Clinical and Pro Bono Programs

Providing clinical and pro bono opportunities to Harvard Law School students

Q&A with Olivia Barket

by Grace Yuh

Every semester, students at the Child Advocacy Clinic work with organizations serving children as a part of their clinical fieldwork. The Office of Clinical and Pro Bono Programs spoke with Olivia Barket J.D.’20 on her experience with her placement at the Juvenile Unit of the Suffolk County District Attorney’s Office.

OCP: Why did you choose to join the Child Advocacy Clinic?

OB: It was never a matter of if I joined the Child Advocacy Clinic, but when. I have worked with foster youth since I was an undergraduate and a large part of the reason I applied to law school was to be an advocate for children.

OCP: What would you say was the most fulfilling part of your experience?

OB: The opportunity to view the juvenile justice system with a critical lens.  I appreciate being challenged by my peers and the Child Advocacy Clinic created a safe space to talk through the enormous challenges facing many children across the United States.

OCP: Was there anything surprising or unexpected?

OB: I’m not sure if it was totally surprising, but it was enlightening to begin to understand the vast complexity of juvenile cases. It is easy to have our own preconceived notions of how the system should be working, but it is challenging to realize that there is no one-size-fits-all approach to juvenile justice.  There is no one idea that encompasses “the best interest of the child”.  Attorneys are often forced to piecemeal solutions – from finding housing for a juvenile, to attending education planning meetings, finding mentoring programs for youth – activities commonly thought to be outside the legal system.

OCP: What is the most important skill you learned or worked on at the Child Advocacy Clinic ?

OB: How to use my voice – both in and out of the courtroom. I began to trust my judgment and gained confidence in presenting my ideas to my supervising attorney and ultimately, the judge.

OCP: Has there been a particularly memorable moment for you while at the Child Advocacy Clinic?  If so, did it have an impact on you, your clinical experience, or how you think about practicing law beyond law school?

OB: Yes – unfortunately, it was a particularly sad moment. I was in court one morning and a case was called involving a female in her early teens. There were a medley of issues at play in this case, but ultimately the juvenile was detained – not because the prosecutor or defense attorney wanted her held in custody, but because there was no place else for her to go. This outcome was absolutely devastating to me. It would be almost 7 weeks until an appropriate placement was found.

OCP: What inspires you to do this work?

OB: I was raised by a single mother who worked almost every moment of the day to support me. By all accounts, I was fortunate. I had my mom, and a community of neighbors, teachers, and friends who filled in when my mom couldn’t be present. By the time I was in high school, I recognized that this support system my mom and I had created was unusual. Many children in similar situations to mine growing up are in desperate need of this type of community. I want to help youth create the future they have never thought possible – the one of their dreams.

OCP: What is something you would like to share with future HLS students who are interested in joining the Child Advocacy Clinic?

OB: No matter the clinical experience you choose, your eyes will be opened to new possibilities and to injustices you weren’t aware of. Be open to changing your path. Explore what you don’t understand or haven’t experienced. Ask questions. The Child Advocacy Clinic is a great way to start exploring all of the avenues your legal career could take.

Sejal Singh wins the 2020 David Grossman Exemplary Clinical Student Award

via Harvard Law Today

by Grace Yuh

Sejal Singh ’20 is the 2020 recipient of the David Grossman Exemplary Clinical Student Award. She was recognized for her work on the Project on Predatory Student Lending with the Predatory Lending and Consumer Protection Clinic at the WilmerHale Legal Services Center, as well as her exemplary contributions to public-interest endeavors at Harvard Law School.

Named in honor of David Grossman ’88, the award reflects the dedication of the late HLS clinical professor in addressing the legal needs of low-income communities. Each year, a student is recognized for their advocacy in important issue areas, for providing excellent legal services through client representation, and striving for crucial policy reform. In addition, the student is recognized for demonstrated thoughtfulness and compassion in their work as they put theory into practice.

Singh’s belief that education is a fundamental right and her passion for making sure that every student has the opportunity to learn is what inspired her, she says, to attend law school and join the Project on Predatory Student Lending. At the project, Singh represented student loan borrowers who have experienced predatory lending in connection with for-profit schools. In remote collaboration with Office of the Attorney General of Maryland, she helped to write an application to the federal government to discharge the debt of thousands of affected students. Chris Madaio, an assistant attorney general in the Consumer Protection Division who leads Maryland’s work on for-profit schools, praised Singh’s commitment and the character of her work.

“The strong quality of Sejal’s work product far exceeded her experience and was something I would have expected from a seasoned attorney who had been practicing for years,” he said. “Her research and factual analysis was a benefit to my office and to the people of Maryland.”

Additionally, Singh fostered a strong sense of innovation and partnership within her team and those around her through her creativity and deep understanding of the power of grassroots organizing.

“Sejal embodies David Grossman’s indefatigable drive toward a fair legal system and his compassion toward the individuals affected by its current injustices” said Toby Merrill ’11, director of the Project on Predatory Student Lending. “At every stage, she brought great ideas about the substance of the claims and the organization of the materials, as well as energy and outrage at the mistreatment of the students.”

Outside her clinical work, Singh is a co-founder of the People’s Parity Project,  described on its website as a “nationwide network of law students and new attorneys organizing to unrig the legal system and build a justice system that values people over profits.” Through the project, she and other HLS students have challenged the use of forced arbitration clauses in law firm employment contracts as they inhibit the enforcement of vital consumer and worker’s rights. Singh has traveled to Washington, D.C., to attend congressional hearings and has worked with other leading advocates on these issues. For this work, Paul Bland ’86, director of Public Justice, called Singh “a powerful and edgy voice for a fairer justice system.”

In the face of the COVID-19 pandemic, Singh has led the PPP in organizing law students to support public-interest lawyers who are serving those most directly effected by the pandemic. This has involved matching students to lawyers, working with the Harvard Labor & Worklife Program to release a 50-state survey of unemployment programs and building state-wide hotlines.

While at HLS, Singh participated in the Health Law and Policy Clinic and the HLS Immigration Project. She was also co-editor-in-chief of the Harvard Civil Rights-Civil Liberties Law Review and a research assistant for the Clean Slate Project. She spent her 1L summer  with Legal Aid at Work and her 2L summer at the New York Civil Liberties Union.

After graduation, Singh will join Public Citizen Litigation Group as a Justice Catalyst Fellow, where she plans to focus on addressing corporate capture of agencies, building worker power, and fighting for a just recovery to the COVID-19 pandemic.

“It would be an understatement to say she will change the world—she already has,” said Merrill.

Jeremy Ravinsky receives 2020 Andrew L. Kaufman Pro Bono Award

via Harvard Law Today

by Grace Yuh

Credit: Courtesy of Jeremy Ravinsky

Jeremy Ravinsky ’20 was awarded this year’s Andrew L. Kaufman Pro Bono Award. He was recognized for his work and leadership at the Harvard Legal Aid Bureau and his commitment to providing more than 2,000 hours of pro bono services with the Tenant Advocacy Project and Project No One Leaves.

Named in honor of Professor Andrew Kaufman ’54, who has been instrumental in creating and supporting the Pro Bono Service Program at HLS, the award is granted to a graduating J.D. student who exemplifies a pro bono public spirit and an extraordinary commitment to improving and delivering high-quality volunteer legal services to disadvantaged communities.

After graduating from Tufts University in 2014, Ravinsky worked at Open Society Foundations in Washington, D.C., where he focused on human rights issues. During his time there, he also participated in grant making for homelessness issues, which, he says, helped clarify his interest in housing justice. During his 1L year, he joined TAP, a student practice organization, where he represented tenants at risk of losing their public or subsidized housing. Seeking an immersive experience where he could create longer-standing relationships with clients, as well as one where he could support movements led by marginalized communities, Ravinsky joined HLAB in the Fall of his 2L year and has worked there every semester since.

While at HLAB, Ravinsky was assigned to its Family Practice, where he worked on a variety of cases, including divorces, complex equity-based cases, and custody matters. He conducted legal research, drafted pleadings, prepared for and conducted Probate and Family Court hearings and trials, and demonstrated his ability to connect with others by communicating effectively with his clients as well as opposing counsel.

He also contributed to and built connections with fellow students, supervisors, and organizers in HLAB’s other practice areas, including housing law, employment law, and government benefits law. He wrote a summary judgement motion and supporting brief in a federal district court case challenging an agency decision, and has worked on landlord/tenant cases. The faculty and staff at HLAB called him “a quiet powerhouse who leaves each project, each challenge, and each conversation better for his having been a part of it.”

“Jeremy exemplifies the pro bono spirit in his commitment to excellent work that raises up and is guided by the needs of the impacted community. His service to individual clients and to organizations in low-income communities of color exemplifies the positive impact that HLS students can have through its clinical programs,” said Stephanie Goldenhersh, senior clinical instructor and assistant director for HLAB’s Family Practice.

Ravinsky’s dedication to community lawyering and his collaborative work with community partners, particularly in housing advocacy, have also been hallmarks of his time at HLS.

At HLAB, Ravinsky led the HLAB Community Lawyering Task Force from Spring 2019 to March 2020, fostering conversation on how to better support existing community initiatives. Since his 2L year, Ravinsky has been a member of Project No One Leaves, which supports and defends local Boston-area communities facing gentrification, eviction, and foreclosure. He has also regularly attended meetings at the project’s partnering organization City Life/Vida Urbana to offer direct legal advice regarding housing issues.

During his time at the Tenant Advocacy Project, Ravinsky also served as a member of its Intake Review Committee, as a training director, and finally as co-president during his final year of law school. Shelley Baron, a clinical instructor at TAP, praised Ravinsky’s determination to be directly involved with the communities where his clients live and work.

“Jeremy’s dedication to TAP, his clients, and social justice lawyering more broadly has been relentless and inspiring for me as a clinical instructor,” said Baron. “You can find him advocating for a client in probate court in the morning, meeting with me to discuss TAP program management in the afternoon, and at a CLVU tenant organizing meeting in the evening. He approaches his case work with humility, always open to feedback and growth opportunities” she said.

Ravinsky spent his summers during law school working at Community Legal Services of Philadelphia and Brooklyn Defender Services where he will work after graduation. He plans to continue to find ways to provide legal services to lift up the voices of those experiencing oppression.

Criminal Record Sealing Self-Help Materials Developed; A Law Student Reflects on Work and Learning During the Pandemic

via LSC Blog

Safety Net Project Director Julie McCormack and the students working with her on criminal record sealing (a mostly administrative process before the Massachusetts Probation Service) have taken advantage of the enforced slow-down brought about by COVID19 to develop audio-visual self-help materials for veterans and others seeking to remove the stigma of long ago involvement in the criminal justice system. These materials will be shared with Veterans Advocacy groups and community activists over the coming month.

Below, Lowry Yankwich, a second-year student at Harvard Law School, reflects on how the pandemic provided an opportunity to use online tools to help individuals interested in sealing their criminal records.


The Best Laid Plans

Lowry Yankwich J.D.’21

By Lowry Yankwich

Lowry Yankwich

Lowry Yankwich ’21

The work of CORI Sealing Initiative of the Safety Net Project has been growing steadily since launching in June 2019 – serving almost 50 clients in sealing their criminal records in our first eight months.  We had so many plans for continued growth through the Spring 202 semester: attend community meetings across Boston to spread the word; hold workshops to help parents seal their records; guide adult students toward a new chapter in their lives. Then came coronavirus. Our best-laid plans were whisked away in a sudden gust, and we were stuck at home, left wondering what to do.

Everything would have to change. The workshops we were going to do all got cancelled, and our partner organizations said they didn’t have bandwidth for remote workshops. More importantly, the bread and butter of our work – actually sealing records – might not be possible. Whenever we help someone request a copy of their criminal record, or CORI, we notarize their signature. That’s easy when we’re at the Legal Services Center office, because many staff members are notaries. Well, what happens when everything must be done online? That gets a lot harder. Can we use Skype with clients and have them hold up a photo ID? What if they don’t have access to video software?

As the questions mounted, we came to realize that there was at least one thing we could do now: guide people through sealing their criminal records themselves. As it turns out, it’s straightforward to seal your CORI, as long as you’re eligible. In Massachusetts, you’re eligible to seal your CORI if you have no ongoing “waiting periods” from different charges on your record. For misdemeanors, the waiting period is three years; for felonies, seven years; for certain sexual offenses, longer. Once the waiting period associated with your conviction has elapsed, you can seal your CORI by sending in a single sheet of paper with a few check marks and a couple of signatures. Many people have lingering criminal records from their distant past. They want to move on with their lives, and not have their record padding alongside them like an opportunity stealing dementor.

Despite the fact that CORI sealing can be relatively simple, many people don’t know that, and are understandably daunted by the process. To help people understand the process, The CORI Sealing team (Safety Net director, Julie McCormack, 2L Lowry Yankwich whose advanced clinical work is focused on CORI sealing, Harvard College senior and prospective HLS 1L Niko Paladino and multilingual Wellesley College junior Kayla Nakeeb) are making a series of short videos that explain how to seal your CORI, step by step. In one video, we show people how to request a copy of their CORI online. In another, we show them how to interpret their CORI, which is filled with cryptic abbreviations and numbers. In another, we provide an overview of petitioning to seal a record, and how to figure out if you’re eligible to do so.

Normally, we would be hosting walk-in hours at the clinic. We’d be looking up CORIs, filing petitions, and counseling clients on whether to appear in court to seal non-convictions. We’d be sitting through those court sessions, and celebrating with clients when their record is sealed.

But now’s not a normal time. And until we’re back, why not make a few movies? Now streaming on Netflix! Not really, but still, binge away! Our first one is available below and on our CORI page, and we will be adding additional sections throughout May and June. Check them out, and please spread the word!

Safety Net Project Successfully Argues Three Social Security Disability and SNAP/Food Stamp Cases

via LSC Blog

The three victories result in more than $137,000 in back payments plus significant ongoing monthly benefits moving forward; fourth case decision pending; others in pipeline

In the two short weeks of March before LSC moved to remote work, Safety Net Project Director Julie McCormack, and her students (two of them veterans themselves) represented four clients in administrative hearings before the Social Security Administration and the Massachusetts Welfare Department. Three cases have been decided already – despite both agencies having moved to remote work – resulting in more than $137,000 in back payments for clients, plus ongoing benefits totaling $2,360 per month.

The first Social Security decision came just three days after the student’s oral argument, and resulted in a win of six years in retroactive benefits totaling almost $80,000, plus ongoing monthly benefits of $1,100. The client had been denied benefits numerous times previously despite a severe head injury and unhealed knee injuries when he was the victim of a hit-and-run car accident.

The second decision came just two weeks after the student argued the case at hearing, on behalf of a client who had become homeless after his mother died and who had been self-medicating due to post-traumatic stress disorder. He is living in a homeless shelter and is at extreme risk of contracting COVID-19, and this win will allow him the literally life-saving security of permanent housing as he will receive a lump sum payment of $56,000 that reflects payments he should have received back to 2010, plus ongoing monthly payments of $900.

In the SNAP case, the student assisted in obtained significant accommodations for a cognitively impaired elderly woman and her disabled husband, and won six retroactive months of badly needed nutrition support totaling $1,200, in addition to increased monthly benefits of $360 and assistance from a caseworker in managing the burdensome verification process going forward.

In addition, the Safety Net Project also obtained a significant win in a case appealed to federal court for a woman who, despite post-traumatic stress disorder and other significant mental and physical impairments, had been denied Social Security benefits without adequate consideration of all of her medical problems. The law student working on the case filed the appeals and supporting argument to the Appeals Council of the Social Security Administration challenging the administrative law judge’s denial during his Spring 2019 clinical with the Safety Net Project. When the Appeals Council denied review, the student then took the opportunity to work on the federal court appeal all the way from the complaint filed in October through to the motion requesting fee approval under the Equal Access to Justice Act, which will be filed within the next week or so – an incredibly rewarding learning experience for him and a great result for our client, as less than 1% of the Social Security cases appealed to this level result in favorable rulings. LSC provides all services pro bono, so here the Social Security will pay fees and costs to LSC, and LSC will continue to represent the client in her remand case back before the agency. Thankfully, the client is now receiving monthly benefits as the new application the Safety Net team assisted her with pending the appeal has been approved and her remand hearing will be to determine retroactive benefits. Read our student Alexander Cottingham’s reflection on this case here.

Despite COVID-19 forcing hearings to be postponed and rescheduled as conducted via phone, students and LSC attorneys together continue to advocate for the veterans they are representing by filing motions and supporting memoranda for favorable decisions based on the medical records obtained and submitted by the students. McCormack says she is hopeful that another four cases soon will be decided in clients’ favor as a result of  the work of her students.

LSC Clinics Work Creatively to Assist Client Communities Affected by COVID-19

via LSC blog

The attorneys and student advocates at the Legal Services Center continue to work tirelessly for our clients as they face unprecedented challenges and financial distress.  Below is a brief update on just some of our latest work and innovative approaches as we advocate for our client community during these trying times.

Veterans Clinic

Getting safety net benefits to veterans in need

Our clinic has reported a tenfold increase in recent visitors to our new online calculator—MassVetBen.org—that helps veterans determine their eligibility for a unique $72 million Massachusetts program which offers emergency cash assistance to veterans and their family members for basic needs such as housing, food, fuel, and medical care. Although this program is more crucial than ever during the COVID crisis, disabled and low-income veterans often remain in the dark about how to actually access these benefits. We and other advocates have been reaching out to the state Department of Veterans Services and the media to get more financial assistance into the hands of our low-income veterans more quickly. Read the Boston Globe’s coverage of our advocacy efforts.

A social distance success: Executing estate documents in a pandemic world

When the pandemic began, Destini Agüero, director of LSC’s Estate Planning Project, was concerned because the Project’s clients—all of whom are disabled veterans and many of whom are of advanced age—face a unique combination of challenges in the COVID-19 outbreak. They have urgent needs to get their estates in order, are at high risk from the virus, and may lack access to virtual platforms or not be able to easily navigate them. In addition, until legislation was passed in late April, the execution of wills and other estate documents required an in-person notary.

LSC staff members carry out an outdoor, socially distant document execution for a veteran client.

Student attorney Bryce Burgwyn ’21—a veteran herself—had established a trusting relationship with her elderly client, a U.S. Air Force veteran seeking documents that protected his wishes in the event of a crisis. Burgwyn worked tirelessly since the start of the Spring semester to counsel her client and draft his estate planning documents. Once remote learning for law students was in place, Burgwyn pivoted immediately to ensure she stayed connected with her client and established a schedule of regular phone calls to complete his documents. She was not deterred by the added challenges the pandemic brought, and instead further earned her client’s trust as she assured him that her level of representation would not waiver despite an inability to meet in person.

