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Supreme Court Rules for Death Row Inmate With Dementia

Via the New York Times 

Source: Pixabay

By: Adam Liptak

WASHINGTON — The Supreme Court ruled on Wednesday for a death row inmate, for a criminal defendant who said his lawyer had not followed his instructions, and for farmers and fishermen in India suing an international organization over air and water pollution.

The capital case concerned a condemned inmate suffering from dementia who cannot recall the murder that sent him to death row.

The court’s ruling broke no new ground, and it did not turn on the inmate’s lack of memory. Instead, the court said one of its precedents, which barred the execution of people who lack a “rational understanding” of the reason they are to be put to death, may sometimes apply to inmates who suffer from dementia.

The Supreme Court sent the case back to the lower courts to sort out the matter. The vote was 5 to 3, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing, an increasingly common occurrence. The case, Madison v. Alabama, No. 17-7505, was argued in advance of when Justice Brett M. Kavanaugh joined the court, and he did not participate in the decision.

Justice Elena Kagan, writing for the majority, said a failure of memory alone did not bar the execution of the inmate, Vernon Madison.

“The state seeks capital punishment for a crime, not his memory of the crime itself,” Justice Kagan wrote. “And the one may exist without the other.”

“Do you have an independent recollection of the Civil War?” she asked. “Obviously not. But you may still be able to reach a rational — indeed, a sophisticated — understanding of that conflict and its consequences.”

“Do you recall your first day of school?” she asked. “Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story.”

“And similarly,” she concluded, “if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the state’s desire to impose a penalty.”

In 1985, Mr. Madison killed a police officer, Julius Schulte, who had been trying to keep the peace between him and his ex-girlfriend, Cheryl Greene, as she sought to eject him from what had been their shared home.

Mr. Madison appears to remember none of this. He has had at least two severe strokes, and he is blind and incontinent. His speech is slurred, and what he says does not always make sense.

He has asked that his mother be told of his strokes, but his mother is dead. He soils himself, saying that “no one will let me out to use the bathroom,” though there is a toilet in his cell. He has said he plans to move to Florida. He can recite the alphabet only to the letter G.

Mr. Madison also insists that he “never went around killing folks.”

Justice Kagan wrote that Mr. Madison’s memory loss does not bar his execution. “Moral values do not exempt the simply forgetful from punishment,” she wrote, “whatever the neurological reason for their lack of recall.”

The relevant question, she wrote, was whether he could understand what he is accused of and how Alabama plans to punish him. The evidence on that question was uncertain, she wrote, ordering the state’s courts to consider it.

In addition to the chief justice, Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined the majority opinion.

In dissent, Justice Samuel A. Alito Jr. accused his colleagues of addressing a question different from the one the court had agreed to decide. “What the court has done in this case makes a mockery of our rules,” he wrote.

Justices Clarence Thomas and Neil M. Gorsuch joined the dissent.

The court ruled that lawyers may not disregard their clients’ instructions to file appeals from criminal convictions and sentences even when the clients had agreed to waive appeals as part of their plea agreements.

The case concerned Gilberto Garza Jr., who pleaded guilty in state court in Idaho to possession of a controlled substance and no contest to aggravated assault. He signed “appeal waivers” in both cases agreeing not to pursue appeals.

Mr. Garza nonetheless instructed his lawyer to appeal, but the lawyer refused. That amounted to ineffective assistance of counsel and entitled Mr. Garza to a new appeal, Justice Sotomayor wrote for the majority in the 6-to-3 decision in the case, Garza v. Idaho, No. 17-1026.

“No appeal waiver serves as an absolute bar to all appellate claims,” she wrote, adding: “A defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”

In dissent, Justice Thomas wrote that the lawyer had acted appropriately, protecting Mr. Garza from the possibility of a longer sentence.

“Counsel’s choice not to appeal Garza’s sentence — the only issue Garza asked his counsel to challenge — was not only not deficient, it was the only professionally reasonable course of action for counsel under the circumstances,” Justice Thomas wrote. Justice Gorsuch joined the entire dissent, and Justice Alito most of it.

The court ruled that international organizations like the World Bank and the World Health Organization may be sued for some of their commercial activities notwithstanding a 1945 law that gave them what was at the time nearly absolute immunity from lawsuits.

The question in the case, Jam v. International Finance Corporation, No. 17-1011, was whether that law, which granted immunity “as is enjoyed by foreign governments,” took account of later developments. At the time, foreign government had nearly complete immunity; today, there are significant exceptions for commercial activities.

Writing for seven members of the court, Chief Justice Roberts said the law conferred the same immunity to international organizations as is currently enjoyed by foreign governments.

The case was brought by farmers and fishermen who live and work near a power plant near Gujarat, India, that had been built with money from the International Finance Corporation. They sued the corporation, saying the plant had polluted the air, water and land.

The court’s decision allowed the case to move forward, though it will face other legal hurdles.

Justice Breyer dissented, saying that Congress had meant to provide immunity to international organizations, partly to encourage them to locate their headquarters in the United States. Justice Kavanaugh did not participate in the case, which was argued before he joined the court.

FLPC Releases Advocacy and Lobbying Guide for Food Policy Councils

Via the Center for Health Law and Policy Innovation

The Harvard Law School Food Law and Policy Clinic and the Johns Hopkins Center for a Livable Future (CLF) released a new resource today for food policy councils and others working to change the food system. Advocacy & Lobbying 101 for Food Policy Councils was created to equip food policy councils in the US with legal information necessary to know how they are allowed to influence policy decisions by local, state, and federal government.

A recent survey found that the vast majority of food policy councils are actively engaged in advocacy work. Advocacy activities involving interactions with government policymakers to shape specific legislation may require adherence to specific laws and regulations known as “lobbying” laws.

“Creating change in the food system requires educating, organizing, and persuading others that change is necessary and feasible,” said Anne Palmer, program director at CLF. “This guide is intended to assist councils to understand how lobbying laws apply to their work, and how to proceed legally when attempting to influence government policymakers.”

The guide discusses what it means to lobby the government, explains how lobbying differs from general advocacy work, and addresses topics that every food policy council should consider before engaging in advocacy or lobbying. It also examines how the different organizational structures of councils affect what they may do to lobby and provides case studies to illustrate how councils have successfully and legally influenced government policy.

“A food policy council should not shy away from trying to influence government policy simply because these laws exist,” said Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic. “We hope this guide empowers councils to confidently navigate applicable state and federal lobbying laws — they will learn that much work on policy issues is not restricted because it is considered advocacy, not lobbying, and may even realize that their opportunities to lobby legally are far greater than previously thought.”

Read Advocacy & Lobbying 101 for Food Policy Councils.

Clinic Files Brief Supporting Cert Petition in Oracle v. Google

Via the Cyberlaw Clinic

Source: Pixabay

The Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Supreme Court in Oracle v. Google, No. 18-956, on behalf of a group of intellectual property law scholars. The brief supported Google’s petition for certiorari, asking the Supreme Court to review decisions of the United States Court of Appeals for the Federal Circuit. Google’s petition is the latest stage in a nearly decade-long litigation battle between Oracle and Google concerning Google’s use of Oracle’s application programming interface (“API”) in Google’s Android smartphone platform.  The case raises two major sets of copyright issues.  The first concerns the scope of copyright protection for APIs and the line between protectable expression and purely functional elements of computer code.  The second concerns whether, if an API is protected by copyright, use of that API may fall under fair use. The Clinic’s brief supports Google on the second of those points, urging the Court to take the case and resolve the fair use issue.

By way of background, in 2010, Oracle sued Google for copyright and patent infringement. A jury in the Northern District of California reached a verdict in favor of Google on May 31, 2012. Oracle appealed the case to the United States Court of Appeals for the Federal Circuit, which reversed the verdict and remanded for a retrial.  The Federal Circuit held that the “structure, sequence and organization” of software is copyrightable. Google petitioned for a writ of certiorari, which was denied.

A second trial began in 2016 and ended with another verdict for Google — this time on the grounds that Google’s use of the Oracle API constituted fair use within the meaning of Section 107 of the Copyright Act.  The Federal Circuit reversed again, this time holding that Google’s use of Oracle’s API code was not fair use.

Amici who joined the Clinic’s brief are intellectual property scholars who are concerned that the Federal Circuit’s decision below misapplied the fair use doctrine. In arguing that the Supreme Court should grant certiorari in this case, amici described at least three ways in which circuits have split in applying fair use standards.  First, while several other circuits have been applying the clear error standard, the Ninth Circuit interpreted the Supreme Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) to require de novo review of fair use determinations. Second, the Supreme Court first articulated the “transformative use” test for fair use in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), but lower courts have had trouble drawing clear lines in its application. Third, the Supreme Court never clarified the relationship between Campbell and Harper, resulting in some courts ruling that Campbell’s “transformativeness” test overruled Harper’s market-oriented test based on 17 U.S.C. § 107, while others held on to Harper’s holding, creating a circuit split in fair use applications. The brief concluded by asking the Court to grant Google’s petition for a writ of certiorariand hear the case on its merits.

Amici on the brief included:

  • Prof. Michael Kasdan is a partner at Wiggin and Dana LLP, and an Adjunct Professor of Law at New York University School of Law;
  • Prof. Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law;
  • Prof. Lydia Loren is the Henry J. Casey Professor of Law at Lewis & Clark Law School;
  • Prof. Mark McKenna is the John P. Murphy Foundation Professor of Law at Notre Dame Law School;
  • Prof. Lateef Mtima is a Professor of Law at Howard University School of Law;
  • Prof. Elizabeth L. Rosenblatt is an Associate Professor of Law at Whittier School of Law, and a Visiting Professor of Law at University of California, Davis, School of Law;
  • Christopher B. Seaman is an Associate Professor of Law at Washington and Lee University School of Law; and
  • Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School.

Many other amicus briefs supported Google’s petition for certiorari, including a brief (.pdf) filed by a separate copyright scholars coalition led by Pam Samuelson and Catherine Crump at UC Berkeley and a team from Berkeley’s Samuelson Law, Technology & Public Policy Clinic. That brief focused on questions of copyrightability and the scope of protection for APIs.

Fall 2018 Cyberlaw Clinic students Robert Joynt and Madeline Salinas and Spring 2019 Advanced Cyberlaw Clinic students LeHeng Li and Jaisel Patel contributed to the amicus brief, working with Clinical Professor Christopher Bavitz. The Clinic team collaborated closely with Professor Rebecca Tushnet to develop the arguments in this brief.

RFP: Approaches to Reducing Consumption of Sugar

Via the Center for Health Law and Policy Innovcation

Photo by rawpixel.com from Pexels

The Harvard Law School Food Law and Policy Clinic (FLPC), with support from the Laura and John Arnold Foundation, is working with community organizations and government entities to identify locally-supported policies that will reduce sugar consumption and build capacity for policy change. Excess consumption of sugar is linked to obesity, diabetes, and other diet-related chronic diseases that have tremendous social and economic costs. Reducing population-level consumption of sugar is one of the most promising strategies for addressing these pressing public health concerns.

FLPC is offering pro bono technical assistance (TA) to community organizations, food policy councils, and local, state, and tribal government entities across the United States interested in implementing innovative sugar-reduction policies.

A request for proposals (RFP) application will remain open until May 1, 2019. FLPC anticipates making two TA awards as a result of this RFP. TA grantees will be notified by May 31, 2019. Please contact flpc@law.harvard.edu with any questions.

Read the RFP.

In Cambridge Homeless Court, Another Chance

Via The Harvard Crimson

Homeless Court in Cambridge

The homeless court, the venue where Cambridge judges hold trials for homeless individuals, is held at the First Parish Church in Harvard Square. Photo: Solomina M. Darko

By: Ema Schumer

On the first Monday of every month, defendants and their lawyers file into Judge Roanne Sragow’s courtroom in Harvard Square’s First Parish Church. She wears the same robe there as she does behind the bench in Cambridge District Court, but at the church she sits behind a plastic table on a folding chair.

This nontraditional setting, however, does not make her work there any less important to those who come before her.

Sragow is the presiding judge for the Cambridge District Homeless Court, which offers these monthly sessions to adjudicate on misdemeanor and non-violent felony charges, as well as outstanding warrants, against people experiencing homelessness in the Cambridge area. The court does not sentence the defendants but instead recommends resources for rehabilitation and sometimes requires them to check back in on their progress over the course of multiple hearings.

The court’s most recent session — on March 4 — almost didn’t happen. After heavy snowfall the night before, Sragow and the defendants’ lawyers were worried the people standing trial that day might not make it. But after a two-hour postponement, 14 of the 25 cases on the docket were heard.

Among those who went before the court that day were defendants Cheryl A. Tucker and John A. Chute, alongside their lawyer, Michael C. Hicks, and a team of 12 Harvard Law School students who assist on the cases.

Tucker and Chute were each charged with different crimes, but their defense team, local law enforcement, and Sragow agree that the Homeless Court provides the two of them — and other defendants who appear before the court — opportunities unavailable in the traditional District Court setting.

CRIMES OF NECESSITY

Though less than 0.5 percent of Cambridge’s population was homeless in 2015 — the last year for which statistics are available — homeless individuals accounted for nearly 16 percent of Cambridge arrests that year, according to Cambridge Police Department data.

Hicks, who represents almost all defendants who go before the Homeless Court, said that most of his clients — like many people experiencing homelessness who enter the criminal justice system — commit crimes out of necessity.

“A lot of them are committing crimes because they’re homeless,” Hicks said. “Most people that have access to housing, monetary abilities, medical care, food, clothing, don’t commit crimes.”

Chute, who was before the court this month for charges of breaking and entering a motor vehicle, said that resources for people experiencing homelessness can be hard to come by, driving people to resort to actions they would not otherwise undertake.

“People keep committing crime because they’re broke,” he said. “They don’t have money, they don’t have resources, and they don’t know what else to do.”

But addiction also complicates many defendants’ situations. In Chute’s case, he said he has been under the influence of drugs or alcohol during each of his arrests.

John Chute

John Chute is in the Cambridge Homeless Court system for charges of breaking and entering a motor vehicle. Photo: Ema R. Schumer

Chute, who is 39 years old, first came in contact with the criminal justice system at age 14 for distributing marijuana in John F. Kennedy Park, he said. As a teenager, he started abusing alcohol, which led him to other drugs including cocaine and heroin.

In 2013, he was arrested for robbing a bank and consequently served two years in a maximum security prison in Walpole, Mass. The robbery was the result of an opioid addiction, Chute said. He was medically prescribed opioids after sustaining an injury while working as a carpenter, but eventually the doctor stopped prescribing the pills.

“When I got cut off from my medication, it just became too expensive buying on the street so I turned to heroin, which was a cheaper alternative,” he said. “I needed the money. I was broke and no matter what I did we just never had enough money because of the drugs.”

Law School student Libby S. Bova, who oversees the law students affiliated with the Homeless Court and works with Chute on his case, said that crimes of necessity — such as shoplifting or trespassing — are the result of failed support systems for vulnerable populations.

“We’ve criminalized that behavior, but in some cases if you’re starving or if you really need food or water or you need basic necessities like toilet paper and you’re stealing them from CVS, you can talk about that as a crime,” she said. “But, you can also talk about that as a failure of society to ensure that people of all walks of life regardless of if you have an income or a home have basic necessities.”

Tucker, who also went before Sragow in the most recent session, was arrested as a direct result of substance abuse; her charge was for drinking in public.

Tucker — who is now 49 — was first arrested when she was 29 years old for possession of heroin. Though she did not go to prison for her first arrest, she said she has served a total of 16 years in prison for crimes “primarily done because of drugs” or as “a means to get drugs.”

Bova said that many of the people who come before the court for these kinds of crimes do so because they do not have other places to go.

“They’re just in a situation where they don’t have a lot of options of where else to do that activity, or it’s kind of a side consequence of their status that if you don’t have a home where you could do the things people do day-to-day, all of the sudden when it’s happening on the street it’s a public disturbance or disorderly conduct,” she said.

CREATING HOMELESS COURT

Many cities across the country have variations on Cambridge’s Homeless Court, and the Harvard Square session is one of two located in the state of Massachusetts.

The Cambridge Police Department and the Middlesex County District Attorney’s office created the Homeless Court in 2016 to provide health and social services to Cambridge’s homeless population, according to Middlesex District Attorney Marian T. Ryan. In 2017, the Homeless Court moved from Central Square to Harvard Square.

Sragow said that Cambridge District Court — where homeless individuals’ cases were previously tried alongside all other cases that came before the body — moved to Medford, Mass. nine years ago because of asbestos in its original building.

The court was unable to provide assistance to homeless defendants after its move to Medford because they were not showing up for their court hearings, according to Ryan.

