Clinical and Pro Bono Programs

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The Shutdown Threatens the Promise of Government Jobs — and A Way of Life

Via The Washington Post 

Source: Flickr

By: Todd C. Frankel , Taylor Telford and Danielle Paquette

Three weeks of no pay and lots of uncertainty has changed how aerospace engineer Robert Sprayberry thinks about his job. He joined the Federal Aviation Administration a decade ago because it promised him a stable career with steady hours. He might not earn as much money as he could in the private sector, but he could be home more to help raise three young children.

But that careful career calculation has been undercut by a partial federal government shutdown that on its 25th day is the longest in history, with 800,000 employees not getting paychecks because of a budget impasse over border wall funding. So Sprayberry’s wife picks up extra shifts as a nurse to make up for his lost income. And he has started looking around for a new job, this time with a private firm.

“If I’m going to put up with this level of stress,” Sprayberry, 38, said, “I might as well get paid for it.”

A job in the government has long been underwritten by the understanding that while you wouldn’t strike it rich on the federal pay scale, you also didn’t need to worry about the corporate world’s mercurial whims. The focus was on serving the public, rather than pursuing profits. The pace could be frustratingly inefficient, but it also was not maddeningly chaotic. And the trade-off came with solid health and retirement benefits.

That grand bargain — deployed for decades to lure talent into the government ranks — is threatened today by a bruising shutdown with no end in sight. And this is the third shutdown in one year. The other two shutdowns were brief — the longest ran two days. But they were tremors foreshadowing what was to come. The situation is exacerbated by a president who appears to view many government workers with contempt, deriding the federal bureaucracy as “the Deep State” and noting derisively via tweet that he thinks most government workers are Democrats.

So a government gig suddenly doesn’t look quite so secure. The mission is muddied. The bloom is off. And the potential for a federal brain drain — along with drags on recruitment and morale — looms large.

“The end of the shutdown is not the end of the harm,” said Max Stier, chief executive of the Partnership for Public Service, a nonpartisan group that has surveyed job satisfaction in government agencies for the last 15 years.

Morale at government agencies already was suffering under President Trump’s administration, according to the Partnership’s 2018 Best Places to Work in Government survey, which found marked declines in job satisfaction since the Obama administration at a range of agencies, including the State and Agriculture departments. Under Trump, the Federal Trade Commission and Department of Homeland Security were among the agencies that saw their poll numbers go up.

Trump’s administration imposed a federal hiring freeze and has seen high turnover among key political appointees.

Now, a lingering shutdown is raising tensions. Some federal workers have been forced to return to their jobs without pay. Unions representing Treasury employees and air traffic controllers sued the Trump administration to claim this was wrong. But a federal judge declined to issue an emergency intervention in the case Tuesday.

It’s difficult to measure the impact of a shutdown with an annual job satisfaction survey, Stier said. But government rankings took a slight hit during a 17-day government shutdown in 2013.

“It’s certainly true that there are real consequences to a shutdown,” Stier said.

It was one of the factors that made Aaron Johnson, 26, reconsider his career choice. He is a security guard at the Smithsonian’s National Museum of the American Indian. Protecting the artifacts, he said, gave him a sense of purpose and introduced him to people from around the world.

Lost wages have irked Johnson, but it was the president’s comments about the federal workforce in recent months that truly pushed him to look for a new job — perhaps in retail.

“As long as he’s in office, I need to try to get somewhere where I can feel secure,” Johnson said.

Anel Flores, a mission systems engineer at Goddard, the NASA facility in Greenbelt, Md., is also tired of Trump’s attacks on federal workers. So when he returns to work — whenever that is — he plans to file for retirement after 36 years at NASA.

“Why do I have to worry about the president throwing another tantrum?” Flores said.

Trump is not the first U.S. president to cast doubts on the federal workforce. President Ronald Reagan famously said that “government is not the solution to our problem; government is the problem.” President Bill Clinton received a report on government reform from his vice president that described federal workers as “good people trapped in a bad system.”

But Trump has gone further in suggesting — without proof — that federal workers are working to undermine his administration, said David Lewis, a political science professor at Vanderbilt University who studies the presidency and federal service branch.

The combination of a boss who is denigrating your work and a shutdown with an unknown ending might lead more federal workers to jump ship.

“They’ll ask themselves, ‘Why am I sacrificing? I could be working in the private sector,’ ” Lewis said.

Some workers already are testing the waters. An upcoming job fair for workers with security clearances has seen a 20 percent jump in registrations over last year’s, said Rob Riggins of Cleared Jobs, which is organizing the Jan. 31 event in Tysons, Va. He attributed the increase to the shutdown.

“People are getting nervous,” Riggins said. “They want to have a contingency plan.”

Others are avoiding the federal government from the start. Jim Tierney, who teaches at Harvard Law School, said he’s noticed a spike in interest in his state attorneys general law clinic under Trump. He attributed the change to Trump’s frequent attacks on the federal Justice Department and drastic curtailment at the Consumer Financial Protection Bureau.

These fledgling attorneys — some of the best in the country — are looking beyond the familiar hotshot attorney posts with the federal government, Tierney said.

“Traditionally, you’d never have Harvard Law grads going to a state AG’s office,” said Tierney, a former Maine attorney general. “But then they look at what’s happening in D.C.”

Not every federal agency will suffer equally if workers start looking around for new jobs, said Jeri Buchholz, NASA’s head of human resources until she retired three years ago. The FBI will always be the FBI, she said. Astronauts still want to work at NASA. But, she said, economists and attorneys might find plenty of opportunities in the private sector.

The shutdown will hurt recruiting for government jobs, Buchholz said. “If any private company was doing what the federal government is doing right now, they’d lose their reputation, and good people wouldn’t go to work there.”

The shutdown also has made it harder for the government to find new hires — a point of emphasis for agencies such as the Border Patrol. Trump signed an executive order shortly after he took office calling for the agency to hire 5,000 more agents.

Last week, the Border Patrol was supposed to host a recruiting booth at a Houston boat show. But the shutdown put an end to that. No staff could be spared. The Border Patrol was forced to cancel.

Shortchanged Workers Demand Attorneys’ Fees and a Fair Test for Determining Prevailing Party Status

By: Elizabeth Soltan ’19 and Patricio Rossi, Clinical Instructor of the Harvard Legal Aid Bureau

HLAB students Kenneth Parreno ’19 and Elizabeth Soltan ’19 with Clinical Instructor Patricio Rossi after oral argument at the Massachusetts Supreme Judicial Court on December 4, 2018.

The average American worker earns $7,500 less than they should according to a 2017 analysis from Glassdoor. Low-wage immigrant workers, particularly immigrant women, are disproportionately susceptible to workplace violations such as underpayment. Litigation to combat illegal practices such as wage theft costs more than these workers can afford. The Harvard Legal Aid Bureau (HLAB), a student-led civil legal aid organization at Harvard Law School, provides free legal representation to low-income and disenfranchised communities in the Greater Boston area, advocating for rights that may not otherwise be enforced for marginalized populations. Under the supervision of Clinical Instructor Patricio Rossi, nearly 10 HLAB students have played a critical role in helping two immigrant women of color obtain relief for wage theft from their employer. Two current students have been fighting to ensure low-wage workers like the women in this case have access to attorney’s fees. The suit, Ferman, et. al. v. Sturgis Cleaners, Inc., was brought by two former employees of the South Boson dry cleaners who claimed they were underpaid for their labor, a violation of the Massachusetts Wage Act and Overtime Pay Act.

 

Kellie MacDonald ’15 originally filed the case in 2014 in Suffolk Superior Court on behalf of the two former employees of Sturgis Dry Cleaners and Tailors. The suit alleged that the employer failed to pay the workers for all of their hours worked, including overtime hours, totaling approximately $28,000 in unpaid wages. The case settled in 2016 for approximately $20,000. The parties could not, however, agree to terms on attorney’s fees, and agreed to let the court decide the issue.

 

Khyrstyn McGarry ’17 and Michele Hall ’17 filed a petition for attorney’s fees, arguing that, pursuant to the “Catalyst Theory”, the workers were the prevailing party. The catalyst theory involves a two-part test. For a plaintiff to prevail, his/her lawsuit must be “a necessary and important factor in achieving the [sought-after] relief” and cannot be “frivolous, unreasonable, or groundless.” The plaintiffs argued they met both of the requirements of the catalyst theory.  The employers argued that a party could not be a prevailing party without clear court intervention. In the spring of 2017, the Superior Court awarded HLAB approximately $16,000 in attorney’s fees. The employers appealed the decision and HLAB students Jag Singh ’18 and Lark Turner ’18 filed an application with the Supreme Judicial Court (“SJC”) for Direct Appellate Review, which was eventually granted.

