotonga, which establishes a South Pacific Nuclear Free Zone.

“By signing and ratifying the nuclear ban treaty, Australia would join with its regional neighbors in the Asia-Pacific and become a disarmament leader among nuclear umbrella states,” Docherty said.

For more information, contact Bonnie Docherty, bdocherty@law.harvard.edu. Read the full text of the report here.

Clinical students Molly Brown, JD ’19, Samantha Fry, JD ’20, and Thejasa Jayachandran, JD ’20, worked under Docherty’s supervision to help write this report.

Puerto Rico Benefits From Harvard’s Living Lab

Via Harvard Law Today 

Credit: Alyssa Curran
Still suffering from the aftermath of 2017’s Hurricane Maria, the city of Utuado (pictured) will implement a plan for renewable electricity, which was created by Harvard students in the “Climate Solutions Living Lab” course.

A plan designed by a team of Harvard University students to create a reliable source of renewable, affordable electricity for a Puerto Rican community hammered in 2017 by Hurricane Maria has moved a step closer to reality.

The community group Unidos por Utuado has won $100,000 in seed funding from the Puerto Rico Big Ideas Challenge to implement the plan by students enrolled in Harvard’s “Climate Solutions Living Lab” course.

The proposal calls for revitalizing three nearby, long-neglected hydroelectric units to generate inexpensive, reliable electricity that emits virtually no greenhouse gases. The students’ vision is that a community-based electric cooperative would own the power facility and ensure that local residents control new jobs and other benefits created by the project.

“The seed funding will allow the community to form the cooperative and hire people to help them move the concept forward,” said Wendy Jacobs ’81, the faculty leader of the course and the Emmett Clinical Professor of Environmental Law and director of the Emmett Environmental Law and Policy Clinic at Harvard Law School.

The project began in January 2018 when Jacobs dispatched one of six students on the team, Alyssa Curran, M.U.P. ’18, to the island. Curran toured Puerto Rico, including the storm-ravaged inland community of Utuado, and observed the destruction of homes and commercial buildings, roads, and electric infrastructure. She also connected with Unidos por Utuado, one of many community groups mobilizing disaster relief on the island. At the time, “Climate Solutions Living Lab” was considering several projects in Puerto Rico, and Curran, in consultation with Jacobs, decided one of those should focus on Utuado because of the barriers it faced to storm recovery.

Hurricane Maria decimated Puerto Rico. A Harvard T.H. Chan School of Public Health study found that the number of deaths related to the September 2017 storm was much larger than the official estimates, and there were 4,645 additional deaths in the three-month period following the storm, which is believed to have caused more than $90 billion in damage. Electric service was only recently restored to the entire island. In Utuado, an isolated mountain community of approximately 30,000, about 30 percent of households were without electricity and safe running water seven months after the storm struck.

Credit: Alyssa Curran 
The power poles in Cayey, located in central Puerto Rico, snapped during the storm.

Back at Harvard, the students participating in the spring 2018 class who were assigned to the Utuado project proposed that rather than build a new power source for the community, they would recycle an old one.

The plan was this: Utuado would create an electric cooperative to acquire and refurbish three legacy hydroelectric units on lakes Dos Bocas and Caonillas and install a pumped solar system. In addition to providing reliable energy, the facility would save money. Puerto Rican’s electric bills are the highest in the U.S. next to Hawaii, the students’ research found, and they believed that adopting their plan could slash electric rates to about 8 cents per kWh, compared with the approximately 20 cents per kWh they now pay.

The benefits to the climate were also clear, according to the students. Currently, 98 percent of Puerto Rico’s electricity is generated by fossil fuels. However, the students estimated the hydroelectric plants would generate approximately 26.5 megawatts of clean energy, with a potential offset of about 115,000 tons of carbon dioxide equivalents in year one and an average of 105,000 tons of offsets per year over a 20-year time period. Reducing that amount of emissions annually is equivalent to taking more than 22,000 vehicles off the road, or the average energy use of more than 11,000 homes.

The Puerto Rico project is one of nine projects developed in the course since its 2017 launch, as part of Harvard’s ambitious climate action goals and Living Lab initiative.

The innovative course is a partnership between the Office for Sustainability and Harvard Law School and was developed to engage multidisciplinary teams of graduate students in working together to test innovative solutions or renewable energy investments — such as the Puerto Rico project — that achieve actual emissions reductions beyond the Harvard campus while also achieving other social, economic, and health benefits.

Under Jacobs’ leadership, the Climate Solutions Living Lab engages with senior faculty experts from across Harvard’s professional Schools as well as outside experts, and operates like a professional project development team. The teams of six students are comprised of master’s and doctoral students from Harvard Business School (HBS), Harvard Chan School, John A. Paulson School of Engineering and Applied Sciences (SEAS), Law School, Harvard Kennedy School (HKS), Graduate School of Design, and Graduate School of Arts and Sciences.

In addition to Curran, the Puerto Rico team included: Ethan Hughes, Harvard Chan School; Leticia Rojas, HKS; Bridger Ruyle, SEAS; Max Tenney ’18, HLS; and Isabella Wechsler, HKS and HBS.

This article was published in the Harvard Gazette on December 14, 2018.

Trump Administration Stymies Release of Salary, Loan Debt Data from Certain Colleges, Advocates Say

Via CNBC

By: Annie Nova

At a recent conference on financial aid, Education Secretary Betsy DeVos said that every school should help its students graduate with high-quality career prospects and little debt.

Students should be equipped, she added, with information that allows them to be responsible consumers. “They need to have the best possible tools, data, advice and support,” DeVos said, at the Georgia World Congress Center in late November.

Yet at another session at the same conference, Cynthia Hammond, a top Education Department official, said the agency wouldn’t be releasing student debt information on certain programs. “We will not be doing another round of debt-to-earnings rates at this time,” Hammond said to the audience.

Career education programs, including most for-profit colleges, are required to disclose debt and earnings data to prospective and current students, as part of the so-called gainful employment regulation. Under the rule, poor-performing programs are at risk of losing their federal funding.

The regulation is intended to provide students, “with the best information possible when they’re making one of the biggest investments they’re ever going to make,” said Michael Itzkowitz, a senior fellow at Third Way, a think tank in Washington.

The Education Department under DeVos has proposed eliminating the rule. Yet the soonest any such change could go into effect is July 2020, and so advocates were alarmed by Hammond’s comments at the conference. The department has already pushed back the date that schools need to publicly share their gainful employment information.

Critics of DeVos say the delays in data disclosure are another example of her siding with the for-profit industry.

The department can’t access the debt-to-earnings data on different programs because its agreement with the Social Security Administration — which provides the information — has lapsed, said Education Department Press Secretary Liz Hill. She noted that a request to the agency to renew the agreement in March went unanswered.

A spokesman for the Social Security Administration said the agency notified the Education Department in May that it would not enter into a new agreement. He declined to comment further, citing ongoing litigation.

However, no official agreement between the Social Security Administration and the Education Department is needed for the agencies to exchange the gainful employment data, said Eileen Connor, the litigation director at Harvard University’s Project on Predatory Student Lending.

She called the department’s most recent explanation, “a complete smokescreen for DeVos to be able to accomplish the gutting of the gainful employment regulation.”

At the financial aid conference, Hammond explained that the new disclosures certain schools need to display on their websites no longer must include data on student debt or job placement rates.

Half of student loan borrowers from for-profit colleges wind up in default, according to the Brookings Intuition. In a recent report to Congress, the Department of Education’s Inspector General Kathleen S. Tighe said she disagreed with the department’s proposal to rescind the gainful employment regulation without an adequate replacement. She pointed out that for-profit schools have misrepresented their job placement rates and continue to be a place of fraud and abuse.

The Obama administration aggressively enforced the gainful employment regulation in an effort to hold for-profit schools accountable by forcing them to prove their graduates were able to repay their student debt.

The first round of debt and earnings data was released in 2017. More than 750 programs failed the test. For example, graduates with an associate’s degree in graphic design from the Art Institute of Pittsburgh typically earn less than $22,000 a year and have over $40,000 in federal student loan debt, the Education Department found.

Under the rule, schools which fail the test two years in a row are cut off from federal funding. Since the department is not conducting another debt-to-earnings analysis this year, however, no program has lost eligibility under this regulation.

The threat of losing government funding forced schools to improve their value, said James Kvaal, president of The Institute for College Access & Success.

Colleges slashed tuition, offered more scholarships, implemented free trials and worked harder to meet industry standards, he said.

“That’s why we’re very troubled that the Department of Education is turning a blind eye to its obligation to enforce this rule,” Kvaal said.

Salma Waheedi Co-Authors Chapter on Judicial Review in the Context of Constitutional Islam

Via the International Human Rights Clinic 

Pexels

Source: Pexels

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 a book chapter with Kristen A. Stilt, Professor of Law and Director of the Islamic Legal Studies Program, that appeared in the recently-published volume Comparative Judicial Review, edited by Erin F. Delaney and Rosalind Dixon. The chapter, titled “Judicial Review in the Context of Constitutional Islam,” identifies and examines different models of judicial review in countries with constitutional Islam clauses.

The chapter begins by providing a brief background to Islamic law and constitutional design. The authors develop a classificatory scheme that outlines the different institutional design models for constitutional interpretation in Muslim countries.  These include a secular model, an Islamic model, and a hybrid model, with different countries falling along a spectrum of variations. The authors consider several case studies, including Kuwait and Egypt for the secular model, Iran and Saudi Arabia for the Islamic model, and Malaysia, Afghanistan, and Pakistan for the hybrid model. The chapter concludes by highlighting ways in which the political context and certain choices in constitutional drafting can foster one system or another along the spectrum.

Crimmigration Clinic Wins BIA Case

Via the Harvard Immigration and Refugee Clinic 

Crimmigration Clinic Instructor Phil Torrey with students Joy Lee ’19 and Harry Larson ’19

The Crimmigration Clinic won a case before the Board of Immigration Appeals (BIA) on behalf of a lawful permanent resident that immigration officials were trying to deport. The client, who has lived in the United States for nearly 30 years, will now be released from detention where he has been held for more than a year and he will be allowed to remain in the United States with his family.

The Crimmigration Clinic took on the case in September while it was pending at the BIA, which is the administrative appellate body responsible for immigration-related appeals. Crimmigration Clinic students Harry Larson ’19 and Joy Lee ’19 worked tirelessly over the last two months to draft a brief incorporating a range of legal arguments they developed on the client’s behalf.

Students who participate in the Crimmigration Clinic have the opportunity to represent individuals facing removal because of a criminal record. The Clinic’s Managing Attorney, Philip Torrey, noted that “these cases are incredibly complex and require students to develop strong legal research and writing skills to effectively represent individuals who would otherwise be trying to navigate the deportation system alone.”

The client was facing deportation because of an old Arizona drug-related conviction that Immigration and Customs Enforcement (ICE) argued triggered a provision under federal immigration law that required his removal. The immigration judge who initially reviewed the case disagreed with ICE and terminated the client’s removal proceedings; however, the case was appealed to the BIA where ICE argued that the immigration statute had been misinterpreted by the immigration judge. The brief filed by Larson and Lee argued that the statute had been applied correctly based on precedent from the Supreme Court and other jurisdictions.

“In class, you read cases that seem to lay out certain clear legal rules. What this case taught me is that those rules, in the abstract, don’t necessarily compel compliance: that you need advocacy all the way down to keep government within the bounds of the law,” said Larson.

Lee added that she was “grateful for the opportunity to directly apply the skills and case law that we learned in class to protect our client from deportation.”

Clinic Releases Guide to Anti-Circumvention Exemption for Software Preservation

Via the Cyberlaw Clinic 

The Cyberlaw Clinic is pleased to announce the release of “A Preservationist’s Guide to the DMCA Exemption for Software Preservation,” a document created in collaboration with the Software Preservation Network and hosted on the SPN website. The guide —authored by fall 2018 Cyberlaw Clinic student Kee Young Lee and Clinical Fellow Kendra Albert — builds on work that the Clinic and SPN have done together over the past year on the 2018 round of anti-circumvention exemptions announced by the Copyright Office in October of this year.