“It was clear that we have a large population of folks who are homeless in Cambridge who often came into contact with the criminal justice system who weren’t really getting those cases resolved,” Ryan said.

The Medford location is not near public transit and takes just under an hour to reach from Harvard Square and Central Square — where much of the city’s homeless population resides — using a combination of both transit and walking. Because the cases could not be resolved without the defendants present, the court was unable to offer medical and mental health care, and other resources, according to Ryan.

Sragow estimated that the default rate — the proportion of defendants who do not show up for their hearings — among homeless individuals in District Court was more than 75 percent. In the Homeless Court, the default rate is negligible, she said.

The Homeless Court brings together representatives from an array of social and health services; Cambridge police, Harvard University police, and MIT police; and the law student defense team.

The multidisciplinary group convenes prior to each court session to discuss each case on the docket. The group works to determine what it believes is the best course of action for each defendant, according to Sragow.

‘REHABILITATIVE RATHER THAN PUNITIVE’

Compared to his experiences in District Court, Chute said the Homeless Court presents distinct advantages for his particular situation.

“It’s a lot better for somebody like me because they’re more geared towards trying to find you help and resolve the problems that led you to be arrested and led you into the court,” he said.

If he had gone through District Court, Chute said he’d likely be “locked up” right now.

“I’d be sitting in Middleton doing absolutely nothing, getting in trouble, no recovery,” Chute said of the jail where he might be held if awaiting District Court trial. “I’d be sitting there and I’d be faced with all of the same problems when I get out.”

Sragow said that the Homeless Court is designed to help the individuals experiencing homelessness who come before it — not to punish them.

“We are looking to rehabilitate — get people back on their feet — rather than be punitive,” she said.

The Homeless Court’s various affiliates match defendants with social services in Cambridge and help them attain resources in an attempt to remedy the issues that brought them before the court in the first place.

To rehabilitate defendants, Hicks and the Law School students meet with the defendants individually to ascertain what services they need.

“Our perspective as students is to follow clients into whatever needs they might have,” Bova said. “We want to understand what goals they might have and help them work towards that while simultaneously working towards a positive resolution in the criminal case.”

Some rehabilitative pathways include alcohol and drug treatment, assistance in procuring government benefits, and finding employment. The students may also help their clients obtain a Massachusetts identification card, which is often a prerequisite to qualify for benefits or apply for jobs.

“I’ve been able to get my ID, social security, I’m looking for a job, I’m going to AA, I have a sponsor, I’m meeting new people and making new friends, staying sober,” Chute said. “All types of good stuff.”

The Homeless Court, however, faces challenges with recidivism as defendants cycle in and out of the system.

Cambridge Police officer Eric R. Helberg, who oversees CPD’s Homeless Outreach Program, said that recidivism is particularly high among those who struggle with addiction. Cambridge does not track recidivism rates in the Homeless Court.

Cheryl Tucker

Cheryl Tucker entered the Cambridge Homeless Court system in December 2018 charged with drinking in public. She stays at Cambridge and Somerville Programs for Addiction Recovery, a substance-abuse treatment center and shelter for people experiencing homelessness.  Photo: Ema R. Schumer

Tucker has faced this challenge throughout her years in the criminal justice system.

“I was working my ass off to stay clean and sober because it took me like 20 years to get out of the system or being on parole or probation or anything with the courts, and here we go all over again,” she said.

She said that for others, though, the Homeless Court can feel like “a slap on the wrist” and isn’t sufficient to deter some offenders.

Sragow, however, said that if a defendant returns to the Homeless Court enough times, she can return them to District Court.

“We don’t give them a pass,” she said.

Similarly to Tucker, Chute has relapsed before. His first appearance before the Homeless Court was resolved in August 2018. But after staying sober and finding a job at Otto’s Pizza, he had a drink and ultimately became unemployed. In February, he wound up back in the Homeless Court with his breaking and entering charges — the same charge he faced in August.

“I am fearful because I’ve tried to stay sober many times in my life and I’ve failed a bunch of times. So yeah I am nervous about it,” he said.

“I’m really grateful that I’m not in jail. I’m getting a chance to do this again and I don’t take it lightly,” he added.

At the March 4 hearing, both Tucker and Chute provided updates on their rehabilitation progress and received encouragement for their efforts.

Despite anecdotal trends, Helberg still said he does not believe high recidivism rates discredit the court’s work.

“We take our successes individually,” he said. “Rather than trying to say we’ve got 25 or 50 [percent] success rate, if we can get one homeless individual into long term rehab and get them housed, that’s a huge success.”

Sarah Rutherford ’21, David Shea ’20, and William “Billy” Wright ’21: Candidates for Director of Student Organizations and Journals

Via The Harvard Law Record

By: Merve Ciplak and Kate Thoreson

Sarah Rutherford ’21

Record: Why are you running for DoSO?

Sarah Rutherford: I never saw myself at HLS. Both my parents were immigrants who came to this country from Caribbean islands, and so I’m a first-generation college student. I’ll be the first person in my family to graduate from law school, so as soon as I got to Harvard, I said “I’m gonna be a part of everything that I can possibly be a part of. I’m so thankful that I’ve been in community in BLSA, I’m a student attorney for the Tenant Advocacy Project, and I’m also active in First Class, which supports first generation and low-income students. It’s been so nice to have group that are so focused on inclusion and diversity, and I really want to help to lift up the work that those organizations are doing. I’m so impressed at the student orgs’ ability to create community at this campus.

Record: You’ve just listed a number of other commitments. How would they affect your ability to do this job?

SR: Some [organizations] are not huge commitments. Some are just about creating spaces where people can go and feel comfortable. So I would say that my responsibilities for First Class or for BLSA are just being a great member of that community and being someone that younger students can reach out to if they need any help. But I don’t actually have leadership positions in those organizations; I would say I am part of coalitions and committees. I think the Tenant Advocacy Project is a significant commitment, but that’s what we came to law school for. So many people came to law school saying they wanted to do community service, and that’s the great part about SPOs.

Record: My understand is your campaign is tied in with Jake and Parisa’s campaign for co-presidency. What made you decide to ally yourself with them?

SR: I really believe in what they’re fighting for. I think a lot of our goals and values are aligned. So many organizations at HLS have been fighting to get Belinda Hall officially recognized. BLSA, La Alianza, so many organizations have been fighting for this. But what I really like about Jake and Parisa’s platform is that they are willing to work with those organizations and really want to help them get to the next frontier in the work that they’ve been doing. There’s a little gap between what these organizations are doing and just having more backing and support from the administration. Jake and Parisa will get it done; I just wish that more people would give them the chance or had the chance to meet them and hear their thoughts.

Record: If you were elected, what kinds of changes would you want to make in the next year?

SR: This position is so unique because you get to meet with the Dean of Students office every week, so what I would love to have is biweekly, invite leaders from different student organizations to come to those meetings for a listening session between them and the administration. I would also love to address some issues with funding and make it more equitable, because right now, there’s one big opportunity in the spring to make a request for funding. There would be a great opportunity for collaboration if, throughout the year, organizations could crowdsource funding within the organizations. I think a lot of organizations really appreciate the town hall the administration tried to have after the Kavanaugh hearings, and I think that we shouldn’t just wait until a contentious moment to hear from the school’s administration. It should be something that’s on a regular basis, so I’d like to institute a State of the Law School every semester where we’re able to hear from the Dean and students are able to participate in a town hall. There are also small things we could work on, like having a spring semester orgs fair. Even the training for student org leaders can be addressed. Student organizations are the heartbeat of this school, so it’s exciting to have this opportunity.

Record: Let’s circle back to your work with First Class. What kinds of things would you do as Director of Student Orgs to support first generation and low-income students?

SR: It’s about asking student organizations with hierarchical power if they would collaborate with a newer organization that supports an affinity group. It would solve a lot of problems. First Class did a dinner with Harvard Law Review during first semester. It was very informal. Just hearing about it ahead of time was really helpful. I think that there could be a greater emphasis on academic support and how you can have mentors between different organizations. There’s also an opportunity socially. A lot of clubs get funding to make sure students are able to participate in things that the rest of the school is going to. DOS should provide additional funding for organizations that want to sponsor their members to do things. First Class got 25% off to go to Parody, and BLSA got $5 tickets. Things like that are integral to what it means to be an HLS student. If you aren’t able to go on the HL Central Boat Cruise, or you can’t go to Parody, you might feel like you missed out.

Record: Do you think there should be more dogs, fewer dogs, or about the same number of dogs on campus?

SR: We need way more dogs. How come Remy has a prime spot and goes in and out of buildings? We need an equivalent dog that’s just prancing around the law school. People love corgis.

Record: I love corgis! Anything else?

SR: I’d like to add that Jake, Parisa and I love this law school, and when you love something, it doesn’t mean that you can’t be critical of it. The school can grow, it can be more inclusive, and it can come up with a better way to build community, and that’s what we want to work towards.

David Shea ’20

Record: Why are you running for DoSO?

David Shea: I don’t want a campaign like this to come down to empty promises. I came as a transfer, so I was scared that HLS was gonna be a place that you could get lost in the woodwork. Harvard provided the newly formed Section 8 to help bring me on board, and I realized how incredible the school was at providing opportunities for transfers in the student body more generally. Seeing that, and seeing how much they gave me to make me feel comfortable with my classmates and the different student orgs on campus and how much outreach they did to make us feel at home made me realize I had to give back. First I was Transfer Rep, and then I got invited to be Events Chair, and I just had an amazing experience working with them and talking with a diverse set of student groups. It’s about giving back and trying to empower people to have the same opportunities that I did to get involved and to hear their voices.

Record: This is the second time I’ve personally interviewed a transfer student running for this particular job. Is there a reason that transfers are drawn to it?

DS: I think transfers come in as very high achievers, just because in their respective law schools they were not only top students, but usually highly involved. I think part of it is self-selection, but I also think there’s a natural opportunity to compare and contrast that gives a transfer an upper hand to look at things at HLS objectively. I had a very narrow aim coming in as transfer rep in changing the write-on process for law review for transfers because it was not geared towards transfers. You had to write on prior to being accepted to HLS on the hope that you would get into HLS, which for most people is not a realistic proposition. So we worked closely with the Law Review to change that process, which is a conversation that’s been ongoing for years, but I set out to actually change that process, and we have. They have now opened up a new summer write-on specifically for transfers to write on with 1Ls. That opened up my eyes to the fact that I could take experiences of being a transfer and help change the overall culture for everyone. I made a point of getting involved with the 1Ls’ effort to reform LRW here, because again, I had all these transfers saying “things are different at our other schools and we can tell there are things missing in [Harvard’s] 1L writing program.” So I was able to work with Micah and I compiled a cross-section of commentary from transfers on their experiences with LRW at their respective universities and gave it to Josh, who was leading the charge on LRW, and Josh gave it to Dean Manning, and it has led to the change that we’re now seeing today where they’re instituting a total overhaul of LRW next year. I’m not saying I was the lead by any means, it was a group effort, but I was involved.

Record: What could you do to increase inclusion for transfers in orgs across the law school?

DS: A lot of it is symbolic. Having me in the DSO position would show that you can have a place here, that you’re not an outsider. If you make an effort to make a place here at HLS, you can do that. This is the ultimate example that if we really want to show that HLS is a place that’s welcoming to transfers, I could be that figurehead that could help. But I don’t want to be typecast as a transfer, and that’s part of my hope in breaking out of the Transfer Rep role. You can build consensus broadly, and that’s what a DSO does. Your budget is always a fight, but that doesn’t mean you can’t carve out a space for everyone, and the more a DSO can be open and listen, the better. The outsider status does help in that, because it’s a visual sign that we are open to listening to other parties and bringing another perspective.

Record: What other commitments to student orgs do you have?

DS: The DoSO position would be an absolute priority for me, but I am an executive editor of online content for CRCL. They’re helping push for more professors of color. It’s great to have activism on the ground level, but if they don’t have support from Student Government, they’re dead in the water. So I want to empower things like that, but I also don’t want people to think that those are pet projects for me. I really want to have the door open for everyone. In terms of other things, I am invested in PLAP pretty heavily. I would love to get involved in [CJI] 3L, but at the moment, I’m in PLAP. I made an effort to pick up a disciplinary hearing. It’s been amazing to act as a student attorney. I wanted an opportunity to be on the ground helping people in need. I think that’s one of Daniel and PD’s mottos, leveling the playing field. And you have to level the playing field not just here at HLS, but in the world at large, and for me, PLAP is that opportunity to find the people in prison who are most in need of representation. I go to Talks. I love the Talks program. Daniel is instrumental in putting that out, and I think it’s amazing. That is the core of what I want to bring to Student Government, which is a space where people can be heard and listened to. There are so many times when people are shouting at each other and not listening, and I love the passion, but we have to create a space where people can talk about their experiences and share with each other. We have to change the campus culture in terms of how people communicate because whether you’re left, right, or otherwise, there’s no reason people should be shouted down. If we create a culture where people are really engaged and listening to each other, I think we can shift that tone.

Record: How would you help improve student organizations?

DS: I think input from the student body needs to be better. Student Government is very siloed. We do a lot of work behind the scenes, and there’s nothing wrong with that, but it leads to a perception that we’re inactive. I think we need to make students understand that we are truly open to listening. I can promise you that not everyone on Student Government fully internalized what the Prison Divestment Campaign said, let alone what they believe. I personally signed the petition. I believe there was a core of something that needed to happen there, but I also think the job of student government is to take that passionate, activist message and put it in a way that’s politically soluble. So we’re working on drafting a proposal that could pass muster with Student Government, but also take the administration to task, and it’s that kind of consensus-building that Student Government has to be cognizant of. That’s a strength of mine.

Record: How do you think the DoSO could make it easier for student orgs to do things?

DS: That gets down to the equity and transparency debate. I stress democracy, but that doesn’t mean the majority always rules. There is a time where we have to recognize that there are marginalized and vulnerable groups on campus that may need a microphone because they don’t have the larger support. FedSoc is not the darling of the left, but they have every right to organize, have money, do their events, and further what they believe in. They’re ironically a minority here whereas in the larger sense, they may not represent minority views. You look at the opposite of that, a group like Lambda, who is representing the LGBTQ+ community. That’s a marginalized group that you have to recognize probably doesn’t consist in the majority either and also needs someone fighting for them, so when they reached out to me and said, “do you support more gender inclusive bathrooms [or] an increased budget for Lambda in light of JAG being on campus,” I would be hard pressed to say no realizing that [every] dollar that goes to Lambda may in effect be taken away from a student org. That’s a reality that if a candidate doesn’t admit to, [they’re] lying. It’s easy to say I can fund every initiative, but I can’t. I have to make some executive judgment to figure out, where are the voices that need empowering, and where are some that just have a large consensus behind them? It’s a question of balancing.

Record: Do you think there should be more dogs, fewer dogs, or about the same number of dogs on campus?

DS: I really can’t say that this is an issue I’ve thought greatly about. There’s a fine number of dogs on campus. I would love to know who these people are who have strong concerns about dogs and tell them to please come speak to me.

(Ed. note: it’s me.)

DS: I’m a huge dog lover, but I do love cats, which has drawn the ire of some dog owners. I think cats are greatly misunderstood animals. They’re very smart, but they play coy. There’s people on campus that are a little bit more like cats than dogs. They’re very smart, but they can be siloed in their interests. The DoSO’s goal is to make us a little more doglike and a little less catlike. We’re all very smart, but we’ve gotta remember that friendship and loyalty are important things, and people of all different stripes can be friends. Ginsburg and Scalia were friends, so it’s not a pipe dream.

William “Billy” Wright ’21

Record: Why are you running for DoSO?

William “Billy” Wright: When I got to HLS and started my 1L year, I found a home in the section very quickly. I felt a real sense of community right off the bat. I didn’t want to just be a part of the community and exist in it, but I wanted to help shape it and make it something that worked more for everyone.

People complain all the time about problems at HLS, going back to Scott Turow, and there are all the tropes about it. I’m a big believer in the idea that if you’re at a place, you’re part of the place and you’re responsible for it. You can’t just complain, you have to find solutions. So I was 1L Rep, and was very thrilled and honored to be the representative for the section, and really did get to address a couple of problems I had identified at a low level with HLS in general. I’d like to start doing that at a higher level, and I think that Director of Student Organizations and Journals is a really powerful way to do that because they’re at the center of so much of student life. Student organizations are a real strength, and once you leave 1L year you’re not really in a section. Your main student organization is your real home at HLS, and it does contribute to community, but it can also hurt community by keeping people siloed. I think we stay siloed from sections, and we don’t really talk to a lot of other sections, and we see, just as an example, FedSoc and ACS people who aren’t talking. It’s bad for the community and for discourse in general. It’s a bad state of affairs in the profession if you’ve got two major camps going forward and not engaging with each other.