Once his documents were completed, Agüero and her students set out to find a way to execute them. They created a plan for an outdoor document execution that would keep all parties well beyond six feet apart while still allowing for the documents to be reviewed, signed, and notarized. Agüero put out a call for volunteers to her LSC colleagues, looking for two witnesses and one notary. She also provided a detailed plan for the unique process to everyone ahead of time—what documents would be emailed and printed beforehand; what materials everyone would need to bring; and step-by-step rules for how the process would happen with all parties maintaining appropriate distance and personal protection.

On the day of the document execution, with chairs aligned around a field and plenty of hand sanitizer available, the process went smoothly, and the client was very happy to have his documents completed and fully executed. He now had peace of mind that his affairs were in order. Agüero expressed gratitude for the collaborative spirit that made the process a success, saying, “I’m incredibly appreciative to my colleagues who were willing and able to volunteer. With the help of our fantastic LSC community, we’ll continue to find creative ways of helping people during this crisis.”

Social Security Disability and SNAP/Food Stamp wins yield over 137,000 in back payments plus sizable monthly benefits for clients

In the two short weeks of March before LSC moved to remote work, Safety Net Project Director Julie McCormack, and her students (two of them veterans themselves) represented four clients in administrative hearings before the Social Security Administration and the Massachusetts Welfare Department. Three cases have been decided already, despite both agencies having moved to remote work – resulting in more than $137,000 in back payments for clients, plus ongoing benefits totaling $2360 per month moving forward. Read the full article…

Criminal record sealing self-help materials developed

Safety Net Project Director Julie McCormack and the students working with her on criminal record sealing (a mostly administrative process before the Massachusetts Probation Service) have taken advantage of the enforced slow-down brought about by COVID19 to develop audio-visual self-help materials for veterans and others seeking to remove the stigma of long ago involvement in the criminal justice system. These materials will be shared with Veterans Advocacy groups and community activists over the coming month. Read more…

Project on Predatory Student Lending

Class action filed against Florida Career College

The Project on Predatory Student Lending filed suit on behalf of students of Florida Career College (FCC), a Florida-based for-profit college chain, for selling a predatory product systematically targeting Black students using false representations and high-pressure sales tactics that leave students in mountains of debt they cannot repay.

FCC is a for-profit college that operates multiple campuses in Florida and one in Texas. Co-counsel for the case are the law firms Gelber Schachter & Greenberg and Carella, Byrne, Cecchi, Olstein, Brody & Agnello.

The suit was filed as a class action in federal court, despite FCC’s history of using of forced arbitration provisions in their contracts, because a 2016 federal rule requires schools taking federal student aid—like FCC—to agree that students may bring claims like this in court. FCC’s programs cost up to $51,925, yet in Fall 2018, FCC spent only between 4 and 18 percent of the tuition on programs at its Hialeah, West Palm Beach and Lauderdale Lakes campuses.

Its racially focused tactics include using Black models in many of its advertisements, targeting high schools with large percentages of Black students for outreach, and targeting its media placements to outlets whose audiences are predominantly people of color. Learn more from the Project on Predatory Lending’s press release about the suit, and additional coverage from Republic Report and Law.com.

Family Law/Domestic Violence Clinic

In telephone hearing, student wins protections for client seeking to extend restraining order against an abusive spouse

A student successfully represented a client looking to extend her restraining order against an abusive spouse amid the COVID-19 crisis. The hearing – held by telephone rather than in person due to the virus – resulted in the client obtaining a one–year extension of the restraining order, which was a longer-than-anticipated extension from the court.

Predatory Lending and Consumer Protection Clinic

Debt extinguished, debt collector punished

A judge ruled that a Fall River woman sued by a debt collector in the City of Boston should have her $4,000 debt extinguished and receive a $1,250 payment from the debt collector after her LSC student attorney successfully argued that the debt collector had erred in filing the suit in Boston when state law requires that such suits be filed in the jurisdiction where the debtor lives. The $1,250 payment was levied for the inconvenience to the client of having to drive to Boston to appear in court.

Tax Clinic

Fighting for tax justice on behalf of exonerees

The Tax Clinic has been fighting on behalf of multiple individuals who were exonerated for crimes and subsequently received substantial payments for wrongful incarceration. In 2015 Congress passed a new code section, 139F, excluding payments received as a result of exoneration from inclusion in income. It made the exclusion retroactive; however, before the passage of this section many exonerees had received payments causing engagement with the tax system. Across the country a number of exonerees were being pursued by the IRS for taxes that were believed to be owed on the exoneration payments made before 2015. In one case, thanks to the work of Tax Clinic students and lawyers, the tax liability has been successfully reduced from several hundred thousand to $419 dollars. That individual had been wrongfully convicted of sexual assault and incarcerated for twelve years. In another case, where an individual had been wrongly incarcerated for seven years a tax liability of over $100,000 has been reduced to zero. Both men were released after DNA evidence conclusively proved their innocence. The Tax Clinic continues its partnership with the non-profit organization After Innocence to assist exonerated individuals with any tax problems they may have.

How ‘Upcycled’ Ingredients Can Help Reduce The $940 Billion Global Food Waste Problem

via Forbes

by Robin D. Schatz

ReGrained, which turns spent brewing grains into granola bars and snack puffs, is just one of 70 companies in the Upcycled Food Association. REGRAINED

Jam made with bacon scraps; fish jerky that turns unwanted fish into something delicious; granola bars and snack puffs crafted from spent brewing grams.

These are just a few examples of how entrepreneurial ingenuity is transforming food byproducts and scraps into novel and often very nutritious products for human consumption, creating new sources of protein, other nutrients and fiber in the process—and keeping it all out of landfills.

“Upcycling,” the new term of art, is one way to reduce reduce food waste and help the environment. But until now, there hasn’t been a single standard definition of upcycling, even as the number of startups tackling food waste grows and consumers show more interest in buying products made with upcycled ingredients.

Today, May 19, a task force comprised of food industry players, academic researchers an1d nonprofits is unveiling the first formal definition of the term upcycling. The group says the adoption of a single term and definition by the industry will lead to a powerful new product category that will encourage both the food industry and consumers to embrace products with upcycled ingredients. A 2019 report from Future Market Insights estimated the current value of the upcycled food industry at more than $46 million and projected a 5 percent compounded annual growth rate.

Food waste and loss cost the global economy more than $940 billion a year, according to a study by the United Nation’s Food and Agriculture Organization. Proponents of upcycling say the practice could help reduce the more than 70 billion tons of greenhouse gases generated by food loss and waste, while creating new jobs and innovative products.

The Upcycled Food Association, a Denver-based nonprofit with about 70 member companies, formed just six months ago. Its members, mostly in the U.S., produce some 400 upcycled food products. Realizing a need for clarity, the group immediately established a task force to define upcycled food. Participants included researchers from Harvard University and Drexel University, along with representatives of nonprofits such as ReFed, which aims to reduce food waste, the World Wildlife Fund and NRDC (Natural Resources Defense Council).

Here’s the definition the task force came up with: Upcycled foods use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment.

Upcycled food provides protein, fiber and nutrients that might otherwise have gone to waste. UPCYCLED FOOD ASSOCIATION

Upcycled ingredients must add value to a product and help to reduce food waste. Hot dogs and baby carrots don’t count, Turner Wyatt, CEO of the Upcycled Food Association, told me. The group doesn’t want to see big food companies engage in “greenwashing” by rebranding products that won’t mitigate the food waste problem and have been around for years.

“The main goal is to get them to adopt upcycled food ingredients into their food products, putting it all to use and making sure it goes to feed people,” Wyatt added. “We want upcycled to be a word with integrity in the food system.”

 

Upcycled Food Association’s infographic accompanies the May 19 release of the first formal industry definition of upcycling. UPCYCLED FOOD ASSOCIATION

Upcycling is clearly gaining momentum. In 2019, Future Market Insights estimated the upcycled food industry was worth more than $46 billion, with a predicted 5% compound annual growth rate. A study from the food product consultancy Mattson said that more than half of consumers want to buy more upcycled foods. And a 2017 study from Drexel University found that consumers view upcycled food as having similar environmental benefits to organics.

“Upcycled food needs a clear definition in order to be meaningful and relevant,” Jonathon Deutsch, co-author of the 2017 Drexel study and a member of the task force, said in a statement.

 

Environmental benefits of upcycled food UPCYCLED FOOD ASSOCIATION

Another task force member, Emily Broad Leib, clinical professor of law, director of the Harvard Law School Food Law and Policy Clinic, and deputy director of the Harvard Law School Center for Health Law and Policy Innovation, said in a statement that scaling up the use of upcycled foods would help make the food supply chain more efficient and resilient. “This upcycled foods definition serves as a strong starting place to help businesses, consumers, and other users align around a common meaning and usage of the term.”

Later this year, the Upcycled Food Association will use its new definition as jumping-off point to develop a product certification program. To learn more about the definition of upcycling and the industry’s future, you can sign up for the association’s free public webinar on May 27. You can also find the full infographic and the task force’s report on the Upcycled Food Association’s website.

Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case

via Lawfare

by Andrew CrespoLaura Londoño PardoKristy ParkerNathaniel Sobel

News media camp out in front of the E. Barrett Prettyman Federal Court House in Washington, D.C. to wait for the arrival of former Trump adviser George Papadopoulos. (By: Phil Roeder, https://flic.kr/p/2aTdQCN; CC BY 2.0, https://creativecommons.org/licen

In the wake of Attorney General William Barr’s unprecedented decision to drop the Department of Justice’s years-long prosecution of former Trump national security advisor Michael Flynn, many are asking: Is this the end of the case? Two recent orders issued by Judge Emmet Sullivan, the judge presiding over Flynn’s prosecution, make clear the answer is no.

First, exercising the court’s inherent authority, Judge Sullivan indicated on May 12 that he will welcome amicus curiae briefs from anyone who may have a “perspective that can help the court beyond” what “the parties are able to provide,” given that both Flynn and the government are now seeking the same outcome. Then, the next day, Judge Sullivan appointed an independent lawyer—former federal prosecutor and U.S. District Court Judge John Gleeson—to advise him as to whether he should grant the department’s request to dismiss the case. (Prior to Judge Sullivan’s order, Judge Gleeson co-authored a Washington Post op-ed arguing that the court should carefully review the government’s motion).

Some commentators have questioned whether Judge Sullivan has the authority to deny the government’s motion. In the immediate aftermath of the Justice Department’s motion, the early conventional wisdom—including on Lawfare—seemed to be that precedent allowed the judge virtually no leeway. Since then, some scholars, including Noah Feldman and Larry Tribe, have countered the claim that Sullivan’s role is to be a potted plant. But to our knowledge, no one has offered a detailed analysis of the legal issues that Judge Sullivan now confronts.

Two of us, along with colleagues at Protect Democracy, represent over 960 former federal prosecutors and former high-ranking Justice Department officials (the number continues to grow). On their behalf, we plan to seek leave to file an amicus brief in the Flynn case—a current draft of which readers can find here—once a briefing schedule is set.

Our conclusion is clear: Judge Sullivan does not merely have the authority to review the Department’s motion to dismiss. As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it.

Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Judge Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Judge Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Judge Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: impose a sentence.

Rule 48(a) Requires Judges to Reject a Dismissal that Is Not “in the Public Interest”

Historically, prosecutors had unfettered authority to dismiss criminal charges on their own initiative, at any time and for any reason, or for no reason at all. But that changed in late 1944, when the Supreme Court adopted Federal Rule of Criminal Procedure 48. The modern rule, which has remained virtually the same since its inception, states that: “The government may, with leave of court, dismiss an indictment, information, or complaint” (emphasis added).

This language expressly envisions a role for the court. It is most commonly associated with the doctrine of prosecutorial harassment, which protects defendants from abuse by preventing the government from manipulating the timing of a case or forum shopping—that is, moving a case from court to court—by “charging, dismissing, and recharging” a case. But that is not the only evil Rule 48 addresses. As Thomas Frampton recently explained in the most thorough scholarly treatment of the rule’s history to date, Rule 48’s principal object was not to protect “individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, Frampton writes, Rule 48 “was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.”

Frampton’s conclusion is supported by the history of Rule 48’s adoption. When the rule was first submitted to the Supreme Court for approval, it codified the prosecutor’s unchecked common law power to dismiss a case. But the Supreme Court sent that proposed draft back to the drafting committee, with a citation to the high court’s own recent opinion in Young v. United States. In that case, the court declared that the judiciary—in conjunction with the executive branch—assumes a special role in ensuring that the criminal law is justly administered. The court wrote:

The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. . . . [T]he proper administration of the criminal law cannot be left merely to the stipulation of parties. (emphases added)

Subsequently, the Supreme Court inserted the phrase “by leave of court” when it issued the final version of Rule 48. As one of the leading decisions interpreting Rule 48 observes, this drafting history makes it “manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.”

Of course, prosecutors’ motions to dismiss pending criminal charges can and often do serve laudable ends, including the protection of criminal defendants from flimsy charges or from punishments that may be unjust or too severe. In recognition of that fact—and of longstanding separation of powers principles—courts have held that the government’s prosecutorial discretion to dismiss a case is necessarily broad, and should be disturbed only in rare circumstances. But as the U.S. Court of Appeals for the D.C. Circuit pointedly observed in its seminal decision in United States v. Ammidown, a judge reviewing a prosecutor’s motion to dismiss should not “serve merely as a rubber stamp for the prosecutor’s decision.” Rather, “when the defendant concurs in the dismissal” the trial judge retains the “responsibility” to determine whether the proposed dismissal “adequately protects the public interest,” and to refuse the prosecutor’s request if it does not.

Ammidown remains the touchstone opinion interpreting the scope of trial courts’ authority under Rule 48. The Supreme Court has cited Ammidown with approval in its own case law interpreting Rule 48, and Judge Sullivan himself cited Ammidown as his circuit’s primary Rule 48 precedent in a 2019 opinion resolving a prosecutorial-harassment claim. The D.C. Circuit also continues to treat Ammidown as the circuit’s seminal Rule 48 opinion—including in a more recent opinion, United States v. Fokker Services.

Some commentators have read Fokker as effectively wiping out Judge Sullivan’s authority to deny the government’s request in Flynn’s case, given that opinion’s sweeping assertion that “decisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion,” leaving no “substantial role for courts.” But it would be a mistake to overread this passage. Fokker concerned a trial court’s authority under the Speedy Trial Act to interfere with a proposed deferred prosecution agreement, essentially a form of pretrial probation in which a case is put on hold for a year or more while the prosecutor monitors the defendant’s behavior. No Rule 48 motion was filed in that case, which means the court of appeals had no occasion to revisit or alter its governing opinion in Ammidown.

More importantly, what Fokker Services says about Rule 48—read in its proper context—actually supports the proposition that Judge Sullivan has the authority to review the government’s request in Flynn’s case. Indeed, the Fokker Services court drew a sharp distinction between cases in a pretrial posture—like all deferred prosecution agreements—and cases like Flynn’s in which a defendant has pleaded guilty and the court is called upon to impose a sentence. In drawing this distinction, the Fokker Services court repeatedly cited Ammidown with approval, reaffirming that opinion’s primary place in the doctrinal framework. And as Ammidown makes clear, a trial court in Judge Sullivan’s position “should not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest.” Rather, as the Supreme Court later explained in its own leading case on the subject, the trial court must conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.”

Appellate case law interpreting this standard is sparse, presumably because the overwhelming majority of prosecutorial requests to drop cases are not tainted with impropriety. But while there do not appear to be cases in which appellate courts have prevented the Justice Department from dropping cases for reasons other than prosecutorial harassment—and while appellate courts have sometimes overruled district courts for rejecting prosecutors’ Rule 48 motions—the courts have consistently held that trial judges have a responsibility to consider whether a dismissal motion fails to “serve due and legitimate prosecutorial interests,” represents a marked “departure from sound prosecutorial principle,” is based on “a sham or a deception,” is “tainted by bad faith,” or is driven by base personal interests. The courts of appeals, in other words, have gone out of their way to insist that trial court judges not only can but should be vigilant against extreme cases of prosecutorial abuse—and have thus always held out the possibility of a case so extreme that denying a motion to dismiss would be necessary. This is that case.

The Need for Independent Review in Flynn’s Case

Flynn’s case is not a typical prosecution. The president’s former national security advisor stands accused of lying to the FBI, in the White House, about conversations he had with a hostile foreign power that had just interfered in the presidential election. This is a crime, and a serious one at that. And Flynn acknowledges as much. Indeed, he has already pleaded guilty not once but twice—on Dec. 1, 2017 and then again on Dec. 18, 2018—to a felony offense for his lies to the FBI. Against this backdrop, three distinct features of this case underscore the importance of Judge Sullivan’s scrutinizing the government’s motion with the utmost care.

First, there is the case’s unique posture. Typically, when the government moves to drop a case, it does so before trial. And in that setting it deserves substantial deference. After all, as the Supreme Court has observed, before trial the government’s “assessment of the proper extent of prosecution may not have crystallized” and the government may still be assessing nuanced considerations such as the case’s “general deterrence value [or] the government’s enforcement priorities.” Moreover, as courts have recognized, it is hard to imagine how exactly a court might try to “compel the government to proceed” in a pretrial posture, as a judge is hardly going to dictate a prosecutor’s opening statement or order her to call a witness.

But in the Flynn case, the court need not “compel the government” to do anything at all, because the government has already done everything a prosecutor can do in a criminal case. It has already secured Flynn’s guilty plea–twice. It has also already prepared and submitted its sentencing memorandum (two of them, actually). And it has already told Judge Sullivan in open court the sentence that it thinks is appropriate, at Flynn’s initial sentencing hearing back in December 2018.

The government, in other words, has reached the end of the road. The only thing left to do in this case is the “imposition of sentence,” which, as the Ammidown court observed, “is a matter for discretion of the trial judge.” In this posture, the real separation of powers threat is thus not that the judge will intrude on the prosecutor’s domain but rather that dropping the case would be “an intrusion on the judicial function,” given (to quote Fokker) “the Judiciary’s traditional power over criminal sentencing.”

Second, even more unusual than the case’s posture is the near obsessive attention it has received from the president of the United States, which undercuts any argument that the court might somehow encroach on the executive’s authority by reviewing or rejecting the government’s motion. After all, “a judge could not possibly win a confrontation with the executive branch over its refusal to prosecute, since the President has plenary power to pardon a federal offender.” The very real possibility of clemency for Flynn remains available here no matter how Judge Sullivan rules on the department’s current request.

In fact, the only difference between such a pardon and the Department’s motion to dismiss Flynn’s case is that the motion seeks, and requires, the court’s blessing. But that in itself raises a third concern: “the need to preserve the integrity of the courts.

That concern is particularly acute in this case. For one thing, lying to federal investigators is a serious crime that strikes “at the very trunk nerve of our system of administering justice,” especially when the lie is to FBI agents in the course of a vital national security investigation. Granting the government’s motion would put the court’s imprimatur on the claim that Flynn should not be punished for such egregious behavior. And that imprimatur would be all the more salient here, given Judge Sullivan’s widely covered remarks at Flynn’s initial sentencing hearing that he was “not hiding [his] disgust, [his] disdain for this criminal offense.”

