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‘Food is Medicine State Plan’ to Begin Providing Services in June

Via 22 WWLP-22News

Source: Pexels

By: Jennifer Zarate

A group met on [May 22] to make sure healthy food is available to everyone in western Massachusetts.

The Franklin County Food Council brought together groups from across the state on Wednesday to talk about expanding access to food services.

Among those in attendance was the Center for Health Law and Policy Innovation of Harvard Law School, who spearheaded the Food is Medicine State Plan along with Community Servings, a Boston-based nonprofit that provides food services to people with critical and chronic illnesses.

“We want to make sure that we bring those resources to western Mass as well. And so the Food is Medicine State Plan is an attempt to do that, right, to figure out where the resources are across our state and where the need is,” said Sarah Downer from the Center for Health Law and Policy Innovation of Harvard Law School.

Downer told 22News, it’s been a year and half of gathering data to finally release the State Plan in June of this year.

“That will begin the kick off of the implementation of the recommendations and the blueprint for expansion of services that we’ve created,” she added.

The state’s Department of Agriculture Assistant Commissioner Ashley Randle told 22News, the passing of the 2018 federal farm bill helped Franklin County farms produce the food needed to help make programs like Food is Medicine possible.

“There’s a lot of growth in the area; in the amount of farmland and their production levels, and for our farmers they’re looking to produce a wholesome, healthy, high-quality product from the Berkshires down to the Cape,” said Randle.

The upcoming launch event will be held at the State House in Boston on June 18.

ACLU Vermont and Harvard Law School file class action suit on behalf of prisoners

Via Vermont Business Magazine

Door marked treatment room in hallway of old institution.

Source: iStock

After years of advocating for Vermont prisoners to have access to life-saving medication for Hepatitis C Virus (HCV), the ACLU of Vermont and the Center for Health Law and Policy Innovation at Harvard Law School, with cooperating counsel James Valente, yesterday filed a class action lawsuit challenging the state’s refusal to treat hundreds of inmates diagnosed with chronic Hepatitis C. The case was filed in the federal district court in Burlington on behalf of two Vermont prisoners, Richard West and Joseph Bruyette, who seek to represent a class of inmates who have been or will be denied treatment without medical justification.

The Plaintiffs assert the Agency of Human Services (AHS), Department of Corrections (DOC), and Centurion of Vermont’s systematic denial of the HCV cure to prisoners diagnosed with chronic HCV violates the Eighth Amendment’s prohibition on cruel and unusual punishment as well as the Americans with Disabilities Act. They are asking the court to end the Defendants’ policy of categorically denying effective, efficient, and medically appropriate HCV treatment.

ACLU of Vermont Staff Attorney Jay Diaz: “State officials are purposefully withholding the cure for Hepatitis C from hundreds of Vermont inmates, many of whom would have received it long ago it if they were not imprisoned. This is not only inhumane and short-sighted—it is unconstitutional. Vermont cannot rely on cost considerations to try to justify unlawful treatment of the people in its care and custody.”

Hepatitis C is a progressive infectious disease—identified by the CDC as the deadliest infectious disease in America—that if left untreated is likely to cause a variety of medical symptoms, including permanent liver damage, and in some cases, cancer and death. More than five years ago, the FDA approved breakthrough medication with few side effects that effectively cures the disease.

After years of advocacy by the Vermont Coalition for Access to HCV Treatment, of which the ACLU of Vermont is a member, in 2018 DOC began to provide the cure to some inmates on a more regular basis, but still denied it to the vast majority because of the associated expense. Prior to this lawsuit, Coalition members appealed to DOC to stop denying access to the HCV cure to the hundreds of other Vermont inmates who were categorically excluded. DOC refused and to date has only treated about one-fifth of the more than 300 people with chronic Hepatitis C it has identified.

Kevin Costello is the Director of Litigation for the Center for Health Law and Policy Innovation of Harvard Law School: “Hepatitis C is responsible for more deaths in the United States than any other infectious disease by a mile. There is no medical reason to actively prevent hundreds of incarcerated people from receiving curative medications for Hepatitis C. In fact, the refusal to treat prisoners needlessly prolongs suffering and heightens the risk of serious health problems for a group of people who are completely at the mercy of the State of Vermont to provide their health care.”

Similar lawsuits challenging denial of Hepatitis C treatment to individuals in state custody have been won or favorably settled by ACLU affiliates and other organizations in several states, including Colorado, Florida, Massachusetts, Missouri and others, with more cases pending in additional states.

The plaintiffs are represented by the ACLU of Vermont, Harvard Law School’s Center for Health Law and Policy Innovation, and the law firm of Costello, Valente & Gentry.

The Complaint is available here (link is external)

The Motion for Class Certification is available here

Three students win the David Grossman Exemplary Clinical Student Team Award

Via Harvard Law Today 

David Grossman Exemplary Clinical Student Team Award winners pictured left to right: Lisandra Novo ’19, Lindsay Bailey ’19, Elisa Quiroz ’19 Credit: Lorin Granger

By: Alexis Farmer

Lindsay Bailey ’19, Lisandra Novo ’19 and Elisa Quiroz ’19 are the winners of the 2019 David Grossman Exemplary Clinical Student Team Award. The award, named in honor of the late Clinical Professor of Law David Grossman ’88, a public interest lawyer dedicated to providing high-quality legal services to low-income communities, recognizes students who have demonstrated excellence in representing individual clients and undertaking advocacy or policy reform projects.