Can you expand on the things you worked on as a 1L Representative in Student Government this year?

BW: Last semester, Veteran’s Day was coming up. It was the 100th anniversary of Armistice Day, which is the day most other countries call the end of the war. There were a few events across campus that recognized it, but they were mostly Harvard or organization events. It was usually veterans’ programs, and there really wasn’t anything at HLS about it. Being a veteran and being passionate about that part of history, I noticed this. It’s really not just a veterans’ thing, and it’s such a seminal event for human history that touches on law and shaped the world so much. I thought we should do something to recognize this in some way, and it should be a more sober event than a dinner or a happy hour. So I put together an Armistice Day Run the Friday before at sunrise. I wanted to make it a Student Government thing and not an Armed Forces Association thing, because it’s not just veterans. I wanted to open it up to the university at large, because it shouldn’t just be a law school event. I like doing things beyond HLS if at all possible. We got a handful of people out from the law school, which is a small miracle at sunrise in November. We got some people from the College, the Kennedy School, and the Business School. We were 30-40 people out there in total, and it was a really cool thing to see a diverse group of people come together around this event. Not many people who fought in it are alive to remind us that it’s important and of the pitfalls of a failure to have a respect of the downside of failing to keep international peace. I think it’s really important that we recognize that, and I was glad and excited that we did and to have been able to be driving something that wouldn’t have otherwise happened.

After that wrapped up, I started digging into the Pete Davis public service report. It’s a huge report, and it’s got all sorts of components to it. I was struck by the discussion of how all these little, subtle cues around us sway us towards the corporate side of things. There’s nothing with the corporate side of things, it’s absolutely essential for the economy to work as it does, but people are going to go there regardless because the money’s always pulling people there, and it makes sense. So you need some sort of counterbalancing push to help people get excited about public service and attach prestige to it. You look around at other schools, and West Point, for example, has a lot recognizing the achievements of its graduates. The new building here has not really been used as well as it could be to honor graduates who have actually impacted society. If you go into the lobby, you look and there are two portraits: one is Wasserstein, and one is Caspersen. Both of them give a lot of money, but they’re not really going to inspire anyone in terms of public service. The Obamas, who I respect profoundly, and most people do as well now, aren’t recognized at all. We’re two years from the Presidency now, and it’s not politicized to honor them. So many activists who were instrumental in the civil rights movements aren’t honored. Say whatever you want for his recent political influence, but Ralph Nader, as the one-man wrecking ball that he was in his heyday and the young HLS grads that he got on board to really change the consumer rights scene, should be recognized. There are just so many people who were trailblazers in women’s rights, civil rights, consumer rights, people outside of the US who were political leaders and came through HLS…none of it is recognized, and it’s a real shame. I think the building doesn’t really do anything to inspire, and for 1Ls especially, we spend most of our time in this building and it’s a mission that the school should be taking seriously. So I’ve been looking at ways we can try to change the physical space in a way that honors those who have had worthy impacts on society. We’re starting to try to move forward with it, and funding’s a big issue right now, but we’ve got a couple things we’re going to try to do. A great example to give something concrete: in Langdell North, they have black-and-white prints of social activists at work, and they are very poignant scenes. It’s very aesthetic as well. But it’s hidden away. The most prominent space is just kind of blank. We should be able to commit to at least the people who change society; that’s not really that controversial.

Record: Is there anything you know you want to accomplish as a part of Student Government next year if you get elected?

BW: Like I said, things can get kind of siloed. Student organizations play a role in that. We can bring about a state of affairs where student organizations have more cross-talk, engage each other and aren’t afraid, where people don’t just leave the classroom and go their separate ways and not ever see anyone except the certain people similar to them. It doesn’t have to be confrontational. One good example is the trans ban. After that happened, LAMBDA and the Armed Forces Association hosted a joint discussion on litigating against the trans ban, and I thought that was great because that kind of event has the potential to create a lot of hostility towards veterans and it was the opposite, where we communicated that we were going to confront this together, and that we were going to figure this out as a cohesive and as a community. I thought that was way more powerful. Director of Student Organizations plays a role in allocating funding, and if there was a way of equitably providing certain incentives for organizations that do this more often, bearing in mind that some organizations can do it more readily than others, I think that could be an interesting incentive. Similarly, spreading it across the university-wide community through organizations.

Another area is pushing for a sleeker, more up-to-date digital presence by a lot of organizations online. We’ve got the WordPress suite that student organizations have to use. It’s okay; they all look serviceable, but not great. If you survey the Harvard student organizations, you’re going to get the same kind of thing and it’s fairly uniform. There is something for every organization, which is good. If you survey other schools’ organizations, they’re much more variable. Some are better, and some are far worse or don’t exist. That is a benefit of the uniform system, but WordPress is far more powerful than that, and I think a lot of student organizations would run with it if the system were looked at and changes were enabled. A stronger web presence helps prospective students find things they’re interested in and gets them excited about the school, and provides information about them. It provides more transparency to the rest of the school about what all these other organizations are doing, so that helps cut through the siloed nature as well. It’s good for the organization itself, it makes it more functional. A good counter-example is if you look at some of the big journals on campus, their websites are excellent: JOLT, ILJ, JLPP, and I’m sure a bunch of the other ones have incredibly well-done websites. At least one of them are run off WordPress platforms, so I’m sure there’s a way to fix that. That would be a big initiative of mine.

Another is creating a nimbler constellation of student organizations. There are two issues: it’s intimidating and hard to start the process to start an organization, and that goes into all the administrative requirements for it, getting people on board with it, developing the idea to the point where it’s ready to go and be presented, and then having an idea that’s not already addressed by some other organization. I think Director of Student Organizations, and Student Government or DoS largely, could provide a better pathway. This could maybe consist of a pitch event to have student organizations that are only ideas at this point, or things they want to address and they want to run by someone. We could tell them “hey, this is a good idea for a student organization and it’s not addressed already on campus, this is what you need to do to get it done”, or not by saying “this should be done through another organization”. Post-pitch event, a separate event could help people prepare for the actual pitch to DoS. I think that could be powerful to creating organizations that respond to things that are more current. You’ve got the Mississippi Delta Project, and that organization is very nimble. They address specific problems. I don’t see any reason why you couldn’t have an “Opioid Crisis in Massachusetts” organization, or a “Wind Energy Project”. But it is very intimidating to try to go start something like that.

The other side of that is the dormant organizations policy. We’ve got organizations that aren’t started, and those that are hanging on and still getting funding but don’t do anything. There’s got to be a policy put in place that balances that where you phase out organizations that aren’t doing anything, which Student Government is trying to do right now. Some students have actually used organizations to get funding and then just used it to go out to dinner. But then you also have to not hurt organizations that actually do something. That’s directly a Director of Student Organizations role.

Record: Is there anything you think is beyond your, or Student Government’s, control that you would like to change?

BW: The clerkship hiring pilot is coming down the pipe, and it’s something that I believe in and is really important for us to do because it’s obviously a problem at Harvard. It leads to inequitable outcomes at large and it induces a lot of stress. If you hear about people trying to go out and do stuff for clerkships as a 1L in your first semester, that just makes you sweat a little bit more. You should have a bit of a buffer where you don’t have to think about these things yet. It’s an important thing at Harvard and in the legal profession at large, and if it’s not done at Harvard, I don’t see it getting done for a long time. We should be leading the way on this. Student organizations are a vehicle for this and for the letter that Radhe Patel put together. A lot of student organizations on campus signed on to the letter, and student organizations have also been a way that people have found information about clerkships and have gotten on the right path, if not outright help. I think that’s a powerful way to address it, but 90% of organizations isn’t good enough. If anyone’s circumventing it, then the whole thing falls apart. I don’t think you can impose this on people who don’t want it and fight them on it. It’s got to be a collective buy-in type process. There’s a faculty working group who’s looking at it, and it would take a whole-school approach and the right judges signing on as well. This is certainly happening, and I think Director of Student Organizations and Student Government play roles in generating buy-in and seeing what the issue is for those who oppose it and how to work with them on it so we can get the right people who are leading the clerkships on board with this. But it’s definitely a huge thing that goes way beyond Student Government. But just the fact that we’re working on it is a powerful signal to the legal community.

Record: Beyond Student Government, what other commitments do you have on campus that are important to you personally?

BW: I’m currently involved in the Armed Forces Association and HLEP, and I’m a strong participant in Section 6 and Student Government, of course. I’ll probably also be subciting for the National Security Journal and maybe try to take on a roll with them going forward as well.

Record: What do you think distinguishes you as a candidate?

BW: Immediately upon getting here 1L year, I got involved with Student Government and have been as active as any 1L representative. I’ve had one small project that was just initiated and completed. I’ve had another project that I’ve started that’s in the works. I think I’ve been a fairly active voice generally in the discussions. I don’t think you see a lot of people as involved from the get-go and as constantly committed to taking some sort of initiative. I think that distinguishes me. I’m trying to find things, I have been from the get-go and I’ll continue to do that. It’s hard to do that if you haven’t been involved in the process. It’s easy to say “I’ve got this issue I’ve identified and I’ve thought of a solution”. But then once you start talking to DoS and you’re in a couple of meetings with them, you realize they have constraints as well and there are a lot of big things going on at this school. Solutions are very hard to actually stitch together. If there’s a problem that hasn’t been solved it’s often because it’s a tough problem with competing interests. Having seen that and having navigated it a little bit is a powerful platform to actually go address things at a higher level.

The other part of it is that if I’m involved next year in this capacity, then the year after that would be two years of involvement in Student Government at a high level. One of the biggest problems with Student Government is that the turnover is so high that even if you’re involved for three years, three years is a blink of the eye. You’re gone, the administration is generally the same, the school sails on as it does, and the same problems keep rotating back. It does help to have people who are consistently involved all three years, even though even that’s not enough. That’s something that I would be able to offer: a consistent, long involvement.

My background also helps a lot. I was in the Army in Europe. For most of my time in the Army, I dealt with a lot of different interest groups: foreign militaries, a lot of varying components with the US military and US government. I think there’s something to be said for learning how to deal with all of these different stakeholders, and to take initiative and leadership in that kind of environment. There are things in the Army that don’t translate to being successful, but that’s definitely something that would not only benefit a leader anywhere, but particularly Director of Student Organizations. When you’ve got this very different constituency of people with different and sometimes competing interests, and you have to find a way to be representative of all of them and help them find the best possible and broad solution, I think that’s something I’ve been trained to see.

Record: Is there anything else you’d like to add?

BW: Being involved in Student Government has been the best part of my 1L experience (except for Section 6!), and it’d be really cool to be able to continue to do that.

Lethal Autonomous Weapons Systems: Recent Developments

Via Lawfare 

Source: Flickr

By: Hayley Evans, J.D. ’19 and Natalie Salmanowitz, J.D. ’19

On March 25-29, the U.N.’s Group of Governmental Experts (GGE) will meet for the third consecutive year to discuss developments and strategies in the field of lethal autonomous weapons systems (LAWS). As a subsidiary body of the Convention on Certain Conventional Weapons (CCW), the GGE brings together High Contracting Parties, state signatories, international organizations, nongovernmental organizations and academic bodies in an effort to define LAWS, debate best practices, and recommend steps to address the potential development and use of LAWS in the future. It’s been six months since the GGE last met, and this will be the first of two GGE meetings taking place in 2019 (for more information on the GGE’s prior meetings, see here and here). This post will cover all you need to know about where relevant stakeholders stand leading up to the March meeting.

Background on LAWS

As a general matter, LAWS are weapons that can select, detect and engage targets with little to no human intervention. Though there is no singularly accepted definition of LAWS, the term typically covers a broad array of potential weapons systems, ranging from fully autonomous weapons that can launch attacks without any human involvement to semi-autonomous weapons that require affirmative human action to execute a mission. Critics of LAWS focus primarily on fully autonomous weapons, dubbing LAWS “killer robots” and questioning their ability to respect human life and comply with international humanitarian law (IHL). Others, like the U.S. government, foresee potential advantages of the technology, arguing that LAWS’s automated targeting features might actually augment states’ abilities to meet IHL requirements through increased accuracy and efficiency. While it’s too soon to tell whether LAWS’s capabilities are a feature or a bug, the GGE’s ultimate decisions may have profound consequences for the development and use of LAWS.

Global Developments

Before reviewing the GGE’s and High Contracting Parties’ most recent meetings, it’s worth surveying the global pulse on attitudes toward LAWS and highlighting key developments in the public and private spheres.

To start, Human Rights Watch (HRW) and the Campaign to Stop Killer Robots (CSKR)—two of the chief proponents of a preemptive LAWS ban—have kept busy on the advocacy front. In August 2018, HRW published a report in conjunction with Harvard Law School’s International Human Rights Clinic (IHRC) entitled, “Heed the Call: A Moral and Legal Imperative to Ban Killer Robots.” As in its earlier reports—see hereand here—HRW called for a preemptive ban on the development, production and use of LAWS. But this new report went one step further, arguing that fully autonomous weapons would contravene the Martens Clause, which was introduced into the preamble to the 1899 Hague Convention (II) on the Laws and Customs of War on Land, and effectively guarantees a base level of protection under IHL even in the absence of specifically applicable treaties. According to HRW and the IHRC, fully autonomous weapons would be unable to comply with “principles of humanity” and “dicates of public conscience”—the Martens Clause’s two fundamental pillars.

A few months later, HRW and CSKR probed this idea of public conscience further, releasing results from a market research study on the strategic, legal and moral implications of LAWS. The study found that 61 percent of adults surveyed across 26 countries oppose LAWS—a 5  percent increase from survey results in 2017. Moreover, a majority of survey respondents in 20 of these countries expressed disapproval of LAWS, including those in countries whose governments have opposed a preemptive ban. Accordingly, CSKR concluded that “public opinion is in line with [CSKR’s] call for action to prevent the development of killer robots.” Although these surveys do not directly inform analyses under international law (unless, as HRW and the IHRC suggest, they contribute to an understanding of the “dictates of public conscience”), they do provide an interesting proxy for how opinio juris—a state’s belief that something is legally obligatory—is developing with respect to LAWS.

Apart from HSW and CSKR’s efforts, at the Paris Peace Forum marking the 100th anniversary of the end of World War I, U.N. Secretary-General Antonio Guterres explicitly called for a ban on LAWS, stating, “Imagine the consequences of an autonomous system that could, by itself, target and attack human beings. I call upon States to ban these weapons, which are politically unacceptable and morally repugnant.” And in mid-February, at the American Association for the Advancement of Science’s annual meeting, participants expressed dissatisfaction with the GGE’s overall progress. In particular, CSKR declared its intention to refocus its advocacy efforts domestically given the relative inaction and “diploma[tic] … fail[ures]” at the international level.

Meanwhile, in the private sector, LAWS have garnered significant attention as well. In June 2018, Google came under fire as thousands of its employees signed a petition urging the company to cease involvement in Project Maven—a contract with the Department of Defense to develop artificial intelligence for analyzing drone footage (which Google employees feared could one day facilitate the development or use of LAWS). Facing pressure from employees and technology experts across the globe, Google subsequently announced its decision not to renew its contract for Project Maven and vowed not to “design or deploy AI … [for] technologies that cause or are likely to cause overall harm.” In July 2018, over 200 organizations and 3,000 individuals (including Elon Musk, Google DeepMind’s founders and CEOs of various robotics companies) followed suit, pledging to “neither participate in nor support the development, manufacture, trade, or use of lethal autonomous weapons.” In light of these highly publicized events, the Defense Department recently tasked the Defense Innovation Board (comprising high-profile Silicon Valley tech leaders) with developing ethical principles to guide the department’s use of AI in military weapons and operations. The board has already concluded its first meeting and plans to publicly release its recommendations this June.

Highlights from the GGE’s August 2018 Meeting

While members of the private and public sectors have started to take concrete actions against LAWS, the same cannot be said of the GGE, despite increasing opposition to such weapons.

By the time the GGE met last August, 26 states supported a ban on fully autonomous weapons systems—four more than at the April 2018 meeting. However, 12 states—including Russia, the U.S. and the U.K.—opposed even negotiating a treaty on LAWS.