The Government’s Faulty Motion

Based on what we currently know, the government’s attempt to dismiss the Flynn prosecution appears to fall squarely within the narrow category of circumstances where a judge not only can, but should deny a Rule 48 motion. The government’s characterization of the facts and governing law are so distorted as to strongly suggest that they are a pretext for improper political considerations, which in turn would mean that the government’s motion is “tainted by impropriety,” is not in the “public interest,” and thus should be denied.

The government’s reasoning boils down to this: When the FBI interviewed Flynn, the government says, it had already decided that it was going to close a counterintelligence investigation that it had opened to examine Flynn’s potential role in Russia’s interference in the 2016 election. Moreover, while the point of the FBI interview was to ask Flynn about his phone call with the Russian ambassador in the weeks leading up to the president’s inauguration, the FBI had already concluded, based on its transcript of the call, that it likely would not pursue criminal charges based on the call itself. From these two premises, the government lands at its novel legal conclusion: Flynn’s concededly false statements to the FBI—in which he lied about the substance of his communications with the Russian ambassador—were not “material” within the meaning of 18 U.S.C. § 1001, the statute under which Flynn was charged, because the FBI did not have a “legitimate” criminal investigation of Flynn pending at the time it interviewed him.

Of course, there is a rather obvious problem with this assertion: Flynn pleaded guilty to the government’s charge. But even putting that aside, the government’s newly minted claim—reversing the position it maintained over the two-and-a-half-year lifespan of this case—is transparently baseless as a matter of both law and fact.

As to the law, the Supreme Court has confirmed that section §1001 is “sweeping” in its scope. It makes it a crime to lie to a federal investigator about “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,” including the Federal Bureau of Investigation. Indeed, the statute’s already broad scope is even broader when it dovetails with the FBI’s own broad and dual-purpose jurisdiction to investigate not only potential violations of federal criminal law but also threats to national security that may or may not be criminal in nature. As the D.C. Circuit has made clear, “A lie influencing the possibility that an investigation might commence stands in no better posture under § 1001 than a lie distorting an investigation already in progress.” In other words, there does not need to be an open investigation of anyone to support §1001 liability. The government’s contrary legal arguments bear a striking resemblance to arguments that Flynn himself made at an earlier stage of this case, when he too proposed a narrow reading of the materiality element. Judge Sullivan was right when he described those arguments as evincing “a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001.”

The government’s application of the “facts” to the law is equally off base. First, even the government concedes that the FBI did still have an open counterintelligence investigation of Flynn, concerning his potential involvement in Russia’s election meddling, when it conducted its interview. Whether the FBI was poised to close that investigation is irrelevant. New information that Flynn may have offered during the interview—concerning either the call itself or his subsequent attempts to cover it up—could have led the FBI to extend the initial counterintelligence investigation or to open a new one. Second, even if the FBI had not been investigating Flynn’s role in Russia’s scheme, it clearly was still investigating L’Affaire Russe itself—the umbrella investigation under which the probe into Flynn was situated. Third, and finally, independent of any potential criminal investigation involving Flynn, the FBI knew in advance of interviewing him that Flynn had lied to Vice President-elect Mike Pence about a phone call with a hostile foreign power. And it knew that Russia knew about Flynn’s lie, because Pence repeated the lie on national television. As Sally Yates, then the acting attorney general, would soon explain to White House Counsel Don McGahn, all of this potentially made Flynn vulnerable to blackmail by the Russians. Given the FBI’s jurisdiction to investigate “threats to the national security of the United States,” if a lie told against this backdrop is not “material,” nothing is.

These transparently untenable arguments are explained by the context in which the government made them. The evidence to date indicates that the government moved to drop this case because political appointees in the Department of Justice are acting in furtherance of the president’s narrow political interest rather than the interest of the public.

Trump’s obsession with Flynn’s case has been one of the defining features of his presidency. In his first days in office, he attempted to induce then-FBI Director James Comey to terminate the Flynn investigation, infamously asking Comey to “see your way clear to letting this go.” When Comey did not comply, Trump fired him, launching the ensuing special counsel investigation headed by Robert Mueller. Notably, that investigation ended with a report that (among many other things) cautioned the nation that President Trump’s behavior is “capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” Since then, Trump’s attempts to exert undue influence have been an ongoing feature of the Flynn case. Just last month, he repeatedly suggested he was preparing to pardon Flynn before going on to lambaste what he called the “dirty, filthy cops at the top of the FBI” and the government prosecutors who “tormented” and “destroyed” Flynn.

In the face of this onslaught, career officials and Trump’s own Senate-confirmed U.S. Attorney for the District of Columbia vigorously prosecuted the case, securing a guilty plea, preparing sentencing memoranda, and—most notably—arguing forcefully against Flynn’s eventual efforts to withdraw his guilty plea based on alleged government misconduct. (Judge Sullivan recently issued an opinion siding with the government and rejecting Flynn’s claims.)

But then Attorney General Barr stepped in. First, he removed Jessie Liu, the U.S. Attorney for the District of Columbia, who had been overseeing Flynn’s prosecution and who had permitted career officials to continue pursuing the matter. Next, he replaced Liu with his own former aide, Timothy Shea, whom he installed as U.S. Attorney in an interim capacity, thus evading any Senate confirmation hearings. Barr then directed Shea to dismiss Flynn’s case. That motion was signed by Shea alone, as the only career prosecutor on the case moved to withdraw right before the motion was submitted. Later that same day, President Trump’s reelection campaign issued a statement touting Shea’s decision.

* * *

What is a judge to make of all of this—the transparently flawed arguments, the unending presidential pressure campaign, the baldly political interference?

This much is clear: Judge Sullivan not only has the authority but also the obligation to try to sort it all out. Fortunately, he has already indicated a willingness to do so, naming a capable former prosecutor and retired jurist to serve as the court’s appointed amicus curiae in future proceedings to adjudicate the government’s motion. Those proceedings will almost certainly need to include evidentiary hearings, given Sullivan’s obligation—to quote Supreme Court precedent—to conduct an “examination of the record” in order to determine whether Shea and Barr’s request to drop the case entails any “bad faith on the part of the Government.” Existing law is clear that Sullivan not only has broad discretion to appoint an amicus in this case, but equally broad discretion to permit that amicus to “call their own witnesses and cross examine the witnesses of other parties” at any future hearings.

If, at the end of those hearings, the record confirms what the publicly available facts already so clearly suggest—namely, that dismissal of this case would harm, not further, the “public interest in the fair administration of criminal justice”—then the law is also clear on what happens next: the government’s motion must be denied.

Disclosure: One of the authors works for Protect Democracy, which has represented Lawfare editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.

Georgia Copyright Loss at High Court Could Jolt Many States

via Bloomberg Law

by Jordan S. Rubin

The U.S. Supreme Court stands in Washington, D.C., on Oct. 9, 2018.
Photographer: Andrew Harrer/Bloomberg via Getty Images

Georgia lost a close U.S. Supreme Court case over the state’s ability to copyright its annotated legal code, in a ruling heralded by public access advocates over dissent that lamented its disruptive impact on states’ existing business arrangements.

Copyright protection doesn’t extend to annotations in the state’s official annotated code, Chief Justice John Roberts wrote for a 5-4 majority on Monday that crossed ideological lines. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined Roberts.

The high court clarified the scope of the “government edicts doctrine,” which had previously barred copyright in materials created by judges.

The doctrine’s logic also applies to materials created by legislatures, Roberts wrote. Because Georgia’s annotations are authored by an arm of the legislature in the course of its official duties, the doctrine bars copyright here, too.

The “animating principle” behind the doctrine, Roberts wrote, “is that no one can own the law.”

Public.Resource.Org, the pro-access organization that won the dispute, is pleased that the court “rejected the possibility that a full understanding of the law could be made available only to those who can afford to pay for ‘first-class’ access,” said Goldstein & Russell’s Eric Citron, who represented the group. He said they’re looking forward to helping states expand access to their legal codes and they hope this leads to greater public engagement with the law.

It’s an important ruling not just for copyright law but for civil liberties, said Ropes and Gray’s Marta Belcher. She was lead counsel on a brief supporting the access group, filed on behalf of the Center for Democracy and Technology and the Cato Institute.

The decision is “great news for those who want to publish, comment on, or build on the law,” added Kendra Albert, clinical instructor at the Harvard Cyberlaw Clinic, which also supported Public Resource in a high court brief, on behalf of Caselaw Access Project. “The Supreme Court’s adoption of a bright line rule that the legislators’ works are uncopyrightable will help ensure that the law is accessible in a variety of formats and mediums.”

The state warned at oral argument in December that a ruling against it would “blow up” not only Georgia’s copyright regime but ones in about a third of the states with similar setups.

Indeed, the ruling “will likely come as a shock to the 25 other jurisdictions—22 States, 2 Territories, and the District of Columbia—that rely on arrangements similar to Georgia’s to produce annotated codes,” Justice Clarence Thomas wrote in a dissent joined by Justice Samuel Alito and partially by Justice Stephen Breyer. Justice Ruth Bader Ginsburg wrote her own dissent, joined by Breyer.

The decision “clearly will disrupt or upend the relationship between states and the people they work with to create commentary on the codes,” said intellectual property litigator B. Brett Heavner, a partner at Finnegan.

“As Justice Thomas—joined by Justices Breyer and Alito—explained in citing Arkansas’s multistate brief and dissenting from today’s decision, the majority’s decision will come as a surprise to the 25 jurisdictions that no longer enjoy protection,” said Arkansas Attorney General Leslie Rutledge. She led a coalition of states supporting Georgia.

Georgia’s lawyer, Joshua Johnson of Vinson & Elkins, didn’t immediately respond to a request for comment on the ruling.

Economy Class, First Class

The copyright clash stemmed from Georgia’s suit against Public Resource.

The state’s annotated legal code is produced by private company LexisNexis Group, pursuant to an agreement with the state that gives the company exclusive publication rights. But Georgia claims the copyright and sued Public Resource for infringement when the non-profit tried to publish the code on its own.

There would have been nothing to argue about if it were only the statutes at stake, because the government edicts doctrine would have clearly barred the state’s claim.

But the annotations, which includes things like commentaries, case notations, and editor’s notes, don’t have the force of law.

That raised tricky questions for the justices about how to apply the doctrine here. In a divided ruling, the high court sided against the state, citing the Georgia legislature’s involvement.

The annotated code is assembled by a state entity composed mostly of legislators, funded through legislative appropriations, and staffed by a legislative office, Roberts noted in deeming the annotations beyond the reach of copyright protections. The ruling upheld a federal appeals court decision against the state, but under different reasoning.

Erik Stallman, associate director of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law, said the decision “results in a clearer articulation of the doctrine’s scope than the lower court’s three-part test: copyright cannot vest in works that are created by judges and legislators in the course of their judicial and legislative duties. Full stop.” The clinic filed a brief supporting Public Resource, on behalf of library groups,

The majority, Stallman said, “seemed genuinely concerned about a scenario in which the public has access only to the ‘economy class’ version of the Georgia Code, with only the bare statutory text, while the ‘first class’ version that explains what statutes are still in force and how they should be interpreted would be available only to paying customers.”

Advocating for human rights in Myanmar during COVID-19

via Harvard Law Today

by Dana Walters

Credit: Ingebjørg Kårstad/Norwegian Refugee Council The refugee camp in Cox’s Bazaar, Bangladesh houses hundreds of thousands of refugees.

Across southeast Asia, hundreds of thousands of persecuted ethnic minorities in poverty face a new threat: the COVID-19 pandemic. The Rohingya people have faced decades of systematic discrimination, statelessness and targeted violence. Since August 2017, more than 745,000 ethnic Rohingya have escaped oppression and violence in Myanmar and live in refugee camps in Cox’s Bazar, Bangladesh. In November 2019, a case was filed against Myanmar before the International Court of Justice alleging that the crimes committed against the Rohingya, a Muslim minority group, violate the Genocide Convention.

Harvard Law School’s International Human Rights Clinic was one of 50 organizations to send a joint letter to the Prime Minister of Bangladesh urging the government to uphold refugee rights as the world faces and fights the novel coronavirus. Still, ongoing violence in Myanmar means individuals continue to flee, this time facing border restrictions and lockdowns. Most recently, boats of escaping Rohingya were turned away at Malaysia’s border, a move that sparked condemnation from human rights groups.

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

The Human Rights Program recently spoke with Yee Htun, clinical instructor and lecturer on law in the International Human Rights Clinic, to learn more about how Myanmar and those who have fled the state are confronting this crisis. Htun was born in Myanmar and fled the country after the pro-democratic uprising in 1988.


Human Rights Program: How is the pandemic impacting the Rohingya, both inside and outside of Myanmar?

Yee Htun: The Rohingya community and internally displaced persons from Myanmar are facing a huge crisis. They’re in clustered camps that are cramped and populous, with multiple families living in small confined spaces. Cox’s Bazar is host to the largest refugee camp in the world. For those communities, certain protective measures are practically impossible. For example, privileges that we take for granted like social distancing, wash stations, running water and access to personal protection equipment are scarce or difficult to obtain in those settings, making the Rohingya population incredibly vulnerable.

My biggest fear is how quickly the disease could spread once a single case reaches the camps. We’re currently hearing that there are a few cases reported roughly two hours away from the refugee camps. The community is ill-prepared to meet such an onslaught. They have already suffered a tremendous amount of psychological and physical trauma fleeing Myanmar. Many suffered detrimental health issues and injuries from the military’s clearance operations and genocidal campaign. It’s this intersection of factors that makes them particularly at risk.

Inside Myanmar, it’s another story. Early on in the COVID-19 crisis, Myanmar officials took a nationalist stance toward the disease. They claimed that the entire country was somehow immune even as their Southeast Asian neighbors were suffering. This narrative of exceptionalism was and is extremely dangerous especially combined with hospitals without necessary equipment, not to mention proper public health protocols and preparedness to handle the pandemic. Then as the virus spread, the government formed a military-led committee which notably excluded Ministry of Health officials. Now, while the country is admitting that they have cases of COVID-19, they have been blaming it on people returning from overseas to Myanmar. Even more worrying, we’re still seeing ongoing fighting and in fact, in places like Rakhine and Chin state, the military’s offensives have intensified. This is in spite of different ethnic armed organizations calling for a ceasefire because of COVID-19. The United Nations itself has urged a global ceasefire. But the Burmese military has flouted those recommendations.

HRP: As boats of Rohingya have unsuccessfully sought refuge in Malaysia in recent weeks, there’s been rampant hate speech on social media against the community. How does this fit within the broader landscape of hate speech against ethnic minorities in and outside of Myanmar?

Htun: It’s a tragedy that we are seeing the Rohingya community persecuted in Myanmar through violence and hate speech, and now, we are seeing the same targeted rhetoric thrown at them in places like Malaysia and Bangladesh. Social media has played a large role in this and ultra-nationalist groups have strategically used it to portray the Rohingya as terrorists, illegal migrants, and opportunistic interlopers who are going to be a resource drain and engulf the country. Our clinic will be releasing a report soon on hate speech in Myanmar, its drivers, main narratives and its impact on religious and ethnic minorities and human rights defenders. In a way, our findings fit in with larger global populist movements. Whether we’re talking about in the U.S. or Hungary, this kind of “othering” rhetoric is frequently used to justify security measures and restrict immigration. And the pandemic offers a potential carte blanche excuse to exclude and infringe people’s human rights. Now, border countries that could have provided asylum are saying they need to safeguard their own countries from infection.

HRP: Border lockdowns and restrictions are occurring all over the world as states try to slow the spread of disease. How should countries approach communities seeking asylum?

Htun: There are basic, fundamental principles of international law countries are supposed to abide by, such as the principle of non-refoulement. This means that if a community runs the risk of persecution in the country they are fleeing from, they have the right to seek refuge. Broadly, we’re seeing political leaders reveal their priorities and values in showing how they receive vulnerable communities. There are economic and international incentives for receiving refugees into one’s country, including international aid, and many have downplayed this and how migrant communities contribute to their host countries.

In the wake of Myanmar not taking responsibility for its treatment of the Rohingya, the surrounding countries should either ensure this vulnerable community is able to return in a safe and dignified manner or ensure that their human rights are not further eroded. I would hope that humanity and understanding would trump this rhetoric of division and hate.

HRP: While continuing to host Rohingya, Bangladesh has imposed some new restrictions around the refugee camps. What can you tell us about those restrictions?

Htun: One of the biggest restrictions has been a limitation on the internet in the refugee camps. It’s critical for access to information and mobilization, but also, it’s an important tool just for staying in touch with loved ones. What I hear from my Rohingya partners is that the internet lockdown may have been in response to protests they have had in the camps in the past. After many fled from Myanmar, the refugee community organized massive sit-ins to demand justice, accountability, and citizenship rights. According to local partners at that time, the authorities in Bangladesh revoked their ability to access the internet for fear of its use as an organizing tool. We think that the restrictions we’re seeing are in response to these past rallies, but right now, it is especially dangerous to limit anyone’s access to information as a matter of health and safety.

I’m particularly worried because if individuals do not have a way of remotely accessing information, there’s even more of a risk that they cannot physically distance themselves. They have to go out and find news. If the Bangladeshi authorities institute new rules or provide updates and offer public health information in the camps, how are refugees supposed to find out in a safe way? We’ve seen Bangladesh start to allow some internet access recently but it’s still not a free flow of information and only amounts to lifting restrictions for an hour here and there.

HRP: Are there additional repercussions caused by the restriction on internet in the camps?

Htun: It does cast a negative light on the Rohingya for the host communities that surround the refugee camps. When Bangladesh institutes limitations on the camps, the villages that surround the camps are also subjected to those restrictions. It causes a ripple effect that creates even more hostility for a community that’s been vilified by so many. What’s critical right now is that people have access to information so that they can protect themselves.

HRP: In light of the pandemic, what’s the status of the case against Myanmar at the International Court of Justice?

Htun: It’s preceding as planned, and we have heard no reports of the contrary. Myanmar is supposed to file a report to the ICJ in May explaining what they have done to prevent genocide. I’m nervous that the pandemic might be used to delay proceedings and make excuses. One other important element of the restrictions around the internet is that you’re also seeing internet shutdowns inside Myanmar in conflict zones. This makes it impossible to report war crimes and crimes against humanity and to provide adequate documentation of the atrocities that are still happening within the country.

HRP: How has the pandemic affected your clinical projects? How has it changed the advocacy that you’re doing for the Rohingya and within Myanmar?

Htun: We’ve been helping the Rohingya community draft Universal Periodic Review (UPR) submissions, which is a process of reporting to the U.N. Human Rights Council on the country’s human rights records. We are working with partner organizations to submit reports pertaining to educational rights and women’s rights, as well as submitting a report on hate speech from the International Human Rights Clinic.