Immediately after returning from summer break, Elizabeth Soltan ’19, Kenneth Parreno ’19, and Josephine Herman ’20 began work on the workers’ appeal brief. Under a tight timeline, they crafted a persuasive argument that the “Catalyst Theory” is the proper test in Massachusetts to determine prevailing party status. Nearly ten groups, including the American Civil Liberties Union of Massachusetts, the Massachusetts Law Reform Institute, and the Immigrant Worker Center Collaborative, filed amicus briefs in support of the plaintiff-appellees. On December 4, 2018, Soltan argued before the Massachusetts Supreme Judicial Court. She spent an intense few weeks preparing and mooting her argument. All of the practice paid off as Soltan delivered an incredibly poised argument to the SJC justices. The argument centered on how to determine “prevailing party” status, for the purpose of awarding attorney’s fees, under the Massachusetts Wage Act.

The decision could have a major impact on how Massachusetts courts determine prevailing party status. It is currently unclear how the courts determine the prevailing party status, and there are 66 fee shifting statues in Massachusetts. Should the SJC accept the catalyst theory, it will provide a liberal framework of fee-shifting provisions to help those without the means to pay lawyers out-of-pocket to obtain representation. Working-class people can be discouraged from accessing the courts because of their inability to pay a lawyer. However, a fair test for fee-shifting provisions can help close the gap between the civil legal needs of working-class people and the resources available to them.

A decision in the case is expected in late winter/early spring.

Access to Justice Issue of Dædalus Available Free Online

Via the Access to Justice Lab

If you’re looking for some good reading this week, we’ve got you covered.

The current issue of Dædalus, a publication of the American Academy of Arts and Sciences, is entirely focused on how the U.S. can address the access to justice gap. The first-ever open access issue of the journal, the publication includes twenty-four essays that cover a wide variety of A2J approaches.

The collection of essays as a whole represents a deep cross-section of ideas from leading experts in the field with three subsections: the meaning of access to justice, delivery models, and interests, constituencies, and stakeholders. A2J Lab Faculty Director Jim Greiner’s contribution, The New Legal Empiricism & Its Application to Access-to-Justice Inquiries, provides a great summary of the theory that drives the A2J Lab’s research.

All of the essays are freely available online at: https://www.amacad.org/daedalus/access-to-justice

Can America Really Have High Speed Internet for All?

Via WNYC Studios: The Takeaway

Source: Pixabay

If this country really has ambitions of having a 5G revolution like the one being talked about the Consumer Electronics Show this week, we need something else first.

Fiber optic connections that reach everyone.

“What it is is synthetic glass, in which the manufactured process is so carefully controlled that light can travel through that glass for many dozens of miles without using any of the signal that it’s carrying,” says Susan Crawford, a professor at Harvard Law School and the author of “Fiber: The Coming Tech Revolution – and Why America Might Miss it.”

And here’s what she means when she says we might miss it: Of the 119 million households in the United States, only about 10 million have access to fiber connections. China, on the other hand, has a goal of connecting 300 million of its 455 million households to cheap, high capacity fiber by 2020.

Susan Crawford says fiber technology is the biggest tech story the United States should be paying attention to in 2019.

Listen to this segment here.

Massachusetts Access to Justice Commission Announces New Members, Including HLAB Clinical Professor and Faculty Director Esme Caramello

Via Mass.gov 

The Supreme Judicial Court [appointed] eight new members to the Massachusetts Access to Justice Commission.

First established by the Supreme Judicial Court in 2005, the Commission seeks to improve access to justice for people who are unable to afford an attorney for essential civil legal needs, such as cases involving housing, consumer debt, and family law. Among other activities, the Commission coordinates with civil legal aid organizations to support their activities and develop new initiatives to address unmet needs. The Commission also works to increase the number of attorneys able to provide pro bono or limited assistance civil legal services and coordinates with the court system on initiatives that assist individuals to better understand and navigate civil legal proceedings.

Co-chaired by Supreme Judicial Court Chief Justice Ralph D. Gants and Susan M. Finegan, Esq., of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., the Commission includes representatives from the court system, legal aid organizations, social service organizations, bar associations, law schools, businesses, and other stakeholders in the access to justice community.

“The Commission welcomes our new members and appreciates their commitment to serve on the Commission in addition to the important positions they already hold, and their dedication to making our justice system work effectively for all of the Commonwealth’s residents,” Supreme Judicial Court Chief Justice Gants said.

“We are pleased to have the opportunity to work with these new members, whose wide-ranging experience and knowledge will further strengthen our efforts to carry out the Commission’s mission,” said Attorney Finegan.

The eight newly appointed commissioners are:

  • Esme Caramello, Clinical Professor and Faculty Director at the Harvard Legal Aid Bureau, Harvard Law School;
  • Hon. Fairlie Dalton, First Justice of the Northeast Housing Court;
  • Sandra Gant, Trial Attorney, Norfolk Superior Court Trial Unit, Committee for Public Counsel Services;
  • Richard Johnston, Chief Legal Counsel, Office of the Attorney General, and former WilmerHale partner;
  • Jennifer Grace Miller, Counsel to the Massachusetts Senate, and former chief of the Government Bureau at the Office of the Attorney General;
  • Susan Nagl, Executive Director of South Coastal Counties Legal Services;
  • Anthony Owens, Clerk-Magistrate of the Dorchester Division of the Boston Municipal Court; and
  • Mary Ryan, Partner, Nutter McClennen & Fish, and former president of the Boston Bar Association, former chair of the Supreme Judicial Court’s Standing Committee on Pro Bono Legal Services, and former chair of the American Bar Association’s Standing Committee on Pro Bono and Public Service.

Over the past 13 years, the Commission has undertaken a broad number of initiatives to support and expand assistance for people in need of civil legal aid in the areas of consumer protection and debt, housing, employment, family law, immigration and asylum cases, among many others. Recent initiatives include the following:

  • The Access to Justice Fellows program enlists senior attorneys and retired judges to volunteer their time for pro bono projects that support non-profit organizations or work with legal services to help people with civil cases such as indigent asylum-seekers or individuals facing eviction proceedings or bankruptcy. To date, more than 100 retired lawyers and judges have provided over 80,000 hours of pro bono service to 60 nonprofit entities through this program, which is managed by the Lawyers Clearinghouse.
  • The Civil Appeals Clinic provides a weekly clinic for eligible litigants who are representing themselves at the Appeals Court in civil appellate court matters on a number of issues, ranging from housing to family law (and full representation for selected qualifying persons), in collaboration with the Volunteer Lawyers Project, participating law firms and legal services organizations, and the Clerk’s Offices of the Appeals Court and the Supreme Judicial Court.
  • In 2016, the Justice for All project awarded the Commission a $100,000 grant to develop a strategic action plan for improving access to justice throughout the Commonwealth. In December of 2017 the Commission published a comprehensive Strategic Action Plan in collaboration with a wide range of representatives from the access to justice community. The grant was funded by the Public Welfare Foundation and administered by the National Center for State Courts.
  • The Commission partnered with legal services organizations and Massachusetts Legal Assistance Corporation, the largest funding source for civil legal aid programs in the state, to win a second Justice for All grant to fund two new pilot projects to test innovative strategies for improving access to justice in the areas of consumer debt and housing.
  • The Commission worked with the Massachusetts Office for Victim Assistance, along with the Massachusetts Legal Assistance Corporation and other stakeholders, to allocate $8.3 million in funding to support civil legal aid for victims of crime under the Federal Victims of Crime Act.

More information about these projects and the Commission’s other activities is available in its Annual Report for 2017-2018 and on the Access to Justice Commission’s website.

People in Puerto Rico Can’t Get the Same Hepatitis C Meds as Other American Citizens Do

Via Tonic

Source: Flickr

By: Carmen Heredia Rodriguez

Drugs that can cure hepatitis C revolutionized care for millions of Americans living with the deadly liver infection. The drugs came with a steep price tag—one that prompted state Medicaid programs to initially limit access to the medications to only the sickest patients. That eased, however, in many states as new drugs were introduced and the prices declined.

But not in Puerto Rico: Medicaid patients in the American territory get no coverage for these drugs.

The joint federal-territory healthcare program for the poor—which covers about half the island’s population—does not pay for hepatitis C medications. They also do not cover liver transplants, a procedure patients need if the virus causes the organ to fail.