In advance of the August meeting, eight states submitted working papers. Though the papers discussed a wide variety of issues—ranging from the proper terminology and characterizations of LAWS to suggested approaches for regulating their development and use—the most commonly discussed issue concerned the concept of meaningful human control. While multiple papers reiterated the importance of holding humans accountable for their decisions to develop and deploy LAWS, some states expressed differing views on the proper way to conceptualize human control. For instance, whereas Brazil viewed human control as inextricably tied to the weapon’s level of autonomy, the U.S. sought to refocus the debate on human “judgment,” arguing that the key question is not the extent of control a human retains over the weapon, but whether “machines [can] effectuate the intention of commanders” and “enable personnel to exercise appropriate levels of judgment over the use of force.” According to the U.S., fewer opportunities for human control (and higher degrees of automation) can lead to greater alignment between human intentions and actual outcomes. Meanwhile, France appeared to express a middle-ground view, acknowledging that autonomy can improve the decision-making process, but expressing concern with operators’ ability to take charge of LAWS given their potentially inexplicable and unpredictable nature. States expressed a similar variety of positions during the meeting itself, and the GGE ultimately decided to continue these discussions at the next meeting. (Ljupčo Jivan Gjorgjinski, the chairman for the 2019 meeting, has specifically included discussions on human control and human-machine interactions in the March agenda.)

In an effort to convert their discussions into action items, states and organizations also proposed three main avenues to address the future development and use of LAWS. On one end of the spectrum, Austria, Brazil and Chile urged the GGE to “negotiate a legally-binding instrument” to address LAWS. The majority of delegations favored this option, with some states and organizations renewing their support for a ban, while others advocated for some degree of regulation (albeit in an unspecified form). Notwithstanding this widespread support, five states—the U.S., Russia, Australia, South Korea and Israel—effectively quashed further conversations on the matter. (As CSKR noted in its discussion of the survey mentioned above, these countries’ opposition to negotiating a legally binding instrument is particularly interesting given that—with the exception of Israel—a majority of survey respondents in each of these countries oppose “the use of [LAWS] in war.”) On the other end of the spectrum, a number of states—including Australia, the U.K. and Argentina—proposed continuing discussions “of existing obligations under international law” and elucidating best practices under IHL, specifically under Article 36 of the First Additional Protocol to the Geneva Conventions.

As a third, intermediate approach, Germany and France suggested a political declaration to formally express areas of consensus and elaborate guiding principles regarding human control and accountability. At least 10 states’ delegations voiced support for this option, with some (such as Spain and Sri Lanka) viewing it as a stepping stone toward restrictions on LAWS, and others (such as Ireland and Poland) expressing general interest in the idea. By the end of the August meeting, the GGE voted to include a fourth and final option in its report—namely, a recognition that “no further legal measures were needed” since “IHL is fully applicable to potential [LAWS].” However, the GGE ultimately kicked the can down the road, recommending that it meet in 2019 under the current mandate, declining to formally adopt any of the proposed measures.

The August meeting was notable for two final reasons. First, according to commentary on the meeting by Reaching Critical Will (the disarmament division of the Women’s International League for Peace and Freedom and a frequent commentator on CCW meetings), the U.S. and Russia shocked other members of the GGE by doubting the relevance of international human rights law to autonomous weapons systems—even though prior GGE meetings appeared to take the applicability of such law as a given. In response, multiple states—such as Costa Rica, Panama, China and Cuba—pushed back, proposing a variety of solutions ranging from maintaining an explicit reference to international human rights law to mentioning the U.N. Charter. The GGE’s report—per the recommendation of China—“affirmed that international law, in particular the United Nations Charter and [IHL] as well as relevant ethical perspectives, should guide the continued work of the Group.” Second, much of the GGE’s debate centered on broader messaging concerns. Whereas some states, like the U.S., urged the GGE to discuss the benefits of LAWS (such as the capacity for greater targeting precision and less collateral damage), others fervently opposed any mention of such benefits absent an accompanying explanation of the associated risks. Similarly, a handful of states stressed the importance of “avoid[ing] the image that states believe” LAWS “are already in operation”—or “that these systems will be in operation one day.”

Highlights from the High Contracting Parties’ November 2018 Meeting

Following the GGE’s August 2018 meeting, “all CCW States parties” convened for the Meeting of the High Contracting Parties to the CCW Nov. 21–23, 2018. Since the Convention and its Protocols cover all sorts of weapons and weapons systems, only a fraction of the November meeting dealt specifically with LAWS. But there were two developments of note. First, the International Committee of the Red Cross submitted a working paper prior to the meeting, which recommended that states develop an understanding of human control—a focus dictated by law and ethics—and provided questions to help inform the development of a practical understanding of the concept. Second—and perhaps most importantly—El Salvador and Morocco each called for a LAWS ban during the meeting, raising the number of states officially in support of a ban from 26 to 28.

Looking Ahead

So what to expect this March? According to Chairman Gjorgjinski, the “IHL prism” is the name of the game: IHL principles will “permeate all areas of [the GGE]’s focus. While the tentative agenda does not include general debate, it does provide for discussions on the impact of LAWS on IHL with a premium on “precis[ion] and specific[ity].” But building consensus may prove especially difficult this time around—unlike previous meetings, which lasted for 10 days, the GGE will meet for just seven days this year, only five of which will involve substantive debate. And as CSKR pointsout, all it takes is “one state [to] block agreement sought by the rest,” an outcome that may be all the more likely given the highly condensed opportunities for meaningful discussion.

On March 8, stakeholders will submit working papers to the CCW (which can be found here). If past is prologue, these working papers will set the tone for the March meeting as states and organizations stake out their positions on various topics and identify likely pressure points in the upcoming debate.

Redressing Harm through Restorative Justice

Via Harvard Law Today   

Harvard Negotiation Law Review 2019 Symposium, “Redressing Harm through Restorative Justice”. This panel focused on different uses of restorative justice in addressing communal harms. Moderator: Andrew Mamo; Speakers: Ronan Feehily, Thalia Gonzalez, and Libby Hoffman. Credit: Lorin Granger

By: Victoriya Levina and Basil Williams

Sydnee Robinson, a 2L at Harvard Law School and chair of the 2019 Harvard Negotiation Law Review symposium, and Shannon Schmidt, a Harvard Divinity School student, first came together to discuss their shared interest in restorative justice in summer of 2018. They were drawn to the topic because of the ways in which it represents a paradigm shift in how to view and respond to harmful behavior. An evolving concept and growing field of practices, restorative justice focuses on responding to harm through facilitated dialogue. By the fall, Robinson and Schmidt had teamed up to help organize HNLR’s three-day event.

The 2019 Harvard Negotiation Law Review (HNLR) symposium, “Redressing Harm Through Restorative Justice,” held February 5-7 at Harvard Law School, brought together students, faculty, staff, ADR practitioners, attorneys, and members of the greater Boston community to explore various applications of restorative justice within the criminal justice system in the United States and in post-conflict systems around the world. The symposium, which focused on the challenges of addressing power imbalances and trauma through implementation of restorative practices within communities, featured remarks, panel discussions, an interactive workshop, and a film screening.

As a journal, the Harvard Negotiation Law Review (HNLR) has long been interested in exploring creative methods of addressing harm, particularly those that go beyond punitive justice and attempt to restore relationships and communities. In 2015, HNLR hosted a symposium on the theory and practice of restorative justice.

“The HNLR Symposium felt like a special opportunity to bridge the gap between experts and community members,” said Schmidt. “While our speakers taught us about the powerful work they are doing in fields related to restorative justice, members of the audience actively engaged in these topics on the level of their own experiences in their own communities.”

The symposium opened with remarks from Dr. Carl Stauffer, whose transitional justice work has taken him to 20 African countries and 15 other countries in the Caribbean, Middle East, Europe, Asia, Central America, and the Balkans. Stauffer recalled his experience working with refugees who fled the civil war in Sierra Leone. “Stories of trauma were heavy and hard to carry,” he said while discussing how a formal justice process was driving a wedge in the civilian population instead of facilitating healing and reconciliation. He described the power of a ground-up restorative process that, since 2008, has created a meaningful change in Sierra Leone by harnessing the social, cultural, and spiritual power of the affected communities. Restorative justice “is evolving into a social movement,” he said. It has inspired participants to work toward a “cultural shift of how restorative justice can be used in the future,” he added.

Continue reading.

Coastal Resilience Partnership unites 10 municipalities in effort to combat effects of climate change

Via the South Florida Sun Sentinel 

Source: Pixabay

By: Austen Erbalt

A new partnership between Palm Beach County and 10 of its coastal municipalities is hoping to combat the effects of climate change with a particular focus on sea level rise.

The Coastal Resilience Partnership consists of Palm Beach County, Boca RatonBoynton BeachBriny BreezesDelray BeachGulf StreamHighland BeachHypoluxoLake WorthLantana and Ocean Ridge. It was formally created with a grant from the Florida Resilient Coastlines Program, an initiative by the Florida Department of Environmental Protection to provide assistance and funding to coastal communities dealing with flooding, erosion and other changes.

Over 30 local representatives from the municipalities met at the Swinton Operational Complex in Delray Beach Feb. 28 to discuss and craft official principles within the partnership.

“It is truly inspiring to have so many of our local leaders ready to take action on climate change,” said Rebecca Harvey, Boynton Beach’s sustainability coordinator. She is also managing the grant-funded portion of the project.

“With the Florida Department of Environmental Protection’s support, we are able to face this challenge as a united force,” she said. “Approaching climate adaptation as a regional partnership will enable our communities to avoid costs while creating a more robust and consistent approach to climate adaptation.”

Last November, Boynton Beach joined the American Flood Coalition as part of its efforts to combat and prepare for rising sea levels, an effort led by Harvey.

Representatives from each municipality and the county have met informally over the past year to discuss sustainability planning and preparedness.

Carollo Engineers, Inc., an environmental engineering firm with offices in Coral Springs, Miami, Sarasota, Tampa and West Palm Beach, is providing consulting to synthesize data and help develop a vulnerability assessment.

“Our team is sincerely humbled and proud to be part of the CRP in uniting the region and paving the way for a cohesive climate adaptation strategy,” said Juan Oquendo, vice president and senior project manager of Carollo Engineers.

“As a local resident, I have experienced firsthand effects of climate change and rising sea levels and I am excited to take action,” Oquendo said. “Our team will create the framework of a climate vulnerability assessment considering the unique challenges to preserve our coastal communities.”

Harvard University Law School’s Emmett Environmental Law and Policy Clinic is providing pro bono assistance to formalize the collaboration, develop terms for a joint request for proposals and contribute information on climate vulnerability assessment best practices.

During the Feb. 28 meeting, Coastal Resilience Partnership members discussed future planning efforts, such as infrastructure, social and economic issues and protecting vital natural resources.

The coalition has future meetings planned for the spring and summer, but exact dates are not yet available.

 

Via NPR

NPR’s Audie Cornish and Clinical Professor of Law Susan Crawford discuss why the Chinese telecom giant, Huawei, is leading in the race to 5G networks, and why its advantage poses a national security threat.

Mississippi health care providers breaking the law with large medical bills that patients don’t have to pay, report finds

Via Mississippi Today 

By: Anna Wolfe

Source: Pexels

Health care providers in Mississippi continue to break the law by sending patients large, out-of-pocket medical bills that they don’t have to pay, concludes a Harvard Law School report released Monday.

The Legislature passed a law in 2013 to prohibit what is known as “balance billing” – when a provider bills a patient for the difference between the initial charges and the amount paid after insurance benefits are assigned.

But the law contains few enforcement measures, so patients must know about the law and challenge balance bills in order to benefit from the legislation, which was enacted under the radar of many officials and health care providers. Feeble efforts to strengthen protections in the law during the 2019 legislative session were unsuccessful.

Michelle Mills received a balance bill in 2018 when her son experienced a sports injury and went to a hospital in her insurance carrier’s network, River Oaks hospital in Flowood, but was treated by an out-of-network emergency physician.

Across the country, 65 percent of hospitals contract with outside agencies for emergency room doctors who are not necessarily included in the same insurance network as the hospital, according to a 2017 report by Yale University.

The independent physician staffing group called Capital Emergency Physicians, which used River Oaks’ address when it incorporated as a business in 2013, charged Mills $1,853, all but $38 it asked her to pay out-of-pocket. Though it was an illegal bill, she challenged it with her insurance carrier, which reversed the first assignment and paid most of the bill.

Mills was successful in disputing the charges, but she said it’s “infuriating” to think about all the people who don’t know they can challenge these bills, who end up paying, or worse, whose debt turns over to collections.

Capital Emergency Physicians did not return calls to Mississippi Today.

“Unfortunately, our collective trust of the provider community is being abused to the detriment of our bank accounts,” Roy Mitchell, director of Mississippi Health Advocacy Program, said in a release announcing the Harvard report. “It is time our policymakers even the playing field for Mississippi’s health consumers.”

In its report, the Center for Health Law and Policy Innovation of Harvard Law School found that Mississippi’s anti-balance billing law, which was one of the first and strongest enacted in the country, needs revising.

“Despite the state’s leadership on this issue, Mississippians like Michelle Mills report that they are still receiving balance bills — in violation of state law. In fact, a January 2019 poll reported that 4 in 10 Mississippians have received or have a family member who received a surprise medical bill,” the report reads.

House Insurance Chairman Rep. Gary Chism, R-Columbus, authored a bill to require the attorney general’s office to enforce the law and establish binding arbitration to resolve any balance billing disputes between providers and patients.

He never brought the bill to a vote in his committee, telling Mississippi Today that several lawmakers who are also medical professionals — nurses and nurse practitioners — voiced opposition to his bill.

“They want to be able to get their money,” Chism said at the time.

According to a Mississippi Today analysis of legislative members, there is one nurse, Rep. Becky Currie, R-Brookhaven, and one nurse practitioner, Rep. Donnie Scoggin, R-Ellisville, in the House. Currie declined to comment on the legislation and Scoggins said he did not discuss the bill with Chism.

Scoggins said he has not been presented with concerns over illegal balance billing from his constituents, but said if it is still happening, he would be in favor of strengthening the enforcement measures.

The lack of knowledge surrounding the law and what exactly constitutes “balance billing” complicates the issue. What might be viewed as a loophole for a few patients who understand the law could receive pushback from the medical community if lawmakers bring it to light and force providers to comply.

Georgia’s state senate passed anti-balance billing legislation last week that would require insurers to pay these surprise, out-of-network bills at an amount determined by a database of paid bills, as opposed to simply prohibiting providers from sending these bills to patients. Mississippi’s law greatly favors insurers in this way.

The Harvard report also suggests large, surprise balance bills could be contributing to Mississippi’s high rate of people with past due medical debt — the highest in the country at 37.4 percent.

 

Making it big behind the scenes

Via The Harvard Gazette

HLS Lecturer Linda Cole, (from left) and HLS Clinical Professor of Law, Brian Price and HLS Student Gaia Mattiace talk during a student meeting of the Recording Artist Project and Entertainment Law Clinic at HLS. Kris Snibbe/Harvard Staff Photographer

By: Liz Mineo

Growing up in South Florida, Rebecca Rechtszaid dreamed of becoming a professional singer, but after a case of pneumonia wrecked her vocal range in college, she settled for the next-best thing.

She couldn’t be an artist, but she could become a lawyer for artists.

“I figured I’d go to law school and I’d try to help musicians because even if I didn’t have my own voice, I could help them find theirs,” said Rechtszaid, J.D. ’19. “There hasn’t been a day when I’ve questioned my choice.”

That seems to be the case with hundreds of students who have signed up for entertainment law courses and clinics at Harvard Law School (HLS) over the past 20 years. The phenomenon underscores a trend among law students to veer from the conventional paths of corporate law or litigation and look to work in creative industries. The trend, also noticeable at other law schools around the country, has spurred growth in the niche field of entertainment law.

These students are driven by a passion for music, the arts, and showbiz, said HLS Clinical Professor of Law Brian Price, who supervises the Entertainment Law Clinic.

“It’s an exciting career for a music lover,” said Price at his office, where a wall is covered by a corkboard neatly filled with business cards from agents, managers, artists, and alumni.

Although entertainment attorneys work behind the scenes, they can have a bigger influence on artists’ careers than agents or managers, said Price. They review artists’ agreements, publishing deals, endorsements, and licensing and merchandising contracts, making sure their clients’ interests are protected. In the end, beneath the glitz, it’s all about business.

“Artists are becoming savvier and want to be involved in the business aspects of their careers,” said Price. “When they ask for legal advice, they want to know their legal rights, and how to make good deals and find ways to make more money.”

In 1998, Price founded the Recording Artists Project (RAP), a student-run group that provides legal assistance to budding artists, prompted by two students who told him of their longing to work in the music industry. Price is faculty adviser for the group.

Most HLS graduates end up working in business or corporate law, though some alumni have had successful careers in the entertainment industry. Among them are Bruce Ramer ’58, who represents clients like George Clooney and Clint Eastwood; Bert Fields ’52, who represented Michael Jackson; and legendary music lawyer Clive Davis ’56, who signed many luminaries like Whitney Houston, and boasts his own star on the Hollywood Walk of Fame. Donald Passman, J.D. ’70, has represented celebrities like Janet Jackson, Stevie Wonder, and Pink and wrote the bestseller “All You Need to Know About the Music Business”; and Aaron Rosenberg, J.D. ’02, counts John Legend, Jennifer Lopez, and Justin Bieber among his clients.