Both myself and my colleague Tyler Giannini, [HRP and clinical co-director and clinical professor of law], have been engaged in advocacy related to the current situation, including joining a coalition to ask Bangladesh to lift restrictions in the refugee camps as well as working behind the scenes to take down hate speech against the Rohingya. We’re still working with the community and trying to help amplify voices and promote access to international accountability mechanisms. We’re also still very much engaged in law reform efforts. I have a clinical team that’s been focusing on strengthening a draft violence against women law, and whenever Parliament resumes in Myanmar, we’ll get back to work on that. Even though we’ve gone remote at HLS, the students and I have been very active.

The pandemic has changed a lot for clinical projects and human rights advocacy. We were just in Cox’s Bazar in January, and partners have requested that we come back to Bangladesh in the fall. I don’t think that’s going to be possible. I also don’t know if it will be possible to do advocacy at the U.N. in the same way or what that advocacy looks like from a remote perspective. But that doesn’t mean that we’re not going to put in our best effort and innovate. I just did a U.S. State Department briefing last week remotely, and we were joined with stakeholders from Southeast Asia to talk about hate speech. The work is still ongoing. The nature of the work has changed, but in light of the how pandemic has exacerbated the current crises in the region, it’s more important than ever that we continue our advocacy.

This interview was edited for length and clarity.

HIRC at GBLS has Fifth Circuit Court of Appeals victory

via HIRC blog

by Mary Hewey

 

 

Recently, our HIRC at GBLS team, including Co-Managing Directors Nancy Kelly and John Willshire-Carrera and former Albert M. Sacks Clinical Teaching & Advocacy Fellow Maggie Morgan, had a victory in the Fifth Circuit Court of Appeals. Their client, a woman from Honduras, had previously filed a motion to reopen, which was denied by an Immigration Judge and the Board of Immigration Appeals (BIA). In the denial, the BIA claimed that there was no material change in country conditions in Honduras since 2005, when their client had been ordered removed in absentia. HIRC filed an appeal in 2017, arguing that the BIA erred by ignoring the 2009 coup, which had greatly worsened gender-related violence and government protections for women. In their decision, the Fifth Circuit pointed to this error, stating:

“The BIA did not even mention the 2009 coup in its opinion finding that Inestroza-Antonelli had failed to establish changed country conditions. And, other than a conclusory statement that it had “considered [Inestroza Antonelli’s] arguments,” there is no indication that the BIA meaningfully evaluated her evidence of institutional changes following the coup.”

You can read the full decision by the Fifth Circuit Court of Appeals here.

Don’t repeat the mistakes of 1918

via Boston Globe

by Carol Rose and Robert Greenwald

A positive COVID-19 serological test at a laboratory in Colmar, eastern France, on April 14, the 29th day of a strict lockdown in France to stop the spread of COVID-19.

A positive COVID-19 serological test at a laboratory in Colmar, eastern France, on April 14, the 29th day of a strict lockdown in France to stop the spread of COVID-19.SEBASTIEN BOZON/AFP VIA GETTY IMAGES

During the 1918 influenza pandemic, local governments in the United States placed special placards on the doors of homes where sick people were subject to quarantine. The measure was an attempt to contain the spread of a virus that ultimately killed nearly 700,000 people in the United States alone. Sadly, this well-intentioned move backfired: Many doctors chose not to report cases in order to prevent homes from being quarantined. Families of sick people sought to evade the stigma of a placard on their homes by not seeking medical attention.

In light of today’s coronavirus crisis, it’s useful to recall this history and to avoid repeating the mistakes of the past. Yet in an executive order dated March 18, the administration of Governor Charlie Baker directed local boards of health to submit to first responders the home addresses of people who have tested positive for the virus. The idea is that police, fire services, and EMTs should know which homes have COVID-19 cases so that responders can adequately protect themselves.

Protecting the health of first responders is certainly an important priority that the state needs to address; however, some public health experts have noted that disclosing addresses does not ensure a first responder would be safe from exposure from asymptomatic people or from those who are infected but remain untested. It may seem counterintuitive, but this order could indeed do more harm than good.

This truth is that we do not know — and at this point cannot know— who has COVID-19 and who does not. Recent estimates are that as many as 1 in 4 cases may be asymptomatic. Thousands of people who have fallen sick and who may have the virus have been unable to obtain a test, and so won’t appear on any list of homes provided to responders. Providing the addresses to first responders of people who have tested positive thus makes no sense — from either a public health or patient privacy perspective. To protect public health, we cannot create lists that give our responders a false sense of security and instead they must treat everyone as a potential carrier of the virus.

First responders deserve the best equipment, and the best policies, to ensure their safety. But the harsh reality is that our first responders continue to lack sufficient personal protective equipment and, system-wide, we don’t have enough COVID-19 tests. Emergency medical technicians, paramedics, firefighters, and police officers — like our doctors, nurses, and other front-line essential workers — are being asked to continue to do their jobs amid acute conditions, without the equipment they need to keep themselves safe.

Thankfully, government officials in Massachusetts are taking important steps to address the lack of PPE and tests for front-line workers. The Baker administration and Mayor Marty Walsh of Boston announced plans to set up additional testing sites that give priority to first responders. These sites should be open to all workers who are putting themselves at risk, whether they are first responders or grocery store workers.

Ultimately, we must listen to public health consensus during public health emergencies. And the public health experts are clear: The twin threats of community-level transmission and a lack of wide-scale testing make the use of home addresses dangerously ineffective. Worse, since screening is critical to slowing the spread of the disease, disclosing addresses of confirmed cases will undermine public health efforts by deterring some people from seeking testing and treatment — just like during the 1918 influenza.

Sometimes public health needs overtake our normal expectations of privacy or other civil liberties. But disclosing the home addresses of people who have tested positive is not one of those cases. First responders, like all of us, should treat every person they interact with as a possible COVID-19 patient. Relying on the training of our first responders, not the home addresses of those stricken by the virus, is the best way to ensure public health and safety for everyone.

Carol Rose is the executive director of the ACLU of Massachusetts. Robert Greenwald is a clinical professor of law at Harvard Law School and the faculty director of the Law School’s Center for Health Law and Policy Innovation.

The covid-19 crisis is going to get much worse when it hits rural areas

The recently closed Pickens County Medical Center in Carrollton, Ala., on March 26.

The recently closed Pickens County Medical Center in Carrollton, Ala., on March 26. (Jay Reeves/AP)

Michelle A. Williams is dean of the Harvard T.H. Chan School of Public Health. Bizu Gelaye is an assistant professor at Harvard and Massachusetts General Hospital. Emily M. Broad Leib is a law professor, director of the Harvard Law School Food Law and Policy Clinic and deputy director of the Harvard Law School Center for Health Law and Policy Innovation.

 

Over the past few weeks, our urban centers have scrambled to mobilize in response to the mounting covid-19 cases. But be forewarned: It’s only a matter of time before the virus attacks small, often forgotten towns and rural counties. And that’s where this disease will hit hardest.

 

Covid-19 is infiltrating more of the country with each passing day. Colorado, Utah and Idaho are grappling with sudden clusters in counties popular with out-of-state tourists. Cases are also skyrocketing in Southern states such as Georgia, Florida and Louisiana. So far, sparsely populated communities have been better insulated from the spread. But since no place in the United States is truly isolated, there’s simply no outrunning this virus. Every community is at imminent risk.

 

Rural communities could fare far worse than their urban and suburban counterparts. Rural populations are older on average, with more than 20 percent above the age of 65. Rural populations also tend to have poorer overall health, suffering from higher rates of chronic illnesses such as heart disease, diabetes and lung conditions, all of which put them at greater risk of becoming severely ill — or even dying — should they become infected.

 

Rural areas also already suffer from a rural mortality penalty, with a disparity in mortality rates between urban and rural areas that has been climbing since the 1980s. Chronic financial strain and the erosion of opportunity have contributed to “deaths of despair” as well as a rise in conditions such as heart disease, Type 2 diabetes and stroke. Add in prolonged social distancing and the economic downturn, and these trends will surely worsen.

 

Long before the novel coronavirus emerged as a threat, America’s rural hospitals were already in dire financial straits. About 1 in 4 are vulnerable to being shuttered, with 120 having closed in the past decade. With the pandemic looming, many of these health systems have been forced to cancel elective procedures and non-urgent services such as physical therapy and lab tests, which in some cases account for half of their revenue. As cash flow wanes, the American Hospital Association warns that even more hospitals could be forced to shut their doors exactly when patients need them most.

Rural counties have just 5,600 intensive care beds total, compared with more than 50,000 in urban counties. In fact, half of U.S. counties do not have any ICU beds at all. And even if these counties are somehow able to scale up their infrastructure, experts are afraid there will not be enough health-care workers to staff them. The time to prepare rural America is now. Fortunately, rural health systems will get some relief from the stimulus bill, which allocated $100 billion to health-care providers. But it is critical that we find additional ways to alleviate the burden on these health systems to the greatest extent possible.

 

One way to do that is by expanding telemedicine capabilities, which will allow millions of Americans to be seen by care providers even if there’s no room for them in hospitals. The Centers for Medicare & Medicaid Services recently issued guidelines that expand access to telemedicine for Americans on Medicare. That directive now includes federally qualified health centers, rural health clinics and hospices, so they, too, can be reimbursed for serving patients remotely.

 

Of course, telemedicine is far from a panacea, as broadband access remains limited in so much of rural America. The stimulus included an additional $100 million for rural broadband access, but this will not be enough. In the long term, policymakers must continue to close the “digital divide,” recognizing that Internet access is both an economic and health necessity. In the short term, Internet service providers should consider rolling out mobile Internet units and providing WiFi hotspot access to temporarily increase connectivity.

More importantly, we must expand the social safety net, especially the Supplemental Nutrition Assistance Program, child nutrition programs, Supplemental Security Income, housing assistance and Medicaid. Lawmakers must also ensure the availability of these programs to rural residents. For example, unlike their urban counterparts, many rural children cannot come to schools each day to pick up meals. The Agriculture Department launched a pilot program to deliver meals to rural children in some regions, but initiatives such as this should be more widespread.

 

It is clear the battle against covid-19 will look vastly different in the heartland than in our cities. The U.S. Navy won’t be docking a floating hospital in Nuckolls County, Neb. But if what’s happened in America’s coastal cities can teach us anything, it’s that the coming weeks will determine the trajectory of this virus. And we don’t have a moment to waste.

Virus Poses Extra Obstacles for Attorneys With Tax Court Cases

via Bloomberg Tax

By Jeffery Leon and Aysha Bagchi

The limits of the technology at the U.S. Tax Court are making things more difficult for attorneys amid the coronavirus pandemic. Many expect to see a document backlog once the court building reopens. Jonathan Hurtarte/Bloomberg Law

The new coronavirus pandemic is increasing the challenges for attorneys representing clients at the U.S. Tax Court, a place already slow to technological advancement.

Attorneys have long grappled with technological barriers at the court—not being able to electronically file petitions or access many case documents online, for example. But now that the building is shuttered until further notice, tax professionals are facing additional hurdles, and they fear it could get worse the longer the virus outbreak continues.

The court has historically struggled with a backlog of cases, a situation that got worse during the 35-day government shutdown at the end of 2018. Such delays are likely to happen again, tax attorneys said.

Backlog concerns have spurred questions about whether the IRS will have to take special measures to get through cases more quickly, according to Frank Agostino, president of Agostino & Associates, P.C.

“The most frequently asked question is, ‘Will there be a coronavirus-based settlement program or offer-in-compromise?’” he said. An offer-in-compromise would allow taxpayers to settle their debts for less than the original amount owed.

Antiquated Practices

Tax professionals are urging the court to enable e-filing petitions, which could ease some of the strain from processing mailed petitions, and spare individuals from needing to go to crowded post office locations.

“They really need to find a way to ensure public access,” said Anson Asbury, founder of Asbury Law Firm who represents clients before the court.

Hand-mailed petitions and in-person documents are antiquated practices that are hindering the court’s services during the pandemic, said Kelley Miller, a partner in the tax group at Reed Smith LLP who practices in the court.

“The judges and staff at the Tax Court have been working for years to enhance access to online services and improve the interface of the Tax Court’s website, but unfortunately the pandemic hits at a time when the Court was, I believe, focused on introducing some of those changes,” Miller said.

Tax Court Judge L. Paige Marvel previously said the Tax Court could be ready with a new case management system that would allow for petition e-filing this spring. She said rules to permit petition e-filing weren’t in place because there wasn’t a system to enable expanding e-filing to include petitions.

The Tax Court didn’t return a request for comment.

Document Access Troubles

One result of the building closure is that visitors can’t access court documents at the Tax Court’s records room. Those who are unable to get the documents from the actual petitioner or that person’s attorney are left with one potentially prohibitive option: Pay a $0.50 per page charge from the Tax Court and have the documents mailed. The Tax Court has cited concerns about privacy as a reason to preserve those restrictions.

That can be an issue particularly for people interested in reaching out to self-represented petitioners because their contact information can be viewed on their petition, said T. Keith Fogg, who directs Harvard Law School’s Federal Tax Clinic.

“It’s no longer possible to go to the court and sit in the docket room to do research or to call the court and get copies of documents,” Fogg said. “The closing of the court accentuates the problems caused by the Tax Court’s decision not to make its documents public except through a portal that becomes unavailable when it closes.”

Charles M. Ruchelman, member at Caplin & Drysdale Chartered in Washington, pushed back on any move to make all filings public, saying the Tax Court’s system is in place to protect taxpayer privacy, and it would be a big ask for the court to redact all documents for sharing online.

IRS Weighing Relief Options

A lingering concern for tax professionals is the window to file petitions. Under tax code Section 6213, a taxpayer has 90 days to file a petition with the Tax Court after getting a notice of deficiency, after which the IRS can assess the tax if a petition wasn’t filed.

The agency has offered some relief to individuals already during the pandemic, pushing back some deadlines to pay and file taxes, and easing off many enforcement actions. Officials are aware the changes don’t resolve the 90-day issue, and it’s something they are thinking about, IRS Chief Counsel Michael Desmond said late last month on a press call hosted by the American Bar Association tax section.

Petition deadlines “are at the top of our list of things to consider,” he said.

Even with existing relief, facing a tax assessment after missing the 90-day deadline to file a petition may still be very important to a taxpayer who is disputing a large tax bill, said Guinevere Moore, a partner at Johnson Moore who litigates tax issues.

“That’s going to have all sorts of ramifications from a practical business perspective, from a credit perspective, from a lending perspective,” Moore said.

—With assistance from Allyson Versprille.

 

Sabrina Singh JD’20 draws attention to the looming COVID-19 crisis in Nepal

via Human Rights Program Blog

Last November, Sabrina Singh JD’20 attended the UN Forum on Business and Human Rights in Geneva.

Sabrina Singh JD’20 has been an active member of the human rights community during her time at Harvard Law School (HLS), including leading the Harvard Human Rights and Business Student Association (HuB) for a year and taking the International Human Rights Clinic for the past two years. In addition to her human rights concentration, she has worked to be a voice for international students at Harvard Law School, co-founding the organization, Coalition for International Students and Global Affairs, with Ayoung Kim JD’20. Born and raised in Nepal, Sabrina has been speaking out about how the COVID-19 pandemic could exacerbate conditions in her home country. The Human Rights Program (HRP) spoke with her recently to learn more about her background, what drew her to human rights, and how she is continuing to advocate for vulnerable populations during this time of uncertainty.

HRP: Why did you decide to specialize in human rights at Harvard Law School?

Sabrina: My introduction to law school was as an undergraduate summer intern at the Office of Public Interest Advising. That summer, I had the opportunity to interview a human rights lawyer, and I asked her why she chose her career. She said that she loved to be able to fight for what she knows to be good. Her conviction and energy stuck with me as I eventually came back to HLS as a student.

HRP: What kind of work have you been doing in the International Human Rights Clinic?

Sabrina: I have focused on business and human rights (BHR) and economic, social and cultural (ESCR) rights. I had the opportunity to work on BHR clinical projects with [HRP and International Human Rights Clinic Co-Director and Clinical Professor] Tyler Giannini and [former visiting clinical instructor] Amelia Evans LLM’11. With their clinical teams, I researched and helped write a report on multi-stakeholder initiatives, which are global governance bodies set up to create human rights standards for corporate actors; I also helped facilitate a BHR communities training for human rights practitioners in New York; most recently, I worked on a project on the cocoa industry in Ghana. Last year, I had the opportunity to attend the UN Forum on Business and Human Rights in Geneva, which brings together more than a thousand participants who gather to take stock of the BHR field. The theme was ‘government as catalysts for business respect for human rights,’ but one of my principal takeaways was how underrepresented local and grassroots communities are in these spaces.

HRP: What lessons have you internalized from this work and your instructors in the Clinic that you hope to carry forward?

Sabrina: Tyler and Amelia have helped me understand how important it is to look at the human rights implications of economic growth and globalization. [International Human Rights Clinic Co-Director and Clinical Professor] Susan Farbstein was an amazing mentor for my paper titled, “Realizing Economic and Social Rights in Nepal,” which will be published in the forthcoming edition of the Harvard Human Rights Journal. That paper seeks to understand what role the judiciary can play to realize basic social and economic rights in a post-conflict context. In a poor country like my own, I often hear people ask, ‘What is the relevance of seemingly abstract human rights law when our day-to-day material needs like food and housing are not met?’ I believe human rights law can and must speak to issues such as poverty, hunger, health care, housing, and economic inequality on a global scale.

HRP: You originally moved to the United States from Nepal for college. How have you remained connected to your community back home?

Sabrina: Co-founding HLS’s international student group and serving on the boards of Human Rights and Business as well as the Law and International Development Society have been ways to stay connected to the international issues that matter to developing countries and certainly to Nepal. I am a part of Nepal Rising, a 501(c)(3) non-profit that mobilized the Nepali diaspora for relief efforts after the devastating earthquake in Nepal in 2015. I am also a co-founder of a growing Nepali women’s collective that has expanded to four cities in the United States. Ours is the first generation of Nepali women to be receiving higher education and career opportunities at an unprecedented global scale; our collective exists to document our experiences and create solidarity among us.

HRP: How is the COVID-19 pandemic affecting Nepal? What particular issues are important for the local and international community to know?

Sabrina: COVID-19 has laid bare the inequities happening on a global scale. My home country is a case in point. First, many people lack access to basic social and economic rights like health care and social security. There are very few hospitals where you can get tested for COVID-19 in the country. We likely have less than 500 ICU beds. Many are likely to slip back into abject poverty with the economic downturn, particularly the 70 percent of the labor force in the informal economy. We have already started to hear some anecdotes about food scarcity on the ground. Second, responses to the pandemic have often not respected basic human rights. About 1,500 Nepali migrants leave every day for wage labor in the Middle East and East Asia. Some do critical work in factories that produce medical equipment to fight COVID-19. Migrant workers are the backbone of the global supply chain. But many of them have lost their jobs in the past few weeks. At the same time, Nepal instituted a nation-wide lockdown and closed its borders, even to its own citizens. Migrant workers are now literally stuck, some sleeping on roads and others trying to swim across a river to come back home.