As we noted in a previous blog post, the Copyright Office conducts a rulemaking every three years to identify situations in which individuals should be exempt from liability under Section 1201 of the Copyright Act in cases where they circumvent a “technical measure that effectively controls access” to a copyrighted work. We were pleased that the latest round of exemptions included one that allows 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. The guide released today aims to frame that exemption in useful, practical terms for the librarians and archivists who will rely on and benefit from it.  “Getting the exemption is just the first step — SPN and the Cyberlaw Clinic are dedicated to supporting practitioners in using the exemption to preserve software,” said Mx. Albert.  “This is the first of a set of guides we plan to release to help institutions make the most of their rights under the law.”

Farm Bill Passes House And Senate

Via the Center for Health Law and Policy Innovation 

iStock

The 2018 Farm Bill just passed the House (368-47), after passing the Senate yesterday (87-13). The Bill now goes to the President’s desk.

Here is the 10,000 foot view of the 2018 Farm Bill as it relates to FBLE priorities:

Food Waste

FBLE is thrilled to see that all of the provisions in the House and Senate drafts of the Farm Bill related to food waste remained in the 2018 Farm Bill. The many provisions included reflect the longstanding recommendations of FBLE member, Harvard Law School Food Law and Policy Clinic. This is the first farm bill to dedicate resources to reduce the nearly 40% of the food supply that we currently waste.

Specifically, the Farm Bill includes eight new provisions and programs to reduce food waste, including pilot funding to support state and local composting and food waste reduction plans in 10 states, creation of a Food Loss and Waste Liaison position within the USDA, and clarification and expansion of liability protections for food donations.

SNAP Work Requirements

The controversial House work requirements for SNAP were mostly dropped in the final Farm Bill. These requirements would have forced more SNAP participants to work or participate in job training for at least 20 hours a week. The House Bill also brought in a larger age group and those with school age children to comply with the work requirements. The bill does reduce state waivers to work requirements from the 2014 Farm Bill. As such, states can exempt only 12% of their SNAP recipients from work requirements, as opposed to 15% in the 2014 Farm Bill. Though the Bill does slightly reduce the amount of state waivers, it preserves geographic exemptions to work requirements in areas with high rates of unemployment and does not implement the inflexible House work requirement program. Protecting SNAP recipients from burdensome work requirements is consistent with FBLE recommendations.

Socially Disadvantaged and Beginning Farmers and Ranchers Studies

The 2018 Farm Bill includes two GAO studies specifically concerning socially disadvantaged farmers and ranchers (SDFR). One studies barriers to and recommendations for accessing land for SDFR and beginning farmers and ranchers (BFR). The other report will study SDFR access to credit. Both reports must be completed within 120 days of the final passage of the Farm Bill and sent to Congress. These reports are consistent with FBLE recommendations to improve access to credit and land for SDFR. They are also representative of FBLE’s forthcoming recommendations on transparency and access to information.

Crop Subsidy Payment Limits

Contrary to FBLE recommendations, the 2018 Farm Bill does not limit commodity payments to high income farmers and ranchers. This was referred to as the Grassley amendment in the Senate version of the Farm Bill. The 2018 Farm Bill maintains the current adjusted gross income (AGI) cap for commodity payments. But the 2018 Farm Bill goes beyond simply maintaining 2014 law and expands the “active personal management” loophole for those who can receive farm bill payments by adding first cousins, nieces and nephews to the definition of family members. These changes could mean a $1 billion cost increase for the commodity title over the next ten years.

Additionally, the bill lacks income limits on crop insurance subsidies, something FBLE had recommended, and still disproportionally benefits the largest farms over small and midsize operations.

Local Agricultural Market Program

In line with FBLE recommendations, the 2018 Farm Bill streamlines small-scale growers’ and producers’ access to markets through the Local Agricultural Market Program (LAMP). Small farming operations often rely on the increased profit margins at farmers markets, value-added products, and direct-to-consumer sales to be financially viable. LAMP merges the Farmers Market Promotion Program, Local Food Promotion Program, and Value-Added Producer Grant. By combining them, the 2018 Farm Bill for the first time provides permanent baseline funding to these programs; however, at a slightly lower level than the programs were funded separately ($213 million over the course of the 2014 Farm Bill and only $200 million over the duration of the 2018 Farm Bill).

Additionally, the 2018 Farm Bill provides opportunities for SNAP payment innovation in ways that will benefit smaller-scale farmers and farmers markets. Specifically, the 2018 Farm Bill makes it easier for farmers markets to accept SNAP. The 2018 Farm Bill also directs USDA to make SNAP benefits useable at online retail stores nationwide, which could provide more opportunities for farmers to sell directly to consumers online instead of through the traditional channel of farmers markets.

The Food Insecurity Nutrition Incentive Program & Produce Prescription Program

The Food Insecurity Nutrition Incentive Program has been renamed the Gus Schumacher Nutrition Incentive Program, and the mandatory funding was dramatically increased from $135 million over the 2014 Farm Bill to $250 million over the 2018 Farm Bill. This aligns with the FBLE recommendation to provide additional support to FINI.

The 2018 Farm Bill also creates a Produce Prescription Program, based on the proposed Harvesting Health pilot program in the Senate bill. However, the Produce Prescription Program does not have dedicated funds, and pulls money from FINI (newly renamed the Gus Schumacher Nutrition Incentive Program). With a nearly doubling of funds in the FINI coffers, this will allow Produce Prescription Programs to become much more available. This aligns with FBLE’s recommendation of more investment in food is medicine; however, FBLE would have liked to see an innovative food is medicine pilot to include medically-tailored meals.

Conservation

The 2018 Farm Bill’s conservation title closely aligns with the Senate version of the Farm Bill. Generally, the 2018 Farm Bill doesn’t cut any money to the conservation title; instead the Bill shifts funds around (primarily by moving money from the Conservation Stewardship Program (CSP) to Environmental Quality Incentives Program (EQIP). You can review FBLE’s analysis of conservation title in the Senate Farm Bill here.

The 2018 Farm Bill is consistent with FBLE’s recommendation on allocation of EQIP funds to animal feeding operations. The 2018 Farm Bill drops the mandatory percentage of funds going to animal feeding operations from 60% to 50%.

Other

Finally, there few other important provisions that you will hear circulating in other news outlets. Namely, the forestry title, which some commentators thought would not make it into the final farm bill, is in the 2018 Farm Bill, and growing non-psychoactive hemp is now legal, so farmers may cultivate it and Land Grant Universities may study it.

Stay tuned as FBLE provides more in-depth analysis of the 2018 Farm Bill.

You can read all 807 pages of House and Senate passed Farm Bill Conference Report here!

Congress’s Conference Report Solidifies Farm Bill Support for Major Food Waste Reduction Measures

Via the Center for Health Law and Policy Innovation 

iStock

40 percent of food in the U.S. goes to waste each year, costing billions of dollars, preventing wholesome food from getting to people in need, and causing tremendous ecological harm. The 2018 Farm Bill represents a crucial opportunity to address food waste in a way that benefits farmers, consumers, and the environment, and FLPC is excited to report that Congress has provided major new investments in food waste reduction in this farm bill.

Recognizing the potential for the Farm Bill to make a significant impact on food waste reduction, FLPC published Opportunities to Reduce Food Waste in the 2018 Farm Bill, outlining 17 recommendations for incorporating food waste measures into the 2018 Farm Bill. FLPC has been closely tracking the 2018 Farm Bill process, and released blog posts analyzing proposed programs to reduce food waste in both the House and Senate bill drafts. The 2018 Farm Bill represents the first U.S. Farm Bill to provide dedicated programming, resources, and efforts to reduce food loss and waste in the U.S.

Though drafts of the Farm Bill passed the House and Senate in summer 2018, these versions were quite different from one another, and in August 2018, a conference committee was formed to reconcile differences between the two bills. On December 10, 2018, the farm bill conference committee released the Farm Bill Conference Report. The conference report includes updated bill language, referred to as the conference substitute, and a joint explanatory statement.

After reviewing the conference report, FLPC is thrilled to see that all of the provisions in the House and Senate drafts of the Farm Bill related to food waste remained in the conference version, including many that reflect FLPC’s longstanding recommendations. FLPC is eager to work closely with Congress on these provisions as the Farm Bill is finalized, and with USDA and other agencies on implementation of these programs once the legislation goes into effect.

In partnership with the Farm Bill Law Enterprise, FLPC is also compiling a more comprehensive review of a range of topics in the conference report, including score cards evaluating several key programs, which will be available here.

Food Waste Provisions Included in the Farm Bill Conference Report

Below we briefly describe the programs relevant to food waste that appear in the 2018 Farm Bill Conference Report.

Pilot Project to Support State and Local Composting and Food Waste Reduction Plans:

The conference version of the farm bill includes a major investment in a program proposed in the Senate farm bill to provide funding for the development of local composting and food waste reduction efforts. Created within a new Farm Bill section on urban agriculture, this program will support pilot projects in at least 10 states to develop and implement municipal compost plans and food waste reduction plans. Eligible projects must increase access to compost for agricultural producers, encourage waste management and permaculture business development, reduce municipal food waste, and divert food waste from landfills, among others. Projects applying for funds will receive priority review if they address other food waste strategies, including food recovery efforts. $25 million is committed to the section, to be shared between these pilot projects and grants in urban agriculture specified within the section.

This exciting new program aligns with FLPC’s recommendation for the farm bill to provide funding to support state and local efforts to implement organic waste bans and food waste reduction plans. These policies can transform the landscape of food waste reduction by creating new infrastructure and incentives to recover food and address the harmful environmental impacts of food waste in landfills.

Grant resources for food recovery infrastructure investments:

The Farm Bill conference report amends The Emergency Food Assistance Program (TEFAP) to better promote the donation of agricultural commodities. TEFAP provides food and funding to states to supply emergency feeding assistance to those in need. The Farm Bill would allocate $4 million per year to states for projects involving the “harvesting, processing, packaging, or transportation” of donated agricultural commodities. States can use this funding for projects that reduce the waste of agricultural products through donation, provide food to food insecure individuals, and create new partnerships to distribute food to those in need. USDA must provide guidance on best practices to reduce food waste among donated food commodities for TEFAP. This addition to TEFAP aligns with FLPC’s recommendation that the Farm Bill include grants to support investment in food recovery infrastructure.

This funding was initially proposed in the Senate farm bill, and remains the same except for the addition of “transportation” as an eligible project purpose.

Food Loss and Waste Liaison and Study on Food Waste:

The Farm Bill conference report creates a Food Loss and Waste Reduction Liaison as a new staff position in the USDA. The Food Loss and Waste Reduction Liaison will “coordinate Federal programs to measure and reduce the incidence of food loss and waste.” The Liaison’s duties include harmonizing efforts between the USDA, the EPA, and the FDA, all of whom play vital but differing roles in food waste prevention; supporting and promoting federal programs to measure and reduce food waste and increase food recovery; serving as a resource for food waste and food recovery organizations; raising awareness of existing liability protections for food donation; and making recommendations for expanding food recovery and waste reduction efforts.

The conference version also charges the Liaison with working with USDA to conduct a study evaluating available methods to measure food waste, factors that cause food waste, and the cost and volume of food loss. The study also will assess the efficacy of existing liability protections for food donation and ensure that USDA programs do not interfere with food waste reduction efforts. The Liaison will be required to submit a report on the results within one year, followed by a second report the following year that includes an estimate of food wasted that year and the results of USDA’s food waste reduction activities. This study aligns with FLPC’s recommendation that Congress provide funding for research on food waste–comprehensive research on the amount and causes of food waste in the U.S. has been limited, and such research will help inform future policies and programs and evaluate progress over time.

The Liaison position was originally proposed in the House farm bill, and the Study on Food Waste came from the Senate bill; some minor changes were made as they were combined.