For future entertainment lawyers, the goal is often to find a job in Hollywood and experience the glamour and thrill of working with artists, but streaming and other technological changes have added new career options in entertainment law.

Take Kike Aluko, J.D. ’19, who will move to Atlanta to join the national law firm Greenberg Traurig, LLP, and work on music licensing deals, trademark protection, and artist representation. Aluko, who interned at a record label in the mid-2000s, is struck by the recent changes in the industry.

“It has grown a lot and is more diverse than a decade ago when there was no streaming or Spotify,” she said. “There are so many different avenues for people to pursue their passion rather than going to a record label.”

Kirkland Alexander Lynch, J.D. ’14, works as a business affairs strategist for the Stevie Wonder’s organization, including Stevland Morris Productions, LLC, Wonder Productions, Inc., among others. He oversees the legal aspects of anything related to shows and business deals, and travels around the world with the organization.

It is a dream job for Lynch, who abandoned his plans to work in finance after being inspired by a classmate who wanted to become a sports lawyer. “He made me think that I should pursue my true passion, which was music,” said Lynch from Los Angeles. “And I saw a path for me when I interned at Sony Music Entertainment in New York during my second year at the Law School.”

But it was while taking the Entertainment Law Clinic with Price that Lynch started learning the ropes of entertainment law. He helped a rapper from Dorchester and an indie group based in Union Square with partnerships and band agreements. Last year, Lynch launched his own media management and consulting company, Kirkland Alexander Enterprises Inc.

As members of RAP, students draft, review, and negotiate recording contracts and artists’ and managers’ agreements for musicians and other entertainers. One of the group’s most famous clients is renowned jazz bassist and singer Esperanza Spalding, now a professor of the practice in Harvard’s Music Department, who was counseled on the negotiation of her first record deal.

Breaking into the music and entertainment worlds is hard, but HLS’s strong alumni network helps young attorneys build connections that pay off. That happened to Ethan Schiffres, J.D. ’10, who reached out to Passman, whose firm is Gang, Tyre, Ramer, Brown & Passman Inc., and kept in touch with him. When Schiffres graduated, he was offered a job as a music associate. Today he’s a partner at the firm, where he reviews legal contracts for endorsements, touring, publishing deals, and trademark litigation.

Schiffres credits the Entertainment Law Clinic with providing hands-on experience and contacts with alumni willing to help the younger generation of lawyers. His biggest piece of advice is to network.

“Entertainment law is sexier than corporate law,” he said, “but it also involves hard work, passion for music and entertainment, but it really is about networking.”

Rechtszaid agreed.

“Connections are everything,” she said. “It takes a lot to muster the courage to reach [out] to somebody you don’t know, but it’s worth it.”

As the president of RAP, Rechtszaid wrote emails to the manager of Chance the Rapper and Passman last year asking them to visit Harvard to talk to HLS students. They both came.

Rechtszaid’s dream clients are Lady Gaga, the indie rock band Dorothy, and the Bronx hip-hop artist and Instagram personality Cardi B. “Cardi B is so talented and funny,” Rechtszaid said. “I want to be her best friend.”

Women Inspiring Change 2019 Honorees includes 2 HLS Clinicians

To commemorate International Women’s Day, the Harvard Women’s Law Association hosts an annual Harvard Law School International Women’s Day Portrait Exhibit. In its 6th year, the exhibit showcases the notable contributions of women around the world in law and policy. The honorees were nominated by HLS students, faculty or staff.

Among the portraits of powerful women in their field is Yee Htun and Dehlia Umunna.

Yee Htun is a Clinical Instructor and Lecturer on Law at the International Human Rights Clinic. She works extensively on gender justice issues and has been involved with law reform efforts to advance human rights in Myanmar.

Yee has more than ten years of international advocacy experience. Her reports on behalf of human rights defenders, refugees, internally displaced people and migrant communities have been submitted to the United Nations and its Special Rapporteurs.

Prior to teaching at Harvard Law School, she served as the Inaugural Director of Myanmar Program for Justice Trust and was selected by women Nobel Peace Laureates from Nobel Women’s Initiative to coordinate and lead the first-ever global campaign to stop rape and sexual violence in conflict.

 

Dehlia Umunna is a Clinical Professor of Law at Harvard Law School (HLS), and the Faculty Deputy Director of the law school’s Criminal Justice Institute (CJI), where she supervises third-year law students in their representation of adult and juvenile clients in criminal and juvenile proceedings in Massachusetts Courts, including the Supreme Judicial Court.

Her teaching interest and research focus on Criminal Law, Criminal Defense and Theory, Mass Incarceration, and Race Issues. She serves as a Faculty Adviser to some student organizations. Professor Umunna coaches the HLS National Criminal Justice Trial Advocacy and the HLS Black Law Student Association Trial Teams, and has led them to numerous regional and national awards. In addition to her work at HLS, Professor Umunna serves as a faculty member for Gideon’s Promise (formerly the Southern Public Defender’s Training Center), and is a frequent presenter at Public Defender Training Conferences and Social Justice Reform Panels around the country.

 

 

Employees entitled to fees under Wage Act settlement

Via Massachusetts Lawyers Weekly  

Liz Soltan J.D. ’19

Employees who obtained a favorable settlement of their Wage Act claim were considered “prevailing parties” entitled to attorneys’ fees under the statute’s fee-shifting provisions, the Supreme Judicial Court has determined.

The defendant employers argued that the plaintiff employees were not eligible for a fee award because they were not prevailing parties under the U.S. Supreme Court’s 2001 decision in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources. In Buckhannon, the Supreme Court found that under federal fee-shifting statutes, a litigant must obtain judicial approval or “imprimatur” of a private settlement to be deemed a prevailing party.

But the SJC disagreed, emphasizing that it had previously found Buckhannoninapplicable to Massachusetts state law fee-shifting statutes and determining that the “catalyst test” was the applicable standard. The catalyst test requires only that the plaintiff’s suit be a “necessary and important” factor behind the favorable settlement result.

“We hold that the catalyst test applies to Wage Act claims and that the trial judge correctly found that the plaintiffs satisfied that test in the instant case, and we therefore affirm the award of attorney’s fees to the plaintiffs under the fee-shifting provisions of the Wage Act,” Justice Scott L. Kafker wrote for the court.

The 16-page decision is Ferman, et al. v. Sturgis Cleaners, Inc., et al., Lawyers Weekly No. 10-036-19. The full text of the ruling can be found here.

Small dollars, big impact?

Harvard Law School student Elizabeth Soltan, who argued on the plaintiffs’ behalf, said she hopes the decision enables more attorneys to take on Wage Act cases.

“The real impact will be on cases involving small dollar amounts which are more likely to involve workers who make a lower wage to begin with,” said Soltan, who became involved in the case through the Harvard Legal Aid Bureau clinical program (see sidebar).

HLAB clinical instructor Patricio S. Rossi, plaintiffs’ counsel of record, noted that it is difficult for low-wage workers to get representation for Wage Act claims because such cases typically do not involve enough money to be worthwhile for lawyers to take on contingency.

“A decision like this makes attorneys more confident they can get their fees without having to take the case all the way to trial,” he said.

Liliana Ibara, managing director of the Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law, co-authored an amicus brief on behalf of the Immigrant Worker Center Collaborative. She called Ferman “a great decision.”

“Because of the way treble damages awards are structured, the idea is that if the worker has more income, it’s a bigger case with higher damages,” she said. “For a minimum wage worker, even if they’ve worked a lot of hours, it’s still a really low amount of money [at issue] overall. So those attorneys’ fees become incredibly important.”

Meanwhile, Ibara said, parties can still agree on counsel fees as part of the settlement as opposed to having a judge issue a fee award. That creates more options going forward, she said.

Ibara’s co-author, Joseph J. Michalakes of Greater Boston Legal Services, said the decision will have a particularly important impact on immigrant workers.

“They’re the most powerless workers in society, but this gives them power to enforce their rights under wage and hour law,” he said.

Swampscott trial attorney Andrew F. Caplan called the decision a “big deal,” commenting that it could have broad applicability beyond the Wage Act.

“The SJC’s expansive approach to awarding attorneys’ fees to plaintiffs under the Wage Act might be applied in future cases to other statutes that award attorneys’ fees to the prevailing or successful party, such as employment discrimination statutes,” he said.

Margaret E. Monsell of the Massachusetts Law Reform Institute also submitted an amicus brief and said her organization was gratified that the SJC continues to recognize the importance of ensuring access to the courts for all.

“The court’s ruling affirms that the long-standing catalyst test for measuring the success of litigation is the best way to advance that goal,” Monsell said.

The defendants’ attorney, John J. McGlone III of Quincy, could not be reached for comment prior to deadline, but Daniel S. Field of Boston, who represents employers, said the ruling would have limited ramifications from a management perspective.

“It’s really unusual to settle a case — whether it’s a single plaintiff case, a multi-plaintiff case like this one, or a collective or class-action — without accounting for attorneys’ fees in the settlement agreement,” he said.

“A decision like this makes attorneys more confident they can get their fees without having to take the case all the way to trial.”

— Patricio S. Rossi, Harvard Legal Aid Bureau

Wage Act claim

Plaintiffs Belky Ferman and Veronica Guillen worked for defendant Sturgis Cleaners, a dry cleaning business in Boston.

The plaintiffs sued the defendant and its owner, defendant Peter Triantos, in Suffolk Superior Court in November 2014, alleging non-payment of $28,000 in regular and overtime wages in violation of the Wage Act. In their complaint, the plaintiffs claimed treble damages, costs and attorneys’ fees.

After a nearly two-year period that included entry and lifting of a default judgment against the defendants as well as discovery and the filing of several pre-trial motions, the case was scheduled for a November 2016 trial.

Several weeks before trial, the case went to mediation, where the parties agreed to settle the case for $20,500 while reserving the issue of attorneys’ fees for resolution by the court.

The settlement also included language stating that it was the result of a compromise and did not constitute an admission of liability or wrongdoing. The parties then filed a stipulation with the court stating that the case would be dismissed with prejudice and waiver of all rights of appeal once the court made a fee determination.

In their motion for attorneys’ fees, the plaintiffs claimed roughly $40,000 in fees and $1,000 in costs.

Judge Karen F. Green, in rejecting the defendants’ argument that Buckhannongoverned the case, found the plaintiffs to be “prevailing parties” according to the catalyst test, reasoning that they obtained 70 percent of their initial demand, resulting in a “practical benefit” from their attorneys’ efforts.

After Green entered a fee award of $16,153 and the entire amount of costs, the defendants appealed and the SJC granted their motion for direct review.

Catalyst test

The SJC found that the catalyst test was indeed applicable to the fee dispute in the case.

“Although we have never expressly applied the catalyst test to determine prevailing party status under a State fee-shifting statute, we have, as previously stated, expressly rejected the alternative,” Kafker wrote, referring to Buckhannon. “In this case, we take the logical next step and conclude that the catalyst test applies in the context of determining prevailing parties under the Wage Act.”

The court also stated that that finding was rooted in the two major purposes behind fee-shifting provisions: to deter unlawful conduct and to incentivize attorneys to accept cases that otherwise would not be financially prudent to take, leaving clients that lacked either resources or a high-value case without access to justice.

Kafker further stated that the catalyst test would promote the prompt settlement of meritorious cases, avoiding the need for protracted litigation or unnecessary court involvement solely to “prevail” in a formalistic sense to ensure a fee award.

Accordingly, the SJC concluded, Judge Green’s award should be affirmed.

Ferman, et al. v. Sturgis Cleaners, Inc., et al.

THE ISSUE: Were employees who obtained a favorable settlement of their Wage Act claim considered a “prevailing party” entitled to an attorneys’ fee award under the statute’s fee-shifting provisions?

DECISION: Yes (Supreme Judicial Court)

LAWYERS: Elizabeth Soltan and Patricio S. Rossi, of Harvard Legal Aid Bureau, Cambridge (plaintiffs)

John J. McGlone III of Giarrusso, Norton, Cooley & McGlone, Quincy; David T. Norton of Quincy (defense)

Split High Court Upholds Post-Plea Appeal Rights

Via Law360 

By: Jody Gody

Source: Canva

A defendant whose lawyer’s poor performance scuttled his chances at an appeal should be presumed to have been harmed by the lawyer’s actions, even if the defendant has waived his appeal rights through a plea deal, the U.S. Supreme Court held in a split opinion on Wednesday.

The ruling came in Gilberto Garza Jr.’s challenge to an Idaho high court ruling that ended his appeal. Garza pled guilty to drug possession and assault in 2015 and entered plea agreements in which he waived his right to appeal his conviction and sentence.

Nonetheless, the judge said at Garza’s sentencing that he had the right to appeal, and Garza went on to repeatedly ask his attorney to do so. The attorney did not, and Idaho courts did not see that as a problem. In his Supreme Court petition, Garza had argued his counsel provided ineffective assistance by not filing the appeal.

Supreme Court precedent had previously said such claims require defendants to show their cases were harmed or prejudiced by the lawyer’s ineffectiveness. The high court refined that concept in a 2000 case called Roe v. Flores-Ortega, recognizing that defendants who are denied a lawyer at a crucial stage in a criminal proceeding, such as the filing of an appeal, should get a “presumption of prejudice.”

On Wednesday, six justices ruled that the presumption of prejudice applies “regardless of whether the defendant has signed an appeal waiver.”

Justice Sonia Sotomayor wrote for the majority. Justice Clarence Thomas penned a dissent joined by Justice Neil Gorsuch and in part by Justice Samuel Alito.

The split was in part forecast by the justices’ positions at oral arguments in the case last October.

The case saw the court evaluate the nature of plea waivers, which defendants often agree to in plea deals, and notices of appeal, which are the first step in any appeal.

The high court began by saying that the so-called waivers are not as airtight as they may appear, since even the most restrictive waiver cannot erase the defendant’s right to dispute whether or not the waiver was voluntary.

“A defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest,” the court said.

Notices of appeal merely tell a court that an appeal is to be filed, and filing one is not a matter of legal strategy that is up to a defendant’s lawyer but rather a “simple, nonsubstantive act that is within the defendant’s prerogative,” the court held.

Even if a defendant like Garza has given up most rights to appeal in order to get the benefit of a plea bargain, no defendant waives every right. Because of that, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope,” the court said.

A lawyer’s failure to file a notice of appeal at a defendant’s behest should therefore entitle the defendant to a new chance at appeal, the court concluded.

Justice Thomas and two of his peers disagreed, writing that a defendant like Garza who has given up the right to appeal most of the issues in his case should not automatically be able to say his lawyer failed for not initiating an appeal.

Instead, the defendant should have to show either that the waiver was involuntary, that his appeal deals with an issue outside the waiver or that the government breached the plea deal, the dissenting justices said.

Justices Thomas and Gorsuch went further, warning the court against further broadening defendants’ right to counsel, saying it is “not an assurance of an error-free trial or even a reliable result.”

“In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments,” the two justices wrote.

Garza’s attorney Amir Ali, who directs the criminal justice appellate clinic at Harvard Law School, told Law360 on Wednesday that the petitioner’s side is “very pleased with the court’s resolution of this case, which reflects a clear vindication of Mr. Garza’s constitutional right to an effective attorney.”

Idaho Attorney General Lawrence Wasden issued a statement thanking the justices for their “thorough review of the case” and saying the state respects the high court’s decision.

A spokeswoman for the U.S. Department of Justice declined to comment on the ruling.

Garza is represented by Amir H. Ali of the Roderick & Solange MacArthur Justice Center and Eric D. Fredericksen and Maya P. Waldron of the Boise Public Defender’s Office.

Idaho is represented by Kenneth K. Jorgensen and Paul R. Panther of the Idaho Attorney General’s Office.

The government is represented by Allon Kedem and Eric J. Feigin of the Solicitor General’s Office and Sangita K. Rao of the U.S. Department of Justice’s Criminal Division.

The case is Gilberto Garza Jr. v. State of Idaho, case number 17-1026, in the U.S. Supreme Court.

‘They’re representing individuals who are in need’

Via The Harvard Gazette

Kenneth Parreno, J.D. ’19, (l to r), Senior Clinical Instructor Patricio Rossi, center, Liz Soltan, J.D.’19, and Allena Martin, J.D.’19 confer at the Harvard Legal Aid Bureau. They represent immigrant children who crossed the border and want to remain in the country. Jon Chase/Harvard Staff Photographer

In a crowded hallway outside the chambers of the Middlesex County Probate and Family Court in Cambridge, third-year law student Kenneth Parreno, J.D. ’19, chatted quietly with his client, a 20-year-old Salvadoran woman who had crossed the border a year earlier.