The Puerto Rico Department of Health created a separate pilot project in 2015 to provide hepatitis C medications to those sickened by the liver infection who also have HIV, but expanded the program later to those with only hepatitis C. However, according to the Office of Patient Legal Services, an official territorial agency that advocates for consumers, the program ran out of funding and is no longer accepting patients only with hepatitis C.

The Puerto Rico Health Insurance Administration (ASES), which oversees Medicaid, says it is working with a pharmaceutical company to create a cost-effective system to provide these medications.

“Definitely, they need to be given coverage,” ASES director Angela Ávila Marrero says. “They need to be given care.”

The Department of Health did not comment.

Hepatitis C, a bloodborne infection, increases the risk of cirrhosis, liver cancer, and death. Poor screening led many to contract the disease through tainted blood and organ transplants through the early 1990s. Today, intravenous drug use drives most of the new cases in the United States.

William Ramirez, executive director of the American Civil Liberties Union of Puerto Rico, says he is considering filing suit against Puerto Rico for failing to cover the cost of these medications for people enrolled in Medicaid.

You’re holding back medication and thereby allowing certain people to die,” Ramirez says.

That reality is clear for Hector Marcano, 62, who stopped working roughly six years ago because of the illness. After recovering from a drug addiction, he was a case manager who worked to connect drug users to health resources.

His liver disease is leading to overall deterioration. He struggles with walking. A bout of pneumonia that left him hospitalized lingers in his racking coughs. He spends his days reading, listening to the radio, and praying for the strength to keep searching for the cure.

He doesn’t understand why the government does not provide hepatitis C medications, he says, especially as there are so many people in need of them.

“So what are we waiting for?” asked Marcano. “For a pandemic to happen?”

Medicaid costs drive island’s debt crisis

Approximately 3.5 million people in the United States have hepatitis C. The virus can silently corrode the liver for years without causing symptoms.

Because of the condition’s stealthy nature and the absence of recent data, the number of people in Puerto Rico living with the virus is uncertain. Researchers on the island in 2010 estimated that 2.3 percent of 21- to 64-year-old residents had the virus.

Documents provided by the Center for Health Law and Policy Innovation of Harvard Law School show medical providers reported more than 11,000 hepatitis C cases to the Puerto Rico Department of Health from 2010 to September 2016.

Cynthia Pérez Cardona, an epidemiology professor at the University of Puerto Rico and an author of multiple studies involving hepatitis C in Puerto Rico, says she is uncertain of how widespread the virus is on the island. But other statistics present a worrisome sign: A report from the island’s cancer registry found the number of new liver cancer cases increased an average of 2.1 percent annually among men and 0.7 percent among women from 1987 to 2014. Hepatitis C can cause such cancers.

Despite these warnings, Puerto Rico has fewer resources than most of the nation to care for its impoverished.

Unlike states, Puerto Rico’s federal funding for Medicaid is capped. Historically, these federal dollars have fallen far short of covering the program’s costs on the island. The territory’s crushing Medicaid expenses helped drive the island into its $70 billion debt crisis.

Under these financial constraints, says Matt Salo, executive director of the National Association of Medicaid Directors, Puerto Rico’s officials are left with a difficult choice when considering covering hepatitis C drugs.

“Rather than blowing through their cap in six months,” Salo says, “they’d blow through their cap in one month.”

Pilot project falls short

In the health department’s pilot project, patients with certain conditions like uncontrolled diabetes or an active mental health condition or those who could not prove they had been sober for six months were barred.

Such restrictions rankle patients and their advocates. “You know, we do not deny lung cancer treatment for a person who smokes or diabetes treatment to a person that doesn’t eat well,” says Robert Greenwald, a professor at Harvard Law School and faculty director of the Center for Health Law and Policy Innovation.

José Vargas Vidot, a member of Puerto Rico’s Senate and a physician, submitted a petition in 2017 to various territorial agencies questioning Medicaid’s coverage of hepatitis C medications.

The Office of Patient Legal Services responded to Vargas Vidot in a letter this year confirming that the island’s Medicaid program did not cover these drugs. It also noted the health department pilot project closed its wait list after reaching 100 patients because of a lack of funding. In November, Vargas Vidot submitted legislation to require that hepatitis C medication and treatment be part of basic coverage for insurance plans and Medicaid.

Ávila Marrero says ASES is in talks with a drugmaker to create a network separate from the Medicaid program to provide medications to the patients. She is hoping the arrangement would allow the government to get lower prices for the drugs. But no agreements have yet been reached for such a program.

Despite its success in states, suing to get coverage may not be the best option for Puerto Rico because the debt rescue package passed by Congress in 2016 includes a provision that bars creditors from taking legal action to collect from the territory.

That could apply to a lawsuit filed against the territory for not covering hepatitis C treatment in its Medicaid program, says Phillip Escoriaza, a health and federal grants law attorney in Washington, D.C., who practiced in Puerto Rico.

And even if the case can go forward, it would enter the docket for a special bankruptcy court with more than 165,000 other claims, as of January 2. It may be in the Puerto Rican government’s interest for things to take a long time, Escoriaza says. Once there, it could stall for years—time hepatitis C patients such as Marcano might not have.

Recent Case Victories From HIRC at GBLS

Via the Harvard Immigration and Refugee Clinical Program

Since the beginning, HIRC has partnered with Greater Boston Legal Services (GBLS), the largest provider of free legal services in Massachusetts. GBLS is also the site of the HIRC at GBLS side of the Clinic. Here are just a few of the many victories won by HIRC at GBLS over the past year:

HIRC at GBLS won asylum grants for:

  • An indigenous woman and mother of six from Guatemala who suffered severe domestic violence for 25 years at the hands of her husband. Supervisor: Maggie Morgan. Clinical students: Katrina Black ’19 and Brooke Adams ’20.
  • A Salvadoran mother and daughter who suffered severe domestic violence and gang based threats. Supervisor: John Willshire Carrera. Clinical students: Evelyn Zheng ’18, Brianna Rennix ’18 and other clinical students.
  • A young Haitian political activist who was targeted for violence by political opponents for her attempts to expose electoral corruption and advocate for women’s rights. Supervisor: Maggie Morgan. Clinical student: Elisabeth Mabus ’19.
  • A detained indigenous client from Ecuador who suffered past persecution on account of his race and for being a member of an evangelical family. Supervisor: John Willshire Carrera.
  • Two teenage sisters from El Salvador who were targeted by gangs and persecuted because of their religious beliefs. Supervisor: Nancy Kelly. Clinical students: Mathew Scarvie ’18 and Natalie Ritchie ’19.

HIRC at GBLS won grants of withholding of removal for:

  • A detained Honduran man who was a semi-professional soccer player of Garifuna (Afro-Caribbean) ethnicity who suffered racial persecution in Honduras. Supervisors: Maggie Morgan and Nancy Kelly. Clinical student: Abhinaya Swaminathan ’18.
  • A detained indigenous client from Guatemala who suffered past persecution during the Guatemalan Civil war. Supervisor: John Willshire Carrera. Clinical students: Kolja Ortmann ’19 and Maya Ragsdale ’18.
  • A detained Guatemalan whose family was targeted for their work with a human rights group. Supervisor: Nancy Kelly. Clinical student: Alex McGriff ’20.

Thank you to the attorneys and students for all their hard work on behalf of our clients!

Paving the Way for Self-Driving Cars

Via The Harvard Gazette

By: Juan Siliezar

Susan Crawford at HLS recently taught a class of students from several different schools, with the city of Boston as a client, to help it think through policy implications for the coming of autonomous vehicles. Jon Chase/Harvard Staff Photographer

The day will come, if it hasn’t already, when you’ll be riding down the road, glance to the side, and see a car motoring along with no driver. Autonomous vehicles are on the way, and two Harvard initiatives are helping to prepare Boston, and beyond, for their smooth arrival.

A few years ago, when tech companies like Uber and Airbnb spread across the nation and beyond, they introduced rapid and irreversible changes in how people travel. As the firms’ simple apps rocketed their platforms to popularity, the local policymakers responsible for ensuring that corporations contribute to the public good were left far behind, playing catch-up.

Policymakers around the globe grappled unevenly with these sudden technological shifts. In Hungary, lawmakers blocked Uber, and in Boston lawmakers passed tough laws on short-term housing rentals. Last summer, Cambridge officials ordered Bird, a dockless electric scooter rental company overseen by an app, to remove its scooters after it arrived without an agreement to operate. Now, as autonomous vehicles (AVs) are increasingly rolling through some American cities, policymakers are looking to avoid the past mistakes of reacting after the arrival of disruptive technology, and instead they’re planning for it.