The trio was honored for their exceptional work with the International Human Rights Clinic on a complicated lawsuit, Mamani, et al. v. Sánchez de Lozada and Sánchez Berzaín. The Mamani case was litigated in U.S. federal court on behalf of the family members of Bolivian citizens who were killed by the Bolivian military in 2003. The suit brought claims against Bolivia’s former president and minister of defense for their roles in orchestrating these killings.

Over the course of two years, the students were involved in many aspects of the case — from discovery and depositions, to summary judgment, to a month-long trial, to the current appeal.

Professor Susan Farbstein praised their advanced level of legal analysis, judgment, creativity, and empathy with clients. “Together, Lindsay, Lisandra, and Elisa have demonstrated all the hallmarks of thoughtful, critical, and reflective human rights advocacy,” she said. “They have done it as a team which is, in fact, the only way real change ever happens. Each of them is whip smart, passionate, and committed, and can be depended on to tackle the toughest assignments with rigor and produce the highest quality of work. Yet together, they are even greater than the sum of their individual talents.”


Lindsay Bailey

Lindsay Bailey has long been actively involved in international human rights focused organizations. Prior to HLS, she spent three years in Ghana working with municipal governments to improve project planning, budgeting, and municipal taxes. In Ghana she worked for a variety of organizations, including Engineers Without Borders Amplify Governance, Global Communities, and UNICEF.

Since beginning law school, she has spent four semesters in the International Human Rights Clinic, volunteered with HLS Advocates for Human Rights for two years, and has been a research assistant at the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC). She currently serves as the co-president of the Harvard Law and International Development Society (LIDS).

Bailey spent a winter Independent Clinical with the Public International Law and Policy Group in Jordan as part of the Reginald F. Lewis Internship Program. She also was an article editor on the Harvard Human Rights Journal, and an article editor and community development director for the Harvard International Law Journal, in which she published an article, “Can There Be an Accidental Extrajudicial Killing? Understanding standards of intent in the Torture Victim Protection Act” last August. Next year, Bailey will continue her work in human rights litigation at the Center for Justice and Accountability.


Lisandra Novo

Born in Cuba, Lisandra Novo narrowed her interest in international human rights and criminal law early on, focusing particularly on accountability for human rights violations committed by state officials. She was awarded a Chayes Fellowship in 2017 to work at the Inter-American Court of Human Rights in San José, Costa Rica. There she worked primarily on cases related to the justiciability of social, cultural and economic rights. In her first year at HLS, she was a member of the Harvard Immigration Project’s Removal Defense Project (HIP’s RDP), an interpreter for the Harvard Immigration and Refugee Clinical Program (HIRC), co-communications chair for the Harvard European Law Association (HELA), and an article editor for the Harvard International Law Journal’s Online Symposium on the crime of aggression. She spent the fall semester of her third year at the Graduate Institute for International Law and Development in Geneva, Switzerland. Novo and Quiroz both participated in a spring break pro bono trip in Puerto Rico for hurricane relief work in March 2019. After graduation she will be conducting independent research on enforced disappearances in Spain as a Fulbright Fellow.


Elisa Quiroz

Elisa Quiroz had an interest in pursuing a career in international human rights work long before coming to HLS. Her childhood in Chile exposed her to human rights issues early on. “If you grow up in a country that has lived through a dictatorship, you hear the stories all the time, and that makes human rights law very tangible in a way that maybe countries that are more removed from that experience don’t know,” she told Harvard Law Today. In 2017, Quiroz was also awarded a Chayes Fellowship to work in the Office of the United Nations High Commissioner for Human Rights in Geneva (OHCHR). At OHCHR, Quiroz worked on projects with the UN Special Rapporteurs on freedom of expression, independence of judges and lawyers, the right to health, and the right to education. During her 2L year, she was awarded a Human Rights Program travel grant to conduct research in Chile examining the government’s legislative and policy responses to the country’s rapid rise in migration. Next year, she will be working as a legal fellow at TRIAL International in Geneva, Switzerland.

Dalia Deak receives the David Grossman Exemplary Clinical Student Award

Via Harvard Law Today

Credit: Lorin Granger

By: Alexis Farmer

Dalia Deak ’19 is this year’s winner of the individual David Grossman Exemplary Clinical Student Award, given each year to a student who embodies the pro bono spirit of the late Clinical Professor of Law David Grossman ’88 and exemplifies putting theory into practice through clinical work. Deak, who has focused her law school career on translating theoretical rigor into impactful work, was recognized for participating in nearly every aspect of the Center of Health Law and Policy Innovation’s  clinical work over four semesters, and for her work in the Harvard Immigration and Refugee Clinical Program.

Deak received her Bachelor of Science in biomedical engineering from the University of Virginia, where she focused primarily on computer science in biomedical engineering and issues at the intersection of technology, health policy, and public health. After graduating, Deak worked as a research assistant at the Brookings Institution, where she co-authored a report for the U.S. Food and Drug Administration on the implementation of a unique device identification system that would support postmarket surveillance and enhance patient safety. She continued her focus on health law as a student fellow with the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. By the end of her fellowship year, she had completed her Master of Public Health in the Department of Health Policy and Management at the Harvard T.H. Chan School of Public Health, and was accepted to HLS as a J.D. candidate.

As a student with the Health Law and Policy Clinic, Deak worked on a project developing a complaint that was submitted to the Office for Civil Rights at the U.S. Department of Health and Human Services; that complaint resulted in some insurers discontinuing the discriminatory practice of adverse tiering standard-of-care drugs for individuals with pre-existing conditions like HIV. The insurers also began discussions with state insurance regulators as to how to address the problems identified in the complaint.

Deak was also a key contributor to the clinic’s policy mapping and impact litigation practice. She researched, structured, drafted and finalized an amicus brief that was filed in the Massachusetts Supreme Judicial Court on the issue of mootness in the context of class actions.