It was a crisp fall morning, and they were about to face a momentous hearing that could clear the young woman’s path to a green card.

Under the law, certain foreign-born children in the U.S. can qualify for Special Immigrant Juvenile Status (SIJS), which may lead to legal residency. But first, a judge must grant a special findings order that establishes that the child is dependent upon the court; was abused, abandoned, or neglected by a parent; and that it is in his or her best interest not to be returned to the child’s country of origin.

After a brief period of questioning, Judge Maureen Monks announced she would sign the order. Parreno, his client, and his supervising attorney, Stephanie Goldenhersh, the clinical instructor and assistant director of Family Practice at the Harvard Legal Aid Bureau, were elated.

“Muchas gracias,” said the young woman in her native Spanish, a big smile on her face, as she hugged both Parreno and Goldenhersh.

“I’m very happy,” said Parreno after the judge’s decision. “Now my client can carry on with her life.”

This was Parreno’s third time representing a young immigrant as a member of the Legal Aid Bureau, a student-run legal services organization at Harvard Law School. The bureau gives students real-world practice representing low-income clients in areas such as family law, housing law, government benefits, employment law, and SIJS cases.

Of all the practice areas the bureau has offered since its founding in 1913, immigration relief is the newest. The first cases were taken on in 2015, in the wake of a humanitarian crisis triggered by tens of thousands of unaccompanied children fleeing violence in Guatemala, Honduras, and El Salvador.

Working under the guidance of clinical instructors, students interview clients, prepare affidavits, and gather documentation showing that the children meet the requirements for SIJS immigration relief: They must be younger than 21, single, and already in the U.S. If a judge grants the order, clients are referred to local immigration attorneys or legal services organizations, which assist them with their petition for special status with the U.S. Citizenship and Immigration Services.

Since 2015, the bureau has obtained special findings in 17 SIJS cases. It has now about a dozen active cases, according to Lyonel Jean-Pierre Jr., clinical instructor at the bureau and the supervising attorney for the SIJS practice. Students relish working with young immigrants, he said.

“They’re representing individuals who are in need and giving them an opportunity to start over, in some cases,” Jean-Pierre said, “or maintain the life they’re used to.”

Law students at the bureau learn counseling and litigation skills and become familiar with the discovery process and courtroom procedure as they represent tenants facing eviction, divorcing, or involved in wage and hour disputes. And once in a while, they have the chance to present oral appeals at the Massachusetts Supreme Judicial Court, a rare opportunity for law students.

Such was the case with Elizabeth Soltan, J.D. ’19, who has worked in housing and wage and hour cases. In the fall, she argued an appeal before the SJC prepared by her, Joey Herman, J.D. ’20, and Parreno, defending a lower court judge’s decision to award attorney’s fees and costs to the plaintiffs. Soltan was thrilled.

The case has the potential to be meaningful for workers in Massachusetts,” she said. “Even though it might seem sort of boring or nerdy because it’s just about attorney’s fees, when lawyers know that they can get their fees, they can feel comfortable taking on cases with clients who might have no income or fewer resources.”

For Allena Martin, J.D. ’19, a Cape Cod native with an interest in immigration and refugee law, human rights, and Latin America, SIJS cases bring big rewards for the dramatic impact they have on people’s lives.

Martin represented a 6-year-old girl from Central America and her young mother, securing court orders for both. The challenge in many of these cases, said Martin, is to ask clients to relive the traumatic events that led them to leave their homes behind.

“Part of the process is that they need to tell their stories to the judge to be granted the status, but often it’s very painful,” she said. “As part of my job as a student attorney, being forced to elicit the details of those stories can be daunting.”

Another challenge is the age limit to apply for special immigrant status. More than once, students have worked under pressure so their clients don’t age out of the system. 

As part of her role as the SIJS Task Force Leader, Martin facilitates referrals from immigration partner organizations, meets with the lead clinical instructor to discuss cases and trends, and runs meetings with the students currently working on SIJS cases.

This semester, 46 students are members of the bureau. They manage their own caseloads and tackle cases from start to finish during their two-year commitment.

The need for legal representation is acute. According to Kids in Need of Defense, a partner organization of HLAB that finds pro bono representation for young immigrants, only one in 10 unaccompanied children have legal counsel. Unaccompanied minors without legal representation have a greater chance of being deported.

“There is so much at stake when it comes to making sure young immigrants do not stand in court alone,” said Dianisbeth Acquie ’16,  J.D. ’20, who applied to HLS and to the Legal Aid Bureau because of her passion for community service. “It’s troubling to see how much need there is for legal services, and how vulnerable communities can become even more vulnerable when they bear the brunt of the legal system.”

Acquie, who was born and raised in Brooklyn’s Sunset Park neighborhood, is representing a 19-year-old Brazilian girl and a 3-year-old boy from Honduras.

“When I look at these cases,” she said, “I’m reminded of how the legal system has so much to do with the course of an individual’s life, and how so much can change as a result of one order and one judgment. These are youth who will one day go on to live great lives and hopefully fulfill all their aspirations.”

Back at Middlesex Court, Parreno echoed this sentiment. The son of Ecuadorean immigrants who grew up in Houston, he has long been interested in Latinx civil rights and immigrant matters. After graduating from Harvard in 2011, he went back home to teach science to middle school kids. For him, working with young immigrants is part of a commitment to help improve their lives.

“We’re working with kids who have gone through so much, more than I have ever gone through or will ever go through in my life,” said Parreno. “When you hear everything that they went through, it makes you want to work that much harder to make sure they can have a better life.”

Project on Predatory Student Lending Clinical Instructor Quoted in The L.A. Times

Clinical Instructor Elieen Connor of the Project on Predatory Student Lending was quoted in a Los Angeles Times  article written by Michael Hiltzik. The article, “SEC gives former execs of Corinthian Colleges, a massive scam, slaps on the wrist” discusses the Securities and Exchange Commission’s (SEC) settlement with two former senior executives at Corinthian and how the settlement’s failure to “appropriately hold these executives accountable” follows a pattern in the Trump administration’s tolerance of for-profit colleges.

Excerpt from the article:

“Just comparing the slap on the wrist that the executives have gotten from the SEC to the plight of the students is pretty outrageous, both in absolute and relative terms,” says Eileen Connor of the Project on Predatory Student Lending at Harvard Law School, which has been representing many of the students in court.

. . .

“Clearly there’s been a change in the view at the SEC about culpability and consequences for these people who extract so much taxpayer money and then harm hundreds of thousands of students,” Connor told me. The Education Department has even started to seize earned income tax credit payments from former students to pay for their student loans, even when they have applications for relief pending, she says.

“It seems that the department will go to the ends of the Earth to squeeze money from these students,” Connor says. “When it comes time to hold people accountable who actually were responsible for this situation, it’s a slap on the wrist.”

Veterans Legal Clinic students argue case before federal court of appeals

Via Harvard Law Today 

The legal team litigating the proposed class action before the U.S. Court of Appeals for Veterans Claims included (from left): Emma Peterson and Zachary Stolz of Chisholm Chisholm & Kilpatrick; Harvard Law students Casey Connolly ’19 and Laurel Fresquez ’19; and supervisors in the Veterans Legal Clinic Betsy Gwin and Daniel Nagin.

Earlier this month, Casey Connolly ’19 and Laurel Fresquez ’19, both students in Harvard Law School’s Veterans Legal Clinic, presented oral argument before the U.S. Court of Appeals for Veterans Claims on behalf of a proposed class of veterans with multiple disabilities. The clinic and its partners commenced the litigation in 2017 to challenge a Department of Veterans Affairs’ policy used in adjudicating claims for service-connected injuries.

Specifically, the representatives are seeking to stop VA’s policy of imposing an unlawfully high evidentiary standard for veterans to prove that one disability has been worsened by a second disability connected to their military service.

The Court of Appeals, which sits in Washington, D.C., heard the argument in appeals involving two cases—Ward v. Wilkie, Case No. 16-2157, and Neal v. Wilkie, Case No. 17-1204. The cases were consolidated for joint disposition.

In both cases, the Veterans Legal Clinic contended, VA had used an unlawful evidentiary standard to deny these veterans’ claims for disability compensation. The VA’s regulations allow veterans to make claims for disabilities that result from an already service-connected condition. However, VA required these veterans and similarly situated veterans to show that one disability had “permanently worsened” the other disability—even though there is no such requirement in the governing statutes or regulations.

Credit: Courtesy of the Veterans Legal Clinic
Casey Connolly ‘19 and Laurel Fresquez ‘19, students in Harvard Law School’s Veterans Legal Clinic, presented oral argument in the lawsuit before the U.S. Court of Appeals for Veterans Claims on February 1, 2019.

Connolly and Fresquez argued that the court should declare that VA’s evidentiary standard is unlawful, certify a class of veterans who have been harmed by VA’s policy, and issue an injunction requiring VA to amend its policies and take corrective action in the pending cases of all similarly situated veterans. An estimated six thousand plus veterans are in the proposed class.

Connolly, who argued first, and Fresquez, who presented rebuttal argument, fielded questions from the three-judge appellate panel on both the merits of the case and the motion for class certification. The entire argument lasted nearly 90 minutes. A decision in the case is expected this year.

Listen to the oral argument here.

“Working on the case was the most terrifying and rewarding thing I’ve done while at Harvard,” said Fresquez. “I am so grateful to the Veterans Legal Clinic for giving me this opportunity and for providing me the training I needed to feel confident in federal court. It was truly an honor to represent the proposed class of disabled veterans, and it’s an experience I will never forget.”

The Veterans Legal Clinic co-counseled the case with Chisholm Chisholm & Kilpatrick(CCK), a law firm based in Providence, Rhode Island, and a national leader in the field of veterans law. The Clinic and CCK have partnered with Disabled American Veterans (DAV) to provide pro bono representation to disabled veterans before the U.S. Court of Appeals for Veterans Claims. The two veterans who are proposed class representatives in the case were referred by DAV.

“This case will provide valuable guidance for VA and for our nation’s veterans,” said CCK Partner Zachary Stolz. “It will help in understanding class action issues and will hopefully help veterans in proving some of their claims before VA. Connolly and Fresquez provided the veterans’ point of view with exceptional knowledge and exceeding clarity.”

Both Connolly and Fresquez have participated in the Veterans Legal Clinic over the course of multiple semesters, representing disabled veterans in appeals for VA and state benefits, and in discharge upgrade cases. Fresquez was also part of a team that recently argued and won a case in Massachusetts Superior Court on behalf of local veterans who were denied a state veterans bonus because of their less-than-honorable discharges. Upon graduation in May, Fresquez plans to join the law firm Simpson Thacher and Connolly will commission into the U.S. Navy JAG Corps.

“It was an honor to represent these veterans, who have earned the right to have their claims adjudicated under the correct standard—and who might not otherwise see that right fully vindicated without the class action mechanism,” Connolly said.

“We are proud of our Clinic students and their contributions to this important case,” said Betsy Gwin, associate director of the Veterans Legal Clinic. “We are hopeful that this class of veterans, all of whom suffer from multiple disabilities stemming from injuries incurred during military service, will finally be able to obtain justice at the Veterans Court.”

According to Clinical Professor Daniel Nagin, director of the Veterans Legal Clinic and the Legal Services Center: “Connolly and Fresquez worked long hours to prepare for the argument. Throughout, they demonstrated an unwavering commitment to their clients, a sophisticated understanding of the vital questions before the court, and incredible teamwork.”

In addition to Connolly and Fresquez, other Clinic students worked on the case at various stages of the litigation, including: Alyssa Bernstein ’19, Joshua Mathew ’19, Branton Nestor ’19, and Nathan Swire ’19.

Founded in 2012, the Veterans Legal Clinic provides pro bono legal assistance to disabled veterans and their family members across a number of areas of critical importance, including appeals regarding access to federal VA benefits and Massachusetts Veterans’ Services Benefits (Chapter 115 benefits), in discharge upgrade and correction of military records matters, in Social Security Disability appeals, and in estate planning matters. In addition to representing individual clients, the Clinic also pursues broader initiatives to improve the systems that serve the veterans community.

The Veterans Legal Clinic is one of five clinics operating out of the WilmerHale Legal Services Center of Harvard Law School in the Jamaica Plain neighborhood of Boston. Founded in 1979, the Legal Services Center will host a celebration of its 40th anniversary this year, on Friday, April 5. The 40th anniversary event will bring together faculty, graduates, current students, and current and former staff and feature a keynote address by Massachusetts Attorney General Maura Healey. For more information about the event, please visit the Legal Services Center 40th Anniversary Website.

 

Project No One Leaves and CityLife/Vida Urbana Fighting Against Mass Displacement in Boston Housing

City Life organizers speak passionately about their work at the “Gentrifying Boston” event, hosted by Project No One Leaves. January 10, 2019.

“Without City Life, many people wouldn’t know how they can do anything [to fight for their right to housing,]” said Gabrielle, one of the organizers for City Life/Vida Urbana. City Life is a grassroots group that organizes communities to fight against the forces that fuel displacement in Boston. The Jamaica Plain based organization frequently works with Project No One Leaves (PNOL), a student practice organization at Harvard Law School that informs low-income tenants of their rights. On January 10, PNOL hosted several City Life organizers to speak to the HLS community about the ramifications of gentrification in Boston.

According to City Life leaders, an overwhelming majority of Roxbury residents are at risk of being displaced. The cost of housing in Roxbury increased by 70% between 2010 and 2015. The devastating mix of displacement, capitalism, racialized gentrification, and property exploitation is what some call antithetical to local economic development in Boston. Even still, landlords are aware of the influx of newcomers that can afford to pay higher rents, thereby pushing out current residents in favor of higher profits from new residents. As more and more properties in Boston are becoming increasingly expensive, middle- and low-income individuals and families have fewer options to secure housing. When landlords raise the rents and attempt to evict residents, people are often not given sufficient notice to find suitable housing. The stress of losing one’s home and scrambling to find an alternative has serious consequences on people’s mental, physical, and emotional health. The trauma of housing insecurity affects children and young people, altering how they navigate the world and their feelings about financial security. Long-time residents lose their social ties and networks to their communities, which can in turn affect the physical systems that help fight against chronic conditions and diseases. “The social costs for displaced families, such as intergenerational health impacts, is not borne by the landlords,” said Lawrence, another organizer with City Life. Landlords and urban developers prioritize profit over community welfare. Organizations like City Life develop community leaders to fight against the forces that fuel displacement and its harmful effects through direct organizing of tenants in protest and advocacy strategies, connecting tenants to legal representation, and informing residents of their rights.

It’s an uphill battle for many residents to try and retain their housing through the court system. Landlords and property owners often have legal representation, while many tenants cannot afford a lawyer. Tenants are not fighting a fair fight – starting off with the disadvantage of representing themselves in a convoluted system that can leave people feeling culpable if they lose their home. “People are left to represent themselves in these hearings, and you don’t understand the language of the court,” Gabrielle exclaimed. Gabrielle is determined to spread public awareness of City Life’s work to helps other residents like her. “I came to City Life to get legal help after I attempted to fight with my bank on my own. I couldn’t understand what was going on even though I had nearly ten years of banking experience and a master degree in business. My bank gave me the run around for years until I came to City Life and was empowered with information about my rights. The bank was very deceptive. Many people don’t know their rights, that’s why I have decided to become an ambassador and organizer with City Life.”

Fighting against housing displacement is how City Life and PNOL work jointly to combat racial, social, and economic injustice. PNOL sometimes refers residents struggling to retain their housing to legal aid organizations like the Harvard Legal Aid Bureau (HLAB), which provide representation to low-income and marginalized communities in civil matters. The difference can be life-altering. Keeping people in their homes helps keep families whole and counteracts actions that destabilize communities. Boston is a historic city, but loses significant remnants of its past when communities are removed and remade. “Preserving communities and cultures are more important to me then preserving bricks for historical purposes,” said Lawrence. PNOL plays a critical role in raising awareness of tenants’ legal rights and legal services available to them. In partnership with City Life, both organizations work to develop a community-based model for social and systemic change, one tenant at a time.

Rapid Impact: Harvard Law Students Travel the Globe Over Winter Term for Clinical Work

Source: Canva

During the 2019 Winter Term, over 200 Harvard Law School (HLS) students traveled off campus for three weeks, gaining hands-on experience addressing the legal needs in communities across the globe. Through the Independent Clinical Program and Externship Clinics, HLS students gain a practical experience in their field of study building their expertise on an issue and develop critical lawyering skills.