They hope that, with thoughtful policies in place, self-driving cars will debut in a way that provides real public value. Their potential to improve civic life is great, including by reducing road deaths, increasing mobility for the elderly and disabled, and boosting transit in areas with little current access. At the same time, policymakers are wary of potential problems, such as increased road congestion, inequitable pricing and availability, and the loss of public revenue in a future with less need for metered parking and fewer traffic violations.

Current Harvard efforts are helping government officials to frame their early policies around AVs and provide recommendations for useful future laws. The efforts range from marathon discussion sessions in four locations, including Boston, to Harvard students tackling similar issues with Boston officials.

Here’s a look at these futuristic yet pragmatic Harvard efforts:

From craziness to preparing for a coming reality

Like many people, when Harvard lecturer in public Mark Fagan first heard the buzz around autonomous vehicles, he wrote it off as wishful thinking. That line of thinking, however, didn’t last long. “I just became convinced from talking to people that it wasn’t crazy, and it was really going to happen, and we ought to be ahead of it,” Fagan said.

As head of the new Autonomous Vehicle Policy Initiative at the Harvard Kennedy School’s (HKS) Taubman Center for State and Local Government, Fagan is working to do just that, help officials craft policies while the technology is still emerging.

“What cities and towns are trying to do with AVs is plan in advance so that they bring them logically to the market in a way that supports public value as opposed to just private value,” Fagan said.

As part of their early effort, Fagan and Rafael Carbonell, executive director of the Taubman Center, reached out to the city of Boston, which has been a test bed for self-driving cars and was looking to dive deeper into the policy side. The pair worked with the city to convene more than 40 representatives from the business, technology, community, and transit sectors to conduct an exercise developed by Fagan called a policy scrum, an intensive session in the mold of a design sprint or hackathon. Completed over two days, the exercise helps officials fast-track their thinking on issues. The hope is they’ll leave a session with strategy options to shape policy.

For Boston, the priority was looking at how to encourage shared rides and vehicles within autonomous vehicle technology. In its Go Boston 2030 transportation plan, the city has endorsed using shared fleets of self-driving vehicles to reduce congestion.

Mark Fagan is leading the Autonomous Vehicle Policy Initiative at Harvard Kennedy School’s Taubman Center for State and Local Government. AVPI people have worked with Boston, Tornonto, Kansas City and the state of Rhode Island to help officials there prepare for the vehicles. Jon Chase/Harvard Staff Photographer

“Largely what we came away with was a focus on curb management as the next piece that we should tackle to get at this sort of sharing component,” said Kristopher Carter, co-chair of the mayor’s Office of New Urban Mechanics, which oversees the city’s vehicle program. “We can use that as a tool to incentivize certain behaviors, as well as to incentivize certain types of vehicles or businesses.”

After the initial foray with Boston, Fagan and Carbonell expanded the initiative’s reach to Toronto, Kansas City, and the state of Rhode Island. Each policy scrum in those places produced insights for possible implementation.

In Kansas City, for example, the participants changed a conversation on data ownership and access — which is among the most controversial issues involving both driverless car programs and ride-hail companies — to focus instead on what policymakers need the data to answer. That question proved more fundamental than debating with tech companies over who should have access to the data. This switch, Fagan said, should prompt tech companies to be more open to sharing data since they know its intended use.

The Autonomous Vehicle Policy Initiative is also sharing information among the scrum hosts so they can learn from one another. The initiative hopes to publish that information on its website as well. It is focused on involving students in its work, by having them help with the policy scrums or bringing learning from the sessions into the classroom.

In the spring, the initiative will work with three more cities. More partnerships are likely. Increasingly, the initiative is hearing from officials struggling to develop policies around disruptive technologies.

“AV is very much at the forefront,” Carbonell said.

“We’ve done some marketing, but now we’re starting to see a little bit of a tipping point and people starting now to come to us and say, ‘Hey, we hear you do this thing on AV policy. Tell me more about it,’” Fagan said.

The autonomous vehicle revolution that was once dismissed is happening. The real craziness, officials say, would be not being prepared for it.

Providing a 21st-century education for 21st-century issues

There is broad understanding that many pivotal issues facing the world — such as climate change, immigration, and labor shortages — are intertwined, and changes in one can affect another. The shifts don’t develop in isolation.

Harvard Law School Professor Susan Crawford understands that the rise of autonomous vehicles will be no different. To properly prepare the students who will not only have to adapt to these technologies but someday help shape them, their education cannot happen in isolation either.

So when Crawford, the John A. Reilly Clinical Professor of Law, designed her class “Autonomous Vehicles and Local Government Lab,” she made sure that its 80 students would be exposed to an interdisciplinary effort from a range of Schools, ensuring students would learn from each other.

She designed the course with Boston officials so that her lab — made up of students from Harvard College, the Graduate School of Design, the Kennedy School, the Law School, and the T.H. Chan School of Public Health — could take on the city as a client.

“It’s a wonderful mesh,” Crawford said. “This class is not only an argument for cross-training but also for serving in local government, or government in general. It’s an argument that all urban planners need to know something about the law and that all techies need to know something about design and urban planning. It’s thoroughly meshing students from different Schools to take on concrete questions posed by Boston as it considers the introduction of AVs.”

The course served in part as an introduction to the issues surrounding driverless vehicles. Each week Crawford brought in experts with different perspectives, such as that of the private sector (which students learned, in part, from a representative from nuTonomy, one of the driverless vehicle companies testing cars in Boston) or the labor side (which they learned from the assistant commissioner for data and technology at the New York City Taxi & Limousine Commission).

[This class is] an argument that all urban planners need to know something about the law and that all techies need to know something about design and urban planning.
— Susan Crawford, Harvard Law School

At its core, though, the course was a laboratory where students in group projects could apply their learning to real-world scenarios. The questions and prompts posed by Boston officials targeted issues they’re confronting as they expand the AV testing, now happening in the Seaport area, to the rest of the city. Questions ranged from concerns about the city’s authority over curbsides to data-access needs.

“The class really exposed us to a variety of angles and discourse currently surrounding AV literature and discussion,” said Evan Shieh, a master’s student from the Design School. “Having a client drove us to ground the group work into recommendations that were actionable, but also allowed us to ground the scope of examination with respect to specific contextual issues facing Boston today.”

For the project, Shieh’s group, which also had students from the Law School, looked into whether the city should invest in smart infrastructure, who should pay for it, and how and when to implement it. In a future of autonomous vehicles, smart infrastructure, such as high-tech street signs or infrared lane markers, would provide driverless cars with data on traffic conditions and on lane safety during bad weather. The data could also help officials design better roads or establish policies to reduce congestion.

That team studied smart infrastructure used in other cities in the U.S., such as Detroit, and around the world, such as in Israel or Singapore, speaking to a member of the nuTonomy team there.

At the end of the course, students presented their recommendations to the city and other stakeholders. They included strategies to maximize the use of data collected from autonomous vehicles, options for the city on smart infrastructure, and establishing rules around AV pickup and drop-off zones.

Carter, who also has worked with HKS’s Autonomous Vehicle Policy Initiative, was impressed with the recommendations. “There was a balance of ‘Is this legally possible?’ and ‘What does it actually mean in the physical environment?’ and then ‘How does a policy with it manifest itself?’” he said.

For Crawford, the way the students interacted validated the way she structured the course.

“I want the students to be able to imagine themselves working in government,” she said. “I want them to appreciate the range of the kinds of thinking that are involved in policy planning [and put something together] that’s useful for the city.”

The students are submitting a consolidated briefing on their recommendations.

Can District Courts Hear Innocent Spouse Refund Suits?

Via Procedurally Taxing

Source: Flickr

By: Carl Smith

This is an update on two cases discussed by Keith Fogg in a recent post. The post primarily discussed the case of Chandler v. United States, 2018 U.S. Dist. LEXIS 174482 (N.D. Tex. Sept. 17, 2018) (magistrate opinion), adopted by judge at 2018 U.S. Dist. LEXIS 173880 (N.D. Tex. Oct. 9, 2018). Chandler was a district court suit in which an individual sought a refund for overpaying her equitable share of taxes on a joint return, taking into account innocent spouse relief under section 6015(f). In Chandler, the district court granted a DOJ motion to dismiss for lack of jurisdiction, holding that only the Tax Court could hear suits involving innocent spouse relief. Keith wondered whether there would be an appeal of this ruling of first impression with respect to innocent spouse refund suit jurisdiction.