HRP: How are you trying to raise attention to these issues?

Sabrina: At Nepal Rising, in collaboration with local partners, we are now raising funds to help build the health care system in Nepal to prepare for COVID-19, such as by procuring PPEs [personal protection equipment] and training healthcare professionals on how to use them. Former US Ambassador to Nepal, Scott DeLisi, is one of our partners for this initiative. We are trying to keep abreast of daily developments and coordinate with other initiatives in civil society. The diaspora and the international community can play a critical role when a fragile state or LDC [least developed country] has a looming public health and economic crisis.

HRP: Finally, how are you coping from day-to-day? How is balancing the daily work of HLS, keeping abreast of the news cycle, and trying to work on behalf of Nepal Rising?

Sabrina: I am precariously fine. It feels anticlimactic to not have a physical commencement and bar exam this summer, but trying to be an advocate for my community helps me too. I got breakfast from the Hark this morning. An individual in the dining staff told me that she is a single mother with three kids and that she is extremely worried about what will happen to her kids if she contracts the virus. So, I feel a mix of anxiety, gratefulness, and solidarity.

Sabrina is interested in economic and gender issues and human rights and international law. She has spent her law school summers at Latham & Watkins, Human Rights Watch, and EarthRights International. Sabrina graduated from Swarthmore College with Highest Honors in Political Science and Sociology & Anthropology.

Cyberlaw Clinic turns 20

via Harvard Law Today

by Carolyn E. Schmitt

It was 1999 and the dot-com bubble was about to burst. Corporations were scrambling to address new legal challenges online. Napster was testing the music industry. And at Harvard Law School, what is currently known as the Berkman Klein Center for Internet & Society was creating a clinical teaching program specializing in cyberlaw.

This clinical program, initially formed for a handful of students from Jonathan Zittrain’s Internet Law class, became the foundation of the Cyberlaw Clinic. It was the first of its kind, and the 2019–2020 academic year marks its 20th anniversary.

Five people, four men and one woman, look into the camera from a white background.

Credit: Phil Farnsworth
The early days-circa 1999: The Berkman Center for Internet & Society began as a seminar in the late 1990s. “People who knew something talked together, totally informally,” recalled Professor Charles Nesson ’63, in an interview in the Summer 1999 issue of the Harvard Law Bulletin. That first cohort included Jonathan Zittrain ’95 and Lawrence Lessig, now the Roy L. Furman Professor of Law at Harvard Law School, soon joined by the likes of Wendy Seltzer ’99 (far left), now strategy lead and counsel to the World Wide Web Consortium at MIT; Chris Kelly (not pictured), formerly Facebook’s Chief Privacy Officer, now an investor; and Alexander MacGillivray ’00 (far right), who served as general counsel of Twitter and later as deputy U.S. Chief Technology Officer during the Obama Administration.

“As public interest technology became a more and more important theme in our society, it became clear that we needed to be training lawyers to do this important work. Nobody else was doing it, and I think it was really one of the most important things that the Berkman Klein Center did in its early days because it really did help to support a growing area of practice,” says John Palfrey ’01, then-executive director of the Berkman Klein Center and current president of the John D. and Catherine T. MacArthur Foundation. “People who have been trained in the clinic have now gone on to extremely important roles in private practice, in governments, in non-profit practice. And we’re really super excited to see how it’s grown and evolved over 20 years, which seems impossible, but it’s true.”

Jonathan Zittrain in a white t-shirt holds a microphone and points off camera.

Initially formed for a handful of students from an Internet Law class taught by Jonathan Zittrain (pictured here in 2007), a burgeoning clinical teaching program focusing on cyberlaw officially grew to become the Cyberlaw Clinic at the Berkman Klein Center.

The clinic provides high-quality, pro bono legal services to clients on issues relating to the internet, technology, and intellectual property. Students earn course credit by working on real-world litigation, client counseling, advocacy, and contractual projects under the supervision of experienced attorneys.

Over the past two decades, students have supported clients on issues such as copyright, online speech, litigation, intellectual property, privacy, online safety, free speech and media law, digital civil liberties, government innovation, communications infrastructure, regulatory compliance, and more.

“The clinic was born at a very particular moment in the late nineties where a lot of attention was focused on the so-called ‘copyright wars,’ and Berkman and the clinic were in the midst of that in the early days,” says Christopher Bavitz, the WilmerHale Clinical Professor of Law and managing director of the Cyberlaw Clinic. “We still do a lot of copyright work, but our docket has expanded a lot to include privacy, speech, and other issues that have direct ties to technology’s impact on justice and fundamental rights.”

Most clients are individuals, small startups, nonprofit organizations, academics, and occasionally government entities. For example, the clinic works with Creative Commons, a nonprofit that provides a very broad set of licenses for people to license their works, and was incubated by the Berkman Klein Center in 2001. “The clinic has continued to do work with Creative Commons and also with others who are using Creative Commons licenses or open source software licenses. I think that’s definitely in the clinic’s DNA in a way,” Bavitz says.

Chris Bavitz sits at his desk as he speaks to a student with their laptop in front of them.

Credit: Brooks Kraft
Chris Bavitz, WilmerHale Clinical Professor of Law, is managing director of the Cyberlaw Clinic.

Credit: Brooks Kraft

Kendra Albert ’16 worked in the clinic during their third year at HLS. Now a clinical instructor, Albert leads students projects related to computer security, software preservation, and the First Amendment. One of the things they enjoyed the most, Albert says, was working with clients on specific legal needs.

“I’m continually trying to find ways to give my students now those direct client experiences that allow them to sort of have that same reaction. Which is ‘I can actually help people solve problems,’ rather than “This is an academic exercise,” Albert says. “I think that’s what’s special about the clinic—as opposed to other parts of the law school—is that you have the opportunity to both do focused technology law work, and to serve clients who have particular legal needs.”

In addition to working with clients, students are actively involved in writing and filing amicus briefs for current cases related to cyberlaw, the Fourth Amendment, and more. In the fall, for example, a pair of students worked with mathematician Cathy O’Neil on a comment about algorithmic discrimination for the United States Department of Housing and Urban Development.

Outside of the formal clinical program, the clinic’s staff and leadership involve students in their research at the Berkman Klein Center, including recent reports on AI and human rights and AI principles. Over the years, students have worked with the Youth and Media project on reports ranging from child protection and online safety to cyberbullying and sexting. Some clinic students have deepened their relationship with Berkman Klein, becoming student fellows.

When the Berkman Klein Center launched the Ethics and Governance of AI Initiative in 2017, the Clinic formed the Algorithms and Justice track of the Initiative. With logistical and research support from HLS students, the Clinic leads the AGTech Forum, a series of conferences for state attorneys general and their staff on pressing regulatory and enforcement issues concerning privacy, cybersecurity, and most recently, artificial intelligence.

“I sometimes joke with students that as technology’s reach expands, all law will be tech law. There’s some truth at the heart of that. Certainly, the Cyberlaw Clinic works with students on projects related to all the core issues of our day, from elections to antitrust policy, disinformation to anti-discrimination,” says Jessica Fjeld, the clinic’s assistant director. “If tech law in the ’90s was all about copyright, today I think it’s all about social justice: How we as attorneys can help ensure that technology is built and implemented in a way that remedies, rather than reifies, structural inequality. Our students understand that intuitively, and I love that we are here—and hopefully will be for the next twenty years and beyond—supporting them in their personal and professional growth, as they build their visions for a brighter future.”

HLS clinics and students fight for the most vulnerable amid COVID-19

via Harvard Law Today

by Brett Milano

Computer screen showing Zoom session between three people

Zack Manley ’21 (upper left) and Norah Rast ’21 meet with Clinical Professor Sabi Ardalan ’02 (upper right), director of the Harvard Immigration and Refugee Clinical Program, to discuss legal strategy to get their client, an asylum seeker, out of Stewart Detention Center, where several employees and immigrants have tested positive for COVID-19. They recently won a stay of their client’s deportation and are appealing his case to the U.S. Court of Appeals for the Eleventh Circuit.

For the Clinical Program at Harvard Law School, the past weeks of the COVID-19 pandemic have been a time to mobilize. As the clinics have moved to working remotely, their work has continued with new urgency—and often, with new challenges as well.

“The Law School’s clinics and student practice organizations have been incredibly nimble in their ability to continue to advocate for their existing clients and also to take on the emerging legal needs of community members related to the COVID-19 outbreak,” says Dan Nagin, Clinical Professor of Law and Vice Dean for Experiential and Clinical Education. “Clinical directors and supervisors and their students are using a variety of technology—from Zoom to FaceTime to telephone—to be accessible to each other and to their client communities, and to meet the pressing legal needs of the most vulnerable. Many courts and agencies have ongoing and active dockets and are conducting hearings remotely, and students, staff, and faculty at clinics and student practice organizations across HLS are continuing to do critical work in a variety of legal areas.”

“This work also includes absolutely vital policy advocacy by clinics to ensure that governmental responses to the pandemic take into account questions of equity and access to healthcare, financial assistance, and other supports,” Nagin added.

Each clinic has also adapted to working online. “Zoom is our new best friend,”  says Clinical Professor Robert Greenwald, faculty director of the Center for Health Law and Policy Innovation (CHLPI). “I’ve learned to teach online, and I’m now a savant at Google Docs. I have AirPods attached to my head for 12-15 hours each day. But we’ve adjusted.”

CHLPI, he says, remains on the front line of advocating for the care and treatment of low-income populations. “We are working to secure testing and treatment, as well as all other necessary health care, for those who are most vulnerable, including many people living with AIDs, racial and ethnic groups that are historically disenfranchised, and the growing number of people who are uninsured.”

The work involves numerous efforts on both the local and national levels. They have called on the Trump administration to use its emergency authority to allow for early and extended drug refills, and to fill gaps in the next stimulus package, including an increase in Medicaid funding and an extension of no-cost testing and treatment. They are also working with several partners, such as Feeding America and the national Food is Medicine Coalition, to address the food and nutrition needs of vulnerable populations. And they are working to promote equal health access within Massachusetts, calling on Governor Charlie Baker to collect and publish testing data related to race and ethnicity to identify the hardest-hit groups.

Robert Greenwald as seen through a video conferencing screen

Robert Greenwald, faculty director of the Center for Health Law and Policy Innovation, has shared his public health expertise with multiple national media outlets during the COVID-19 crisis, including in an April 8 interview with WNBC on privacy concerns with police departments maintaining a list of addresses of confirmed coronavirus cases.

CHLPI has also taken on the challenge of preserving the Affordable Care Act. Two students, Isaac Green ’22 and Will Dobbs-Allsopp ’20, are currently working to get the Trump administration and 18 state attorneys general to withdraw from a Supreme Court challenge to the ACA. Though the administration seems determined to overturn the act, Dobbs-Allsopp says, grassroots efforts on the local level could make the difference. The clinic is planning to work with community health groups in different states.

“At the end of the day, attorneys general are politicians who respond to political pressure. People’s interest in universal health coverage has picked up, and you’re going to see some interesting polling in the next few weeks,” Dobbs-Allsopp says. “They’re realizing that getting rid of this law means the disease will persist and the economy will get even worse.”

In addition to the work we’re doing with individual clients, we are asking what work we can be doing to fight the systemic causes of poverty, so that these issues don’t keep coming up.

Kiah Duggins ’21, Harvard Legal Aid Bureau president

The Harvard Legal Aid Bureau (HLAB) correctly predicted that the virus would disproportionately affect minority and impoverished communities—an idea that is only now beginning to hit the mainstream. HLAB’s President Kiah Duggins ’21, who works closely with HLAB Faculty Director Esme Caramello ’99, cites the inaccuracy of New York Governor Andrew Cuomo’s reference to the virus as “the great equalizer.”

“The narrative is that anyone can get the virus, which is true. But low-income workers are either on the frontlines without adequate protection, or they’re disproportionately in danger of losing their jobs,” Duggins says. “And as the numbers come out, we’re seeing that black people are dying at disproportionately high rates.”

She adds, “This has raised interesting discussions about our mission, because a lot of the issues that Americans are facing because of the crisis have been faced by lower-income people forever. The crisis has elevated that in the public consciousness. So, in addition to the work we’re doing with individual clients, we are asking what work we can be doing to fight the systemic causes of poverty, so that these issues don’t keep coming up.”

This, she says, includes working with Greater Boston Legal Services and City Life/Vida Urbana in Jamaica Plain.

“Even before the crisis we were trying to promote racial and economic justice, to empower those communities directly,” Duggins says. “And the crisis has made it clear how the causes and consequences of poverty affect these communities. So we’re now able to get things done, like an eviction moratorium or rent suspension. People who weren’t supportive before are supportive now because it affects a broader swath of people.”

A group of HLAB members standing in front of MA House of Representative steps. Many are holding signs or banners.

In early March, the Harvard Legal Aid Bureau, Greater Boston Legal Services and City Life/Vida Urbana organized a rally in front of Boston Housing Court to make the case for a complete halt to any evictions while the state of emergency in Massachusetts remains in effect. On April 2, the Massachusetts House of Representatives passed legislation based on HD.4935, an act providing for a moratorium on evictions and foreclosures during the COVID-19 emergency.

HLAB has also been working to help the University support lower-income Harvard students who were approved to continue living in on-campus housing. “Many of the members of HLAB are lower-income and people of color, so the worlds are more interconnected than you might think. We want to make sure we’re creating healthy lawyers,” Duggins says.

The Harvard Immigration and Refugee Clinic (HIRC) is continuing its mission of advocating for immigrant justice. And it’s now, more than ever, trying to respond to the health-threatening conditions within immigration detention centers.

“We’re continuing our work on behalf of clients, including litigation and policy advocacy,” says HIRC Director and Clinical Law Professor Sabrineh Ardalan ’02. “We’re focusing on getting clients out of immigration detention, given the conditions and risks of being detained right now due to COVID-19.”

One of the HIRC clients, she notes, is an asylum seeker detained at the Stewart Detention Center in Georgia, where conditions are dire. “He sleeps in a room with more than 60 people in bunk beds, so there is no social distancing. At meals, they sit four to a table and he works in food prep, where there are 30-40 people who work the shift. Very few guards have protective gear, and there are documented reports of officials and immigrants with COVID-19 in the facility.”

Circumstances in Massachusetts detention facilities, Ardalan says, are also dismal. The Crimmigration Clinic, directed by Phil Torrey, has filed habeas petitions to seek the release of two immigrant clients detained at the Franklin County House of Correction in Greenfield, Mass. The petitions argue that these individuals are being held in violation of their Fifth Amendment rights and both have lodged claims concerning potential COVID-19 exposure. Sarah Libowsky ’20 and Michael Hur ’20 are tentatively scheduled to argue one of the habeas petitions on April 16 before Judge Mark G. Mastroianni, in the U.S. District Court for the District of Massachusetts.

Similarly, the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services, led by Nancy Kelly and John Willshire Carrera, joined the American Civil Liberties Union of New Hampshire in filing an emergency federal habeas lawsuit on behalf of an indigenous Guatemalan asylum seeker detained in Strafford, New Hampshire, and managed to secure his release from detention.

HIRC attorneys and its social work team are also trying to respond to the needs of immigrant clients who are not detained, but who are in precarious circumstances due to COVID-19. “Some are worried about how to pay rent and feed their families. Others are still going to work, because remote work isn’t an option, and their health is at risk because of it,” Ardalan says. Immigrant families may be afraid to access the health care and services they need, due to concerns about immigration enforcement.

HIRC has joined the Massachusetts Law Reform Institute and Prisoners’ Legal Services of Massachusetts, among dozens of other organizations, in submitting a letter to Immigration and Customs Enforcement (ICE) and local county sheriffs and jail wardens of the facilities that contract with ICE, urging them to cease local immigration enforcement operations and arrests and release immigrants in custody in light of the pandemic.

“It has been very difficult. A variety of lawsuits have been filed across the country with mixed results,” Ardalan says. One encouraging sign, she says, is that some local courts and officials have proved willing to step in and order immigrants’ release from detention. “I hope that all our advocacy efforts will bear fruit, because circumstances are so dire.”

Screenshot shows a Zoom meeting with 9 women holding signs that read 'free her'

The Harvard Prison Legal Assistance Project is advocating for immediate release of vulnerable inmates who pose no public risk to protect the incarcerated community from COVID-19.

The Harvard Prison Legal Assistance Project (PLAP) has also been working to keep incarcerated people safe from COVID-19. PLAP hosted a Zoom phone bank on April 3 as part of the Massachusetts week of action, organized by Families for Justice as Healing and the National Council for Incarcerated and Formerly Incarcerated Women and Girls. PLAP is calling on district attorneys, sheriffs, the governor, elected representatives, and the Massachusetts Department of Corrections to demand immediate release of vulnerable inmates who pose no public risk to protect the incarcerated community from COVID-19.

Harvard’s Federal Tax Clinic has remained busy even as the IRS itself has largely shut down. That means pressing forward with cases that were underway before the pandemic hit. “We deal with people having some kind of problem with the IRS—either they owe and they need to work out payments, or the IRS says they owe more than they think,” says Clinic Director T. Keith Fogg. Clients are currently having difficulty reaching anyone at the IRS—which has closed its last operating service center, causing cases in the administrative stage to be put on hold. Yet cases in court are still moving forward remotely, so there is still plenty of work for clinic students.

The clinic is also working with direct consequences of the pandemic, including laying some groundwork for the post-recovery era. For one thing, Fogg says, we can probably expect a shift to more email filing and electronic signatures in the future. And the recent implementation of the CARES act, which provides a $1200 rebate to some workers, has also opened work possibilities.

“We’ve been talking a fair amount to people at the IRS about implementing their procedures during the crisis, and explaining to the community what new provisions mean,” Fogg says. The clinic is already engaged in advocacy to reduce the number of people who need to file a tax return to receive the rebate (the IRS has already exempted regular social security recipients). Advocacy efforts are ongoing to exempt recipients of Supplemental Security Income and Veterans benefits who desperately need the financial help.

Faculty and students at the Food Law and Policy Clinic (FLPC) have also stepped up their work during the pandemic, writing briefs aimed at saving tons of food that could feed the hungry, and working to inform the response to COVID-19, including congressional legislation. In the early stages of the crisis, FLPC acted quickly to outline avenues for donating excess food in the wake of campus and business shutdowns to help feed the hungry. Since then, the clinic has developed and amplified several other resources on using food donation to support food banks and other food recovery organizations, which are facing both an increase in demand and limited resources.