Food Donation Standards for Liability Protections:

The conference report includes a provision clarifying liability protections for food donation and allowing for food donation directly from certain donors to individuals. Currently, under the federal Bill Emerson Good Samaritan Food Donation Act, donors receive comprehensive liability protection, but only  for donations made to a nonprofit organization that distributes the food to those in need. This provision would expand protection to donations made by a “qualified direct donor” directly to individuals in need. “Qualified direct donors” are entities that have food safety certification and licensing, such as retail food stores, restaurants, and agricultural producers; these entities have the knowledge to ensure food will be donated safely. Extending liability protections to direct donations can increase efficiency, reduce costs, enable timely use of perishable food, and support donation where quantities of surplus food are too small to be used by a food recovery organization.

The provision also instructs USDA to provide guidance about liability protections for “qualified direct donors” when donating surplus food to those in need. Despite the strong protections offered by the Emerson Act, the majority of food businesses cite fear of liability as a reason for not donating surplus food. Before now, no agency has created guidance, clarified the language of the Act, or raised awareness about these protections. While creating guidance on the protections for qualified direct donors, USDA has an opportunity to provide clarity on terms like “apparently wholesome food” that remain unclear in the Emerson Act itself.

FLPC has long advocated for changes to the Emerson Act to provide guidance on the Act and expand liability protections to align with current food donation practice, and we are thrilled to see this language included in the farm bill.

Milk Donation Program:

The conference report creates a Milk Donation Program to reimburse dairy farmers for donating class 1 fluid milk products to nonprofit organizations that distribute the milk. The new Milk Donation Program is intended to make it easier for producers and processors to donate milk to food recovery organizations. The program will receive $9 million for 2019 and $5 million for each subsequent year until 2023. This program was proposed in the Senate farm bill and replaces the existing Dairy Product Donation Program.

Local Agriculture Marketing Program:

The conference report establishes the Local Agriculture Market Program (LAMP), which combines the Farmers’ Market and Local Food Promotion Program (FMLFPP) with the Value-Added Producer Grant (VAPG) program and provides $50 million per year in permanent mandatory funding (a slight reduction from the $60 million proposed in the Senate bill). LAMP would provide grants to business and nonprofits for a range of eligible activities; relevant to food waste, these activities include the promotion of “new business opportunities and marketing strategies to reduce on-farm food waste.” This provision aligns with FLPC’s recommendation to amend the language authorizing LFPP grants to include “food-recovery related businesses or nonprofits” as entities eligible for the program, to ensure they are eligible to benefit from these funds.

Spoilage prevention:

The conference report amends the Speciality Crop Research Initiative to include funding for efforts to better understand systems to “improve and extend the storage life of specialty crops,” consistent with proposed language from the Senate bill. Specialty crops include fruits, vegetables, nuts, and other horticulture crops. FLPC has previously recommended that Congress provide grant funding for new technologies to slow food spoilage.

Carbon Utilization and Biogas Education Program

The conference version of the farm bill includes a provision to support education around biogas. Biogas can be produced from any organic waste, including food waste and animal manure. Biogas operations capture gases that would otherwise contribute to local air quality problems and climate change and use them to generate electricity. This provision establishes competitive grants for entities that provide education to agricultural producers and stakeholders about the aggregation of organic waste from multiple sources in single biogas systems.

This provision was originally in the Senate farm bill, but in that bill it also included additional provisions to support the development of the biogas industry. These provisions would have created an Interagency Biogas Opportunities Task Force to coordinate policies, programs, and research around biogas, and also would have authorized a study on biogas. Interestingly, although this additional language was not included in the conference version, the joint explanatory statement to the conference report states that the conference committee expects USDA to coordinate policies and programs around biogas and to study biogas markets; it also directs USDA, in coordination with the Environmental Protection Agency and the Department of Energy, to establish an Interagency Biogas Opportunities Task Force, whose composition and tasks would match those originally proposed in the Senate bill.

Next Steps for the Farm Bill

Now that the conference committee has produced its report, the report will be sent back to the House and Senate for a vote. The House vote is anticipated to occur on December 12, 2018; the Senate vote is anticipated on December 13, 2018.

Overall, FLPC is grateful for the attention paid to the pressing problem of food waste in this farm bill and looks forward to next steps in implementing these new policies and programs towards food waste reduction nationally.

To track the next steps of the farm bill and review farm bill score cards, visit the Farm Bill Law Enterprise website here.

The Sneaky Fight to Give Cable Lines Free Speech Rights

Via Wired  


Source: Flickr

By: Susan Crawford

When you make a phone call, I’m willing to bet you don’t think of the phone line as having free speech rights of its own. That phone line has one job: getting the sound of your voice to the place you want it to go. It isn’t planning to deliver a speech or getting ready to go on Broadway. Although life may be boring for the phone line as a result, it is actually getting a great deal: The phone line can’t get blamed for whatever lousy thing you say during your call.

But if the cable industry gets its way, internet access—today’s basic utility—will be treated just like the press for First Amendment purposes, giving it a free pass in perpetuity from any governmental oversight. In the US, the First Amendment gives the press the right to be free from governmental interference when it publishes or speaks. Any laws or regulations restricting that speech are likely to be subject to rigorous scrutiny by courts and found unconstitutional.

It seems counterintuitive that a phone line could be a “speaker.” But the cable industry very much wants to ensure that the act of transmittingspeech from Point A to Point B is protected by the First Amendment, so that making a cable connection carry any speech it isn’t interested in amounts to unconstitutional “forced speech.”

The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers “speaker” privileges, saying that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.”

Everything we do and every policy we care about—according a world-class education to every child, responding to climate change, ensuring access to health care—depends on reliable, cheap, nondiscriminatory internet access. So wrapping the internet access industry in the flag of the First Amendment is a terrible idea. It’s a particularly bad idea when it comes to the cable industry, which in most American metros is a local monopoly. Comcast, for example, has very deep pockets and lots of side businesses, giving it both the ability and incentive to pick and choose among the speeches (read: businesses) it prefers.

What’s amazing is that the cable industry seems happy to accept the increased liability that accompanies being treated like a newspaper. Apparently freedom from all rules is worth the risk of someday dealing with lawsuits. The reason: They’ve got plenty of cash to pay lawyers with. It’s a good time to be Spectrum or Comcast.

All the furor over Facebook and Amazon has diverted public attention from Comcast and Charter, just when the cable industry’s risk of regulation has been substantially eliminated through the helpfulness of FCC chairman Ajit Pai. Both companies are peacefully coining profits.

Charter, which sells connectivity under the Spectrum moniker, made about $11 billion during the third quarter of 2018, a period when it added more than 300,000 new subscribers to its roster, and Wall Street is pleased with its “pricing power.” The company can raise its prices whenever it wants, because it faces little or no competition in the cities where it operates. Margins are growing, the company is buying back its stock, and its capital expenses are going down. Charter is in a milking phase, as is Comcast, which just had one of its best quarters in years. As analyst Craig Moffett puts it, cable companies are “infrastructure providers.” And their infrastructure is essentially unchallenged, either by competition or oversight.

The cable industry’s constitutional gambit is part of a broad movement to use the First Amendment as a tool to avoid regulation. Justice Elena Kagan has colorfully described this movement as the “weaponizing” of free speech rights, saying that companies are “turning the First Amendment into a sword.” The public interest group Public Knowledge recently filed a brief with the Ninth Circuit pointing to the Kimberly-Clark corporation, which claimed a First Amendment right to label wipes as “flushable” even if it disagreed with a governmental assessment that they weren’t. A drug supplier (identified only as M7) recently claimed that selling lethal drugs suitable for use in executions to a state was an “expression of political views, no different than signing a referendum petition or selling a T-shirt.”

Those examples sound almost funny. But for the cable industry, this is serious business—a strategy that will have particularly pernicious consequences for communications. Treating the transmission of data as “speech” will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable’s First Amendment rights to carry out its “editorial discretion,” in hopes that Justice Kavanaugh will get a chance to lock in the industry’s status as a member of the press. The “speech” of a handful of giant companies will be privileged over the ability of all Americans—including all other American businesses—to communicate.

Treating these transmitters of online data like constitutionally protected “speakers” would be a disaster. Recently, Charter exercised its “editorial discretion” by refusing to carry the channels of an African American–owned television company, Entertainment Studios, which had been able to make distribution deals with Verizon, AT&T, and DirecTV. Entertainment Studios could barely get a meeting with Charter. It was able to show that white-owned, lesser-known networks were able to sign contracts with Charter during the same period. Charter argued that any racial discrimination claim was blocked by the First Amendment, because laws cannot be used “to force cable companies to accept channels they do not wish to carry.” Last month, the Ninth Circuit refused to go along with this argument, pointing out in simple language that Charter was prohibited from discriminating against networks on the basis of race. Why? Because the Civil Rights Act of 1866 says so.

Given another chance, Charter or Comcast will unquestionably bring this same “forced speech” argument into the context of internet access. They might argue, for example, that a particular online site does not have a right to reach consumers and businesses. Justice Kavanaugh has already signaled his readiness to support this move, saying that “deciding whether and how to transmit ESPN”—the cable TV channel, something a payTV provider can choose whether to carry—”and deciding whether and how to transmit ESPN.com“—the website, presumably reachable over the internet—”are not meaningfully different for First Amendment purposes.”

The next time around, the evidence Entertainment Studios was able to muster may not matter, particularly if such disparate treatment isn’t so obviously based on race or other protected classifications. Comcast has already arguedthat a Vermont requirement that it expand its service area “amount[s] to undue speaker-based burdens on Comcast’s protected speech under the First Amendment.”

Right now, the cable industry is unquestionably operating a service that customers view as a utility. But it is subject to vanishingly few obligations. And now it wants to ensure that it will be wrapped in the Constitution if the government ever tries to change this situation. This should be intolerable.

RAP’s 20th Anniversary Celebration Brings HLS Alumnus Don. S. Passman

By: Rebecca Rechtszaid

Photo Credit: Lester Cohen Simon & Schuster

On Friday, October 26, 2018 the Recording Artists Project (RAP) at Harvard Law School (HLS) celebrated its 20th anniversary by hosting Donald S. Passman, an HLS alumnus and author of the music industry bible, All You Need to Know About the Music Business. Mr. Passman is one of the most respected and well-known attorneys in the music business. Mr. Passman is a partner at Gang, Tyre, Ramer, Brown & Passman where he represents some of music’s true rock stars, including Adele, Taylor Swift, Green Day, Paul Simon, and Stevie Wonder.

For those of us who came to law school determined to practice in the music and entertainment industry, getting to meet a legend like Mr. Passman is a dream come true. Throughout the event, students from HLS and other schools that partner with the Recording Artists Project told Mr. Passman how reading his book inspired them to attend law school or otherwise confirmed their decision to pursue a career in the music industry. Mr. Passman went over the basics of music law for the first half of the event: discussing copyright, royalty streams, and the most common types of agreements that artists enter into in the music industry. He then took questions from the roughly 70 attendees, which ranged from questions about his experiences as a music lawyer to his thoughts on how new technologies will change how musicians make money and interact with their audiences.

Mr. Passman also talked about how, when he attended Harvard, there were no entertainment-focused classes or student groups. We are fortunate now to have a few, including the Recording Artists Project and the Transactional Law Clinics’ Entertainment Law Clinic. Speaking about his practice, Mr. Passman discussed the importance of being able to take the music industry’s complicated concepts and explain them to artists in clear and concise language. He also touched on some new developments in the industry, like the recently-passed Music Modernization Act and the exercise of copyright transfer terminations under Section 203 of the Copyright Act, and how he thinks they might change the industry in the coming years.

Harvard Law School’s alumni network in the entertainment and music community is fiercely dedicated to the cultivation of young legal talent in the industry. Mr. Passman’s generosity in flying out from Los Angeles to speak to our organization shows the lengths that our alumni will go to help students who are truly passionate about pursuing a career in music law. We look forward to seeing the Recording Artists Project continue to grow and strengthen as it enters its next 20 years.