Along with a focus on health law, Deak volunteered with the Harvard Immigration and Refugee Clinical Program (HIRC) and the HLS Immigration Project. In the wake of the 2016 presidential election, she was actively engaged in travel ban-related brief writing, working with students and faculty to develop and submit amicus briefs at the Fourth Circuit, Ninth Circuit, and U.S. Supreme Court. She also drafted clear, concise, and informative answers to frequently asked questions (FAQs) related to the travel ban, which both the HIRC clinic and University’s International Office posted on their websites to guide international students, scholars, faculty, and staff in navigating the uncertainty created by the ban. Her clinical instructors say she thinks through issues carefully, and enjoys tackling complex problems to find and develop the most effective arguments and solutions to pervasive social justice problems.

Deak also participated in the Judicial Process in the Trial Courts Clinic, where she interned for Judge Indira Talwani at the U.S. Federal District Court for the District of Massachusetts. She spent a summer working as a legal intern with the MacArthur Justice Center.

“I came to Harvard Law School for the clinics,” Dalia remarked. “During my masters, I cross-registered at the Center for Health Law Policy and Innovation. Working with CHLPI helped me realize how much fulfillment I could derive from a career as a lawyer serving clients, and the sheer magnitude of change I could help bring about. I have since had the chance to further enrich my experience by participating in other clinics on campus. From working on Supreme Court briefs at the Harvard Immigration and Refugee Clinic to interning for Judge Talwani as part of the Judicial Process in the Trial Courts clinic, the clinical experience at HLS has made a tremendous impact on me and has, unequivocally, been the highlight of my law school career.”

Seeking to build community at HLS, Dalia has been active in the student body, co-founding the Middle Eastern Law Students Association, chairing the Affinity Group Coalition, and leading the Health Law Society. She co-authored articles in the Harvard Law Record, calling for the establishment of a committee and office on diversity, inclusion and equity, and providing guidance to first year law students. She also appeared on “Palestinians Podcast” speaking about what it means to be Palestinian.

Emanuel Powell wins Gary Bellow Public Service Award

Credit: Lorin Granger

By: Alexis Farmer

Harvard Law School (HLS) student Emanuel Powell J.D. ’19 is the winner of this year’s Gary Bellow Public Service Award, established in 2001 to honor Professor Gary Bellow ’60, his commitment to public service, and his innovative approach to the analysis and practice of law. Professor Bellow was a pioneering public interest lawyer who founded and directed Harvard Law School’s clinical programs.

Each year, the Gary Bellow Public Service Award recognizes a student who exemplifies how lawyers can litigate, educate, advocate, and organize to promote social justice. The HLS student body nominates and selects the winner. This year, the finalists were celebrated at an award ceremony and reception on April 23. At the ceremony, Emanuel encouraged his classmates to be mindful of the ways lawyers can either help or hinder social movements. While at HLS, Emanuel worked in a variety of practice areas that focused on movement lawyering.

Emanuel Powell J.D. ’19

Hailing from Liberty, MS, a town of a little over 700 people, Emanuel has always felt called to work in spaces that fight for racial equity. During his undergraduate studies at the University of Southern California (USC), Emanuel was a part of the governing board of the Norman Topping Student Aid Fund. Concerned by the lack of diversity of the undergraduate and graduate student population, two USC undergraduates started the Student Aid Fund, financed by a student tax that helps support low-income students from communities surrounding USC. Next to singing in the gospel choir, he considers his experience on the board “the most fun thing I’ve done at USC.”

After graduating from the Marshall School of Business at USC in 2012, Emanuel spent a summer in Rwanda helping rural farmers start co-ops, using his undergraduate training to help develop social enterprises. He then moved to New York and worked for two consulting organizations. At one, he helped a philanthropic organization focus on investing in racial equity, which culminated in designing a fellowship program for individuals in South Africa and the U.S. fighting to dismantle anti-black racism. That led him to be an active voice in the organization, helping other nonprofits think about funding racial justice work. It was through his experiences that he noticed that lawyers were always in the room. He began to see the law as a path to achieving black liberation and decided to go to law school.

Since starting at HLS, Emanuel has been a member and a leader of the Mississippi Delta Project (MDP) and Harvard Defenders. Additionally, he spent two years at the Harvard Legal Aid Bureau. In MDP, he worked on the Child and Youth team, and in Defenders, he represented clients at show-cause hearings. “The classroom setting is valuable for getting the foundational understanding [of the law] . . . but the way I learn best is through experiential learning.” He chose these organizations because, he says, they each orient students to be of service to the community, whether it be individual clients or movement organizers in a specific geographic area. It’s a principle of his to engage with the community in an authentic way. “I have a belief that you should work in community and with movements.”

Emanuel served as the managing editor of the Harvard Black Letter Law Journal, which uses legal scholarship to support Black communities, and is a member of the political action committee of the Black Law Student Association.

Referencing Audre Lorde’s quote, “the master’s tools will never dismantle the master’s house,” and Emanuel said that “law school helped me realize I didn’t even want the master’s house dismantled, I want our own house or our own safe communities. That’s what I’m most excited about.” He lights up when he speaks about supporting movements creating alternative systems for economic, legal, and social prosperity that truly support disadvantaged communities. He wants to use the law to support these alternative structures. He says there is a lot of opportunity to support those leading movements for social change, “but,” he cautions, “if we’re not careful, we [as lawyers] have the power to stop them from accessing a better future.” He looks to Fannie Lou Hammer as an example, a “regular” person who saw there could a different way of life for Black people in Mississippi. She advocated creating a new structure for jobs and political parties. “As lawyers we can help people like Fannie Lou Hammer or stop people like Fannie Lou Hammer.”