87 students participated in HLS’s Independent Clinical Program, traveling to 18 countries, 13 states, and 21 cities to build their legal skills by working with government agencies, legal services and non-profit organizations, and the judiciary. The program gives students an opportunity to design a project related to their specialized area of interest in the law or field of practice. Students are able to then gain hands-on experience in their potential career fields. This past winter, students worked with attorney advisors in the Office of Clinical and Pro Bono Programs (OCP) to design projects addressing issues that transcend national borders, including anti-displacement protections after devastating hurricanes, voting rights litigation, humanitarian asylum and refugee protections.

Read more about students’ experiences:

The map below displays where students travelled outside the continental U.S. to work on pertinent legal issues.

Courtesy of Google Maps

Through the Externship Clinics, January Term students participated in on-site clinical work at hundreds of organizations across the United States. The externship clinics range in focus from sports teams to U.S. government agencies, to employment and labor rights work. Over the winter term, students worked at the Macarthur Justice Center, the Women’s Tennis Association, Attorney General Offices in California, Nebraska, Kentucky, New York, and Texas; organizations such as the Office of the Federal Public Defender (Kansas City, Missouri), Southern Center for Human Rights (Atlanta, GA), American Civil Liberties Union (Durham, NC); and private entities such as the Wasserman Media Group (Los Angeles, CA), Nashville Predators (Nashville, TN), Major League Baseball (New York, NY), and the Detroit Pistons (Detroit, MI). Students reviewed and helped draft contracts and sponsorships agreements, represented clients with capital sentences, and conducted legal research on wage and discrimination disputes. Students’ work experiences enhanced their confidence in their skillset and provided meaningful assistance to the clients they served.

Even in the short three week term in January, students were able to make an impact in the communities and organizations they worked in internationally and domestically. The independent clinical program and externships are unique experiences for students to learn from and develop into the lawyers they wish to be in the world.

                                                              Independent Clinical Placements

United States
Countries Worldwide
Boston, MA Los Angeles, CA Accra, Ghana Lesvos, Greece
Brownsville, TX Montpelier, VT Anhui, China London, England, UK
Cambridge, MA New York, NY The Adelphi, SIngapore Manila, Philippines
Carrboro, NC Oakland, CA Basel, Switzerland Melbourne, Australia
Central Islip, NY Philadelphia, PA Banjul, Gambia Mexico City, Mexico
Chicago, IL Raleigh, NC Berlin, Germany Myanmar
Dilley, TX Sacramento, CA Edinburg, Scotland, UK Quezon City, Philippines
Flagstaff, AZ San Francisco, CA Fitzroy, Australia Rio de Janeiro, Brazil
Honolulu, HI Seattle, WA The Hauge, Netherlands Tel Aviv, Israel
Indianapolis, IN Washington, DC
Lincoln, NE Window Rock, AZ
U.S. Territories
Hagatna, Guam San Juan, Puerto Rico

CHLPI’s Robert Greenwald Quoted in Bloomberg Law Article on HIV Drug Coverage

Via The Center for Health Law and Policy Innovation

A February 22, 2019 article from Bloomberg Law includes an interview with CHLPI’s Faculty Director and HLS Professor Robert Greenwald. The article, Trump’s Call to End HIV at Odds With Silence on Coverage Woes, written by reporter Jacquie Lee explores the tension between the President’s pledge to end HIV in the United States in the next ten years and the administration’s silence on discriminatory drug coverage within Medicaid.

Excerpt from the article:

“The Trump administration is promising to end AIDS within 10 years at the same time it’s staying silent on complaints accusing insurers of unfair HIV drug coverage.

Complaints protesting HIV drug coverage in Obamacare plans in counties where the infection rates are growing the most have gone unanswered by the Department of Health and Human Services for years.”

 

Read  Trump’s Call to End HIV at Odds With Silence on Coverage Woes in full.

Maryland Seeks to Expand Complete Streets Program to Prioritize Food Access

Via the Center for Health Law and Policy Innovation

By: Alex Harding J.D. ’19

On February 7, FLPC provided written testimony to the Maryland Environment & Transportation Committee in support of a bill that would expand the state’s “Complete Streets” grant program to cover projects which improve access to nutritious food to residents living in food deserts.

Throughout 2017, FLPC had the opportunity to work with stakeholders in Maryland who were involved in creating the Maryland Food Charter to develop a complementary policy scan of state policies related to the food system as well as opportunities for change. Following a series of interviews, community meetings, and legal and policy research, FLPC published its findings in “A Review of Food System Policies in Maryland.” This report outlined possible initiatives for the state of Maryland to enhance its food production, safety, and waste prevention policies in order to make the state’s food system stronger and better able to serve the people of Maryland.

Improving access to nutritious food was one of the main concerns raised by the many Maryland community members and experts with whom we engaged. As one of our suggestions to increase food access, we recommended using urban transportation resources to move residents in food deserts—areas of low healthy food availability—to local food markets. Maryland’s House Bill 82 uses the novel approach of incorporating food access into the state’s definition of a Complete Streets program—a grant program that allows local governments to receive funding for infrastructure projects which improve quality of life. This approach allows Maryland to get its food access resources to local governments, who are best suited to understand their local food access barriers and needs and to tailor their solutions efficiently to those specific needs

As a student in FLPC, this was the point where I was invited to write legislative testimony on behalf of FLPC supporting Maryland’s Bill. This project gave me the opportunity on to work on the one hand with the staff of Maryland legislators, and on the other with expert FLPC fellows and advocates who had worked with Maryland and knew its specific legal and political landscape. This has been a rare learning opportunity in policy-making that I would be hard pressed to find elsewhere—it turns out that Harvard Law School does not, in fact, offer as many law-making classes as it does law-abiding ones (judicial activism schemes aside).

Maryland’s House Bill 82, attached below, addresses food access issues in three key ways. First, the bill would give the term “food deserts” its first official state law definition as “[a] community that does not have easy access to healthy food, including fresh fruits and vegetables, typically in the form of a supermarket, grocery store, or farmer’s market.”

Second, the text of the bill expands the definition of Complete Streets to include food access so as to expand the types of local transportation projects the policy can fund. Third, the bill creates a ranking system for such projects which improve food access specifically for areas already designated as food deserts. The approach of moving infrastructure funding towards food access—especially through a Complete Streets program, is an innovative one. We look forward to seeing more creative solutions like this at the state level from Maryland and across the country.

FLPC’s full testimony to the Maryland Environment & Transportation Committee can be found here.

Maryland’s House Bill 82 can be found here.

Students’ Legal Skills Help Prevent Homelessness

Via the Legal Services Center 

Source: Flickr

William* was feeling hopeless. Elderly, disabled, and receiving treatment for a recent kidney transplant, he was stunned when his landlord unexpectedly served him with a no-fault notice of eviction. With his health failing in the dead of a frigid Boston winter, he suddenly faced the alarming prospect of living on the streets.

Yet when it looked like all was lost, William experienced a spectacular reversal of fortune. He walked into Edward D. Brooke Courthouse in Boston and obtained free legal assistance from a student of the WilmerHale Legal Services Center of Harvard Law School (LSC), who was participating in the clinic’s ‘Attorney for the Day’ program.

Moments after William approached the Attorney for the Day booth that March day, LSC Housing Court student Nicolette Roger ‘19 went right to work; she reviewed the facts of his case and counseled him on how to advocate for himself in court.

A roll of the dice

It was not an easy task. According to Roger, his case “was a roll of the dice.” William was scheduled to be evicted from his home that same day; he had exceeded a deadline that a judge had given him to find new housing.

William had been struggling to manage the situation not only because of his extensive hospital stay after the transplant, but also due to the fact that, like 95 percent of low-income tenants who find themselves in Housing Court, he had no attorney to represent him.

He is precisely the type of Bostonian that Attorney for the Day aims to reach. Organized by the Boston Bar Association (BBA), the program draws attorneys from local legal services organizations as well as volunteers from the area’s leading firms.

The BBA advertises that these services are available at Boston Housing Court every Thursday morning, though many community members find out about the program by word of mouth or simply happen upon the sign and table on the day of their hearing.

The guidance that tenants receive can make a huge difference. Roger explains that for someone like William who has no familiarity with the legal system, “even just navigating the courthouse can be difficult,” much less winning a case as a pro se tenant.

While the Attorney for the Day program is a transformative learning opportunity for students, it is life-changing for clients like William, who receive last-minute, ‘game-day’ counsel.

“One of my favorite experiences at Harvard”

Tom Snyder ‘18, who was participating in Attorney for the Day with the LSC for the first time last spring before graduation, attests that it is an incredibly challenging and demanding experience, but also one so rewarding that “it’s been one of my favorite experiences at Harvard.”

The program is overseen by the Director of the Housing Law Clinic, Maureen McDonagh. Students’ responsibilities at Attorney for the Day typically begin with ensuring that clients are in the courtroom at the proper time to respond when the judge does roll call. This is crucial because if the client is not present, the judge will issue a default judgment – an outcome that will likely lead to eviction.

“You’re definitely thrown right in,” explains Tyra Walker ‘18.

While the student attorney is often needed inside the courtroom to help a client file a motion or address a judge, frequently the work takes place in the adjacent hallway or in the mediation room, where negotiations between tenant and the landlord’s attorney occur.

In these cases, students must quickly learn about the client’s situation, assess whether defenses or counterclaims exist, and, where appropriate, determine how to reach an agreement with the landlord.

Righting a power imbalance

The students’ presence is crucial because often, a striking power imbalance is at play. Over 95 percent of landlords enter the courtroom with an attorney, while only 5 percent of low-income renters have that same protection.

When tenants lack representation, it is typically the case that “the landlord’s attorneys have more negotiating power, and clients end up agreeing to terms they can’t adhere to,” according to Kelsey Annu-Essuman ‘19.

Clients like William could easily slip through the cracks without the help from students. There were 127 cases on trial that day, and just two judges and five mediators present.

For many HLS students, this high-stakes environment is the first in which they will be responsible for representing a client in a dispute with real-world consequences. The situation is distinctly challenging because they have just a fraction of the time that Housing Court students typically would to secure a favorable outcome for the client.

Last-minute intervention of the sort that Attorney for the Day provides can be a lifeline for a tenant in a tough situation and can play a vital role in preventing homelessness. Still, the majority of cases handled by Housing Clinic students involve full representation of low-income tenants in complex and ongoing litigation, rather than emergency advice.

Indeed, for the students, Attorney for the Day is a highly educative and memorable experience precisely because it is so different from the in-depth, long-term work that students normally do in the Clinic – instead, just an hour in the courthouse can save a client from homelessness.

“You don’t get a lot of these experiences in law school,” affirms Walker, a three-time veteran of Attorney for the Day.

Using legal training in high-stakes courtroom experience

During Attorney for the Day, students work toward the same outcomes as they do during the semester – preventing eviction, improving housing conditions, halting utilities shutdown — but in this case, they have the opportunity to effect change behind the scenes, and very quickly.

Roger seized this opportunity when she prepped William to stand in front of the judge and request an extension on his timeline to pursue alternatives.

She explained to him what was about to happen and provided William with talking points. He listened intently, and when the time came he explained to the judge that because of his kidney transplant and severe medical problems, he had not yet found a new place. Moreover, he explained, in his condition homelessness would equate to a certain health catastrophe. In setting forth all this, William – again, relying on the advice Roger had shared – successfully documented the efforts he had made to date to obtain housing.

The appeal was successful. The judge offered William a one-month stay of eviction, given that he provided ample evidence of his ongoing housing search.

Roger, McDonagh, and other members of the Housing Clinic team made sure to follow up and help William with the search. Shortly thereafter, he took the first steps through the doorway of his affordable new housing unit, with time to spare.

*Name and some identifying details have been changed to protect client confidentiality.

Covering Pre-existing Conditions Isn’t Enough

Via The New York Times 

Source: Pexels

By: Dr. Douglas Jacobs

When patients enroll in health insurance, they are often met with a stark reality: Even with insurance, they can’t afford their treatment. With the Affordable Care Act and its protections for people with pre-existing conditions in limbo once again, it’s important to remember that those with such conditions need more than health insurance. They also need to be protected from discriminatory pricing so that they can afford the medications they need.

In 2015 I published a paper in The New England Journal of Medicine that detailed how some insurers were raising costs for H.I.V. medicines to dissuade H.I.V.-positive people from selecting their plans. Insurers frequently raise the price of certain medicines to encourage people to select cheaper alternatives, but these insurers raised the cost of every single H.I.V. medicine — leaving many enrollees with no affordable options.

The difference for someone with a pre-existing condition like H.I.V. was staggering (in some cases more than $10,000 annually for H.I.V. medicines in one plan compared with less than $1,000 in another). This practice was later recognized by the Department of Health and Human Services as a form of discrimination by insurers.

Unfortunately, pharmaceutical companies and insurers are still getting away with raising their prices in a way that has a disparate impact on those with pre-existing conditions. A 2019 report by Harvard Law School’s Center for Health Law and Policy Innovation found that some insurers continue to price all recommended H.I.V. regimens in a way that makes them prohibitively expensive. In Georgia, for example, three out of the four insurers place all recommended H.I.V. regimens on the most expensive tiers (costing more than $1,000 a month) or do not cover them at all.

Continue reading.

 

Tech Giants, Profs Push Justices To Take Google-Oracle Case

Via Law360 

Source: Pexels

By: Bill Donahue

Major technology companies, software developers, legal scholars and others have filed a flood of amicus briefs urging the U.S. Supreme Court to take up Google‘s appeal in the company’s yearslong copyright battle with Oracle over use of copyrighted code in Android smartphones.

In a dozen briefs filed Friday and Monday, several outside groups and experts pressed the justices to grant certiorari in the closely watched case in which Oracle sued Google for using Java software code when it built the Android operating system.

The briefs came in support of Google, which appealed to the high court last month after a lower court twice sided with Oracle. If the high court refuses to hear the case, Google could be on the hook for a potential 10-figure damages total.

According to a brief filed Monday by the Computer and Communications Industry Association — a lobbying group that represents AmazonMicrosoftT-Mobile and Google itself — the rulings for Oracle are out of sync with how the rest of the world treats software copyrights.

“Taken together, these two decisions represent a major setback to competition and innovation in the software industry,” the group wrote. “These decisions run directly contrary to legal norms promoting competition in the software industry that have been adopted by more than 40 of our trading partners.”

The non-profit Developers Alliance, meanwhile, told the justices that rulings in favor of Oracle had left developers “confused about whether and where established practices constitute copyright infringement.”

“Specifically, developers now question their ability to freely create interoperable software across projects and platforms, as has been common practice,” wrote the Alliance, an advocacy group that represents 75,000 software developers. “The inevitable result of this uncertainty will be reduced innovation, higher industry costs, and increased litigation.”

In another brief, a group of eight law professors from Harvard University, New York Universityand other schools told the justices the case would provide an “ideal vehicle” for the court’s first ruling in more than 25 years on copyright’s fair use doctrine.

“The lower courts have reached a doctrinal fork, and this court needs to resolve it,” the group wrote of fair use case law.

An additional 65 intellectual property professors wrote a separate brief that said the lower court rulings had “deepened splits in circuit court interpretations of several major copyright doctrines as applied to computer programs.”

David Nimmer, a professor at UCLA School of Law and the author of an influential treatise on copyright law, filed his own brief with another scholar that said the case could “upend nearly three decades of sound, well-settled, and critically important decisions” on software copyrights.

Oracle sued Google in 2010, claiming it lifted key aspects from so-called application programming interfaces, or APIs — chunks of prewritten computing instructions Oracle created to help programmers more easily write in the Java programming language — and used them in Android, the top smartphone operating system in the world.

Google originally argued that the pieces it used from the API were not copyrightable, but the Federal Circuit rejected that in 2014. Google then argued that its use of the code was protected by copyright’s fair use doctrine, but the appeals court again rejected that last year.

Last month, Google took both of those rulings to the Supreme Court, warning the justices that the decisions would drastically alter how copyright treats the “essential building blocks of software development.”

“Google has never disputed that some forms of computer code are entitled to copyright protection,” the company wrote. “But the Federal Circuit’s widely criticized opinions … go much further, throwing a devastating one-two punch at the software industry.”

A response brief from Oracle is due on March 27. That brief will likely be followed by amicus briefs that support Oracle.

Separate amicus briefs were also filed on Friday and Monday by the Electronic Frontier FoundationPublic Knowledge; a group of 78 computer scientists; Red Hat Inc., an open-source software firm; a group of “software innovators, startups, and investors”; Python Software Foundation; and the American Antitrust Institute.

CCIA is represented in-house by Matt Schruers and Ali Sternburg, and by Jonathan Band of Jonathan Band PLLC.