How Podcast Platforms Respond to Hate Speech: Clinic Releases New Memo

Via the Cyberlaw Clinic

Source: Pixabay

By: Carol Lin and Zach Glasser

Content regulation emerged as a controversial topic earlier this year after right-wing personality and frequent conspiracy theorist Alex Jones had his Infowars podcast removed from most platforms, including Apple, Spotify, Stitcher, and RadioPublic. Amid a social media firestorm, platforms rushed to ban Jones, sometimes within hours of each other, and often without articulating how exactly Jones’ speech violated their terms. The incident drew attention to the ethical and logistical challenges podcasting platforms face in balancing safety, diversity, and respect for free speech principles when articulating what content they allow on their services, and the difficulties in implementing such policies consistently.

Recognizing the importance of a principled approach, the Cyberlaw Clinic is pleased to release a new memorandum on content regulation policy for the podcasting community drafted by current Clinic students Zach Glasser and Carol Lin with Assistant Director Jessica Fjeld. We gratefully acknowledge the assistance of podcasting platform RadioPublic, whose co-founder and CEO Jake Shapiro is a member of the Berkman Klein Fellows Advisory Board.

The memo emerged from the Clinic team’s discussions with RadioPublic following the Infowars controversy, and shares the results of our research about how the industry is presently dealing with hateful content through an analysis of major podcast platform content regulation policies. It lays out a concrete range of options platforms have to moderate offensive speech. It’s our hope that this memo helps tailor the wider conversation about content moderation, including the recent release of guidelines from the Change the Terms coalition, to the particular needs of podcasting platforms.

Learn more here.

“The Newest Federal Court Experiment”: Chief Judge of the U.S. Court of Appeals for Veterans Claims speaks at Harvard Law School

Via the WilmerHale Legal Services Center

 

Chief Judge Davis and DAV National Adjutant Marc Burgess pose with staff of the Veterans Legal Clinic

On Thursday, November 8th, Chief Judge Robert N. Davis of the U.S. Court of Appeals for Veterans Claims gave the 2018 Disabled American Veterans (DAV) Distinguished Lecture at Harvard Law School to an audience of students, faculty, staff, and members of the veterans community.  The Chief Judge’s Lecture was entitled “The United States Court of Appeals for Veterans Claims:  The newest Federal Court experiment, past, present and future.” Opening remarks were provided by the National Adjutant of DAV, Marc Burgess.

Chief Judge Davis—a Navy veteran who joined the Court in 2004—spoke about the history of veterans law, the origins of the Veterans Court, and present challenges facing the Veterans Court in its role reviewing benefit decisions of the U.S. Department of Veterans Affairs. Chief Judge Davis chronicled the evolution of veterans law from World War I to the present day, including discussion of the Veterans Judicial Review Act of 1988 that introduced court review for veterans claims and established the U.S. Court of Appeals for Veterans Claims. Chief Judge Davis highlighted the need for continued innovation, noting how much “[o]ur veterans legal landscape has evolved from its early days,” and challenging audience members to use their own voices—as veterans, students, advocates, pro bono attorneys—to prompt the significant change required to provide the services that veterans will need in the future.

Chief Judge Davis also discussed the Court’s structure, accomplishments, and challenges. The Veterans Court is unique in terms of its exclusive jurisdiction over appeals from the Board of Veterans Appeals, as well as the way which the vast majority of appeals are decided by single-judge non-precedential decisions. The Veterans Court has a tremendous caseload, handling over 7,000 cases in 2018. Among its challenges, the Chief Judge stated that the Veterans Court is “grappling with how to efficiently decide more panels, decide class actions, and deal with an increasing case load.”

Looking ahead to the future of veterans’ law, Chief Judge Davis stressed the importance of pushing for overhaul of the veterans claims system. He stated that while many veterans are able to navigate the veterans claims system in a reasonable way, “any time it takes a veteran years to get a final decision on a claim, the system is broken.”

He ended his lecture by urging the veterans community to continue working towards positive change in the veterans claims system, pointing to the progressive evolution of veterans law over time. “Veterans law is maturing. The Court has carried out their vision of a place where veterans can go to get fair, efficient justice.” Finally, Chief Judge Davis left the audience with a call to action, declaring, “We have a voice. We need to start using it.”

 

After his lecture, Chief Judge Davis answered a range of questions from the audience, including the role of pro bono attorneys at the Court, the impact of presumptive diagnoses for disabilities, and the appellate reforms to be implemented under the Appeals Modernization Act.

The event was hosted by the Veterans Legal Clinic of the Legal Services Center of Harvard Law School, in partnership with the HLS Armed Forces Association. The lecture was the 5th annual event in the Disabled American Veterans (DAV) Distinguished Speaker Series, sponsored the DAV Charitable Service Trust. The Speaker Series provides a forum for national leaders to address the critical issues facing our nation’s disabled veterans and to engage in conversation with the local community. Prior speakers include then-Secretary of the U.S. Navy Ray Mabus, the founder of the first veterans treatment court Judge Robert Russell, and former VA Secretaries David Shulkin and Robert McDonald.

HIRC & HIP Submit Comments on Proposed Removal of Fee Waiver

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

On November 27, HIRC and the HLS Immigration Project (HIP) submitted comments on U.S. Citizenship and Immigration Services’ proposed change to the I-912 Form to remove the means-tested benefit as an eligibility option. Not only will this proposed change create superfluous work for USCIS, but it will also contribute to the many hardships facing asylees. In the comments, HIRC and HIP note: “In our experience the income-based fee waiver greatly increases the processing time of the application, forcing asylees to needlessly wait longer for their green cards. Many asylees have already waited years for their asylum applications to be adjudicated. Thus, the Proposed Change places an undue burden on asylees, who are both exceptionally vulnerable and deserving of fair and efficient adjudication of their applications.”

You can read complete comments from HIRC and HIP here.

We would like to thank HIRC clinical student Alicia Coneys ’19 for her help with these comments.

Harvard Professors Decry Trump Administration Approach to Asylum Policy, Migrant Caravans

Via The Harvard Crimson

By: Ema R. Schumer and Ruoqi Zhang

Harvard professors decried the Trump administration’s asylum policies to a packed room at the Law School Thursday, condemning in particular the administration’s treatment of caravans of Central American migrants seeking asylum in the United States — the latest flashpoint in the country’s immigration debate.

In the hour-long panel, “The Migrant Caravan and the Law and Politics of the Border,” Anthropology Professor Ieva Jusionyte and Law School Clinical Professor Sabrineh Ardalan spoke about the legal, social, and political issues surrounding migrant caravans. Three Law School student organizations — Harvard Immigration Project, Mexican Law Students Association, and La Alianza — hosted the event.

Ardalan began her remarks with an explanation of asylum laws and their historical origins in the aftermath of World War II.

Ardalan specifically criticized the Trump administration’s effort to prohibit migrants from seeking asylum if they do not enter through a “port of entry.” She referred to this policy as the federal government’s latest effort to “roll back asylum protections” for Central American refugees fleeing violence.

“For purposes of seeking asylum, it doesn’t matter where a person enters the U.S.,” she said after she read excerpts from U.S. asylum law, which empowers migrants to apply for asylum regardless of their immigration status or where they enter the country. “The executive branch can’t just rewrite what Congress did.”

In her remarks, Ardalan also rejected the perception that migrants somehow manipulate the asylum system to gain entry into the United States.

“This isn’t a loophole by any means,” she said. “In fact, it’s really hard to gain access to protections that people have a right to.”

Both professors focused on portrayals of migrants and asylum seekers in political discourses and public media. They specifically described Trump’s portrayal of migrant caravans as an “invasion” as an attempt to dehumanize immigrants. One large caravan from Central America originally grabbed Trump’s attention in the spring. That group has since splintered, and several other caravans have followed in its wake.

“[They are] individuals with stories who have really compelling reasons for making a harrowing journey risking their lives and the lives of their small children to save their lives,” Ardalan said.

“By eliminating that real life context of why people are leaving and dehumanizing them, it’s easier to gain public opinion to push through these draconian policies,” she added.

Jusionyte said the Trump administration is not the only party using charged language around immigration, however. She referenced metaphors members of the media and of the public use when discussing immigration.

“People who have the right to ask for asylum and are running for their lives are portrayed as part of this big ‘wave’ that will ‘overflow’ the United States and destroy all of the border,” she said. “Perhaps the president’s rhetoric is a little harsher but it’s in all of how we talk about migration.”

Both professors underscored students’ capacity to change the narrative around immigration.

Ardalan emphasized the power of storytelling. She suggested reframing immigration debates “to connect people to narratives with shared values — values that we all have in common — that we can come back to to try to unify people around messages as opposed to dividing people.”

Harvard Law student and La Alianza member Perla F. “Fabi” Alvelais, who attended the event, reiterated the speakers’ statements. She said the national discourse surrounding immigrants from Central America is “upsetting” and “completely wrong.”

“It’s very upsetting to see how much that rhetoric has stuck with a lot of people and how a lot of people have accepted that,” Alvelais said. “So I think our job in La Alianza as law students is to pushback and show how talented and committed and great our community is.”

Jusionyte applauded students’ passion for the issue. Some Law students have worked with immigration clinics and humanitarian organizations at the border.

“Even for people who are not necessarily studying law,” she added, “there are such ways as to just donate to [American Civil Liberties Union] or these shelters in Mexico or on the U.S. border.”

Jared Golden’s Lawyer Calls Bruce Poliquin Suit ‘sour grapes’

Via the Sun Journal

Peter Brann is a Visiting Lecturer in Law at Harvard Law School and a partner at Brann & Isaacson. At HLS, Brann co-teaches the State Attorney Generals Clinic.

By: Steve Collins

An effort to seek a new election in Maine’s 2nd Congressional District race is an “extraordinary attempt to overturn the results of a fair and free election,” an attorney for U.S. Rep.-elect Jared Golden said in a legal filing late Wednesday.

Peter Brann, the lawyer for the Lewiston Democrat, said the request by U.S. Rep. Bruce Poliquin to overturn the ranked-choice voting results is unlikely to prevail and ought to be rejected.

“Golden won the election fair and square,” Brann said in legal papers filed with the U.S. District Court in Bangor.

“Poliquin’s sour grapes preliminary injunction is too little, too late, and is outweighed by the injury to the thousands of Maine voters who selected Golden over Poliquin and who would be disenfranchised by Poliquin’s attempt to use the courts to overturn the results of the election,” said Brann, a Lewiston attorney.

“Further, the chaos, disruption and violation of fundamental rights that would result from Poliquin’s attempt to rewrite the rules after the election is anathema to the public interest,” he said.

Poliquin’s lawyers have called for the court to declare the incumbent the winner based solely on first-round results of the state’s new voting system, a round narrowly won by the Republican. In the next and final round, Golden prevailed by more than 3,500 votes out of more than 290,000 cast.

Poliquin argues the ranked-choice system is unconstitutional and unfair. He is seeking a recount that will likely take three or four weeks to complete, according to Secretary of State Matt Dunlap.

“Under Poliquin’s legal theory, any set of voters whose particular goals in voting were frustrated by any election system, including plurality voting, would be able to invalidate that system of voting on constitutional grounds,” Brann said. “This cannot be, and is not, the law.”

In a brief filed with the court Thursday, the Washington, D.C.-based Campaign Legal Center said Poliquin’s attorneys didn’t raise any serious legal claims and “instead muster only policy objections to Maine’s use of ranked-choice voting. Mere disagreements about the policy implications of ranked-choice voting are insufficient to show that it is unconstitutional.”

Phyllis Gardiner, a state lawyer handling the case, said in legal papers that none of Poliquin’s arguments have merit.

Brann said voters cast their ballots “based on their understanding that the (ranked-choice voting) system would be used to determine the winner of the election” and the court should not allow Poliquin to “change the rules” after it’s over.