Reflecting on the award and his three years at HLS, Emanuel said, “I was surprised to be nominated. One thing I’ve learned is that there are many students at HLS involved in public interest work across many different issue areas. I am deeply grateful for the opportunity to accept this award, especially given the legacy of Gary Bellow and the opportunity to share the great work of some of the community-based organizations I have had the opportunity to work with. I hope I can live up to that legacy as I begin my career as an attorney.”

Upon graduation, Emanuel will be clerking for a judge in Jackson, MS and hopes to work in the South as a movement lawyer.

Richard Barbecho wins the Andrew L. Kaufman Pro Bono Service Award

Via Harvard Law Today 

Credit: Harvard Legal Aid Bureau

By: Alexis Farmer

Richard Barbecho ’19 is this year’s winner of the Andrew L. Kaufman Pro Bono Service Award. He was chosen for exemplifying a pro bono public spirit and demonstrating an extraordinary commitment to improving and delivering high quality volunteer legal services in low-income communities. The awards are granted each year in honor of Professor Andrew Kaufman, who spearheaded the pro bono requirement at Harvard Law School.

Barbecho has integrated criminal defense, immigration, and housing law into his 2,000+ hours of community lawyering and pro bono service during his time at HLS.

Throughout law school, Barbecho has been a devoted canvasser with Project No One Leaves, spending most Saturdays in Boston’s low-income neighborhoods knocking on the doors of people facing displacement. This year, he is PNOL’s co-president and he is additionally responsible for organizing the canvasses and training new canvassers who show up each week.

As a volunteer member of Harvard Defenders for the past three years, he has had an active caseload representing low-income individuals accused in criminal show-cause hearings before clerk magistrates and, recently, in an appeal in district court. He has also been a prolific Harvard Legal Aid Bureau student-attorney.

“Richard is an extraordinary student, advocate, and person,” said HLS Clinical Instructor Eloise Lawrence. “He is always working on behalf of his clients whether it be in social security, Special Immigrant Juvenile Status, employment or housing cases. His results are unbelievable — he saved a family’s home from foreclosure taking it all the way to a jury trial. He secured benefits for a family with a severely disabled child who had been denied for years. Using his fluency in Spanish and his cultural competency along with his legal acumen, Richard secured a three-year lease for an 8 unit building in Dorchester, and built critical trust with his clients.”

Lawrence also praised Barbecho’s willingness to take on additional work and commit additional hours to help the underserved during his time at HLS. She said, “He is committed to his core to using the law to make our society more just.”

Liz Soltan, using law as a means to help people who need it most

Via Harvard Law Today  

Credit: Lorin Granger

By: Lewis Rice

Liz Soltan ’19 is not like some Harvard Law School students who have known for a long time that they wanted to be a lawyer. After college at Cornell University, she taught English in Malaysia and then worked at a nonprofit that connected clients to pro bono lawyers in her native Philadelphia. She interacted with public interest lawyers at the nonprofit, as well as lawyers practicing in big firms, small firms, and solo — all of whom wanted to serve their community. And she realized that the law could be a means to do exactly what she wants to do — help people who need it the most.

Now she is on the cusp on being a public interest lawyer herself, slated to begin a two-year Skadden Fellowship at Community Legal Services of Philadelphia. But she has already gained experience as a legal practitioner through extensive work with the Tenant Advocacy Project during her 1L year and thereafter with the Harvard Legal Aid Bureau (HLAB), including arguing one case before the highest court in the Commonwealth of Massachusetts.

That case involved a practice area that Soltan immersed herself in — wage theft, a problem that particularly affects immigrant workers in low-paying jobs, she said. HLAB students worked on the case for several years, previously helping to secure a settlement for two workers at a dry cleaner whose employer did not compensate them for all the hours they worked, including overtime. But the employer refused to pay attorneys’ fees, arguing that it only was required to do so if it had lost the case in court. HLAB filed an application for Supreme Judicial Court review, which was granted. Soltan wrote the brief with Kenneth Parreno ’19, and she appeared before the Court in December 2018, ultimately winning the decision that gave the workers “prevailing party” status that entitled them to attorneys’ fees.

“The reason we thought this was important is that it will help more workers get competent representation and be able to pursue their rights,” she said. Hopefully it will also have a deterrent effect on employers.”

In other cases she worked on, she represented people threatened with eviction and facing possible homelessness. One woman was in subsidized housing that failed inspection and, according to Soltan, the landlord maneuvered to evict the tenant rather than improve conditions. Another client was a survivor of domestic abuse whose path to apply for public housing was impeded by poor references from previous landlords based on the actions of her abuser.

Of course, it’s important to know the law in these cases, and Soltan credits HLS Clinical Instructor Patricio Rossi for guiding her through the process. But she also emphasizes the importance of knowing her clients as people with other concerns besides their case, who have histories and hardships. She makes it a point not only to talk to them about the facts of the case but about their lives.

“You’re coming to people at a really tough moment in their life and asking them about really sensitive personal subjects. And you’re a total stranger,” said Soltan. “I think a lot of it has been trying to be humble and listen to people and not assume that I know anything.”

She developed her focus on social justice growing up in Philadelphia, a place she loves but which also exposed her to problems in the city with injustice, racism, and educational inequities, she said. Her parents, devout churchgoers who still help prepare free meals for people in the community, influenced her as well. “My parents have always had the sense of there’s a lot of things that are wrong in the world, and it’s not good to do nothing about it,” Soltan said.