In his post, Keith also mentioned the existence of a similar innocent spouse refund suit under section 6015(f) pending in the district court for the District of Oregon, Hockin v. United States, Docket No. 3:17-CV-1926. In that case, a similar DOJ motion to dismiss for lack of jurisdiction was pending, arguing that district courts cannot hear refund suits involving innocent spouse relief.

The update, in a nutshell, is that Chandler was not appealed, but Hockin has been set up as a test case, where nearly all the filings are in and linked to below.

Both under the original innocent spouse provision (section 6013(e), which existed from 1971 to 1998) and the current innocent spouse provision (section 6015, enacted in 1998), the district courts and the Court of Federal Claims had occasionally, and without objection from the DOJ, entertained suits for refund filed solely on the grounds that a taxpayer paid more than was required after the application of the innocent provisions.

Although the DOJ had apparently never done so before in any innocent spouse refund suit going back all the way to the 1970s and 1980s, in the summer of 2018, DOJ trial division lawyers in both Chandler and Hockin submitted motions to dismiss for lack of jurisdiction, arguing that, because Congress in 1998 enacted a stand-alone innocent spouse Tax Court action at section 6015(e) in which the Tax Court can find an overpayment under section 6015(b) or (f), the Tax Court is the sole court in which innocent spouse refund suits can now be filed (i.e., via section 6015(e)), and so neither the district courts nor the Court of Federal Claims has jurisdiction to entertain innocent spouse refund suits. The DOJ motions acknowledged only one rare exception to this position: Where there was a pending refund suit in a district court or the Court of Federal Claims (presumably on other issues) at a time when a taxpayer also filed a suit in the Tax Court under section 6015(e), the statute provides that the Tax Court innocent spouse suit should be transferred over to the court hearing the refund suit. Section 6015(e)(3).

In July, Keith and I were alerted to the existence of the motion in Hockin – but not the one in Chandler – by pro bono counsel for Ms. Hockin, J. Scott Moede, the Chief Deputy City Attorney of the Portland, Oregon Office of the City Attorney. Mr. Moede had taken on the Hockin case in his role as a regular voluteer with the Lewis & Clark Low-Income Taxpayer Clinic in Portland. That clinic suggested that Mr. Moede contact the Harvard Federal Tax Clinic because of the Harvard clinic’s interest in innocent spouse cases.

Working with summer students, in August, Keith and I put together a draft of a proposed amicus memorandum for Hockin arguing that the DOJ position was both ahistorical and contrary to the 1998 and 2000 legislative history of section 6015(e) that seemed to make clear that Congress enacted section 6015(e) to be added on top of all existing avenues for judicial review of innocent spouse issues, not to repeal or replace any prior avenues for judicial review.

Further, in the draft memorandum, we pointed out that the Trial Section’s motion in Hockin took a position directly contrary to the position that the DOJ Appellate Section had taken in three cases that the Harvard clinic had recently litigated. In those three cases, the DOJ Appellate Section urged the appellate courts not to worry about holding that a person who filed a late Tax Court suit under section 6015(e) must have her suit dismissed for lack of jurisdiction. The DOJ Appellate Section said that such a taxpayer could always still get judicial review of the IRS’ decision to deny innocent spouse relief by paying the tax in full, filing a refund claim, and suing for a refund in the district court or the Court of Federal Claims.

In both Hockin and Chandler, the taxpayers received a notice of determination denying innocent spouse relief, but did not try to petition the Tax Court within the 90 days provided under section 6015(e). Rather, after later making either partial (Chandler) or full (Hockin) payment, the taxpayers filed refund claims and brought refund suits in district court that were timely under the rules of sections 6511(a) and 6532(a) (though, for Hockin, the lookback rules of section 6511(b) limit the amount of the refund to only a portion of what Ms. Hockin paid). Thus, except for the full payment (Flora) rule problem in Chandler, the taxpayers had done exactly what the Appellate Section said they should do to get judicial review of innocent spouse relief rulings other than through section 6015(e).

In August, we sent a draft copy of the memorandum to the DOJ attorney in Hockin and asked whether the DOJ would object to a motion by the Harvard clinic to file it. This draft memorandum apparently triggered the DOJ’s desire to explore mediation in the case. So, the case was assigned to a magistrate for mediation, and further filings on the motion (including the amicus motion) were postponed.

Then, in September and October, the magistrate and district court judge, respectively, issued rulings in Chandler granting the DOJ’s motion to dismiss for lack of jurisdiction. That is how Keith, Mr. Moede, and I learned of the existence of the Chandler case presenting the identical jurisdictional issue. Although Ms. Chandler was represented by counsel, that counsel had filed no papers in response to the DOJ motion to dismiss in her case. Naturally, this led to the magistrate and judge in Chandler relying entirely on the DOJ’s arguments and citations in ruling for the DOJ.

In his recent post on Chandler, Keith raised the question whether the Chandler district judge ruling would be appealed to the Fifth Circuit. The first piece of news in this update is that Ms. Chandler decided not to appeal. Frankly, give the Flora full payment problem in the case, I think an appeal on the issue of whether the district court otherwise would have had jurisdiction would have been pointless.

But, the second piece of news is that, in November, mediation failed in the Hockin case. So, Hockin is now set up as a possible appellate test case, depending on the district court’s ruling.

The DOJ has now not objected to the Harvard clinic’s filing of an amicus memorandum in Hockin. That memorandum was filed on November 26.

On December, 21, Ms. Hockin (through Mr. Moede) filed her response to the DOJ motion. In her response, Ms. Hockin argued not only that the district court had jurisdiction over section 6015 innocent spouse relief refund suits, but also that she had raised in her refund claim two additional arguments: that she had never filed a joint return for the year and that the IRS should be bound to give her innocent spouse relief for the year because it had given her such relief for the immediately-following taxable year. As noted in the Harvard memorandum, the “no joint return” argument has been considered in district court refund lawsuits even predating the enactment of the first innocent spouse provision in 1971.

The DOJ will be allowed to file a reply by January 11.

On February 5, oral argument on the motion will be heard before a magistrate who was not involved in the mediation. Ms. Hockin has agreed to have this magistrate decide the jurisdictional motion without the involvement of a district court judge, but the DOJ has not yet similarly consented. If the DOJ does the same, and the magistrate dismisses the case, this would allow a direct appeal from the magistrate to the Ninth Circuit. If the DOJ does not consent, the magistrate’s ruling will have to be reviewed by a district court judge before a party could appeal any adverse ruling to the Ninth Circuit.

You can find here for Hockin, the DOJ’s motion, the Harvard clinic’s amicus memorandum, and Ms. Hockin’s response.

Finally, you may be aware of the recent amendment of 28 U.S.C. section 1631that allows district courts and the Court of Federal Claims to transfer to the Tax Court suits improperly filed in the former courts. That amendment would not help Ms. Hockin, since her district courts suit was filed long after the 90-day period to file a Tax Court suit under section 6015(e) expired. So, her case, if transferred, would have to be dismissed by the Tax Court for lack of jurisdiction because the suit was untimely filed in the district court for purposes of the Tax Court’s stand-alone innocent spouse case jurisdictional grant. For Ms. Hockin, her only chance now for getting a refund attributable to the innocent spouse provisions is for the courts to agree that district courts have jurisdiction to consider innocent spouse refund suits.

In Suing Boston, Airbnb Argues It’s Not Responsible For Illegal Listings

Via WGBH 

Source: Flickr

By: Isaiah Thompson

Last summer, Boston’s City Council and Mayor Marty Walsh passed Boston’s first ordinance regulating short-term rentals in the city, aimed at allowing homeowners to make extra money while stopping investor owners from buying up real estate to establish de facto Airbnb hotels.

The ordinance allows homeowners to rent extra rooms, or one entire apartment, as long as they register with the city and pay a small fee; and it prohibits short-term rentals by absentee, or so-called “investor” owners.

Airbnb lobbied hard against the measure; when it passed, the company threw the book at the City of Boston: Airbnb sued the city in federal court, arguing the ordinance is illegal.

The lawsuit here could have national implications.

That’s because central to the company’s case is a federal law called the Communications Decency Act – or CDA – specifically, one part of that act known as Section 230.

It says that internet companies can’t be held responsible for what users post on it.