James Monteleone of Portland, the lawyer for independent candidate Tiffany Bond, told the court in a separate filing that “before and on Election Day, no legal challenge of Maine’s (ranked-choice voting) law was pending in any court. No legal challenge was even threatened.”

“Voters reasonably relied on the fact that the (ranked-choice voting) law … were twice affirmed by Maine’s citizen legislators as the state’s chosen manner of election for its congressional representatives,” he said.

Gardiner said that “granting this motion would disenfranchise over 15,000 voters who ranked the candidates on the expectation that their second- or third-choice vote would be counted if their first choice was defeated in round one.”

Gardiner, Poliquin, Golden, Bond and others are slated to appear in Judge Lance Walker’s courtroom Wednesday to make their cases.

ITT Tech Students Score Victory in Bankruptcy Settlement

Via The Washington Post

Source: Flickr.com 

By: Danielle Douglas-Gabriel

As creditors of ITT Educational Services fight over the remaining assets of the defunct for-profit college operator, one group has secured a significant victory in the bankruptcy proceedings: former students.

On Wednesday, a federal judge gave final approval to a settlement that will erase nearly $600 million that 750,000 students owed ITT Technical Institute. The agreement, which was first announced in January, will also refund $3 million that students paid the for-profit chain.

Before shutting down in 2016, ITT issued students “temporary credits” to cover remaining tuition after federal and private student loans were taken into account. These credits were allegedly marketed as grants, but debt collectors pursued students for the money even after the company filed for bankruptcy.

“ITT routinely lied to hundreds of thousands of students,” said Lorenzo Boyland, 40, who attended ITT Tech in Tennessee from 2008 to 2010. “They targeted people who were eligible for federal loans and grants — including low-income people and veterans like me — and took advantage of our dreams and ambitions.”

Boyland is among the students involved in the lawsuit filed against ITT Educational Services last year to join the line of creditors, federal regulators, state attorneys general and employees seeking redress from the company.

Attorneys for the students asserted a $1.5 billion claim against the company for consumer-protection violations and breach of contract, and asked for status to cover anyone who attended ITT Tech between 2006 and 2016.

Wednesday’s agreement recognizes the claim. If there is money in the estate to pay unsecured claims — debts that are not assured payment — at the end of the bankruptcy, students would receive a share.

In the meantime, ITT’s estate has notified students who are eligible for the debt cancellation, according to the Project on Predatory Student Lending at Harvard Law School, a legal aid group that worked with the law firm Jenner & Block to represent the students.

“This settlement does more for the cheated students of predatory for-profit colleges than [Education Secretary] Betsy DeVos has done in her entire administration,” said Toby Merrill, director of the Project on Predatory Student Lending. “At a time when students are being ignored by their government, ITT students stood up to this predatory college themselves and secured the relief they are owed.”

Merrill is calling on DeVos to forgive the federal loans of ITT Tech students who have petitioned the U.S. Department of Education to cancel their debt under a statute known as borrower defense to repayment. The law, which dates to the 1990s, wipes away federal loans for students whose colleges used illegal or deceptive tactics to get them to borrow money to attend. Advocates for the students say ITT Tech did just that.

The chain was being investigated by more than a dozen state attorneys general and two federal agencies for alleged fraud, deceptive marketing or steering students into predatory loans. That legal morass led an accrediting body to threaten to end its relationship with the chain, which resulted in the Education Department curtailing ITT’s access to federal student aid.

Weeks later, the publicly traded company closed 137 campuses that served 35,000 students and employed 8,000 people. And days after that, the company filed for bankruptcy protection to liquidate its business.

In the wake of the school’s collapse, ITT Tech students have submitted more than 13,000 applications for federal debt relief, though only 33 have been approved, according to the legal aid group.

The Trump administration has stymied efforts to grant relief by refusing to implement an Obama-era revision of the debt-relief rule that sought to simplify the process and shift more of the cost of discharging loans onto schools. DeVos issued a more restrictive rule earlier this year, but advocacy groups and state attorneys general are fighting to have the courts force implementation of the Obama rule.

“While this settlement is a victory, we are still paying federal student loans that funded a school that no longer exists,” said Boyland, a veteran who amassed $52,000 in federal and private loans pursuing an associate degree at ITT Tech. “All I’m asking for — all any of us are asking for — is a fair shot and a fresh start. I just hope the Department of Education is listening.”

Thanks for Listening – Episode 1

Via the Harvard Negotiation & Mediation Clinic

Source: Pixabay

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 in Congress, the media, and in our social media spaces; training youth to move through conflict and toward civic responsibility; embracing dialogue in the face of extremism; engaging with others on highly emotional issues; and on working to restore divided communities. We hope that through the everyday examples of ordinary and extraordinary people all over the country, listeners will find optimism that we can—and are—moving beyond partisan divides, as well as inspiration to become part of the solution.

In this first episode we’ll look at politics around the Thanksgiving table—the start of a long month of family gatherings and meals to celebrate the holidays.

Click here to read a transcript of the episode.

What Relevance for ADR in situations of Domestic Violence? Part 2: The design and challenges of Bhutan’s Consensus Building Initiative for certain types of domestic violence

Credit: Adam Dean
Princess Sonam Dechan Wangchuck LL.M. ’07 is honorable president of Jigme Singye Wangchuck School of Law, named after her father, the fourth king of Bhutan.

By: Stephan Sonnenberg ’06

Last month, I wrote about the fundamental debate over whether ADR processes should have any role to play in situations of alleged domestic violence. The answer I proposed was essentially a longer version of the standard ‘it depends’ response to difficult questions that law school professors have so fondly committed to memory.

My answer adopts neither the universalist nor the culturally relativist approach. The universalist approach would adopt and promote globally the western (or legalist-individualist) ideal, according to which all domestic violence cases should be handled exclusively by means of formal judicial remedies. The culturally-relativist approach, by contrast, would hold that any practice, no matter how inhumane and undignified, can be shielded from human rights critiques on the grounds that they are associated with the culture of a place. Marie Bénédicte-Dembour, an anthropologist who studies the application of human rights standards in transnational contexts, described the first position as “arrogant” and the second position as “indifferent.”[1] Left with no easy answers, she condemned the thoughtful human rights practitioner to a perpetual “dialogical dialogue,” swinging like a pendulum in the uncomfortable grey zone between these two ideologically pure, but ethically suspect, polar positions. That same grey-zone space, I fear, is where we also find ourselves as dispute systems designers when we discuss how to encourage domestic violence survivors to seek redress in the unique cultural, historical, and philosophical context of Bhutan.

In this post, I would like to describe how our clinic at the Jigme Singye Wangchuck School of Law,and our project partners at RENEW (which stands for Respect, Educate, Nurture, Empower Women), maneuvered this “dialogical dialogue,” as well as the resulting dispute system that emerged from it.

In 2017, RENEW’s domestic violence community support volunteers articulated the urgent need for there to be an informal means to address alleged instances of domestic violence in Bhutanese communities. Survivors of domestic violence, they reported, were for a variety of reasons unwilling to take their concerns to the police or the courts. Many of them might be willing to approach a village elder, but those elders increasingly had been trained not to accept cases involving domestic violence. Left with no forum where they felt comfortable enough or welcome enough to discuss their concerns about domestic violence, many survivors turned to RENEW’s domestic violence resource persons begging them to act as mediators. Those RENEW volunteers were then left with the uncomfortable choice of either accepting to quietly—and illegally—mediate the case, or knowingly leave the survivor in a vulnerable position with literally no recourse at all. This damned-if-you-do, damned-if-you-don’t scenario served neither the RENEW community support volunteers’ interests nor did it serve the interests of the survivors.

During their annual retreat, these RENEW community support volunteers formally asked RENEW’s management to train them as mediators. In response RENEW asked our law clinic, along with Bhutan’s judicial training institute and a few other lawyers, to discuss the proposal. It soon became clear, however, that the volunteers’ request was much more complicated than it might at first have appeared. First, mediation in Bhutan is allowed only in civil cases. Bhutan’s legislation clearly defines all forms of domestic violence as criminal offenses. Furthermore, Bhutan’s lawmakers have made it clear that domestic violence must not only be physical or sexual in nature, but can also be financial or emotional. All four types of domestic violence are defined as criminal. Therefore, even domestic violence cases that might otherwise be addressed by means of counseling or neighborly intervention (ex: less serious forms of emotional abuse) would in Bhutan fall under the definition of a potentially criminal offense. Second and more fundamentally, we discussed the dangers of using a less-transparent mediation process, premised on voluntary participation and lacking many of the procedural safeguards inherent in formal judicial process, to resolve domestic violence cases. Structurally speaking, we explored how difficult it is for mediators to work with parties whose relationships are characterized by serious power imbalances and a history of verbal and emotional abuse.

To move the conversation forward, and in light of our ongoing consultations, our clinic put forward three hypothetical models for a future ADR initiative focusing on domestic violence, inviting both positive and negative feedback from stakeholders. Those were (1) a consensus building approach, where RENEW’s community volunteers would serve as facilitative problem solvers, with the backing of local elders and the police, but stripped of any authority to formally write up an agreement; (2) a transformative mediation approach, whereby mediators would act essentially as counselors tasked with helping the parties understand the impact of their actions on others around them; and (3) a victim-advocate model, where RENEW’s community volunteers would stand in solidarity with domestic violence survivors and help them maneuver a dispute resolution process run by someone else.

These consultations quickly converged on the first option as the preferred model to use as a starting point for further discussions. Over the course of a few months, our clinic and RENEW—in consultation with various justice sector stakeholders, including the Royal Bhutan Police (RBP), Bhutan’s National Commission on Women and Children (NCWC), Bhutan’s judicial training institute (BNLI), and RENEW’s community-based support volunteers and counseling department—came up with the present model of consensus building.

Cases can come to RENEW volunteers either directly or by referral from the RBP. In the first instance, the RENEW volunteer would first have to check with a designated RBP officer, usually one specially trained to handle issues relating to domestic violence, to seek official leave to act as a consensus builder in a given case. That request can be granted or denied based on the criteria detailed in a very important clause of Bhutan’s Domestic Violence Prevention Act of 2013 that sets forth a number of criteria that—if satisfied—allow a police officer to refer a case involving allegations of domestic violence to a “negotiated settlement” proceeding. These criteria collectively ensure that only first-time alleged offenses would ever be referred for consensus building, and further only those that would not qualify as potential felony offenses. In other words, the consensus building option would be available primarily for alleged instances of emotional or financial domestic violence.

Once the RENEW Volunteer is properly engaged, she or he would begin to act as a consensus builder, employing many of the skills one might teach in a traditional facilitative model of mediation. The consensus builder would also, however, be empowered specifically to employ a “gender-informed” facilitative style, urging the parties to think about how any agreements they contemplate might be seen by the police, who ultimately would have to re-approve and ratify any final agreements. The prospect of the RBP’s eventual review of any proposed outcomes gives the consensus builder the mandate to encourage the parties to think creatively about how to ensure that a basic sense of equity and dignity—and justice—is incorporated into their mediated agreement. By the same token, the consensus builder can also ensure that the interests of third parties (ex: other family members, neighbors, or other relatives) are also addressed as part of the mediation.

In the event that the parties reach an agreement, the consensus builder must turn to the RBP, a lawyer, or a traditional village elder to write up the agreement. If the case was originally referred to the RENEW volunteer by the police, the final agreement must also include a statement stating that the negotiated agreement formally settles any potentially criminal complaints they survivor may have originally levied with the police. In all cases, however, the settlement must be written, which also serves the secondary purpose of creating evidence; evidence that can be used in a subsequent criminal proceeding should there ever be a resurgence of the same pattern of abusive behavior between the parties in the future.