“There are already so many people who were in vulnerable situations,” says Emily Broad Leib ’08, director of FLPC and deputy director of the Harvard Law School Center for Health Law and Policy Innovation. “The crisis has exacerbated food access challenges for those people, and it has added so many more individuals and families in need. Workers are losing jobs, especially those doing hourly work—many, in fact, who work in the food industry. We are going to see a huge increase in people who suddenly need help getting basic needs met, especially food.”

Screen shot of Emily Broad Lieb speaking on a podcast about food law

On “Food Talk with Dani Nierenberg” on March 25, Emily Broad Leib, director of HLS’ Food Law & Policy Clinic, talked about food law and policy concerns in the COVID-19 crisis, including protecting and promoting better wages for food workers.

The FLPC has also responded to new concerns about food safety by preparing an issue brief with recommendations for federal and state governments to facilitate food delivery during the crisis using existing food assistance programs, such as the Supplemental Nutrition Assistance Program (SNAP) and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).

They also have come up with proposals for getting food from food banks and other organizations delivered directly to people’s doors, and for getting Congress to  support these community-based food delivery organizations. Their recommendations include investments in technologies that connect food donors to recovery organizations.

“We make the point that these technologies can be really responsive to the challenges of the moment,” says Broad Leib, “but most of them have been developed by small nonprofits. Helping them scale up quickly to meet the needs of the growing number of people who need food support is going to require an investment.”

A day in the life of Harvard Law School’s legal clinics

via Harvard Law Today

Julie McCormack (left) sits with student at the WilmerHale Legal Services Center

Senior Clinical Instructor Jill McCormack with XXXXX at the WilmerHale Legal Services Center in Jamaica Plain, spearheads the LSC’s CORI Sealing Initiative with the help of LSC interns like Niko Paladino (check) and other interns.

Harvard Law School students help transform communities and the law every day by supporting people and organizations in need of legal assistance.

A pioneer in the development of experiential clinical education, Harvard Law School offers students hands-on training in a wide range of legal fields, from human rights, immigration, health, and housing law to cyber, tax, and veterans’ law. They do this by serving clients who might otherwise be unable to afford a lawyer.

Through 44 legal clinics and student practice organizations, Harvard Law students—more than 80 percent of whom participate in at least one law school clinic—provide hundreds of thousands of hours of free legal services to clients across the country and the world each year.

For one day in late November, we followed just a handful of these clinics to see their work—and their efforts to advance justice—in action. Here is a look at that day, starting at 5:00 a.m. in Geneva, Switzerland and ending at 11 p.m. on the Harvard Law campus.

Read more on the Harvard Law Today website

Animal Law & Policy Program files amicus brief in Supreme Court challenging border wall

via Harvard Law Today

Photo of the front entrance of Langdell Library

The Harvard Animal Law and Policy Clinic filed an amicus brief to the Supreme Court on Thursday. By Kathryn S. Kuhar

In early March, Harvard Law School’s Animal Law & Policy Clinic filed its first Supreme Court amicus brief  in support of a petition for certiorari by the Center for Biological Diversity. The brief challenged the Trump administration’s waiver of all environmental and other laws in connection with the construction of a wall along the U.S.-Mexico border.

The clinic represents as amici curiae the North American Butterfly Association and National Butterfly Center, which operate an important wildlife refuge in the area where the wall is to be built.

The brief argues that construction of the wall without compliance with any of the environmental laws (which include the National Environmental Policy Act and Endangered Species Act) that would normally apply to such a massive project will have devastating and irreparable impacts on dozens of imperiled species of butterflies, moths, and many other species that rely on this habitat for survival, and it will also destroy a unique, rare, and fragile ecosystem that is already under siege by development and other human encroachments.

The brief was drafted by clinic student Ashley Maiolatesi ’20 and clinical fellow Kate Barnekow ’19Maiolatesi recently corresponded by email with Harvard Law Today about what is at stake, the specific ramifications of these waivers, and her own personal connection to the project.


Harvard Law Today: What is at issue here?

Ashley Maiolatesi: The amicus brief aims to illuminate the struggle that animals, many endangered and unique to the area, will face if the border wall proceeds as planned. Over 40 federal laws, in addition to many state and tribal laws, were waived in order to expedite the building process—that means that there was absolutely no consideration of the impending environmental impacts the border wall will cause. Additionally, there was no consideration of less harmful alternatives or mitigation measures that would have helped to minimize the border wall’s environmental toll.

HLT: In your brief, you write that this wall will be far more harmful than any existing barriers. Can you talk about the ways this structure would be particularly harmful to butterflies and the other animal and plant species that inhabit the area?

Maiolatesi: The border wall as proposed will be a solid structure made from concrete and steel, as opposed to fencing that would allow smaller species to move from one side of the wall to the other. Additionally, the proposed wall will include stadium lighting 24 hours a day/7 days a week, which has been shown to interrupt the migration and breeding patterns of many different pollinators and insects that many in the Rio Grande Valley depend on. Further, the proposed wall will have a much wider “enforcement zone,” which is essentially a clear cut area where pesticides are sprayed and which is patrolled by vehicles traveling at high speeds. All of these factors pose incredible challenges to animals, butterflies, and insects living in the Rio Grande Valley.

HLT: The secretary of Homeland Security has waived federal, state, local and tribal laws to allow the proposed Border Wall to be built quickly. Can you give an example of the types of laws that have been waived and why that’s significant?

Maiolatesi: One of the most impactful laws in this case would have been the National Environmental Protection Act, which requires an environmental assessment or environmental impact statement of the proposed government project. In the assessment, the government is required to consider both less harmful alternatives and possible mitigation measures. Because no assessment was ever performed, we have no way of knowing how truly damaging the wall as proposed will be, or how small changes could have greatly helped the ecology of the surrounding area.

HLT: How did you get involved with this clinic and why is this issue important to you?

Maiolatesi: It is my second semester as a student in Harvard’s Animal Law and Policy Clinic and I was thrilled when our Clinic’s Director, Professor Kathy Meyer, asked me to work on the project as I am from the South and care deeply about the impacts that the proposed border wall will have there. When considering a border wall, environmental and animal issues are not normally the first issues that come to mind, and it was great to be able to bring these issues to light.

Waste not, want not

via Harvard Law Today

by Emily Newburger

man in green shirt holds a box of produce that reads "stay home we deliver"

Delivering food ordered online while in home isolation during quarantine. Stay home we deliver sign on box.

During a pandemic, a lot of things come to a halt, but one thing that never ceases is our need for a reliable supply of safe, nutritious food. Harvard Law School Professor Emily Broad Leib ’08, director of the HLS Food Law and Policy Clinic (FLPC), and her students have been working furiously to ensure that the most vulnerable—and ultimately the rest of us—are fed.

Broad Leib and the clinic have long been a resource for food producers, food-focused nonprofits, government agencies, legislators, policy experts, and other food system stakeholders. But since early March, as the COVID-19 crisis has grown, she and a team of students and clinic staff have worked around the clock, writing briefs aimed at saving tons of food that could feed the hungry, and working to inform the response to COVID-19, including legislation that Congress has been hammering out.

According to Feeding America, a national network of food banks, one in seven Americans relied on food banks to get enough to eat before the pandemic. The clinic is a national leader in policy efforts to prevent food waste and promote food recovery, which it undertakes by partnering to provide legal and policy support to a range of programs that pick up excess food from universities, restaurants, and other organizations and get it to food banks.

As universities suddenly began to move to online learning and close down most campus operations, and many businesses reduced hours or shut their doors, Broad Leib knew this would leave behind excess food. The clinic mobilized quickly to prepare a handout urging organizations not to shutter without passing on food that could feed the hungry, explaining liability protections and tax incentives for food donations, and providing information on where and how to donate food. Many organizations responded, including Harvard Law School, which now has a food donation program in the works.

Broad Leib also understood that the basic problem the clinic has been addressing was about to grow dramatically. “There are already so many people who were in vulnerable situations,” she says. “The crisis has exacerbated food access challenges for those people, and it has added so many more individuals and families in need. Workers are losing jobs, especially those doing hourly work—many, in fact, who work in the food industry. We are going to see a huge increase in people who suddenly need help getting basic needs met, especially food.”

COVID-19 also adds a complex new layer to concerns about food safety. Not only are more people going to need food; they also need safer ways to get it. As the emphasis on the importance of social distancing has increased, new ways must be found to deliver food directly to seniors and immunocompromised individuals in their homes.

In response, the clinic put out a brief with recommendations for federal and state governments, as well as for agencies such as FEMA and the USDA, looking at opportunities under existing government programs, including the Supplemental Nutrition Assistance Program and the Special Supplemental Nutrition Program for Women, Infants, and Children, to facilitate food delivery during the COVID-19 crisis. They also have come up with proposals for getting food from food banks and other organizations delivered directly to people’s doors, and for getting Congress to supplement existing community-based food delivery organizations.

This is probably one of the most meaningful projects I have worked on since coming to law school, if not in my life.

Jesse Lazarus ’22

The clinic shared its brief with contacts in Congress on March 23 as the House and Senate, the president, executive agencies, and state governments across the country debated many of these policies. They have been working closely with members of Congress, helping support congressional requests to the USDA to use its authority to support food delivery. The team is also tracking state and local policies to stay on top of the best models for how state and local governments are ensuring vulnerable people stay fed in this crisis.

The brief also encourages investment in a growing number of technology solutions that match food donors to recovery organizations that pick up and deliver the donated foods, such as Food Rescue Hero and Replate.

“We make the point that these technologies can be really responsive to the challenges of the moment,” says Broad Leib, “but most of them have been developed by small nonprofits. Helping them scale up quickly to meet the needs of the growing number of people who need food support is going to require an investment.”

Jesse Lazarus ’22, a student in Broad Leib’s Food Law and Policy seminar, played a major role in preparing this brief, focusing on public-private partnerships, describing existing efforts, and making policy recommendations to expand home delivery. “This is probably one of the most meaningful projects I have worked on since coming to law school, if not in my life,” says Lazarus. “It is an experience I will likely recall for many years to come, as I think back on this incredibly challenging time for the U.S. and the world.”

Broad Leib and the clinic also focused on anticipated new challenges to the food system as a whole, in particular the loss of market access for the many farmers and producers who sell in farmers markets or depend on large purchases by schools and universities. The clinic collaborated with the National Sustainable Agriculture Coalition to propose legislative actions to unlock already appropriated funding to these farmers, and to redirect funds that will be underutilized during this crisis. “Local foods are now a $12 million business in the U.S.,” Broad Leib says. “We don’t want these food producers to go out of business or sell their farms.”

Brianna Johnson-King ’21, a student now in the clinic for her second semester, worked on that brief, researching what flexibility existing statutes allowed. She found, for example, that a statute that supplies vouchers to low-income seniors to purchase food at farmers markets could also allow the government to make bulk purchases directly from farmers for distribution to seniors, a step that could help ensure the money is flowing to small farmers even if farmers markets are closed during COVID-19.

Johnson-King grew up in rural Ohio and has a strong interest in agriculture and the farmer’s perspective. As she researched and wrote for the brief from home, she kept the TV on in the background. The situation worsened from hour to hour as more cities and states announced shutdowns and farmers markets voluntarily closed. She says she felt the pressure: “In the back of my mind, I’m thinking, ‘Are we going to get this out in time for Congress to have a chance to act on any of it?’”

The clinic got that brief out by March 23 and followed it up with a companion document for state governments. By March 27, both the Senate and House had passed the Coronavirus Aid, Relief, and Economic Security Act, which includes funding for direct assistance to food producers, and President Trump had signed it into law. “The act does not directly address the changes we recommended; however, it still provides funding for the local and regional producers we aim to help,” Johnson-King says.

Broad Leib believes they are gaining traction. The clinic is involved in ongoing discussions with members of Congress on other aspects of the brief that may find their way into the next relief package. She is also looking ahead to the impact that COVID-19 may have on the food supply chain as a whole. “I don’t intend to cause panic, but I am certainly thinking about that.”

“A lot of the workers harvesting our crops are coming across the border,” says Broad Leib. “We need to be sure that we are keeping them safe and taking care of them. At the same time, we hear that in agriculture and manufacturing, trying to do social distancing and keep workers safe means having fewer people work at one time. That means we will have to be creative about meeting demand.” But Broad Leib also sees opportunities: “This may be the time for us to be more thoughtful about how we are regulating food and compensating and protecting workers—supporting food from farm to fork. If what comes out of this is that we better appreciate the value of the people and the resources that go into producing our food, that will be a silver lining.”

“It’s been a really chaotic and frightening time,” Broad Leib says. “It’s as if everywhere we turn there are ways this crisis is impacting the food system.” She goes on: “I’ve been blown away at the number of our students who have reached out and asked to help, even during spring break. They dove in to this important work while they were also in the midst of moving, transitioning to remote learning, and figuring out their new lives. It’s been amazing. Our students are always amazing, but never more so than in this time.”

See the Food Law and Policy Clinic’s COVID-19 Response website for more information and resources.

HIRC students win deportation relief for East African man

via HIRC blog

Though Massachusetts is far from the Southern border, many immigrants are still detained across the state. Until recently, one of those detainees was John*, a man who was tortured in his home country in East Africa. John ended up in detention because certain criminal convictions triggered the deportation process and eventually led his case to the Clinic. HIRC students Michael Hur ’20, Sarah Libowsky ’20, and Eun Sung Yang ’20 were assigned to the case, working under the supervision of HIRC’s Director Sabi Ardalan and Clinical Instructor Cindy Zapata.

John’s clinical team began by meeting with Crimmigration Clinic students Niku Jafarnia ’20 and Krista Oehlke ’20, who used their knowledge of the criminal and immigration systems to determine what immigration protections John would be eligible for. Because of the nature of some of John’s convictions, he was barred from asylum and withholding of removal. Ultimately, John’s legal team concluded that his best option would be to pursue deferral of removal under the Convention Against Torture (CAT).

Having determined what relief was available to John, Michael and Eun Sung began to build a case. However, because John was detained, they were unable to communicate by phone, which meant three-hour round trip drives to visit their client in person at the Plymouth County Correctional Facility in Plymouth, Massachusetts.

Not only did working with a detained client mean long days of travel, but detention also created additional challenges to representation. Like many clients who come to HIRC, John had faced persecution and violence in his home country. He was detained and tortured as a young child and suffered from severe trauma as a result of these experiences. This lasting trauma often made discussions necessary to build his case very difficult to navigate.

“Although a necessary part of preparing his case, recounting his childhood experiences to us in detail retriggered his trauma, which caused him to lose his appetite and to develop insomnia,” Michael explained. HIRC clinical social worker Liala Buoniconti traveled with the team to the detention center to help provide support, but John, like many detained individuals, was still unable to access the medical and mental health services he so desperately needed.

“There were times when his trauma symptoms compromised his ability to remember key details, to recount his story, and to process and understand fully what we were explaining to him,” Michael added. This was particularly difficult because, in order to be granted deferral of removal under CAT, the students had to prove that it would be more than likely than not (greater than 50%) that John would be tortured if returned to his home country. By comparison, asylum-seekers need to demonstrate only a 10% likelihood of persecution.

Yet despite facing these numerous obstacles, the students continued to work to build the best possible case for John. “I would often leave meetings feeling upset that we could leave Plymouth but our client could not, but also feeling more motivated to fight for our client’s release from detention,” said Sarah. After numerous meetings with John and many hours spent compiling supporting documents and expert testimony, the students submitted an over-700 page filing. Two weeks later, John and his legal team arrived at the Boston Immigration Court for his merits hearing. Both Eun Sung and Michael described the hearing as a highlight of their experience working on the case.

“The hearing provided a great opportunity to see our client share his story so powerfully in court and to observe (alongside a multitude of students, attorneys, and volunteers who had worked on the case) how the semester’s work could support him and help shape the hearing,” Eun Sung said. Both John and his supporters were overjoyed when the judge granted John deferral of removal. After so many hours of hard work and preparation, their client was now finally going to be released from detention.

“There were several nights when I had trouble sleeping because I was worried about our client getting deported, which very likely meant torture or even death,” Michael recalled. “When the judge finally gave us her oral decision, my immediate reaction was to clutch the client’s hand and smile.”

Detention is a painful and dehumanizing experience for many of our clients, especially for those like John who have mental health needs that are rarely met in detention facilities. We are relieved that John can now begin to access the support he needs to build a secure life in the United States.

*Name has been changed to respect client confidentiality. 

Thanks to HIRC staff Sabi Ardalan, Liala Buoniconti, Phil Torrey, and Cindy Zapata for their supervision of this case. Thanks also to HIRC & Crimmigration clinical students Michael Hur ’20, Niku Jafarnia ’20, Sarah Libowsky ’20, Krista Oehlke ’20, and Eun Sung Yang ’20 for their hard work.

Emily Broad Leib talks Food Law and COVID-19

via Food Tank

Emily Broad Leib talks Food Law and COVID-19

Today on “Food Talk with Dani Nierenberg,” Dani interviews Emily Broad Leib, Clinical Professor at Harvard Law School & Director of Harvard Law School’s Food Law & Policy Clinic, about protecting and promoting better wages for food workers in the COVID-19 crisis. “If part of what comes from this is that we realize all the people who are handling the food from the beginning on the farm to the end of the chain are really vital. We need to treat them better, pay them better, give them benefits,” says Broad Leib. 

You can listen to “Food Talk with Dani Nierenberg” on Apple iTunesStitcherGoogle Play MusicSpotify, or wherever you consume your podcasts. While you’re listening, subscribe, rate, and review the show; it would mean the world to us to have your feedback.

Cravath Fellows pursue research and independent clinicals around the world

via Harvard Law Today

by Audrey Kunycky

2020 Cravath Fellows (from left) Bryce urgwyn ’21, Layla Wehbe ’21, Sean Rail ’20, and Madhulika Srikumar LL.M. ’20. standing with their hands folded in front of them in the WCC lobby.

The 2020 Cravath Fellows include (from left) Bryce Burgwyn ’21, Layla Wehbe ’21, Sean Rail ’20, and Madhulika Srikumar LL.M. ’20.

In 2020, 12 Harvard Law School students were selected as Cravath International Fellows. During Winter Term, they traveled to 12 countries and jurisdictions to pursue independent clinical placements or research projects with an international, transnational, or comparative law focus. Four of these students describe their experiences.


Bryce Burgwyn ’21

Bryce Burgwyn ’21

Bryce Burgwyn ’21. Credit: Lorin Granger

Bryce Burgwyn spent Winter Term in Palau, pursuing an independent clinical with its Ministry of Natural Resources, Environment and Tourism. Before law school, Burgwyn served for eight years in the U.S Coast Guard, where she became involved in a variety of environmental issues. When she was stationed in Guam, she had an opportunity to visit Palau, an island nation in the Pacific Ocean, about 950 miles west of the Philippines. “I really fell in love with it,” she recalls. “It’s an incredibly beautiful place, with a heavy dependence on tourism. I came to law school because of my interest in environmental issues, and when I learned about the international opportunities over Winter Term, I jumped at the chance to go back to learn more about their approach to environmental protection.”