“So basically what that means is I cannot be held responsible as the publisher of information that a user puts up there,” says Mason Kortz. Kortz is a clinical instructional fellow at Harvard Law School Cyber Law Clinic.

“If I post something defamatory about you on Facebook – I can be held liable, Facebook cannot be held liable,” Kortz explains. “Because they didn’t post the defamatory material, they just provided a service.”

In this case, Airbnb is taking aim at parts of Boston’s ordinance that penalize any quote ” booking agent” for listing rentals that violate the city’s new rules.

Airbnb argues it’s just publishing those ads — if people want to post illegal rentals — according to the Communications Decency Act – hey, that’s not Airbnb’s problem.

Airbnb did not respond to a request for comment.

Of course, Airbnb doesn’t just publish other people’s ads – the platform helps users register and post listings, it connects hosts and prospective renters, it provides feedback and ratings – and of course, it takes a cut of the rental proceeds.

“The argument I think Boston is likely to bring here is that they’re not holding Airbnb liable for publishing the advertisements that are put up by third-party hosts,” says Kortz.

“They’re holding them liable for facilitating third-party booking.”

It’s not the first time that argument’s been raised. The City of San Francisco raised the same argument, after Airbnb sued over a similar ordinance there – and a federal district judge sided with San Francisco.

“The district court said publishing the listings was not a problem,” says Eric Goldman, a professor of law at the University of Santa Clara and a co-director of the school’s High Tech Law Institute.

“However the moment that Airbnb took money on behalf of the listing vendor, then the city could regulate its activity and impose basically unrestricted sanctions..”

Airbnb appealed that decision, but the lawsuit was settled before the higher courts could rule one way or another.

That’s why Airbnb’s lawsuit against the City of Boston could set the stage for how and whether local communities across the country can regulate Airbnb and other and other Internet giants.

Goldman, who helped write an amicus brief supporting Airbnb in its motion for an injunction, says he understands cities’ concerns with preserving rental housing. But he disagrees with the district court’s ruling.

“Imagine if we were talking about a business like Ebay … the logic seems to be saying anybody could impose restrictions on Ebay … now Ebay has to be in the business of policing millions of small vendors that it doesn’t have the ability of policing,” Goldman argues. .

“Now we start to say any online market place can be turned into a police state.”

But other legal scholars disagree.

Abbey Stemler is a professor of Business Law and Ethics at Indiana University; Stemler also wrote an amicus brief, in a similar lawsuit brought by Airbnb against the City of Santa Monica – but on behalf of the city, not Airbnb.

“Section 230 has been grossly misinterpreted,” argues Stemler. The act, she says, “has been invoked to say, ‘We cannot be regulated we cannot be deputized to regulate ourselves.”

Stemler agrees that the CDA’s protections in many ways helped foster a better, freer internet – but says that the Act was never meant to immunize deep-pocketed companies like Airbnb from cities’ and towns’ traditional right to govern and regulate their own communities.

“Local communities have to be able to have a say on how these two thing interact, the physical and the digital,” Stemler says.

“Section 230 was never meant to to prohibit all forms of regulation for technologies that use the internet – it simply wasn’t.”

But Stemler says there could be trouble ahead for Boston – especially because of another part of the city’s ordinance, that requires Airbnb to submit regular reports to the city detailing where, when and for how many days its users are engaging in short-term rentals.

Another federal law – also cited in Airbnb’s lawsuit – protects online platforms from sharing user information. And because Airbnb doesn’t make host addresses public, the city will have an uphill battle enforcing its own ordinance without that information.

Stemler says the city might have to settle for spot enforcement – or relying on complaints.

Meanwhile, Airbnb and the city have called a temporary cease-fire: the city agreed to hold off enforcing the parts of its ordinance that could punish Airbnb, while the federal judge overseeing the cases decides whether or not to grant Airbnb a temporary injunction.

The ordinance remains in full effect for prospective hosts.

Harvard Law School sues U.S. Department of Justice over document access

Via PennRecord 

Source: Wikimedia Commons

By: Jenie Mallari-Torres

A Harvard law project is suing the United States Department of Justice, citing alleged breach of duty.

The Project on Predatory Student Lending of the Legal Services Center of Harvard Law School filed a complaint on Dec. 7 in the U.S. District Court for the Western District of Pennsylvania against the United States Department of Justice for alleged violation of the Freedom of Information Act.

According to the complaint, in June 2016 the Project on Predatory Student Lending of the Legal Services Center of Harvard Law School submitted a request under the Freedom of Information Act to defendant seeking documents produced for the government in discovery in its lawsuit against Education Management.

However, plaintiff claims months have passed — long after its statutory deadline for responding to its request had expired — and defendant has refused to produce any documents, offering a series of conflicting reasons as to why it was withholding the documents.

The plaintiff holds the United States Department of Justice responsible because the defendant allegedly failed to make a determination with respect to the FOIA request within the applicable time limit and failed to release responsible, non-exempt records.

The plaintiff requests a trial by jury and seeks an order to conduct a reasonable search for records and promptly produce records; grant of full fee waiver to the Project, award of costs, attorneys’ fees and such other and further relief as the Court may deem just and proper. They are represented by Eileen Connor, Toby Merrill and Stephen Emedi of the Legal Services Center of Harvard Law School in Jamaica Plain, Massachusetts.

The U.S. District Court for the Western District of Pennsylvania Case No. is 18-1642.

Veterans win lawsuit against Massachusetts over denial of Welcome Home bonus

Via MassLive

Source: Pexels

By: Shira Schoenberg

Three veterans who sued Massachusetts for denying them a Welcome Home bonus should receive the money, a Suffolk Superior Court judge ruled.

The ruling could affect an estimated 4,000 veterans who served multiple tours of duty and received an other than honorable discharge from the final one, according to the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, which represented the plaintiffs in the case.

Judge Michael Ricciuti found in a Dec. 21 decision that the interpretation of the law by Treasurer Deborah Goldberg’s office, which administers the bonus, and the Veterans’ Bonus Appeal Board was “erroneous as a matter of law, arbitrary and capricious.”

Lead plaintiff Jeffrey Machado said in a statement, “What really matters to me is that other Massachusetts veterans will be recognized for their honorable service to our country. It’s less about the bonus itself — it’s about what it represents.”

Goldberg spokeswoman Chandra Allard said Goldberg’s office is reviewing the decision and has not yet decided whether to appeal.

Massachusetts offers veterans who served after the Sept. 11, 2001 terrorist attacks a Welcome Home bonus as long as they receive an honorable discharge. The bonus is $1,000 for veterans who served in Iraq or Afghanistan and $500 for those who served elsewhere for at least six months.

Machado, Herik Espinoza and Washington Santos all served multiple tours of duty, but received “other than honorable” discharges from the final one. Goldberg’s office and then the Veterans’ Bonus Appeal Board declined to pay the bonus. They cited the state law, which says the veteran must have been discharged “under honorable conditions.”

The veterans argue that they were honorably discharged from their initial tours of duty, so they should receive the benefit for those tours. They also note that less than honorable discharges often stem from conduct related to mental or physical problems that come from military service, like post-traumatic stress disorder.

All three served in Afghanistan and were diagnosed with PTSD, which they said led to their discharges.

In his ruling, Ricciuti said the Appeal Board should have given the veterans the bonus for their initial tours of duty. He notes that if a veteran came home between tours and applied for the benefit from the initial tour, he would receive it, even if he later re-enlisted. It would be “unjust,” Ricciuti writes, to deny a benefit to someone who re-enlists from overseas and does not apply for the bonus until after his final tour of duty.

Ricciuti wrote that it is up to the state board, not the military authority who grants the discharge, to decide who gets the Welcome Home Bonus. And he agreed with the veterans that the discharge form granting the “other than honorable” discharge only applied to the most recent tour of duty, not earlier tours.

Riccuiti referred the case back to the Veterans’ Bonus Appeal Board to reconsider its decision in light of the ruling.

Josh Mathew, one of the student attorneys in the Veterans Legal Clinic who represented the plaintiffs, said in a statement, “These veterans went above and beyond. They volunteered for Army Special Operations or for deployments to Afghanistan, and this decision properly recognizes their sacrifices.”

Trump Signs Farm Bill, Announces Food Stamp Work Requirement Rule

Via UPI 

Via Jessie Higgins

President Donald Trump signed the 2018 farm bill Thursday afternoon, ending months of congressional negotiations over the $867 billion legislation.

The bill, which overwhelmingly passed both House and Senate last week, did so in part because lawmakers left out controversial work requirements for food stamp recipients that were originally included in the House version. Those requirements were a key sticking point during joint House and Senate negotiations — and were supported by Trump.