What then, are our challenges as the designers and now promoters of this new dispute system? For one, we are keenly interested to see if we struck the correct balance, given the ethically and legally perilous terrain in which we found ourselves as designers of this dispute resolution process. To do so, we are trying to come up with meaningful indicators that we can use to determine whether the dispute system is achieving its intended purpose, and more specifically to determine whether it indeed represents an improvement over existing process alternatives such as the formal justice system. We are also concerned about the challenge of sustaining the initial energy and enthusiasm about this new strategy for handling domestic violence cases. Have we succeeded, we wonder, in developing a clear and easily replicable training that will allow future generations of RENEW volunteers to understand the complexity of the issues they are dealing with, and act responsibly and ethically within the bounds of the program as it was originally designed? Finally, we need to ensure that the initiative does not inadvertently give the volunteers confidence to act beyond the boundaries of their mandates, no matter how tempting it may be for them to quietly expand their roles in the name of this consensus building process. Most importantly, we are determined to keep ourselves honest as well—honest and humble enough to accept the need to rethink the system we designed if and when it begins to appear that it might be causing more harm than good.

[1] Dembour, Marie- Bénédicte (2001), “Following the movement of a pendulum: between universalism and relativism,” in Jane K. Cowan et. al. Culture and Rights: Anthropological Perspectives, Cambridge, UK: Cambridge University Press.

After Fifteen Years, the Bolivian Struggle for Justice Continues in the United States

Via the Human Rights Program

By: Thomas Becker

Téofilo Baltazar places flowers on the tomb of his wife, Teodosia, who was shot and killed during Black October.

On October 12th, students from the International Human Rights Clinic arrived at the Villa Ingenio Cemetery on the outskirts of El Alto, Bolivia to celebrate the lives of those killed in Bolivia’s “Black October.” Despite the somberness of the drizzly afternoon, the cemetery was adorned with the bright colors of the family members’ aguayos (blankets) and polleras (traditional billowy skirts worn by Bolivia’s Aymara women). Today was a special occasion.

Téofilo Baltazar was one of the family members present at the cemetery. Fifteen years ago to the day, Bolivian soldiers shot and killed his pregnant wife Teodosia while she was praying inside her sister’s home. As Téofilo placed flowers on his wife’s tomb, he stated, “Hasta el último momento lucharé por la justicia.” (“Until the last moment, I will fight for justice.”)

Téofilo, like so many relatives of the roughly 500 casualties during Black October, is Aymara. Historically, the country’s indigenous people have been excluded from justice, but Téofilo and his friends were determined to change this.

In 2007, nine Aymara Bolivians launched a landmark lawsuit in U.S. federal court against Bolivia’s ex-President Gonzalo “Goni” Sánchez de Lozada and ex-Defense Minister Carlos Sánchez Berzaín, who fled to the United States after Black October and have lived here ever since. The case sought to hold both men responsible for the role they played planning and organizing the mass killings that took their family members.

After years of legal obstacles, the lawsuit went to trial in March of this year, marking the first time ever a former of head state was forced to directly face his accusers in a U.S. courtroom. The victims’ family members made history when, after a three-week trial and a week of deliberations, the ten-person jury unanimously held Goni and Sánchez Berzaín liable for the killings and awarded the plaintiffs $10 million. This was the first human rights verdict in the United States against a living head of state.

Unfortunately, in May, a judge overturned the historic jury decision. The judge upheld the defendants’ Rule 50 Motion for Judgment as a Matter of Law, which argued that there was insufficient evidence to support the verdict. This decision forced the families back to court.

Teodosia’s tomb with photos and flowers honoring her life during the memorial.

Last month, as Bolivians celebrated the lives of those killed in Black October, the plaintiffs submitted an appellate brief to the United States Court of Appeals for the Eleventh Circuit arguing that the district court applied the wrong legal standard for extrajudicial killings and the jury verdict should be reinstated. Additionally, current and former U.N. Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executionsretired U.S. military commanders, and law of war scholars submitted amicus briefs on behalf of the plaintiffsEarly next year, the Defendants will file their opposition brief and Plaintiffs will file their reply; oral argument is expected in spring 2019.

Though the struggle has been long, the families remain steadfast in their fight for justice. It is the memories of their loves ones that keep them going. At the cemetery, Téofilo shared with the Clinic’s students the importance of their victory and its significance for survivors throughout the world. “The jury is the voice of the American people, and the people have spoken. No court can change that. No court can change the message it sends to the world,” he told the students, adding: “But the struggle continues.”

The Clinic and co-counsel from Center for Constitutional Rights, Akin, Gump, Strauss, Hauer & Feld, LLP, and Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP have represented the plaintiffs from the outset in the case. Clinical students Luna Borges Pereira Santos LLM ’19 and Kevin Patumwat JD ’19 traveled with clinical instructor Thomas Becker JD ’08 to Bolivia in October to commemorate 15 years since Black October.

Challenging Immigration Law’s Conviction Definition

Via the Harvard Civil Rights-Civil Liberties Law Review

Source: Pexels

By: Philliip Torrey

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

In 1996, the “conviction” definition was codified in our country’s primary immigration statute known as the Immigration and Nationality Act (“INA”). The INA’s “conviction” definition includes two distinct prongs. If either prong is satisfied, then the state criminal disposition at issue is rendered a conviction for immigration purposes regardless of how the state categorizes the disposition. The definition’s first prong is straightforward. It simply requires a final judgment of guilt entered by a court. The second prong, however, turns any guilty plea, no contest plea, or admission to “sufficient facts to warrant a guilty finding” plea into a conviction for immigration as long as some punishment, penalty or restraint on liberty is imposed — even if that plea is held in abeyance or later vacated. The second prong, as currently interpreted, morphs many deferred adjudications and expungements into convictions for immigration purposes even though most states would not consider dispositions from those types of ameliorative programs convictions for state law purposes.

Sweeping ameliorative programs into the “conviction” definition was no mistake. The definition was codified in the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRAIRA”), which was passed during an election year when Congress was eager to demonstrate that it was tough on crime and determined to secure our borders — both of which were considered winning campaign slogans. Although IIRAIRA has a dearth of legislative history, the following quote from a conference report is illustrative:

[A]liens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. . . .  [E]ven in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.[1]

But in the age of the plea deal where “innocence is irrelevant” and mass incarceration and racial discrimination have become synonymous with criminal justice, the assumption that individuals who pursue an ameliorative program are “clearly . . . guilty of criminal behavior” is baseless at best and overtly vindictive at worst.

In fact, all states offer ameliorative programs that were designed to respond to rising incarceration rates and the devastating effects of the War on Drugs on communities of color. For example, Missouri has a suspended sentencing program that does not result in a conviction for state law purposes and therefore allows certain criminal offenders the opportunity to avoid the societal disenfranchisement that typically comes with a criminal conviction. Describing that ameliorative program, the Supreme Court of Missouri noted that “[t]he obvious legislative purpose of [the program] is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”[2] The Court further recognized that the deferral program was an important “tool” for criminal sentencing courts to allow certain offenders “a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.”[3] When the INA’s “conviction” definition attaches immigrations consequences such as detention and deportation to these ameliorative programs, it frustrates the state’s desire to facilitate the rehabilitation and reintegration of individuals in those programs.

A California expungement law is now at the center of litigation because of the inherent federalism tension created by immigration law’s “conviction” definition. The California expungement statute allows a defendant to withdraw a guilty plea when subsequently imposed conditions of probation are met. A final plea of not guilty is then entered by the court, which effectively vacates the prior guilty plea. The purpose of the law is to “help further reduce recidivism, building upon statewide efforts to assist those who have served their time and proven their willingness to be productive, contributing, law-abiding members of society.”[4] California’s expungement law is a legitimate exercise of its reserved powers to regulate the health and safety of its residents because it designed to encourage “rehabilitated individuals to obtain a decent paying job, qualify for secure and safe housing, or pursue their educational goals.”[5] The purpose of that law is thus undermined when individuals with expunged convictions are detained and deported by the immigration enforcement system.

The obvious federalism tension between the INA’s “conviction” definition and California’s expungement law is at issue in a lawsuit currently pending before an en banc Ninth Circuit. In that case, I recently co-counseled an amicus brief on behalf of immigration professors arguing that a California expungement should not be categorized as a conviction for immigration purposes. The brief argued that the expungement law was a valid exercise of a state’s reserved police powers and that the INA’s “conviction” definition must be interpreted to avoid purposefully obstructing a state’s ability to exercise that power. In other words, the federalism principles upon which our government is founded do not grant Congress the unfettered authority to undermine a state law duly enacted pursuant to a state’s constitutional authority.

At a time when the current Administration invokes the “rule of law” to justify the reprehensible use of detention and deportation to tear families apart, it is more important than ever to confront nefarious parts of our immigration law that have gone overlooked for decades. The “conviction” definition is one such feature of our immigration law that advocates should continue to challenge.

[1]  See H.R. Conf. Rep. No. 828, 104th Cong. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996).

[2]  Yale v. City of Independence, 846 S.W.2d 193,195 (1993).

[3]  Id.

[4]  A.B. 1115, Comm. on Pub. Safety, 2017-18 Sess., at 2 (Cal. 2017).

[5]  A.B. 1115, Third Reading Bill Analysis, 2017-18 Sess., at 5 (Cal. 2017).

Independent Clinical Experience with the Surfrider Foundation

By: Alex Gazikas J.D. ’17

I spent my January term interning at the Surfrider Foundation, a nonprofit organization in San Clemente seeking to preserve and protect the world’s ocean, waves, and beaches. Founded in 1984, Surfrider is a grassroots activist organization that seeks to advance environmental protection, ensure and expand public beach access, and manage local beach cleanup efforts. This advocacy is effectuated through lobbying, local volunteer projects, and litigation. Notably, Surfrider is currently involved in a beach access dispute in California in which the landowner purchased a public beach and has attempted to close it to the public. Surfrider prevailed in the California appellate courts, and the United States Supreme Court recently denied certiorari.

During my time with Surfrider, my primary work was to research a potential new legal theory to address the problem of outdated beach access laws in Massachusetts and Maine. In most states, the public has a right to access all land below the average high tide line for recreational purpose. In Massachusetts and Maine, the public literally does not have the right to walk along the beach because this land can only be used for fishing, hunting, and navigation. This limited right of access is rooted in a colonial ordinance from Massachusetts, but this ordinance has come to predominate beach access rights in both states. The legislatures of both Maine and Massachusetts have attempted to pass legislation expanding the public’s rights, but the supreme courts of both states have struck down the legislation as an unconstitutional taking.

As an intern, my role was to assess a potential new legal theory that could allow the Commonwealth of Massachusetts to expand public beach access. The research encompassed constitutional takings jurisprudence and the history of the public trust doctrine in Massachusetts. The goal of my research was to ultimately assist in changing the beach access laws, either through proposed legislation enacted through lobbying efforts or litigation by local counsel. Surfrider litigation is generally handled by local pro bono counsel, with the in-house legal team serving an advisory role. This opens up the interesting possibility for previous interns to actually represent the organization later in their careers in a pro bono capacity.

In addition to my work on beach access, I was also able to assist the legal team in operational tasks. This aspect of the internship was unique because it allowed me to get a sense of the normal daily operations of a nonprofit organization. In one such task, I was given sole responsibility to conduct due diligence about a Surfrider Foundation sponsor. Surfrider regularly conducts diligence about its sponsors and partners to ensure that the companies are not involved in “green washing” or otherwise attempting to use their Surfrider affiliation to conceal environmentally irresponsible business practices. It is essential that Surfrider regularly conduct diligence on these companies because any negative publicity about its partners would make it less effective as an advocacy organization. My work product was reviewed and then sent directly to the Surfrider executive staff to help them decide whether to continue the partnership with the company in question.

In addition to the due diligence project, I assisted in licensing agreements and other daily tasks typical of a nonprofit environmental organization. I was also able to participate in the annual Surfrider meeting, led by C.E.O. Chad Nelson, which is conducted at the start of each year and involves representatives from Surfrider chapters around the country.

I also had the opportunity to enjoy the remarkable culture at Surfrider Foundation and explore San Clemente and the surrounding areas. Because the organization is based in San Clemente, I had access to a variety of beaches and state parks. San Clemente is a great little town, but I also took time on the weekends to go into L.A. and San Diego. I cannot imagine a better way to have spent my final January term at HLS.