For her Winter Term project, Burgwyn drafted regulations to implement a recently enacted ban on reef-toxic sunscreens. There are similar bans in progress in different parts of the world—Hawaii, the U.S. Virgin Islands, Key West—but Palau’s is the first to take effect, and the most aggressive. “This sunscreen law is only a tiny piece of their overall effort toward environmental protection,” she explains. “It doesn’t seem like they encounter a lot of the same stumbling blocks that we see in other parts of the world—perhaps because of their small size, or the extreme importance that tourism has for their economy, but it also seems like a cultural value. It’s impressive to see this.”

In consultation with her supervising attorney, Burgwyn identified the issues that the regulations would need to address; they also consulted with scientists, tourism officials and customs officers. “One of the first steps in my process was to determine exactly what sunscreen ingredients should be banned, which led to another challenge: Palau’s tourists come from many regions, each with different labeling requirements and approved ingredients for sunscreens. We found that they fell into classes of chemicals with similar characteristics, some of which had already been shown to be reef-toxic in one way or another. I’ve never used my undergraduate degree in environmental science so much, but it meant that I was already fluent in the language of chemical names and structures,” Burgwyn says with a laugh. But on a serious note, her research, combined with the need to provide customs officers with a simple, straightforward way to distinguish between reef-toxic and safe sunscreens, led her to recommend a strong, precautionary ban on all chemical ingredients except zinc oxide and titanium dioxide.

Her courses at HLS in legislation and regulation and administrative law were also relevant. “I’ve read a lot of regulations, but I’ve never written one before, so finding the right words to say exactly what we meant, in a way that everybody would understand and nobody would misunderstand, was definitely a process of workshopping every sentence. Having gone through the kind of statutory interpretation that we learn in class, I knew it would be hard, but I didn’t know that it would be so involved.”

At HLS this spring, Burgwyn is enrolled in an advanced environmental law class; this summer, she will undertake internships at Earthjustice in Seattle and the Department of Justice Environmental Enforcement Section in Boston. “I know that I want to pursue environmental law, but I’m really interested in having as many experiences as I can and seeing different practice types,” she notes. “The possibilities definitely include working overseas, and seeing how a government lawyer’s job works in a small government, and how much responsibility they can take on, would attract me to that kind of work in the future.”


Sean Rail ’20

Sean Rail ’20

Sean Rail ’20. Credit: Lorin Granger

Sean Rail traveled to Ethiopia during Winter Term, to examine the potential for using mini-grids for rural electrification. A mini-grid is “essentially a distribution grid that is separate from the main transmission system,” he explains; the one he visited served about 100 households. Mini-grids pool the costs of battery storage, installation and maintenance, creating the economies of scale needed to make the technology affordable. In Ethiopia, they are most often financed by the government and operated by the state-owned utility, but a small number are owned and operated by private companies with the help of substantial foreign aid funding.

“The energy situation in Ethiopia first interested me when I considered that, despite the country’s impressive economic growth over the past decade, the vast majority of Ethiopians still engage in subsistence farming. For a country with a long history of cyclical famines, this is dangerous, especially given that the region is likely to face increasingly unpredictable weather through the effects of climate change,” he observes. “This then led me to a consider the link between economic development and access to electricity, and a second paradox: the country has extremely low rates of electrification yet a massive amount of untapped renewable resources.” With the construction of the massive Grand Ethiopian Renaissance Dam, near its border with Sudan, “Ethiopia will soon have all the electricity it needs, but not enough places to put it, and currently electricity consumption is so low in rural areas that there is no economic incentive (or resources) to build transmission lines to reach those populations.” Ethiopia has an ambitious goal of universal electrification by 2025, and is relying on off-grid technologies to deliver the power, and private investment to build the infrastructure.

In Ethiopia, Rail conducted interviews with regulators, the lead policy advisor to the Minister of Energy, NGOS involved in energy development, private mini-grid operators, and mini-grid customers, and reviewed documents, including draft proclamations, only available in Addis Ababa. Originally, he planned to focus his research on the regulatory challenges involved in integrating mini-grids into Ethiopia’s larger transmission system, but “it became clear that this was only one of many issues that shaped the investment environment for mini-grids, and was likely having very little impact on investment decisions at the moment,” he explains. As a result, he broadened his research goals, ultimately identifying four regulatory issues that impede investment—the very low, government-mandated tariff paid by consumers, the licensing process, a ban on foreign ownership of mini-grids, and a trade imbalance that makes it extremely difficult for foreign companies to repatriate profits. Using a comparative lens, he has also examined how mini-grid operators and regulators in other countries have addressed similar issues.

“I knew coming to law school that I wanted to work with renewable energy,” Rail notes. At HLS, he has enrolled in the Environmental Law and Policy Clinic, a reading group on powering the U.S. electric grid, and an autonomous vehicles and local government lab, where his project focused on using autonomous vehicles as “mobile batteries” to transmit their unused power through a city or region. He has also undertaken internships with the Federal Energy Regulatory Commission and the office of Massachusetts Attorney General Maura Healey, where he was exposed to complex litigation involving off-shore wind and nuclear power.

“This was the first time that I was able to apply my knowledge of energy law to international development, and I hope that my paper will be a useful tool for future policymakers,” he adds. After graduation, Rail will join Milbank LLP in New York and hopes to work in the firm’s Project Finance group, which handles utility-scale renewable energy projects around the world. “The deeper understanding of energy development I gained from my time in Ethiopia will enrich my perspective,” he predicts.


Madhulika Srikumar LL.M. ’20

Madhu Srikumar ’20

Madhu Srikumar ’20. Credit: Lorin Granger

Madhulika Srikumar spent Winter Term in Berlin, Germany, conducting an independent clinical with the Digital Freedom Fund, an NGO that supports strategic litigation on digital rights. She notes that her interest in technology, law and policy—and her connection to HLS—reach back to her law studies at Gujarat National Law University in India: one of her first scholarly publications was a prize-winning case study written for a student writing competition sponsored by the Berkman Klein Center for Internet & Society and published by the Center in 2016. Before she arrived at HLS, Srikumar examined cyber governance in emerging economies as a public interest technology fellow at New America in Washington, D.C. and as an associate fellow and program coordinator at one of Asia’s largest think tanks in New Delhi.

Her Winter Term work focused on providing resources to support strategic litigation against the use of artificial intelligence or algorithms when they infringe on an individual’s human rights. As an example of this approach, a Dutch court recently ruled that the government’s use of an algorithm-based system to identify people who may be at high risk for committing benefits fraud conflicts with EU human rights and privacy protections.

“AI doesn’t have to be incredibly advanced, but it can still be incredibly biased, especially against marginalized communities,” she explains. The jury is still out on what causes this problem; in some cases, “algorithmic tools are adopted and used by state agencies and the private sector with little or no transparency, accountability and oversight, and algorithms can often operate in ways unintended by those developing or deploying them.”

While there have been some cases in the U.S. challenging the use of automated decision-making systems, the European Union has made a more concerted effort.  When its General Data Protection Regulation was enacted in 2018, “it was really clear that they wanted to prioritize user rights,” Srikumar observes. It’s an issue of transparency: “If someone is using a machine in place of a human in any kind of decision-making, you have a right to know.” For this reason, “any fundamental reimagination of existing laws or comprehensive regulation on AI and human rights will most likely emanate from the EU.”

In Berlin, Srikumar worked with the Fund’s legal advisor to frame and design the scope for a toolkit, for lawyers, technologists, data scientists, and digital rights activists, that will provide an overview of various government and private uses of AI and the human rights that could potentially be affected. She began her work by conducting an extensive literature review to identify current trends in scholarship. “I found that reading these papers allowed me to understand an entirely new vocabulary on bias, classification and opacity in data,” she notes. Srikumar also participated in interviews with attorneys and technologists, including a lawyer in New York who is challenging the state’s use of pre-trial risk assessment tools, and analyzed the results of surveys that the Fund has undertaken.

Srikumar served last fall as a research assistant to Jessica Fjeld, the assistant director of the Law School’s Cyberlaw Clinic, working with her on a report on “Principal Artificial Intelligence” that was published by the Berkman Klein Center in January. Fjeld also served as Srikumar’s faculty adviser for her Winter Term project, and Srikumar is quick to acknowledge the “tremendous support” that she received.

Her Winter Term project was “a chance to make connections and to see, up front, what the organization does. I have a better idea of what having a career in AI policy and AI rights actually entails,” Srikumar adds. That is exactly what she hopes to pursue after graduation, possibly at a think tank, an advocacy organization, or on a tech company’s policy team.


Layla Wehbe ’21

Layla Wehbe ’21

Layla Wehbe ’21. Credit: Lorin Granger

Layla Wehbe traveled to Beirut, Lebanon, for an independent clinical with Legal Action Worldwide, an NGO which provides legal advice and representation on human rights violations in conflict-affected areas; its Lebanon project focuses on women’s rights, “something I care deeply about, especially coming from a family of really strong Texas women,” Wehbe says. Before law school, she has spent time living and studying in Beirut, so when protests erupted in Lebanon last fall, “I wanted to be on the ground, to be in touch with people doing the good work,” she recalls. In planning her Winter Term, Wehbe reached out to advisers at HLS and to alumni working in Lebanon, and was connected to Terry Flyte LL.M. ’19, currently a Satter Fellow in Human Rights at Legal Action Worldwide. Wehbe admits that her initial excitement turned to nervousness, as family members in Lebanon told her about closed roads, limited access to banking, and a rise in petty crime. In the end, “I never felt unsafe,” she notes, citing the regular updates she received from Harvard’s Global Support Services and from the organization’s security officer.

Initially, Wehbe expected to assist the organization with trainings and advocacy relating to a series of labor reform laws that were due to be announced in January, but the upheaval in Lebanon’s government derailed that project, and she worked with her supervisor to devise a new work plan.

Among other projects, Wehbe conducted comparative research to find examples of countries in the Middle East/North Africa region who have amended or abolished discriminatory laws surrounding child marriage, domestic violence and divorce. “I learned that Saudi Arabia, the Occupied Palestinian Territories, Tunisia, Egypt, and other countries in recent years have outlawed child marriage and increased the rights of women in divorce proceedings,” she reports, but notes that Lebanon lags behind. She also began the process of identifying source law for international law arguments against child marriage, reviewing all of the human rights treaties that Lebanon is a party to, and reading the Lebanese penal code, in Arabic. Her research will inform the work that Legal Action Worldwide is undertaking, including efforts to draft legislation to amend Lebanon’s penal and civil procedure codes and to work with Lebanese civil rights lawyers on strategic litigation to challenge discriminatory laws.

Wehbe studied Arabic as an undergraduate and during her earlier studies in Beirut, and notes that she her language skills were critical to the success of her project. In addition to reading documents in Arabic, she communicated with most of her coworkers in a mix of Arabic and English.

She also had exposure to Lebanon’s religious courts, one for each of 18 major denominations. Every denomination has different rules about child marriage. In some, “it is perfectly legal for parents to enter into a marriage contract for their child, or to exchange goods for their child,” and although some denominations have increased these ages recently, “in some instances, parents can marry off a girl as young as nine years old or a boy as young as twelve,” she adds. “One of the biggest arguments that I see against child marriage is that it inhibits your right to education. You lose a lot of agency when you marry, and have children, that young.”

Wehbe’s Winter Term work has led her to rethink her HLS course selections, and possibly her future plans. “At least while I’m in law school, I want to take all the opportunities I can to think about international and comparative law,” she notes. She will spend this summer at Vinson & Elkins in Houston, where she will have an opportunity to pursue a firm-sponsored public service fellowship, and she may also apply for a postgraduate fellowship in human rights, either of which might bring her back to Lebanon or to another placement with Legal Action Worldwide.


The Cravath International Fellowships were created in 2007 by a group of partners and HLS alumni at Cravath, Swaine & Moore, led by Sam Butler ’54 and the late Robert Joffe ’67.

Expect More Litigation Over IRS Penalty Approval Rules

via Bloomberg Tax

by Aysha Bagchi

Street view of the front of the IRS headquarters in Washington.

The U.S. Tax Court is grappling with a legal requirement governing penalties issued by the IRS. Above, the agency’s headquarters in Washington. Photographer: Zach Gibson/Getty Images

Courts are likely to continue examining a requirement that IRS employees get their boss to OK penalty decisions before they are presented to taxpayers, even after the U.S. Tax Court issued a recent string of opinions addressing the issue.

The Tax Court’s 2017 ruling in Graev v. Commissioner interpreted tax code Section 6751(b) as requiring the IRS to obtain supervisory approval in a tax deficiency case by the time it imposes related tax penalties.

Since January, the Tax Court has grappled with multiple aspects of the requirement, trying to establish the exact point in the process when the requirement must be met and which penalties need approval. But recent wins for the agency on large penalty amounts are likely to be appealed and the approval issue is expected to continue to come up in new cases.

Frank Agostino, who represented the petitioners in Graev, told Bloomberg Tax his firm is working on more cases at the Tax Court tied to the approval requirement. Agostino mentioned three specific cases his firm is litigating before the Tax Court, including Grajales v. Commisoner, which questions whether the penalty for taking early withdrawals from qualified retirement plans is subject to Section 6751(b) approval requirements.

“Everyday we find another issue,” said Agostino, founder and president of Agostino & Associates P.C. in Hackensack, N.J.

The court’s interpretation of these issues is significant for the IRS because it can lose out on penalties if judges rule the agency failed to get approval when it should have or got approval too late in the process. The IRS collected billions in accuracy-related penalties from individuals, estates, and trusts in fiscal 2018, according to the IRS’s most recent databook.

Appeals on Divisive Issue

Potential appeals of two recent decisions involving the same legal question—what constitutes an “initial determination” when it comes to assessing whether the IRS got supervisory approval on time—may be the most closely watched going forward.

Eight Tax Court judges signed onto the lead opinion in January 6’s Belair Woods, LLC v. Commissioner, holding that the initial determination occurs when the IRS “formally” notifies a taxpayer of its decision to impose penalties.

But the remaining eight judges disagreed either with the concrete outcome in the case or on whether the initial determination is always the first formal communication of the penalty decision—in this case marked by a 60-day letter informing a partnership of its right to appeal the penalty decision.

The decision from the eight lead judges in Belair was also applied in Tribune Media Co. v. Commissioner to uphold penalties against the Chicago Cubs holding company and former Cubs part-owner Tribune Media Co. In that case, Tribune was hit with a nearly $72.7 million penalty.

“My odds are that both the taxpayers in Belair Woods and Tribune Media will appeal,” said Bryan Camp, a former IRS lawyer who is now a professor at the Texas Tech School of Law.

Waiting for More

In each case, the Tax Court has further issues to resolve before the parties could appeal a final judgment.

Belair Woods LLC unsuccessfully sought an interlocutory appeal, which would have paused the Tax Court’s consideration of the remaining issues to allow for an appeal.

“Given the divided decision of the Tax Court, we think it would be appropriate for an appellate court to review the Tax Court’s decision on the 6751(b) issue and determine whether the standard established by the majority opinion is consistent with the statute and Congress’s intent,” said Michelle Abroms Levin, a shareholder at Sirote & Permutt PC, which represents Belair Woods.

An attorney at Mayer Brown LLP, which represents Tribune Media Co. and the Chicago Cubs holding company, declined to comment when asked if an appeal is planned in that case.

If appealed, Belair Woods would go to the U.S. Court of Appeals for the Eleventh Circuit, while Tribune Media would head to the Seventh Circuit.

The fact that all the judges weighed in on the Belair decision increases the chances that it will get reversed, according to T. Keith Fogg, director of the Federal Tax Clinic at the Legal Services Center of Harvard Law School.

“When you look at fully reviewed opinions that get appealed, they get reversed more than other Tax Court opinions that have also been appealed because they’re controversial—they’re close questions,” Fogg told Bloomberg Tax.

Other recent penalty approval cases that could be appealed include: Laidlaw’s Harley Davidson Sales, Inc. v. Comm’rChadwick v. Comm’r; and Carter v. Comm’r.

“I expect appeals in every case the taxpayers have lost involving 6751(b) where the taxpayers are represented by counsel,” said Carlton M. Smith, who formerly directed the Carodozo School of Law’s tax clinic and now is a retired volunteer at Harvard Law School’s Federal Tax Clinic.

Celebrating International Women’s Day

For International Women’s Day, Harvard Law School honored a host of women nominated by members of the HLS community. Poster stands on the first floor of Wasserstein Hall showcased their achievements. Congratulations to our clinicians who were honored.

profile photo of Nnenna Odim

 

“Nnena Odim is an attorney, teacher, mediator, trainer, and consultant. Odim began her career at Harvard Law School in 1997 in the Law School’s first-in-the-nation AIDS Law Clinic. Today she leads the Family and Domestic Violence Law Clinic at The Legal Services Center of Harvard Law School, which is a critical resource to victims of domestic violence, most of whom are people of color and many of whom are immigrants, and a phenomenal learning experience for countless students. In addition to her contributions as a community advocate through the Clinics, Odim has worked with the Harvard Mediation Program and Harvard Program on Negotiation to provide training for students and various community members. Odim also designed and led numerous conflict management training programs for several businesses and agencies, including Coca Cola Enterprises, the Boston Public Schools, and the Massachusetts Housing Authority. In 2013, Odim was a Top Woman in the Law award recipient from Massachusetts Lawyers Weekly. In 2015, she received the Harvard Law School Dean’s Award for Excellence.”

 

profile photo of Toby Merrill

 

“Toby Merrill, JD’11, Clinical Instructor and Lecturer on Law at Harvard Law School, is a visionary public interest advocate. She is the Founder and Director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. Under Merrill’s inspiring leadership, the project has shaped the field and become the preeminent advocate for low-income students who have been defrauded by predatory for-profit colleges. Individual clients are eager to put their trust in Merrill because they can see in her genuine compassion and humility combined with unparalleled expertise and talent. Through trailblazing litigation strategies that have produced national headlines, Merrill and her colleagues in the Project combat the massive fraud perpetrated against students and taxpayers by for-profit colleges and oppose the government policies that enable the predatory industry to cheat students. Moreover Merrill is an inspiring clinical teacher. She has trained and mentored a new generation of consumer law advocates who are carrying forward the torch of public interest advocacy.”

Harvard Animal Law and Policy Clinic Fight Against Border Wall in Amicus Brief

via The Harvard Crimson

by Kelsey J. Griffin

Photo of the front entrance of Langdell Library

The Harvard Animal Law and Policy Clinic filed an amicus brief to the Supreme Court on Thursday. By Kathryn S. Kuhar

The Harvard Animal Law and Policy Clinic filed an amicus brief to the Supreme Court on Thursday supporting a Center for Biological Diversity-led challenge to the Trump administration’s wall along the Mexico-United States border.