At the signing ceremony, Trump announced a plan to bypass the bill by having the U.S. Department of Agriculture impose stricter work requirements on food stamp recipients.

“I have instructed my administration to take immediate action on welfare reform,” Trump said. “Millions of able-bodied, working-age adults continue to collect food stamps without working or even looking for work. This action … was a difficult thing to get done. But farmers wanted it done, we all wanted it done, and I think in the end it’s going to make a lot of people very happy.”

The new requirements appear as a proposed rule by the U.S. Department of Agriculture, which runs the Supplemental Nutrition Assistance Program. The USDA already requires adults who do not have dependents to work at least three months every three years to collect food stamps. However, states can waive that requirement in areas where unemployment is 20 percent above the national average.

The Trump administration’s proposal would raise the waiver threshold, allowing states to waive the requirement only if unemployment is above 7 percent. That’s nearly double the national average of 3.7 percent.

“It’s called work rules and [the USDA] is able under this bill to implement them through regulation,” Trump said.

Some Democrats have decried the new rule and questioned whether Trump can use his executive powers to authorize it.

“Congress writes laws, and the administration is required to write rules based on the law,” said Sen. Debbie Stabenow, D-Mich., the top-ranking Democrat on the Senate agriculture committee. “Administrative changes should not be driven by ideology. I do not support unilateral and unjustified changes that would take food away from families.”

The farm bill itself received bipartisan support and was largely celebrated by farmers and industry groups.

“It was a bipartisan success, something you don’t hear much,” Trump said at the signing ceremony, as he thanked the various people who worked to get the bill passed. “I want to thank the Democrats, who worked really hard on this bill, they really have. I may have to deny that I said that someday, but I won’t do that. You worked really hard.”

It took time to get there. The 2014 farm bill expired Sept. 30 before a joint House and Senate committee could reach a compromise. The House and Senate had passed strikingly different bills. After its expiration, dozens of programs went on hold.

Farmers and groups who rely on the programs feared they would languish another year if lawmakers didn’t compromise during this year’s lame duck session before a new House and Senate start in 2019.

Ultimately, the 2018 bill maintains most programs as they were before, said Erika Dunyak, a clinical fellow at the Harvard Law School Food Law and Policy Clinic.

But many groups claim improvements.

“There are some really great things in this bill,” said Ferd Hoefner, a senior adviser for the National Sustainable Agriculture Coalition.

A group of programs that support beginning and small farmers, local foods and organic research — among other things — receive permanent funding in the bill, Hoefner said. Previously, those programs had to find new money to operate every five years when the farm bill renewed.

“We’ve been beating this drum for a long time,” Hoefner said. “It’s still a tiny slice of the overall farm bill pie, but it’s a permanent slice now, and it will probably grow over time.”

The bill gives greater support for the struggling dairy industry and it legalizes industrial hemp production.

On the conservation side, the bill directs more money toward soil health initiatives that will improve water quality and fight global climate change.

Not everyone was happy with the compromise.

One change in the 2018 bill allows farm subsidies to go to more distant relatives of farmers. In previous bills, a farmer’s immediate family — who did some kind of work on the farm — could apply for certain federal assistance. Those family members had to be parents, children, siblings or spouses. The 2018 bill expands that list to include first cousins, nieces and nephews.

Under the previous farm bill, such subsidies sometimes went to relatives who did not live or work on the farm, according to the Environmental Working Group, which has criticized the new provision. This new rule may enable more money to go to people who are not farmers, the group has said.

Supporters counter that it will encourage more people to get involved in farming.

The Universal Declaration Of Human Rights At 70: How Far Have We Come?

Via WBUR

By: Sabrineh Ardalan, J. Wesley Boyd and Katherine Peeler

On the evening of Friday, Dec. 10, 1948, the plenary session of the United Nations convened at the Palais de Chaillot in Paris. A robust discussion about a proposed statement on human rights ensued. Ultimately, the Universal Declaration of Human Rights (UDHR) was adopted by 48 votes with eight abstentions. The sitting U.N. president, Mr. Herbert Vere Evatt of Australia, remarked that it was “the first occasion on which the organized community of nations had made a declaration of human rights and fundamental freedoms.” It’s not surprising that the UDHR came about as a direct commentary on the atrocities of the Holocaust.

Although this December marks the 70th anniversary of the UDHR, we feel compelled to ask whether we have made progress in realizing the principles articulated seven decades ago. Or does it feel like 1948 all over again?

In October, one of the co-authors of this piece, Katherine Peeler, visited an immigrant detention center in Texas. Julia, a migrant whose name has been changed to protect her identity, walked into one of the small rooms set up around the perimeter of a makeshift legal “office.” She was there for a psychological evaluation. She and her 7-year-old son, Wilfred (whose name has also been changed), arrived to the U.S. in June, and were almost immediately forcibly separated per U.S. government policy. Julia’s lawyers, who were assisting her with the pre-asylum screening process, wanted to better understand how detention, and more importantly, the separation from her child, had affected her.

“Separation,” however, does not truly describe what happened. In reality, Wilfred was kidnapped. While Julia knew who had taken Wilfred — the U.S. government — she did not know where he was or how he was doing, information she didn’t know for 20 days. Julia was kept in immigration detention during that time, desperate for news of her son. They weren’t reunited until mid-September — three months after they’d been separated.

People who arrive in the U.S. either without documents (or without valid documents) and who express a fear of returning to their home countries may be subject to a credible fear interview with immigration officials. Julia had her interview one week after U.S. officials took Wilfred. As such, the transcript of Julia’s interview is almost non-sensical. No matter what question the asylum officer asked, Julia’s response was “where is Wilfred?” To conclude that she was conducting the most important interview of her life under stressed conditions is an understatement.

The UDHR consists of a preamble and 30 short articles. Julia’s story highlights multiple violations of the rights described by the UDHR: Article 5 — no one shall be subjected to cruel, inhuman, or degrading treatment; Article 12 — no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence; Article 14 — everyone has the right to seek and enjoy in other countries asylum from persecution; Article 25 — motherhood and childhood are entitled to special care and assistance.

The Trump administration’s recently proposed changes to the public charge rule, if adopted, are a direct violation of UDHR’s stated right to food, clothing, housing, medical care and essential social services. And Trump’s efforts to limit how immigrants can request asylum (though temporarily stayed by a federal judge) violates Article 14, forcing people to live in conditions where their rights are continually violated and their lives are in danger.

But immigration is only one context in the U.S. where violations of the UDHR occur. The U.S. incarcerates a larger share of its population than any other country in the world, worsening a cycle of poverty. And in our on-going battles over healthcare “reform” the stakeholders with the deepest pockets are often able to dictate who gets health care, of what quality and when. As renowned physician anthropologist Paul Farmer notes:

“…whenever and wherever social services are seen as commodities rather than rights, chances are that catastrophic health expenditures will serve as a brake on progress in the fight against poverty and for health.”

But there is reason for hope. While, as a nation, we are in desperate need of acting “towards one another in a spirit of brotherhood” as outlined in the UDHR, we are making small but incremental progress at the local level. Harvard medical students and residents at Massachusetts General Hospital, for example, are running pro-bono clinics performing physical and psychological evaluations to document evidence of immigrants’ asylum claims. Across the river, Harvard law students and lawyers are providing the legal assistance for these same asylum-seekers, as are students and professionals from other clinics and legal services organizations across Boston.

There are movements to provide access to quality health care and public health services for the homeless at Boston Healthcare for the Homeless, the incarcerated through the Crimson Care Collaborative, and victims of human trafficking through the Boston-based grassroots group HEAL Trafficking.

On this 70th anniversary, it is time for a loud, united and public reaffirmation of the Universal Declaration of Human Rights to support and promote the rights of all individuals — immigrants or citizens, women like Julia and children like Wilfred. Let us protect these fundamental rights through education as outlined in Article 26 — “education…directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.”

That’s our call in the New Year.

Facebook Sued By US Lawyer Over Cambridge Analytica Data Scandal

Via Hindustain Times 

Source: Pexels

The attorney general for Washington, DC said on Wednesday the US capital city had sued Facebook Inc for allegedly misleading users about how it safeguarded their personal data, in the latest fallout from the Cambridge Analytica scandal.

The world’s largest social media company has drawn global scrutiny since disclosing earlier this year that a third-party personality quiz distributed on Facebook gathered profile information on 87 million users worldwide and sold the data to British political consulting firm Cambridge Analytica.