She hopes to improve conditions for people in her city on her fellowship, where she’ll be working with parents of newborns to ensure that they have needed resources during their child’s first year of life, including legal aid and access to benefits. HLS’s Office of Public Interest Advising helped her secure the fellowship and the law school has provided resources to help her fulfill her goal to pursue public interest work, she said.

Looking back at her HLS experience, Soltan said: “It’s been really hard but it’s also made it possible for me to develop the skills to do important work and get to interact with a lot of amazing people who’ve been my clients or have been organizers or lawyers doing work that is not evil. So it has expanded my view of what legal work can mean and hopefully given me the tools to keep expanding that view.”

Clinic Reports Show Benefits of Joining the Nuclear Weapon Ban Treaty Outweigh Concerns

Via the International Human Rights Clinic

Source: Pixabay

By: Bonnie Docherty

As countries engage in national debates about joining the 2017 treaty banning nuclear weapons, they should focus on the treaty’s humanitarian and disarmament benefits.

To inform these discussions, the International Human Rights Clinic has released a new briefing paper and two government submissions that highlight the advantages of ratifying the Treaty on the Prohibition of Nuclear Weapons (TPNW) and seek to alleviate concerns some states may have.

Countries affected by nuclear weapon use and testing have much to gain from the TPNW’s provisions on victim assistance and environmental remediation. In a 9-page paper, the Clinic presents 10 myths and realities regarding the TPNW’s so-called “positive obligations.” It aims to raise awareness of these provisions and correct misconceptions and misrepresentations about their content.

The briefing paper explains how the TPNW spreads responsibility for assisting victims and remediating contaminated areas across states parties. While affected states should take the lead for practical and legal reasons, other states parties should support their efforts with technical, material, or financial assistance.

The paper also shows how the positive obligations can be effectively implemented and make a tangible difference, despite the devastating effects of nuclear weapons.

In recent government submissions, the Clinic has addressed the situation of countries that are members of or partners with NATO. It has called on Iceland and Sweden in particular to join the TPNW, but the arguments apply to any states in a comparable position.

Ratifying the TPNW would further these countries’ long-standing support of nuclear disarmament and promote compliance with the Nuclear Non-Proliferation Treaty. At the same time, members or partners of NATO or a similar alliance should not face legal obstacles to joining the TPNW. While a state party to the TPNW would have to renounce its nuclear umbrella status, it could continue to participate in joint military operations with nuclear-armed states.

The Clinic released related reports focusing on the Marshall Islands and Australia in 2018.

As of April 30, 2019, the TPNW had 70 signatories and 23 states parties. It will enter into force when 50 states have become party.

Clinical students Molly Brown JD ’19, Maria Manghi JD ’20, and Ben Montgomery JD ’20 worked on these publications under the supervision of Bonnie Docherty, associate director of armed conflict and civilian protection.

Thanks for Listening: Episode 2 – Youth, Dialogue, and The “Can We?” Project

Via the Harvard Negotiation and Mediation Clinical Program

What would happen if people learned to flex their “dialogue muscles” at a very young age? What if, before developing a lot of disconnecting conversational habits, we developed the ones that allow us to engage constructively and effectively with others, even those with whom we disagree?

In Episode 2 of Thanks for Listening we’ll be talking about—and to!—teenagers who are discovering how to engage with the skills that bridge divides at a time when they are still developing their identities and shaping the way they interact with the world. We hear from Harvard Graduate School of Education’s Gretchen Brion-Meisels about adolescent brain development, how adolescents are influenced, and how they are uniquely suited to the work of dialogue. And we are excited to host Coutia, Huy, and Jacob in studio—three amazing teens who participated in an experiment called The “Can We?” Project—along with “Can We?” project co-creator and facilitator Deb Bicknell. Our guests show us exactly what is possible when we ask a simple question: “can we?”

Listen to the podcast here.

Compassion and Commitment in Child Advocacy

Florence Bryan ‘19

By: Florence Bryan, J.D. ’19

I was fortunate to work with the dedicated attorneys at the Children and Family Law Trial Division (CAFL) of the Committee for Public Counsel Services, the public defender agency for Massachusetts, during my 2L year. As a student in the Child Advocacy Clinic, I worked on-site at CAFL three days a week learning both the law and key lawyering skills under experienced supervising attorneys. There I realized how important it is to be a zealous advocate both in and out of the courtroom.

The attorneys at CAFL represent children and parents in both Care and Protection cases, which involve allegations of abuse or neglect, and Child Requiring Assistance cases, which involve children alleged to have challenges at school or home. As an intern at CAFL, I assisted attorneys with preparing for termination of parental rights trials, drafting motions, reviewing client files, and researching various issues for cases. After diving into this new area of law, I also had the opportunity to represent clients in court. It was a privilege to get to know children and parents, even as they faced some of the most difficult times in their lives, and to help them navigate the legal process alongside my supervising attorneys.

At CAFL I observed attorneys with a variety of advocacy styles. But despite having different approaches, everyone in the office shared a truly client-centered mentality. Their advocacy went far beyond the courthouse doors. The attorneys were continuously working to connect their clients with services, negotiate with other attorneys on cases, and reach out to family, friends, and community resources.

From watching the attorneys in action, it became clear to me that the foundation of their strong advocacy is effective communication with clients—especially when their clients are children. The attorneys spend a significant amount of their time with clients listening and asking questions to get a complete sense of who they are and what outcome they want. I tried to mirror this in my own interactions with clients, as I wanted to be sure that each client had a full understanding of what was happening and an opportunity to come to a decision about the case that was genuinely their own. I think this kind of advocacy not only leads to better outcomes for families, but also gives children, in particular, a sense of agency when so much feels out of their control.