The Developers Alliance is represented in-house by Bruce Gustafson, and by James H. Hulme and Nadia A. Patel of Arent Fox LLP.

The eight law professors are represented by Christopher T. Bavitz of Harvard Law School.

The 65 IP professors are represented by Pamela Samuelson and Catherine Crump of the University of California, Berkeley School of Law.

Nimmer and co-author Peter S. Menell are representing themselves.

Google is represented by Thomas C. Goldstein of Goldstein & Russell PC, Kannon K. Shanmugam of Paul Weiss Rifkind Wharton & Garrison LLP, Charles L. McCloud and Meng Jia Yang of Williams & Connolly LLP, Robert A. Van Nest, Christa M. Anderson, Eugene M. Paige and Reid P. Mullen of Keker Van Nest & Peters LLP, Bruce W. Baber and Marisa C. Maleck of King & Spalding LLP, and Michael S. Kwun of Kwun Bhansali Lazarus LLP.

Oracle is represented in-house by Dorian Daley, Deborah K. Miller, Matthew M. Sarboraria and Ruchika Agrawal, and by Joshua Rosenkranz, Annette L. Hurst, Peter A. Bicks, Lisa T. Simpson, Andrew D. Silverman, Matthew L. Bush, Mark S. Davies, Kelsi Brown Corkran, Melanie L. Bostwick and Jeremy Peterman of Orrick Herrington & Sutcliffe LLP, and Dale M. Cendali and Joshua L. Simmons of Kirkland & Ellis LLP.

The case is Google LLC v. Oracle America Inc., case number 18-956, before the Supreme Court of the United States.

Via Harvard Law Today 

On February 13, the Harvard Law School Library hosted Prof. Susan Crawford for a book talk and discussion on her newly-released title, “Fiber: The Coming Tech Revolution—and Why America Might Miss It.” Crawford, who holds the John A. Reilly Clinical Professorship at HLS, is an expert in tech, public policy, and how they affect our lives. She is the author three books on the subject (“Fiber,” “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age,” and “The Responsive City: Engaging Communities Through Data-Smart Governance”) and is a columnist at WIRED.

China Will Likely Corner the 5G Market – And the US Has No Plan

Via Wired.com 

Source: Pexels

By: Susan Crawford

You may have heard that China has cornered much of the world’s supply of strategic metals and minerals crucial for new technology, including lithium, rare earths, copper, and manganese used in everything from smartphones to electric cars. As of 2015, China was the leading global producer of 23 of the 41 elements the British Geological Society believes are needed to “maintain our economy and lifestyle” and had a lock on supplies of nine of the 10 elements judged to be at the highest risk of unavailability.

But you may not know that China is also on track to control most of the world’s flow of high-capacity online services—the new industries, relying on the immediate communication among humans and machines, that will provide the jobs and opportunities of the future.

China’s Belt and Road Initiative, supporting infrastructure and investment projects in nearly 70 countries, will have profound consequences for 40 percent of the world’s economic output. Crucially, each of the many trans-Eurasian rail lines that are part of this mammoth project will be accompanied by fiber-optic cables carrying impossibly huge amounts of data across thousands of miles without delay. According to Rethink Research, China is also planning to deploy fiber-optic connections to 80 percent of the homes in the country.

China’s ambitious deployment of fiber will have several consequences. In communicating with Russia and Europe, it won’t have to rely on undersea fiber-optic cables running through the Indian Ocean that might be subject to surveillance by the US. Even more important, it will have access to a giant market of consumers and businesses across an enormous terrestrial area that ties Central Asia even more closely to Russia as well as China.

Fiber-optic cable—made of hair-thin, extraordinarily pure synthetic glass through which pulses of light encoded with tens of thousands of gigabits of data are sent each second by lasers—has been around for a while. Fiber runs today between continents and between US cities. What’s new about China’s massive deployment of fiber, both in its own territory and in its global market along its planned Belt and Road, is that China is likely to permit only 5G equipment made by Huawei and a handful of other Chinese companies to connect to that fiber. Ninety percent of any wireless transmission actually moves through a wire attached to a “cell” spewing and receiving data from the outside air; in the case of 5G, that wire will have to be fiber. And the entity installing fiber in the ground or on poles can decide what 5G wireless equipment is allowed to physically connect to that fiber; in China’s case, it’s clear the country will prefer its own companies’ equipment.

A crucial element of 5G is to give wireless companies the ability to monetize their services more effectively, to ensure they’ll never again be treated like “dumb pipes” by online businesses they don’t control. For carriers or network providers, the great advance of 5G is “network slicing,” which will allow carriers to create, on the fly, multiple customized virtual private networks for particular customers or applications. This will create a high-priced, services-based, perfectly-billed-for ecosystem that’s very different from the 4G world.

In effect, each 5G carrier will be able to define its network from moment to moment, charge whatever it wants for heavily marketed levels of service differentiation, and act as a gatekeeper for applications seeking entry. This allows for unlimited pricing power and deeply undermines the internet protocol’s basic premise—that any computer could speak to another using the same basic language. Instead, transport of bits will be completely software-defined and virtualized: Think proprietary cable network instead of internet access.

You can bet that Huawei, already the world’s largest maker of telecommunications equipment, will be looking for exclusivity in its geographic territories. This is the way telecom works, absent oversight: Companies that have made big up-front investments in infrastructure will always carve up territories so as to avoid ruinous competition. (The cable industry did this in the US, playfully calling their 1997 agreements to swap and combine systems to ensure individual companies would control entire markets the “Summer of Love.”)

And so Huawei, and perhaps a couple of other Chinese companies, will control which data-rich services (think logistics, telemedicine, education, virtual reality, telepresence) are allowed to reach China’s global market over 5G. This means China, through the actions of its 5G carriers, will be able to exclude US companies from that market. Yes, China already does this inside its borders; the Belt and Road Initiative will allow China to do this across huge territories that 65 percent of the global population calls home. China will have created, in effect, its own extraterritorial internet of high-capacity services, many of which we cannot now even imagine.

You may immediately think of the additional reach for Chinese surveillance; consider, in addition, the economic productivity and growth these high-capacity connections will make possible. The ability to be in the presence of a doctor or a teacher, to work effortlessly from any location without any perception of difference, to upload enormous files without interruption in a split-second—all of this will be made possible by China’s fiber-plus-advanced-wireless internet.

The risk to the US of China’s plans is obvious: American companies don’t stand a chance in this context. China, not America, will be the place where new online services are born. Although the US came up with the idea of the internet, we don’t have a sandbox to play in, a giant market in which to test new high-capacity services. That’s because we haven’t committed ourselves to keeping up with Asia and the Nordics by upgrading the ends of our networks, the “last-mile” network section that reaches homes and businesses, to fiber-optic cable.

Luckily, nearly 800 municipalities and cooperatives across the US are showing us the way. Sick of the expensive and second-rate connectivity they’ve been stuck with by federal policy failures, which have left most urban areas dominated by local cable monopolies charging whatever they want for whatever services they want to provide, and rural areas out in the cold almost entirely, they’ve taken matters into their own hands and called for the installation of fiber-optic cables. We need this policy issue to be on the radar screen at every level of government in America.

Here’s what should happen: Publicly controlled fiber-optic cables should form a kind of wholesale street-grid, available for lease under nondiscriminatory terms to private operators who sell services. Government doesn’t need to control connectivity; we are not China. Ideally, government should require frequent, open interconnection points for competing 5G operators to hang their gear on this street-grid made of glass, so that no one operator can pick which services succeed in a particular geographic area. Again, we shouldn’t replicate the domineering ways of China’s Huawei.

Above all, we need a plan. Right now we don’t have one.

Could Marijuana Policy Be The Sleeper Policy Issue of 2019?

Via the Semester in Washington Blog 

So far in Washington, 2019 has been dominated by talk of the shutdown, immigration policy and “The Wall.”  That’s likely to continue another few weeks — at least — until Fiscal Year 2019 funding is settled and enacted for the entire federal government.  Eventually, we will, I hope and strongly suspect, move on to other issues.  The President will lay out his policy agenda in the State of the Union address now scheduled for February 5th, and the Democrats will lay out theirs in the response to the State of the Union, and perhaps in other venues too.

As we think through what these policy agendas might look like, many familiar issues will surely come to mind: health care, trade, foreign policy and much more.  But there are often sleeper issues that we don’t anticipate but that somehow manage to get pushed onto the national agenda.  As this article from Politico sets out, marijuana policy could be one such issue in 2019.  Here is an excerpt from the article:

“This is the first Congress in history where, going into it, it seems that broad marijuana reforms are actually achievable,” said Tom Angell, an advocate-journalist who runs Marijuana Moment.

Members of Congress are lining up to introduce bills that never got to see the light of day when Republicans ran the show. Two bills have already been filed: a reintroduction of the CARERS Act by Steve Cohen (D-Tenn.) and Don Young (R-Alaska), which would expand marijuana research, allow VA doctors to discuss pot with veteran patients and prevent the federal government from meddling with state-legal programs without removing marijuana from the schedules created by the Controlled Substances Act of 1970; and H.R. 420, the “Regulate Marijuana like Alcohol Act” by [Rep. Earl] Blumenauer, [the Oregon Democrat who is the dean of the Cannabis Caucus], which would remove marijuana from the list of most dangerous drugs, “de-scheduling it” in Congress-speak, and shift regulatory authority to the Bureau of Alcohol Tobacco and Firearms.

“For the past several Congresses, there have been dozens of pieces of marijuana legislation filed, but this is the first time where advocates can legitimately say that some of these bills can actually pass,” Angell told me.

And, sure, Republicans remain in control of the Senate, so it seems unlikely that such bills would have much luck there. But the current Senate is practically the same body that just a month ago passed a criminal justice reform bill 87 to 12, and under the leadership of Senate Majority Leader Mitch McConnell voted to legalize hemp — the non-psychoactive sister plant of marijuana — through the Farm Bill.

This level of disconnection between state and federal law cannot hold for much longer, and it might not have to. In the wake of the Farm Bill, the idea that Congress could remove marijuana from the list of scheduled drugs is now conceivable. After all,the plant is now legal; only the potency is in question. Maybe this year, for the first time, Blumenauer’s bill doesn’t seem so crazy.

Do you think marijuana legislation has a chance to move this Congress?  Are there other sleeper issues that you think might come up and move towards enactment?

A Look at Refugee Legal Advocacy in Germany

Isabel Schayani and Niku Jafarina JD ’19 at WDR in Germany

By: Niku Jafarnia JD/MPP ’20

This J-term, I did an independent clinical in Germany, exploring the issues refugees are facing in the country, particularly with respect to legal advocacy and representation. More specifically, I wanted to explore the viability of an organization that would allow refugees to play a greater role in legal processes relevant to the refugee community.

From my work in the refugee legal advocacy space, I have been struck by the lack of initiatives that include and train members of the refugee community to work as legal advocates for themselves. I felt that Germany would be a good place to start building an organization that would work towards this goal. Since an influx of refugees arrived in Germany in 2015, the policies put in place by the German government, while far from perfect, have generally given Germany the image of being a “pro-refugee” society, particularly when compared to many of its neighbors. I wanted to test this claim, and learn more about what organizations in Germany were doing to support and empower refugees.

I had the opportunity to meet with people working across a vast spectrum of organizations, from small start-ups, to much larger government-supported NGOs, to German government and UN employees. I also had the opportunity to spend a day with Isabel Schayani (pictured), a former Harvard John F. Kennedy Memorial Fellow who started a program within WDR (a German public-broadcasting news station) that provides refugees with critical programming and information about their legal rights in Farsi and Arabic. Most importantly, I was able to meet with people who had come to Germany seeking asylum, and to hear their perspectives on the ever-changing asylum and refugee system in Germany.

During my research, I was particularly struck by the divergences between the German and U.S. asylum and refugee systems. Though the German system has significant room for improvement—particularly as their efforts to deport and exclude refugees have increased—there was a certain humanity that I recognized in the system of services and in the government-provided provisions, educational opportunities, and shelters provided to refugees. This image presented a stark contrast with the U.S.’s increasingly militarized southern border and systematic imprisonment of migrants. Hopefully, countries will look to Germany’s inclusionary policies as an example, rather than replicating the U.S.’s administration’s efforts to demonize and dehumanize those who have come to the U.S. seeking refuge.

While I still have many unanswered questions, my time in Germany has made clear that in spite of Germany’s more progressive policies toward refugees and migrants, there remains a lack of support for members of these communities to advocate for themselves, particularly in the legal sphere. On a more positive note, my research also revealed that there is a general willingness among many refugee-focused NGOs and government agencies to support an initiative that would empower refugees, and that would allow them to meaningfully participate in their own communities’ legal representation. I look forward to returning to Germany this summer to further explore my organizational idea.

Survey: Misunderstanding Food Date Labels Linked With Higher Food Discards

Via the Center for Health Law and Policy Innovation 

A new survey examining U.S. consumer attitudes and behaviors related to food date labels found widespread confusion, leading to unnecessary discards, increased waste and food safety risks. The survey analysis was led by researchers at the Johns Hopkins Center for a Livable Future (CLF), which is based at the Johns Hopkins Bloomberg School of Public Health.

The study, published online February 13 in the journal Waste Management, comes at a time of heightened awareness of food waste and food safety among both consumers and policymakers. The U.S. Department of Agriculture estimates that 31 percent of food may be wasted at the retail and consumer levels. This study calls attention to the issue that much food may be discarded unnecessarily based on food safety concerns, though relatively few food items are likely to become unsafe before becoming unpalatable. Clear and consistent date label information is designed to help consumers understand when they should and should not worry.

Among survey participants, the research found that 84 percent discarded food near the package date “at least occasionally” and 37 percent reported that they “always” or “usually” discard food near the package date. Notably, participants between the ages of 18 to 34 were particularly likely to rely on label dates to discard food. More than half of participants incorrectly thought that date labeling was federally regulated or reported being unsure. In addition, the study found that those perceiving labels as reflecting safety and those who thought labels were federally regulated were more willing to discard food.

New voluntary industry standards for date labeling were recently adopted. Under this system, “Best if used by” labels denote dates after which quality may decline but the products may still be consumed, while “Use by” labels are restricted to the relatively few foods where safety is a concern and the food should be discarded after the date. Previously, all labels reflected quality and there was no safety label. Neff and colleagues found that among labels assessed, “Best if used by” was most frequently perceived as communicating quality, while “use by” was one of the top two perceived as communicating safety. But many had different interpretations.

“The voluntary standard is an important step forward. Given the diverse interpretations, our study underlines the need for a concerted effort to communicate the meanings of the new labels,” says lead author, Roni Neff, PhD, who directs the Food System Sustainability Program with the CLF and is an assistant professor with the Bloomberg School’s Department of Environmental Health and Engineering. “We are doing further work to understand how best to message about the terms.”

Using an online survey tool, Neff and colleagues from Harvard Law School Food Law and Policy Clinic (FLPC) and the National Consumers League assessed the frequency of discards based on date labels by food type, interpretation of label language and knowledge of whether date labels are regulated by the federal government. The survey was conducted with a national sample of 1,029 adults ages 18 to 65 and older in April of 2016. Recognizing that labels are perceived differently on different foods, the questions covered nine food types including bagged spinach, deli meats and canned foods.

When consumers perceived a date label as an indication of food safety, they were more likely to discard the food by the provided date. In addition, participants were more likely to discard perishable foods based on labels than nonperishables.

Raw chicken was most frequently discarded based on labels, with 69 percent of participants reporting they “always” or “most of the time” discard by the listed date. When it came to prepared foods, 62 percent reported discards by the date label and 61 percent reported discards of deli meats. Soft cheeses were near the bottom of the list with only 49 percent reporting discards by the date label, followed by 47 percent reporting discards of canned goods and breakfast cereals.

Among foods included in the survey, prepared foods, deli meats and soft cheeses are particularly at risk of contamination with listeria which can proliferate in refrigerated conditions. Despite concerns of listeria, soft cheeses were rarely discarded by the labeled date. On the other hand, raw chicken was frequently discarded even though it will be cooked prior to consuming and is not considered as big of a risk. Unopened canned goods and breakfast cereal pose the least concern based on time since packaging, but were still discarded by just under half of respondents.

“Foodborne illness is misery–or worse,” says Neff. “As date labeling becomes standardized, this research underlines the need for a strong communications campaign and highlights a particular need for education among those ages 18 to 34.”

The research was supported by the National Consumers League and the Johns Hopkins Center for a Livable Future.

Misunderstood food date labels and reported food discards: A survey of U.S. consumer attitudes and behaviors” was written by Roni Neff, Marie Spiker, Christina Rice, Ali Schklair, Sally Greenberg and Harvard FLPC’s Emily Broad Leib.

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