Back to Myanmar with fresh insights

Via The Harvard Gazette 

Yee Htun, Myanmar native lawyer who teaches a human rights advocacy course at HLS. Here she works inside 6 Everett St, WCC, Human Rights Program in Wasserstein Hall. Kris Snibbe/Harvard Staff Photographer

By: Liz Mineo

When Myanmar’s military junta tightened its grip in the late ’80s to quash a nationwide democracy movement, Yee Htun fled the brutal crackdown on dissent along with her mother, a doctor turned human rights activist, and three siblings. After five years in a refugee camp in Thailand, they immigrated to Canada as government-sponsored refugees, unsure of when they might return home.

It turned out to be decades. After the junta transferred power to a civilian government and opened Myanmar to the world, Htun went back. She had grown up in Vancouver and was an up-and-coming attorney, and was hoping to reconnect with her roots. She did more than that. Htun ended up staying in Myanmar for four years, working as a human rights advocate for local farmers, journalists, and activists, and training local lawyers on strategic litigation and international law.

“It was the perfect opportunity,” said Htun, who worked as director of the Myanmar Program for Justice Trust until she came to Harvard Law School (HLS) in 2016. “I wanted to go back to Myanmar and use my legal education to do my part to help the country move forward.”

Harvard Law students have also had the chance to do their part in Myanmar, formerly known as Burma, an unlikely destination to practice law. Htun took her students from the International Human Rights Clinic of the Human Rights Program at HLS to Myanmar four times. The students met with community activists and lawmakers to work on women’s rights, LGBTQI rights, advancing legal reform around land rights for vulnerable communities, and changing criminal defamation provisions that allow the government to target activists and journalists.

On another trip, students went to refugee camps in neighboring Thailand, where hundreds of thousands of refugees from the conflict in Myanmar have been living for more than 30 years, waiting for peace and a chance to return home.

For Htun, teaching Myanmar human rights advocacy to Law School students is a full-circle experience.

“Growing up in a refugee camp in Thailand, I was exposed to humanitarian work and service,” said Htun, now a clinical instructor and lecturer on law. “There is no doubt in my mind that my formative childhood shaped me and made me believe in the need to serve and use our freedom and privileges to make a contribution.”

This fall, Htun is teaching a human rights advocacy course covering fact-finding, media and political advocacy, and how students can become effective, ethical human rights advocates and practitioners.

She expects to continue working to improve human rights in Myanmar, as the country struggles with the legacy of a long military dictatorship, a problematic legal system, and lack of accountability for crimes committed by the armed forces.

Ha Ryong Jung, J.D. ’18, traveled to Myanmar with the clinic led by Htun. He said the experience was an eye-opener because it helped him learn how to analyze and spot gaps in laws.

“One thing that really stuck out to me while doing the work was how the law can be abused to target specific populations,” said Jung. “It is unclear if the laws were drafted in that manner to specifically enable this form of violence, but nonetheless it forced me to think outside of the box when reading any law thereafter to spot those loopholes.”

Given the magnitude of the Rohingya refugee crisis, Htun hopes that her students’ future work will include protecting the rights of ethnic and religious minorities, promoting tolerance, and peace-building.

Women’s rights have also been on the agenda because they’re close to Htun’s heart. In 2011, Htun worked as a coordinator with the Nobel Women’s Initiative to launch the first international campaign to end sexual violence in armed conflicts. Part of her students’ work has focused on working with local partners to draft a law to prevent violence against women, and also on building community support for what would be a historic milestone for the country.

“Even though women and girls have been adversely affected by the conflict in Myanmar, women’s rights are rarely deemed a priority,” said Htun. “The law will be the first of its kind and is a crucial step for advancing women’s rights in Myanmar and ensuring that survivors have protection and redress under the law.”

By having students work on the ground with activists, government officials, and legislators, Htun hopes to make the work of a human rights advocate come to life for students. The work is challenging but also rewarding, she said.

“We want to show that the law cannot only be a tool for oppression,” said Htun. “What drew me to law was the fact that it is a crucial tool for change and can play a key role in safeguarding democracy and enshrining rights. That’s the lesson I have learned in my personal journey and one that I hope to share with my students and the communities we serve.”

More than 20 Utah local leaders file court briefs opposing shrinkage of Bears Ears, Grand Staircase monuments

Via The Salt Lake Tribune 

By: Taylor Stevens

A group of 21 mayors and council members from around Utah have signed onto briefs with the U.S. District Court for the District of Columbia in support of lawsuits filed against President Donald Trump’s shrinking of the Bears Ears and Grand Staircase-Escalante national monuments.

The amicus friend-of-the-court briefs — filed Monday and drafted by the Harvard Law School’s Emmett Environmental Law & Policy Clinic and the Salt Lake City Attorney’s Office — contend that the process was flawed, with little input from local voices, and that the boundary reduction will have detrimental economic and environmental effects in the state.

“When the Trump administration began its review of Bears Ears and Escalante, many of us knew it was only a matter of time before these monuments were reduced and harm would come to our local economies,” Salt Lake City Mayor Jackie Biskupski, who signed onto the briefs, said in a news release.

The state’s perceived antagonism toward public lands, including designation of the Bears Ears National Monument, resulted in the departure of the Outdoor Retailer convention, which Biskupski said caused immediate economic harm to Salt Lake City through the loss of $45 million dollars in tourist spending. But she said the “truly devastating” part of the decision is its effect on gateway communities and the state’s reputation as friendly to the outdoors.

That’s “why we are filing these briefs,” she wrote, “to give everyone a voice in a decision which has consequences for every community.”

Five of the seven members of the Salt Lake City Council, as well as Salt Lake County Council members Jim Bradley, Arlyn Bradshaw, Jenny Wilson and Ann Granato, all Democrats, also signed on. So did members of the Summit County Council and Alta town council. The mayor of Boulder supported the Grand Staircase brief, while the mayor of Bluff endorsed the Bears Ears one.

 

Clinic, Human Rights Watch Call for Urgent Action on Incendiary Weapons

Via the International Human Rights Law Clinic  

Source: Pixabay

Countries at an upcoming United Nations disarmament conference, faced with evidence of 30 new incendiary weapons attacks in Syria, should agree to strengthen the international law that governs their use, the International Human Rights Clinic said in a report released this week.

The 13-page report, “Myths and Realities About Incendiary Weapons,” counters common misconceptions that have slowed international progress in this area. Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance. While often designed for marking and signaling or producing smokescreens, incendiary weapons can burn human flesh to the bone, leave extensive scarring, and cause respiratory damage and psychological trauma. They also start fires that destroy civilian objects and infrastructure.

“The excruciating burns and lifelong disabilities inflicted by incendiary weapons demand a global response,” said Bonnie Docherty, associate director of conflict and civilian protection at the Clinic. “Simple changes in international law could help save civilian lives during wartime.”

The report details the exceptionally cruel harm caused by incendiary weapons, explains the shortcomings of existing law, and lays out steps countries should take in response. The report, designed as an accessible overview of the incendiary weapons issue, was jointly published with Human Rights Watch.

Countries that are party to the Convention on Conventional Weapons (CCW) are scheduled to address incendiary weapons at the UN in Geneva from November 19 to 23. Protocol III to this treaty imposes some restrictions on the use of incendiary weapons, but it does not provide sufficient protections for civilians.

In 2018, the Syrian-Russian military alliance used incendiary weapons in at least 30 attacks across six governorates of Syria, based on Human Rights Watch research. The majority of these attacks involved ground-launched rockets, but air-dropped weapons have also caused harm. For example, an incendiary airstrike on March 16 in Eastern Ghouta killed at least 61 people and injured more than 200.

Human Rights Watch documented an additional 90 incendiary weapons attacks in Syria from November 2012 through 2017. The total number is most likely higher. Syria has not joined Protocol III, but Russia has.

The countries at the UN meeting should address the weaknesses of Protocol III as well as articulate their policies and practices. They should also establish a forum dedicated to reviewing the protocol more formally in 2019 with the intention of strengthening its protections for civilians.

Government support for action against incendiary weapons has grown significantly in recent years, although a small number of countries that view existing law as adequate have opposed proposals to amend the protocol.

Protocol III has two major loopholes that have weakened its impact. First, its definition excludes multipurpose weapons, such as those with white phosphorus, which may be primarily designed to provide smokescreens or illumination, but which can inflict the same horrific injuries as other incendiary weapons. White phosphorus, for example, can continue to smolder in bandaged wounds and reignite days after treatment if exposed to oxygen. In 2017, the US-led coalition used white phosphorus while fighting to retake Raqqa in Syria and Mosul in Iraq from the Islamic State. The United States is party to Protocol III.

Second, while the protocol prohibits the use of air-dropped incendiary weapons in populated areas, it allows the use of ground-delivered models in certain circumstances. Because all incendiary weapons cause the same effects, this arbitrary distinction should be eliminated. A complete ban on incendiary weapons would have the greatest humanitarian benefits.

“Nations should make strengthening international law on these weapons a priority for the disarmament agenda,” said Docherty, who is also a senior researcher in the Arms Division of Human Rights Watch. “Stronger obligations would limit the conduct of treaty countries and, by increasing stigmatization of incendiary weapons, influence the behavior of other countries and non-state armed groups.”

Docherty will present the report’s findings at a side event at the United Nations in Geneva at 1:15 p.m. on November 20 in Conference Room XXII.

Clinical students Molly Brown, JD ’19, Samantha Fry, JD ’20, and Thejasa Jayachandran, JD ’20, worked under Docherty’s supervision to help write this report.

For more on the Clinic’s work on incendiary weapons, please visit:
http://hrp.law.harvard.edu/areas-of-focus/arms-armed-conflict/incendiary-weapons/

What Relevance for ADR in situations of Domestic Violence?

Via the Harvard Negotiation & Mediation Clinical Program 

Source: Pexels

By: Stephan Sonnenberg J.D. ’06

Domestic violence, as we are all by now painfully aware thanks to the #MeToo movement, continues to be a shockingly widespread and under-reported scourge.

The statistics are sobering: The World Health Organization estimates that over 1 in 3 women worldwide (approx. 35%) have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime, with that vast majority of that violence being perpetrated by an intimate partner. The United States is not exempt from this global trend. In 2010, the Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey found that just under 1 in 10 women in the U.S. would experience rape by an intimate partner during her lifetime, and that just under 1 in 4 women and nearly 1 in 7 men would experience some form of severe physical violence by an intimate partner at some point in their lifetime. Nor is the situation any different in Bhutan, where a 2013 survey conducted by the National Council on Women and Children (NCWC) found that approximately 1 in 3 “ever-partnered” women would be likely to experience some form of intimate partner violence during their lifetime. And of course, even a cursory look at the front pages of our newspapers reveals just how widespread the impunity still is for these serious crimes, not just in Washington D.C. and Hollywood, but globally.

Can we do a better job addressing this scourge of daily hidden violence, abuse and humiliation? More to the point: can alternative dispute resolution processes, which here I define as “anything-other-than-formal judicial remedies” play a role in that improved justice response?

Continue reading.

CHLPI and Health Leaders Gather to Improve Lung Cancer Policies in West Virginia

Via Center for Health Law and Policy Innovation

By: Stephanie Kwan

CHLPI and Health Leaders Gather to Improve Lung Cancer Policies in West Virginia

Lung cancer kills more West Virginians than breast, prostate, and colorectal cancers combined. On November 1st-2nd, 2018, CHLPI joined hundreds of health and policy leaders at the Second Annual Lung Cancer Conference: Catalyzing Change to Address Lung Cancer. Hosted by West Virginia University Cancer Institute, the Mountains of Hope Cancer Coalition, and the Patient Advocate Foundation, the conference saw more than 200 health and policy leaders gather at the WVU Erickson Alumni Center in Morgantown, WV to address lung cancer policy changes.