With compassion and commitment, the attorneys at CAFL help children and parents through incredibly challenging situations, working just as hard for their clients behind the scenes as they do in the courtroom. I hope to carry what I learned from their example in work that I do in the future.

 

How Practicing Entertainment Law in TLC Made Me a Better Lawyer

Iain McCarvell, LL.M .‘19

By: Iain McCavill LL.M. ’19

The Transactional Law Clinic was one of the most useful, necessary, and enriching courses I took at Harvard Law School. I chose to focus my clinical work in entertainment law. My interest in entertainment law stemmed from my six-year journey as a musician and manager of a touring rock band. The Transactional Law Clinic represented my first opportunity to work in the entertainment industry since 2015 when I traded in practicing music for practicing law by applying to law school. I enrolled in the Transactional Law Clinic because I wanted to learn more about how the entertainment industry works, to understand the types of deals done, and to learn about the legal language used in showbiz agreements. While I learned a lot about those things, what I learned most was how to be a better lawyer.

I learned that my desire to understand the industry, the deals, and the applicable law was vital but myopic. The Transactional Law Clinic helped me discover that in my eagerness to master the legally salient aspects of my chosen profession, I had forgotten about the most important thing: the client – the human being whose legal issues I was being trained to resolve. From the initial client interview to eventual case resolution and beyond, I learned how important it is to be curious, to discover what makes the client tick, and to discover what the client cares about beyond the immediate legal issue at hand. I found out that the more I learned about the person I represented, the better I was able to advocate on their behalf.

Another thing I gained from the Transactional Law Clinic was the opportunity to bump into ethical issues in a controlled environment. As a law student, I did not have a full appreciation for the ubiquity and frequency with which ethical issues arise in everyday practice. Learning the theory behind the Rules of Professional Conduct is a different thing altogether from actually handling ethical issues as they arise. The Transactional Law Clinic gave me the opportunity to spot, consider, and address these issues in real time.

It would be remiss of me to not mention the humbling quality of my classmates in the Transactional Law Clinic. Whether through in-class discussions, attendance at the clinic each day, or trips to the Harvard Innovation Lab, I learned a lot from them and made some lasting bonds.

As a 2019 Harvard LL.M and a 2018 J.D. graduate of a small underfunded Canadian law school (go UNB!), the Transactional Law Clinic was my first opportunity to work in a practical setting under the guidance of experienced lawyers who were themselves not captives of the billable hour. This environment allowed the clinic’s supervising attorneys to provide helpful feedback and support throughout the semester. With this tremendous guidance, I developed important skills related to interviewing clients, case management, negotiating, and communicating better with clients and related third parties. And one more thing: if, like me, you ever thought it was absurd that many law students graduate from law school without ever actually seeing a contract, then you probably should have signed up for the Transactional Law Clinic.

Learning Key Litigation Skills in the Crimmigration Clinic

Lyla Wasz-Piper ’20 and Kaela Athay ’19

By: Lyla Wasz-Piper, J.D. ’20 and Kaela Athay, J.D. ’19

The law school environment can, at times, feel insular and abstract. But supporting a person’s right to stay in the country with his wife and children transforms the theoretical into the practical. Similarly, the law school’s call to act is a lofty goal, but through clinics—and particularly the Crimmigration Clinic—students like us have the ability to take the law out of the classroom and apply our learning to some of our nation’s most pressing issues.

This semester, the Crimmigration Clinic and the Immigrant Defense Project (“IDP”)—an immigrant rights organization focusing on the interplay between criminal and immigration law—co-counseled an amicus brief on behalf of other immigrant rights organizations in support of a petition for rehearing in the Ninth Circuit. The case involved a longtime lawful permanent resident who came to the United States when he was only ten days old, but is now facing deportation because of a minor criminal conviction that is more than ten years old.

As Crimmigration Clinic students we were charged with drafting the amicus brief. We both found drafting the brief an incredibly valuable experience. Although we plan to pursue different legal careers upon graduation, we both learned important litigation skills that we will take with us whether we’re practicing appellate advocacy or providing direct client services.

The legal arguments in the Crimmigration Clinic’s amicus brief were complex but largely focused on the fundamental unfairness of applying a new law to a guilty plea that was entered into while relying on the old law. In this case, at the time of the client’s plea, he had to make a decision: proceed to trial, or craft a plea agreement with the help of his defense and immigration counsel to preserve his legal immigration status in the United States. For many noncitizens, preserving the right to remain in the country is often a paramount concern. At the time of the plea the law seemed clear that the offense would not trigger his removal. Five years later, the immigration appellate court abruptly departed from well-established practice and found that the offense to which the petitioner had pleaded guilty was, in fact, a deportable offense. Applying that change in law retroactively, the petitioner was then placed in removal proceedings where he was ultimately ordered removed.

The petitioner then appealed the removal order up to the Ninth Circuit where a divided panel upheld the lower court’s removal order and reasoned that the retroactive application of the new law was permissible. One judge on the panel penned a strong dissent demonstrating that the panel’s decision misapplied the Ninth Circuit’s own retroactivity law. In support of the petitioner’s request to have the Ninth Circuit reconsider its decision, the Crimmigration Clinic and IDP submitted its amicus brief.

As Crimmigration Clinic students, we worked closely with our supervisor, Phil Torrey, and co-counsel at IDP to develop three main arguments advanced in our brief. First, we argued that it would be virtually impossible for criminal defense attorneys to advise their noncitizen clients about future immigration consequences of guilty pleas if immigration laws could be altered by immigration officials in the future and then applied retroactively. Second, we argued that the Ninth Circuit improperly applied its own retroactivity analysis. Finally, the brief explained that if the test was properly applied, it would weigh in favor of the petitioner and the new law would not retroactively apply to his prior guilty plea.