Washington, DC Attorney General Karl Racine said Facebook misled users because it had known about the incident for two years before disclosing it. The company had told users it vetted third-party apps, yet made few checks, Racine said.

Facebook said in a statement: “We’re reviewing the complaint and look forward to continuing our discussions with attorneys general in DC and elsewhere.”

Facebook could be levied a civil penalty of $5,000 per violation of the region’s consumer protection law, or potentially close to $1.7 billion, if penalized for each consumer affected. The lawsuit alleges the quiz software had data on 340,000 D.C. residents, though just 852 users had directly engaged with it.

Shares in the company were down 4.7 percent in afternoon trade on Wednesday.

Privacy settings on Facebook to control what friends on the network could see and what data could be accessed by apps were also deceiving, Racine said.

“Facebook’s lax oversight and confusing privacy settings put the information of millions of consumers at risk,” he told reporters on Wednesday. “In our lawsuit, we’re seeking to hold Facebook accountable for jeopardizing and exposing the information” of its customers.

Racine said Facebook had tried to settle the case before he filed the lawsuit, as is typical during investigations of large companies.

He described Facebook’s cooperation as “reasonable,” but said that a lawsuit was necessary “to expedite change” at the company.

At least six US states have ongoing investigations into Facebook’s privacy practices, according to state officials.

In March, a bipartisan coalition of 37 state attorneys wrote to the company, demanding to know more about the Cambridge Analytica data and its possible links to US President Donald Trump’s election campaign.

Also in March, the Federal Trade Commission took the unusual step of announcing that it had opened an investigation into whether the company had violated a 2011 consent decree, citing media reports that raise what it called “substantial concerns about the privacy practices of Facebook.”

If the FTC finds Facebook violated the decree terms, it has the power to fine it thousands of dollars a day per violation, which could add up to billions of dollars.

State attorneys general from both major US political parties have stepped up their enforcement of privacy laws in recent years, said James Tierney, a lecturer at Harvard Law School and Maine’s former attorney general.

Uber Technologies Inc [UBER.UL] in September agreed to pay $148 million as part of a settlement with 50 U.S. states and Washington, DC, which investigated a data breach that exposed personal data from 57 million Uber accounts.

 

Harvard Defenders Host 7th Annual Litman Symposium

Via Harvard Law Today

Courtesy of Harvard Defenders

Harvard Law School’s Harvard Defenders hosted the 7th annual Litman Symposium on Nov. 15. This year’s event, titled “Defining Justice: Building a more equitable criminal legal system,” featured a Q&A with keynote speakers Philadelphia Assistant District Attorney Sarah Boyette ’10 and Simmi Kaur ’17, an attorney with the Bronx Defenders.

Credit: Courtesy of Harvard Defenders. The keynote speakers at this year’s Symposium were Simmi Kaur ’17, an attorney with the Bronx Defenders, and Philadelphia Assistant District Attorney Sarah Boyette.

The Jack T. Litman Program is dedicated to the memory of Jack T. Litman ’67, a member of Harvard Defenders during his time at the law school and a renowned defense attorney respected for his zealous advocacy on behalf of unpopular defendants. Litman’s sons, Benjamin ’06 and Sacha HKS ’03, established the fellowship in their father’s honor in 2012.

In his introduction, John Salsberg, a clinical instructor at Harvard Defenders since 1980, praised Litman’s dedication to criminal justice work. He said: “If Jack Litman were here today, he would be encouraging everybody to be criminal defense lawyers and he’d be really proud of our two speakers for what they do and what they have contributed to the criminal justice system.”

In their keynote Q&A, Kaur and Boyette shared insights and fielded questions about experiences that shaped their career paths, and their thoughts on the role of the criminal justice system in the United States.

Kaur, who served as president of Harvard Defenders and vice president of the Harvard Legal Aid Bureau while at HLS, is now an attorney in the criminal defense practice at Bronx Defenders. Born in India, she immigrated to the United States with her parents when she was 5. “Being around folks who were undocumented and with varying immigration statuses, kind of always put us out on the margin of the systems that existed,” said Kaur, “And that really got me thinking about the margins.”

Boyette, who previously worked with Brooklyn Defenders in Kings County, N.Y., joined the Conviction Integrity Unit of the Philadelphia District Attorney’s office, where she reviews convicted offenders claims of innocence and wrongful conviction. While at HLS, she served on the Harvard Journal of Law and Gender, was a member of Harvard Defenders and participated with the Criminal Justice Institute.

Reflecting on the role of the criminal justice system in society, Boyette said the question of how to pursue “the utilitarian goal of making sure to help people not hurt other people without perpetuating this country’s spectacular legacy of racism and marginalization” is a difficult one. “I think the answer is to radically rethink every tenet you have ever relied on and try to be really evidenced-based,” she said. She believes using science-based strategies to identify actual recidivism rates and risk assessments, rather than relying on lay intuition about what works, is a good way forward.

The Litman Fellowship supports three law school students as they work as Harvard Defenders during the summer. Through the fellowship, students gain practical experience in client interaction, legal research and oral advocacy, and they have the unique opportunity to handle all their own cases.

As part of the symposium, this year’s Litman Fellows —Marcos Cabello, Mary Lorenzo, and Sam Faisal —presented academic research on a legal issue they encountered during their fellowship. Cabello, a 2L at Boston University School of Law, presented on show-cause hearings and how hearings should be used as an alternative to prosecution. Lorenzo, a 2L at Boston College Law School, presented on mental health and the courts, and Faisal, second-year law student at Suffolk University, focused on family mediation in the criminal courts.

Obamacare architect: Dire consequences for Massachusetts

Via The Boston Herald 

By: Jordan Graham

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

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

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

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

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

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

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

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

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

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

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

Report: Australia Should Join Nuclear Weapons Ban Treaty

Via the International Human Rights Clinic

Source: Pixabay

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Puerto Rico Benefits From Harvard’s Living Lab

Via Harvard Law Today 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Via CNBC

By: Annie Nova

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Via the International Human Rights Clinic 

Pexels

Source: Pexels

Salma Waheedi, Clinical Instructor and Lecturer on Law at the International Human Rights Clinic and Associate Director of the Islamic Legal Studies Program: Law and Social Change, has co-authored a book chapter with Kristen A. Stilt, Professor of Law and Director of the Islamic Legal Studies Program, that appeared in the recently-published volume Comparative Judicial Review, edited by Erin F. Delaney and Rosalind Dixon. The chapter, titled “Judicial Review in the Context of Constitutional Islam,” identifies and examines different models of judicial review in countries with constitutional Islam clauses.

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

Crimmigration Clinic Wins BIA Case

Via the Harvard Immigration and Refugee Clinic 

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

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

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

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

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

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

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

Clinic Releases Guide to Anti-Circumvention Exemption for Software Preservation

Via the Cyberlaw Clinic 

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

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

Farm Bill Passes House And Senate

Via the Center for Health Law and Policy Innovation 

iStock

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

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

Food Waste

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

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

SNAP Work Requirements

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

Socially Disadvantaged and Beginning Farmers and Ranchers Studies

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

Crop Subsidy Payment Limits

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

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

Local Agricultural Market Program

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

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

The Food Insecurity Nutrition Incentive Program & Produce Prescription Program

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

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

Conservation

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

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

Other

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

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

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

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

Via the Center for Health Law and Policy Innovation 

iStock

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

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

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

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

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

Food Waste Provisions Included in the Farm Bill Conference Report

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

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

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

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

Grant resources for food recovery infrastructure investments:

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

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

Food Loss and Waste Liaison and Study on Food Waste:

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

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

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

Food Donation Standards for Liability Protections:

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

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

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

Milk Donation Program:

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

Local Agriculture Marketing Program:

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

Spoilage prevention:

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

Carbon Utilization and Biogas Education Program

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

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

Next Steps for the Farm Bill

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

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

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

The Sneaky Fight to Give Cable Lines Free Speech Rights

Via Wired  


Source: Flickr

By: Susan Crawford

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By: Rebecca Rechtszaid

Photo Credit: Lester Cohen Simon & Schuster

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

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

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

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

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

Via the Cyberlaw Clinic

Source: Pixabay

By: Carol Lin and Zach Glasser

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

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

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

Learn more here.

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

Via the WilmerHale Legal Services Center

 

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

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

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

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

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

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

 

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

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

HIRC & HIP Submit Comments on Proposed Removal of Fee Waiver

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

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

You can read complete comments from HIRC and HIP here.

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

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