The conference was designed to raise awareness about the impact of lung cancer across West Virginia and to identify avenues to improve lung cancer screening, early detection, treatment, and survivorship. The two-day program engaged healthcare providers, community-based health workers, public health educators, advocates, and policy makers in implementing changes both in their local communities and on a statewide level.

Current policies and lung cancer in West Virginia

Sarah Downer, CHLPI’s Associate Director for Whole Person Care and Clinical Instructor on Law in the Health Care and Policy Clinic, along with second-year clinic student Stephanie Kwan, welcomed conference attendees with an overview of healthcare policy-making. The overview discussed policy formation and how advocates could work with various entities to effect change. “Even though systemic changes take a long time, keep your eyes on the long term prize and don’t stop telling local policy makers your stories, because your work in West Virginia matters and is shaping national healthcare conversations”, said Sarah.

Graphic documentation of CHILPI’s presentation on “Overview of Healthcare Policy-making”, illustrated by Nora Herting.

West Virginia Delegate Amy Summers, Vice-Chairman of Health and Human Resources Committee of WV House, who not only is a nurse but also has a long family history of cancer, reminded attendees to get to know their legislators. Doing so will allow advocates to understand the expertise, priorities, and passions of their representatives, which will help advocates tailor their policy goals and approaches.

Attendees also heard from West Virginian experts; Dr. Christopher Plein, Professor at the Department of Public Administration at West Virginia University, highlighted the historical roots of many contemporary healthcare issues, while Dr. John Deskins, Director at the Bureau of Business & Economic Research at WVU College of Business and Economics, discussed the economic costs of lung cancer in West Virginia.

Graphic documentation of the expert policy panel that comprised of CHILPI’s Sarah Downer, Christopher Plein, and John Deskins, illustrated by Nora Herting.

Dr. Camara Jones, Senior Fellow at Morehouse School of Medicine and a Past President of the American Public Health Association, addressed the crowd on social determinants of health, including poverty, racism, and institutional disparities that are often ignored by today’s healthcare system.

Healthcare practitioners driving change in the lung cancer space

Following the presentations, conference attendees participated in an interactive policy planning session, identifying local advocacy goals such as rescinding no-smoking ban, establishing primary care partnerships, and engaging insurers to pay for screening. Attendees also examined specific programs that effect lung cancer in West Virginia, including Medicare and Medicaid, lung cancer treatment case studies, opioid Rx regulations, as well as immunotherapy and the use of robotics in surgeries.

Another highlight of the conference was the Shine A Light on Lung Cancer evening reception, where speakers and attendees came together to honor lung cancer survivors, family members, caregivers, and those who have passed.

The two-day event was a highly successful initiative that brought together policy leaders and healthcare practitioners to learn, plan, and act. The conference equipped attendees to be advocates in their respective professions and communities. It was an eye-opening experience for clinic student Stephanie to speak to experienced practitioners and to witness how practitioners could work on policy goals that make a difference in the lives of people they serve.

Graphic documentation of “policy-planning in motion”; produced collaboratively by conference attendees and illustrated by Nora Herting.

The conference’s presenters included:

  • Sarah Downer, JD
  • Camara Jones, MD, MPH, PhD
  • Honorable Amy Summers, MSN
  • Ghulam Abbas, MD, MHCM, FACS
  • Mohammed Almubarak, MD
  • John Deskin, PhD
  • Monika Holbein, MD
  • Malcol Mattes, MD
  • Christopher Plein, PhD
  • Anne Swisher PT, PhD

Sarah Downer and Stephanie Kwan at the WVU Erickson Alumni Center in Morgantown, WV, speaking at the Second Annual Lung Cancer Conference.

Local Education on Campus: Education Law Week 2018

By: Advocates for Education Board

Boston City Council President Andrea Campbell, speaking to the HLS community during Education Law Week

Boston and Cambridge are home to to some of the top colleges and universities in the country. For those of us lucky enough to attend Harvard Law School (HLS), we see every day the power of a top-notch education. But within miles of our campus, students in the Boston Public School (BPS) system face immense challenges that too often preclude them from having the option of attending a school like HLS. For this year’s Education Law Week, we aimed to deepen our law school’s understanding of a few of the most pressing issues within the Boston Public Schools. Through this, our hope was to strengthen law students’ connection to, and investment in, the greater community that we are lucky enough to be a part of for at least three years.

 

Day One: Civil Rights Attorney Matt Cregor on Racial Disparities in BPS’s Exam Schools

In recent years, Boston’s exam schools (Boston Latin Academy, Boston Latin School, and O’Bryant School of Math and Science) have drawn increased scrutiny for the racial disparities in their admissions numbers. Most alarmingly, while Black and Latino students make up 75% of BPS students, only 20% of students at Boston Latin School identify as Black or Latino. In response to these alarming numbers, the Lawyers’ Committee for Civil Rights Under Law produced a report titled “A Broken Mirror,” which lays out the immense disparities in BPS exam school admissions, and calls for BPS to “immediately intensify its review of exam school admissions.” Matt Cregor, who led the production of the report and is currently an attorney with the Mental Health Legal Advisors Committee, led a conversation about the findings of the report and the solutions that have been proposed through community dialogues.

 

Day Two: Immigration Attorney Elizabeth Badger on the BPS to ICE Pipeline

Students who are immigrants face unique challenges, which BPS may exacerbate through its school incident reporting practices. Boston School Police officers sometimes report school incidents to the Boston Regional Intelligence Center (BRIC), a network of local, state, and federal law enforcement agencies that includes U.S. Immigration and Customs Enforcement (ICE). While BRIC is designed to be a tool to identify “major players” in crime and pinpoint areas of crime, Boston School Police have input seemingly minor school offenses into the database. As illustration, Badger explained that a lunchroom disagreement among two students, resolved without resort to fighting, could make its way into BRIC. In one case, advocates say that an unsupported gang allegation against a BPS student was input into BRIC and was later used to support ICE deportation proceedings against the student. Badger discussed how local advocates are working to gain additional information about BPS policies and procedures for School Police Officers’ use of BRIC.

 

Day Three: National Women’s Law Center’s Manager of Campaign and Strategies Nia Evans on the Impact of School Dress Codes on Girls of Color

This spring, the National Women’s Law Center released “DRESS CODED: Black Girls, Bodies, and Bias in D.C. Schools,” a groundbreaking report on the impact that student dress codes have on Black girls and their educational experiences. This report, co-authored with 21 Black girls who attend D.C. schools, sheds light on the ways in which dress codes contribute to the disparities in discipline rates between white students and students of color, and sparked a critical national dialogue about the reforms that are needed in school and district policies. Nia Evans, who led the project for NWLC, presented the findings of the research, and discussed the process and effects that the report’s creation had on the students themselves. The conversation raised a number of questions about the use of dress codes in Boston Public Schools, and laid the groundwork for future research and advocacy efforts.

 

Day Four: Boston City Council President Andrea Campbell on the Role of Cities in Education

To conclude Education Law Week, Boston City Council President Andrea Campbell joined students for a conversation on the City’s role in the education of its students. She began by sharing her personal motivation for doing this work, providing us an urgent reminder that laws and policies are more than abstract concepts or interesting topics of conversation: they have real consequences for real people. A graduate of Boston Latin School, Councilor Campbell helped bring Education Law Week full circle by engaging in dialogue about inequities in educational opportunity. While the City Council is able to exert direct influence over education in some ways, Councilor Campbell also discussed the comprehensive progress that is needed in order for the City to truly serve all students within BPS. From housing to safety to access to health services, so much of what students bring into the classroom is dictated by the community that surrounds them. Councilor Campbell discussed the efforts Boston is currently undertaking to strengthen both support and outcomes for students across the City.

Thank you to all who attended the events and supported Education Law Week; a special thank you to all of our speakers!

The events for Education Law Week were co-sponsored by the Advocates for Education, Child and Youth Advocates, and Urbanists, and funded by the Dean of Students’ Grant Fund.

Trump Is Rewriting Asylum Law

Via The Atlantic 

Source: Pixabay

By: Sabrineth Ardalan

Two days after yet another mass shooting, President Donald Trump on Friday issued a proclamation addressing mass migration. “The continuing and threatening mass migration of aliens with no basis for admission into the United States through our southern border,” he wrote, “has precipitated a crisis and undermines the integrity of our borders. I therefore must take immediate action to protect the national interest.”

The mass shooting, like most mass shootings, was committed by an American citizen, a white male. There’s not much detailed information about who is part of the so-called caravan on the way to the southern border. But it seems the migrants hail mostly from Guatemala, Honduras, and El Salvador, where femicide rates are the highest in the world and government protection is nonexistent. Chances are, they resemble my clients at the Harvard Immigration and Refugee Clinical Program. People like Maria, who was kidnapped by her abuser, an auxiliary for the Honduran authorities, at a young age and subjected to years of rape. And like Jennifer, who was forced to flee El Salvador after gang members threatened to kill her and her family because they had encouraged youths to join the Evangelical Church instead of the gangs. (I’ve used pseudonyms to protect my clients’ anonymity.)

Our clients sit in our office for hours at a time and share horrific stories of the violence they suffered in their home countries, and of the children, parents, and siblings they were forced to leave behind. Despite everything they have lived through, they bring tremendous warmth and generosity. They also bring their tremendous faith in America, a country that they believe can and should offer them protection.

Trump’s proclamation and new interim regulations fly in the face of that belief. The administration plans to restrict asylum only to those who present themselves at ports of entry; people entering the country via the southern border in any other way would be limited to much more circumscribed forms of relief that would not include reuniting with their family members, obtaining a green card, or a path to citizenship. The administration also plans to enter into an agreement with Mexico to force asylum seekers traveling through that country to claim protection there instead of in the United States.

At first blush, these rules may not seem extreme. But the “ports of entry” restriction ignores the fact that Customs and Border Protection routinely turns away people even after they have asked to apply for asylum. As one woman told the Inter-American Commission on Human Rights, “I told [the CBP official] that I wasn’t from here, that I was from Honduras, and that I wanted asylum. He told me that there was no longer asylum for Hondurans … I started to explain why I couldn’t return and what I was fleeing from, but he interrupted me and said that everyone comes with the same story, that he couldn’t help me.”

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Lawyers for Poliquin ask for emergency restraining order to stop ranked-choice voting

Via News Center Maine 

Source: Canva

By: Beth McEvoy

Lawyers representing Rep. Bruce Poliquin and other citizens are asking a judge in Federal Court Wednesday for an emergency temporary restraining order to stop the ranked-choice voting process in Augusta for Maine’s 2nd Congressional District election.

Federal Judge Lance Walker said Wednesday he will not make a decision about the temporary restraining order until Thursday but Sec. of State Matt Dunlap said the vote may be decided sometime Wednesday.

Last week Maine’s 2nd Congressional District election between Rep. Poliquin (R) and Jared Golden (D) failed to produce a candidate with a majority and so has become Maine’s first federal race to be determined by ranked-choice voting.

“No state official should have an interest in rushing ahead, possibly in violation of the Constitution, before the Federal Judge has an opportunity rule. Since the judge told us today that he would issue a ruling tomorrow, I think the prudent course would be for the Secretary of State to give due respect to this federal court and wait for the federal judge’s ruling tomorrow and then decide how best to act,” Lee Goldman, who is representing Poliquin, told reporters following the hearing Wednesday.

“We’re hoping they will count all the votes and run the election is the people decided they wanted to be around,” Peter Brann, the attorney representing Jared Golden. [Peter Brann is a Lecturer on Law for the State Attorney General Clinic at Harvard Law School.]

Poliquin claims he had about 2,000 more votes than Golden on election night. But he did not win a majority of the votes, and under the law passed by voters in 2016, the final result will be determined through ranked-choice voting.

On Tuesday, lawyers for Rep. Poliquin filed a lawsuit in federal court to challenge the vote, saying the whole ranked-choice process violates the U.S. Constitution.

“I won the election fair and square,” Poliquin told reporters ‪Tuesday afternoon‬.

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