Researching and writing this amicus brief has been the most challenging and rewarding experience of our law school careers thus far. Participating in a clinic provides a unique opportunity for faculty engagement and independent work: the complexity of the legal work means that you’re constantly learning new skills while working closely with the supervising attorney. The Crimmigration Clinic has allowed us to develop strong mentor relationships, work with a community of students and faculty similarly dedicated to immigration reform, and gain real experience practicing law at such a critical time in our legal and political climate.

Finding Your Startup Lawyer: What Every Entrepreneur Should Know

Via Xcomony 

Source: Pexels

By: Linda Cole and Joshua Fox

Successful management of any new enterprise, regardless of industry, is a process demanding of concerted effort to realize opportunity with a finite set of resources. As an entrepreneur, perfecting your vision, securing and managing funds, building a team, marketing and selling, and executing on plan, all while navigating unexpected obstacles, likely occupy your every day. At the core of whether you can succeed is whether your principal team has not only the requisite ability and experience, but the support in place to sustain it. This support, typically, derives from academic advisors, industry experts, professional consultants, and, eventually, from investors.

From whom you choose to seek advice, including from which startup lawyer, will significantly impact your progress. To assume that any corporate lawyer—and there are many able ones out there—can meet the demands of your business need not be one of your early fails. The right lawyer for your startup will not purely be a legal advisor but a strategic one—that is, an integrated teammate who is uniquely prepared to support your mission.

What makes a particular lawyer worthy of this role? A set of professional skills and personal attributes that combine with your own in just the right balance to drive success. Whether this lawyer is with an outside law firm or in house as part of your core team, our collective experience across both roles reveals a strikingly similar skillset. What, precisely, do these skills look like? You may be surprised to learn that the most predictable is, in fact, not necessarily the most impactful.

1. Risk Management

If your first contact with a lawyer is prompted by risks associated with your business, such as how to document equity owned by the founders, protect intellectual property, or engage human resources, then you are not alone. It is this expectation of risk management that creates what is, in theory, where the value of the lawyer’s contribution to your startup lies. It is, of course, imperative that your lawyer be prepared to identify, analyze and recommend steps to eliminate or, at the very least, mitigate risk.

If your startup is highly data driven, for example, your lawyer must not only understand the applicable legal and regulatory framework around the collection, storage, use, and/or sale of the particular type and form of data but, likewise, the related risks and remedies, if any, that may be employed to avoid them. There are multiple means of managing risk, such as through informed decision making, contract drafting and liability insurance, but before risks can be addressed, they must first be identified.

You absolutely need to be able to look to your lawyer for input into cost-benefit analyses relative to legal risks to your business. Ideally, you will want to choose a lawyer who has experience with companies similar to your own, either in terms of industry or issues, including having worked on the types of transactions you expect to engage in. Contrary to popular belief, however, understanding and analyzing legal risk is not the only, nor is it even the most beneficial, skill that the right lawyer will bring to your startup. It is, more specifically, the lawyer who is able to adroitly shift between advisor on risk to participant in solutions from whom you will derive the greatest value. This agility is as much a mindset as it is an expertise.

2. Partnership

Your choice lawyer may be an individual attorney or a law firm, but, in either case, you should expect and receive consistent proof that your legal counsel is an engaged member of your team. Whether a lawyer (or firm) inwardly identifies as “your business partner” will noticeably manifest, in both character and actions.

Your lawyer should be ready, for example, to support the business through creative and flexible billing practices, including offering alternative fee arrangements, such as a discounted hourly rate or fixed fee per project; estimating legal fees before commencing work; or deferring collection until your startup has realized a certain amount of revenue or capital. Willingness to experiment with such measures demonstrates that a lawyer is “on your side” by supporting your financial goals, despite the risk, and taking a long-term view of the relationship—in effect, making an “investment” in you and displaying confidence in your business’s likelihood of success.

The lawyer who thinks like a partner will consistently demonstrate that he or she cares and can be depended upon. You should feel valued after interactions with your lawyer, regardless of his or her workload, and confident that you and your business will take priority at the appropriate times. Your lawyer should be reliable and responsive, promptly returning phone calls and emails; mindful of your timeline; and able to deliver work product on time and within budget. You should never be left to worry that more mature businesses, which are larger paying clients, will monopolize the attention of your lawyer.

Perhaps the most meaningful attribute and indicator that a lawyer is prepared to be an effective teammate is a genuine interest, not simply in the business but in you as a person. The right lawyer will take the time to get to know you—your personality, your leadership style, your expectations, your work routines, and even your communication preferences—and proceed to accommodate them. In cases where you expect help analyzing risk but prefer to make the final decision yourself, your lawyer should facilitate that, by guiding you through pertinent pros and cons; but, in cases where you, instead, prefer a definitive opinion, your lawyer should provide one.

Say, for example, that you are a first-time entrepreneur negotiating a term sheet for an initial round of financing, and, with negotiations faltering, you ask your lawyer whether he or she would sign the term sheet “as is.” If your lawyer understands you to have a need for clear and concise guidance around integral business decisions, your lawyer must be able to provide you with a “Yes” or “No” answer, and not an exhaustive recitation of terms. You will likely desire some balance between analysis and opinion from your lawyer, and where he or she is adeptly able to gauge which one you prefer and when, you have forged a strong partnership.