The Center for Biological Diversity filed a petition for certiorari on Jan. 31, asking the Supreme Court to review six decisions by the U.S. Department of Homeland Security which allowed the Trump administration to waive over 40 federal laws that would slow down the construction of a border wall.

The Law School clinic represents the North American Butterfly Association and the National Butterfly Center — who manage a refuge along the border — as amici curiae in the case. Their brief claims the waivers DHS approved subvert laws that protect endangered species such as butterflies and moths.

“This includes irreparably harming dozens of rare animal and plant species that inhabit the Lower Rio Grande Valley, and forever destroying the already extremely fragile ecosystems on which they depend,” the brief reads.

Law Student Ashley Maiolatesi said the proposed border wall will differ from the barriers previously in place and could harm animals living in the area.

“It’s going to be made of steel and metal and be completely solid, and it’s going to have stadium lighting around the top and so that affects a lot of animals in their migration patterns and how they breed and travel and all sorts of things like that,” Maiolatesi said in an interview.

“Anything that is like a terrestrial animal — like the endangered ocelot that lives in that area — it can’t obviously get past this 36-foot high wall,” she added. “That is a huge issue because these animals are already so endangered.”

Maiolatesi also said constructing the wall would necessitate clearing land on either side of the border. The amicus brief describes the proposal for this 150-feet-wide clear-cut area as an “enforcement 10 zone” and claims it would destroy an estimated 20 miles of habitat for each mile of the wall built.

“That eliminates over 13,000 acres of viable habitat along the Rio Grande Valley right now,” she said.

The brief mentions additional concerns about the proposed wall, including the lack of a sloped escape route for animals in the case of fire or flood and an increase in danger, pollution, and erosion due to high-speed patrol vehicles.

Maiolatesi said the Law School clinic hopes to raise awareness about the alleged lack of research into the potential consequences of the proposed wall.

“None of the environmental assessments or any paperwork was filed on what these ramifications would be if these changes to the law were made,” she said. “We wanted to really bring to light the animal aspects, and how this was going to be affecting animals in the area throughout the United States and Mexico.”

Reflecting on my Independent Clinical in Switzerland

by Caroline Shinkle ’20

Caroline Shinkle spent the 2020 and 2019 winter terms at the Bank for International Settlements (BIS) in Basel, Switzerland. At the BIS, she engaged in stimulating and impactful work surrounding tokenization of assets and distributed ledger technology-based securities settlement.

 

It was a fantastic experience returning to Basel this J-term. Last winter, I conducted an independent clinical with the Basel Committee on Banking Supervision, and this past January, I engaged in an independent clinical with the Bank for International Settlements (BIS) Innovation Hub. While in Basel this J-term, my mission was to provide legal analysis of the various legal issues surrounding distributed ledger technology (DLT) application to the financial sector. Specifically, I focused on investigating the legal issues associated with tokenization of assets and DLT-based securities settlement.

 

My work was very timely, as many stakeholders at the BIS are very interested and engaged in fintech developments and the potential implications for the global financial system. The BIS Innovation Hub is spearheading these efforts; thus, it was very exciting to work with the group that is on the ground floor of exploring these new technologies and endeavoring to understand how these innovations can be leveraged to promote central bank missions around the world. In addition, because there has been relatively little progress in the development of legal frameworks for these new systems and technologies, it was extremely fulfilling and rewarding to have the opportunity to work in this space and provide insight into potential best practices from a legal perspective.

 

My independent clinical this year has once again highlighted the importance of the BIS’s work. When working here, one feels as though they are part of a larger mission that transcends geographic boundaries. I was excited to have been a member of the BIS’s team and to arrive to work each day to help take on some of the key challenges facing the global financial system. The work matters, and it is refreshing to feel as though you are having an impact.

 

I see an opportunity for transformational change in the financial sector through some of these new fintech developments. However, legal uncertainties and complications abound with respect to their adoption. How our policymakers and regulators choose to resolve (or not) these questions will have great consequences for the future. Perhaps, in the not-so-distant future, I, too, may be in a position to weigh in on some of these questions. Until then, I look forward to learning as much as possible about these issues.

 

VA unlawfully turned away vulnerable veterans for decades, study says, with 400,000 more at risk

via Washington Post

by Alex Horton

Dwayne Smith, seen in Afghanistan in 2009, was issued an other-than-honorable discharge in 2012. (Dwayne Smith)

Dwayne Smith, seen in Afghanistan in 2009, was issued an other-than-honorable discharge in 2012. (Dwayne Smith)

The Department of Veterans Affairs has for decades unlawfully turned away thousands of veterans with other-than-honorable discharges, rendering some of the most vulnerable veterans invisible and desperate for help, according to a study released Thursday.

 

Systemic misunderstanding of the law within VA about which veterans it should care for — and which should be denied services — has triggered improper mass denial of care since 1980, the Veterans Legal Clinic at Harvard Law School said in the study, leaving an estimated 400,000 more at risk of never gaining access to health care they may have earned.

 

The discharges, given for misconduct that can range from drug use to insubordination but not proved in court, are colloquially known as “bad paper” for the lifetime of negative consequences they can have.

 

Experts and advocates have called for VA to properly assess eligibility shown to save lives. Veterans outside the VA system kill themselves at a higher rate than veterans who received recent VA care, the agency has said, and mental health care for veterans with bad paper can lower the risk of suicide, the American Journal of Preventive Medicine found last year.

 

VA declined to say whether it unlawfully denied care to veterans.

 

Generally, other-than-honorable discharges make it less likely that veterans will qualify for VA services. But the agency is required by law to accept applications, look for mitigating circumstances that could grant them services, issue written decisions and provide appeal information to veterans.

 

It didn’t happen that way for Dwayne Smith, a Marine Corps veteran who served as an engineer equipment operator in Afghanistan’s volatile Helmand province in 2009. He returned with post-traumatic stress and traumatic brain injuries, and his best friend died in his sleep days after they came home.

 

“That was one thing that changed me,” Smith, 31, told The Washington Post. His standing in his unit suffered, culminating in an unauthorized absence he used to go home to visit his mother, who was dying of cancer, he said.

 

Senior leaders offered him a way out as his enlistment neared its end: Take an other-than-honorable discharge or risk a dishonorable discharge later. He saw it as a plea bargain to be with his mother, and in 2012, he left the Marine Corps with bad paper.

 

Months later, unmoored and in need of care, Smith drifted to VA in search of help. A front-line worker at the Brockton VA outside of Boston looked over his discharge paperwork and sent him away without documenting his visit, he said. Multiple denials followed during the next two years.

 

“I was supposed to be able to turn to them,” Smith, now an athletic trainer for children, said of VA.

His experience is emblematic of the struggles of many of the half-million veterans issued other-than-honorable discharges since 1980, when certain eligibility requirements began to apply, said Dana Montalto, an attorney for the law clinic and co-author of the report.

 

Many veterans are simply given a verbal denial, while others are told incorrectly that the only solution is to go back to the Pentagon to try to get their discharge upgraded.

 

VA could not produce numbers for how many eligibility decisions it has made involving bad paper. The legal clinic estimated the number was around 100,000.

“VA has done more outreach to other-than-honorable former service members in the last few years than ever before,” VA press secretary Christina Mandreucci said Wednesday, which includes a call center launched in December to contact veterans who left the military in the past year, including those with bad paper.

VA also sent 444,487 letters sent to veterans with bad paper describing some mental-health benefits granted in 2017.

 

However, VA pulled their home addresses from Pentagon records — information that could be decades old for a Vietnam or Gulf War veteran, for instance, who may have used a parent or guardian’s address at the time of enlistment.

 

The result: 2,580 veterans with other-than-honorable discharges received care at VA in 2018, the agency said in a blog post last year, one day after a reporter in Seattle detailed the case of a veteran denied care.

 

“That is horrifically low by any measure,” said Kris Goldsmith, the associate director for policy and government affairs at Vietnam Veterans of America. “It shows how unserious VA’s leadership is in getting these guys and gals into the system.”

It is impossible to know how many veterans VA has turned away without evaluations, Montalto said.

 

In one case detailed in the study, a Vietnam veteran who left with bad paper suffered from untreated post-traumatic stress disorder for 50 years after he was incorrectly told he was ineligible for VA care. An attorney working on his case helped him win the benefits he earned, the report said.

 

Internal guidance from the Pittsburgh VA Medical Center on how to assess other-than-honorable discharges. (Dana Montalto)

Internal guidance from the Pittsburgh VA Medical Center on how to assess other-than-honorable discharges. (Dana Montalto)

Much of the confusion comes from inside VA, the report found, after records requests revealed guidance for staff that was wrong or incomplete at VA facilities across the country.

 

The Pittsburgh VA Medical Center used a clip art image of a thumbs-down to describe other-than-honorable discharges, implying they are a non-starter. VA’s hospital in El Paso incorrectly told a veteran that only honorable and general discharges lead to VA care, the study said. Those cases contradict other guidance VA has provided.

In 2017, VA allowed veterans with bad paper to use VA services in mental-health emergencies, and a law expanded that coverage a year later.

For tracking purposes, the legal clinic characterized bad paper as any discharge besides those considered honorable. Some of the categories — dishonorable and bad conduct — can be the result of serious crimes in uniform. But others, like in Smith’s case, are administrative actions enforced by a commander, not a judge or jury in a military court.

 

Often, they are infractions that mushroom from physical or mental wounds, such as self-medicating with drugs or alcohol after combat or sexual assault. From 2011 to 2015, the drawdown period from the highest troop levels in Iraq and Afghanistan, more than half of the 91,764 troops separated for misconduct were diagnosed with post-traumatic stress disorder or traumatic brain injuries before discharge, the Government Accountability Office found.

They can also be the result of discrimination — the study found that more than 100,000 veterans in the LGBT community left the military with bad paper from the end of World War II until 2011, when the “don’t ask, don’t tell” policy was repealed.

 

After a five-year battle, Smith ultimately won his appeal and received VA care and compensation in 2018 for his traumatic brain injuries and post-traumatic stress disorder. And that was only after Montalto represented him pro bono.

“That was the biggest win,” he said, “to walk into VA with my head held high.”

From clinical student to clinical instructor

via Berkman Klein Center

photo of Kenra Albert sitting on a bench on a porch

The 2019–2020 academic year marks the twentieth anniversary of the Cyberlaw Clinic, which is based at the Berkman Klein Center. To commemorate the occasion, we spoke with Kendra Albert (Harvard Law J.D. ‘16), clinical instructor in the Cyberlaw Clinic and former student in the Clinic about their takeaways from that experience, their current work, and what they’re the proudest of in their time at the Clinic.

Responses have been edited for clarity.

When you were a student at the Cyberlaw Clinic, what projects did you work on and who did you work on them with?

Vivek Krishnamurthy was my supervisor and I worked on a project for him related to computer security and rolling out changes to the clinical IT system at HLS. I also did some work for a tech policy NGO hacking back and computer security. And then I did some trademark work with Andy Sellars. All of those things were fun, and it was a really interesting mix of things. The clinical IT project was internal advising, thinking about how the university should handle things. And then the other work was for real-life clients, which was exciting.

I think I also learned about section 1101 of the Copyright Act and the Beijing Treaty, which is the anti-bootlegging statute — which basically, I think that my takeaway was, no one’s ever heard of this and that’s probably good. Because if they’d had, lots of people would sue with it. So that was a valuable lesson into maybe you don’t need to teach people more about any particular thingMaybe it’s just good that sometimes people don’t know a ton about it. But now I’m talking about it. So, oops.

What were your main takeaways from working in the Clinic, in terms of your career trajectory?

I worked for the Clinic spring of my 3L year, so by then, I was pretty certain of what I wanted to do. But it was valuable to have the opportunity to do real legal work for clients. And so I think the projects that resonated with me the most when I was working in the Clinic were the ones where it’s like, “Okay, this real client needs this real thing involving trademark or so on and so forth.” That’s something I take into my work with students now — the unique opportunity of clinics is to take things out of the research, academic thinking and to, “Okay, this client needs this real thing.”

And so I actually err, maybe even more so than the other supervisors in the Clinic right now, towards focusing on projects where the person has a particular legal need rather than more broad research or policy projects. Because I know that as a student that was something that was really important to me. And student investment in the work is quite different when it’s, “Oh, I need to answer legal questions because I need to figure out what I need to do next,” rather than, “Well let’s blue-sky think about how we should approach this entire field.”

I’m continually trying to find ways to give my students now those direct client experiences that allow them to have that same reaction. Which is, “I can actually help people solve problems,” rather than, “This is an academic exercise.” I think that’s what’s special about the Clinic as opposed to other parts of the Law School — is that you have the opportunity to both do focused technology law work, and to serve clients who have particular legal needs.

How did working in the Clinic help you to kind of come full circle, back to working at the Clinic as a Clinical Instructor?

I certainly think my application for being a clinical instructor was a better sell having been in the Clinic, and knowing Chris [Bavitz], and Vivek [Krishnamurthy] and the rest of the team. I also think my time in the Clinic inspired me to think that, oh, this is something I could be — a supervisor, I could do this. It wasn’t that long before I came back! It was maybe a year and a half between when I was a clinical student and when I started teaching. That was only possible because I had a significant amount of technology law experience before I took the Clinic.

So I think that that experience of being in the Clinic, and learning about how the Clinic functions, and what the expectations are, and what the Clinic was trying to do, did mean that when the clinic job opened up, I was really excited about it. And it ended up being a fantastic fit so that worked out really well.

What is your area of focus and what do you work on with your students?

I’ve stolen my former boss’s phrase — I’m a militant generalist. I do a little bit of everything. That’s actually part of what I like about the job, sometimes you’re an hour and a half ahead of the students. And that’s how real lawyering is a lot. Something comes in, and you have to figure out how to do it because you’ve never done it before.

In terms of my specific area of focus, I really like to work on things that are technically complicated. So I do a lot of work with computer security for clients like Voting Village. I do a lot of work with software preservation for folks like the Software Preservation Network. Both of those are areas where there are technical details and they matter. It turns out, actually, a bunch of the same law applies to those two things. But even independent of that, I really like getting into the weeds and the nitty-gritty of how the factual details work.

Fact-specific stuff is where I really feel like I excel and it’s a great opportunity for the students. They can do that work for the first time, or one of the first times, in a space that’s a little safer than your first job out of law school, or even a summer job where you’re hoping to get an offer or you want to come back to the organization. So I see my job as getting folks comfortable with the idea that they have to become subject matter experts, not just on the legal research, but also on the case, the underlying facts, the entire area.

I also do a bit of First Amendment work across a whole variety of different things. Everything from Freedom of Information Act work to representing an individual using a pseudonym who gets subpoenaed for their information. And that’s actually something I started doing. I was interested in it in law school and did an independent clinical where I worked at Public Citizen with Paul Alan Levy, and that’s a significant part of what he does.

My areas of focus are pretty broad, but so are the substantive set of skills I practice. Many lawyers sort of pick between transactional work or litigation, but instead, as a militant generalist — I do a little bit of everything. I don’t spend a lot of time in court though. Almost all of my litigation work is defense side pre-litigation counseling. So people often ask if I end up in court and the answer is hopefully not. (Knock on wood!) Because usually, that would mean that something’s gone wrong for my clients. But if someone receives a cease and desist letter, we’ll help them figure out how to respond. That’s what I focus on and work on.

Thinking about your tenure at the Clinic, from a student to now, what are you the proudest of?

The easy answer would be “I’m proud of this particular work product or whatever.” But honestly the thing I’m most proud of as a clinician is being able to get better at working with and learning from students. I think so much of being a clinician — and what I really appreciated — is we get the opportunity to start over every three months with a new crop of students and try new things. I think my practice as a clinician has gotten much, much better in terms of supporting students. There’s this concept called “support and challenge,” which is that you both want to support students who are doing something new but also challenge them. And I think I’ve gotten much better at balancing those things, as I’ve done it more.

I think the thing that I’m most proud of is the experience we can provide to students and watching them get excited about doing real legal work that helps solve people’s problems, rather than more abstract or academic work. And I think that’s a really important part of what the Clinic brings to the technology law space at HLS and also to Berkman Klein.

HLS to create new legal clinic to support rights of vulnerable clients to practice their religion

via Harvard Law Today

Daylight photo of the corner of Wasserstein Hall

Harvard Law School in Cambridge. Credit: Brooks Kraft.

Harvard Law School today announced plans to create a new legal clinic focused on cases involving the rights of individuals to practice their religion.

Clinical instruction plays an important role in legal education at Harvard Law School. Through the collective efforts of HLS’s 46 legal clinics and student practice organizations, the school deepens students’ practical experience by enabling them to learn the skills lawyers engage in.

The new Religious Freedom Clinic will be an important addition to HLS’ clinical program and will give students valuable preparation representing clients from a diverse array of religious traditions. It will join other new clinics established over the past year, including those focused on animal law and policyLGBTQ+ advocacy, and voting rights.

Under the supervision of clinical professors, students practice law on behalf of clients, while helping improve the lives of those in need through pro bono legal services. More than 80 percent of J.D. students take at least one clinic, and more than 40 percent take two or more. Existing HLS legal clinics focus on a wide range of legal areas, from cyber, tax and veterans’ law to human rights, immigration, health and housing law.

“Providing students with practical lawyering experience and skills is one of the most important aspects of a Harvard Law School education,” said John F. Manning ’85, the Morgan and Helen Chu Dean of Harvard Law School. “By enabling students to learn how to be lawyers by representing vulnerable clients who face impediments to practicing their religions, our new Religious Freedom Clinic will build on our long history of clinical education.”

The new HLS clinic will be modeled on Stanford Law School’s Religious Liberty Clinic, which has represented a wide range of people restricted in the exercise of their religious freedom. Recent examples include Sikh employees of a large trucking company who were not permitted to maintain unshorn hair in accordance with their deeply held religious beliefs; a Seventh-day Adventist employee who couldn’t work on Saturday in order to observe the Sabbath; and a Muslim individual facing capital punishment and seeking equal access to pastoral services in the execution chamber.

“The new Religious Liberty Clinic will be a fantastic addition to our strong clinical program” said HLS Professor Kristen Stilt, faculty director of the Animal Law & Policy Program (which now includes the Animal Law & Policy Clinic) and director of the Program on Law and Society in the Muslim World.

“Students will have the opportunity to directly serve individuals from a wide range of faiths who would not otherwise have an advocate,” said Stilt, who teaches a course on Islamic Law and Human Rights. “Students will learn the skills needed to engage with clients from diverse backgrounds, understand their faith commitments and the obstacles they are facing, and make legal arguments to achieve their clients’ goals.  Developing the tools to work with the clinic’s clients will make our students better lawyers and better citizens of the world.”

In keeping with the tradition of clinical education at HLS and elsewhere, the new Religious Freedom Clinic at HLS will represent underserved individuals. It will be designed to bring together students from diverse political, ideological, and philosophical perspectives and structured to reflect this commitment.

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