3. Collaborative Communication

Being a good communicator is essential to being a good lawyer, partner and problem solver, especially when navigating the bumpy terrain of a startup. Your lawyer should, therefore, routinely be asking incisive questions about the particular business issue, goal, or transaction at hand. How else will he or she be able to clearly comprehend what you are looking for, what you care about most, and, alternatively, what you may not think is important? It is only through asking questions that your lawyer can construct and tailor recommendations that are both sound and relevant. After all, your business is not a hypothetical, and legal advice should never be delivered to you in a vacuum.

While posing the right questions is a necessary first step toward effective communication, your lawyer should not stop there. It is equally imperative that he or she pay careful attention to your answers. Only through active listening will your lawyer be able to understand the broader context within which your specific need has arisen. If, for example, you ask your lawyer to review and interpret a contract, the advice that you receive will be most useful to you when generated from a clear understanding, not only of the proposed transaction, but, more specifically, of your objectives and leverage relative to those of the counterparty to the contract.

Returning to our example above, if you are a first-time entrepreneur engaged in collapsing negotiations for seed financing and looking to your lawyer for guidance on whether to sign the term sheet “as is,” only if your lawyer has been carefully inquisitive might he or she know, for example, if you have spent months chasing financing, have received only this one offer, and are increasingly concerned over the resulting delay in technology development. Advice appropriately shaped by these facts would include a shift in focus toward negotiating a smaller subset of your most important issues (perhaps even just one or two) in order to make sure that a deal gets done as quickly as possible.

4. Practical Advice

Although many of the questions that you will pose to your startup lawyer will have complicated answers and, thus, require detailed analyses, you, typically, will need a succinct response. While a lawyer can spend a lot of time over email or on the phone with you summarizing relevant issues and describing the review conducted to reach his or her conclusion, this propensity is contrary to the startup reality. Time is money, and you are, no doubt, both busy and cost conscious. It stands to reason, then, that the more compatible lawyer is the one who is able to “cut to the chase.” While your lawyer should be able to work back to the analysis supporting his or her conclusion, in the course of discussing your questions, practicality dictates that the lawyer should lead with that conclusion, offering a recommendation at the outset.

As an entrepreneur, most likely with a business or technical background (rather than a legal one), you should expect your lawyer to be the one to bridge the gap and have the ability to speak your language. Your lawyer should avoid the use of legalese, so that you find the advice easily understandable and relatable. In fact, an essential component of your startup lawyer’s role is not providing legal advice—that is to say, to offer counsel on related, but non-legal, matters. For example, you may ask the lawyer representing your startup in a venture capital financing to advise you regarding how frequently particular deal terms, like participating preferred stock, are seen. Knowing how prevalent deal terms are is not “legal” advice, per se, but explaining which terms are “market” and which are atypical is a key value-add. This relevant expertise will enable your lawyer to help you to prioritize and determine which terms to negotiate and which to accept.

The ability to provide practical business advice is part of a larger skillset that will distinguish your best startup lawyer from the rest. Most lawyers will be able to educate you on how to interpret a provision in a contract or analyze risk in a transaction, but the lawyer that you want to find exercises sound judgment in the provision of real-world advice. Your world is the startup world, and, as such, your lawyer must be able to expertly determine what is important to you (and what is not), given the stage that you are at. This determination is impacted by the particular circumstances and context, such as when and how urgently you may need outside financing, and the circumstances and context need to figure into the advice that you receive.

If, for example, your startup is running low on cash—with payroll, accounts payable, and other obligations due—but has received a proposal from a prospective licensee of your technology in a specific territory outside of the United States, you may need to accept terms that are less than favorable, and it is the role of the skilled startup lawyer to help you determine what your business can live with. Your lawyer should know not to “over-lawyer,” such as by drafting and negotiating the definitive agreements in a way that adds unnecessary time, complexity, and expense to the deal or, even worse, in a way that puts the deal at risk: By continuing to negotiate a matter for which there could be a compromise or by delaying the closing date through prolonged negotiations, the deal could fall through.

5. Understanding the Business

As an entrepreneur, your business is born of an idea that you believe is unique. It could be an advanced technology, an innovative service, or a progressive social mission. Whatever it is that sets your business apart needs to be substantively understood, in both design and practice, by your lawyer.

If, for example, your startup is a software-as-a-service play, your lawyer must be familiar with the software, its functionality, feasible customizations, and what steps the business is willing to take in terms of customer care, warranty, and support. Otherwise, your lawyer will not be able to negotiate successfully with tech-savvy customers, discuss the finer points of service level agreements, and explain what credits, if any, will be offered in the event of unexpected downtime. If this dexterity is not the case with your lawyer, in order to support your sales team, then you may as well be selling off-the-shelf software, because, before the contract is even signed, the prospective customer may determine that the service piece is missing.

Equally as important for your startup lawyer to grasp is the financial model and underlying accounting principles on which your business runs. Whether you are selling a product or a service, there will be a process by which revenue flows through your business. With working knowledge of this process, your lawyer can draft and negotiate license and services agreements that, to the extent possible, support the conversion of bookings into recognized revenue sooner rather than later. Be sure that the lawyer you select does not plan to simply “do deals” for your startup but that he or she plans to help you craft deals that are structured in such a way as to support your business goals.

While finding “a” startup lawyer may seem a straightforward enough task, finding “your” startup lawyer—the practitioner whose partnership, communication, and practicality will advance your business purpose—requires that you know who and what you are looking for. The right fit from the outset often proves determinative and, therefore, you will want to evaluate carefully skills that many entrepreneurs, especially those searching for a lawyer for the first time, might not intuitively focus on.

Linda Cole is a Clinical Instructor at Harvard Law School and Supervising Attorney for the Harvard Law Entrepreneurship Project. Joshua Fox is a Partner at WilmerHale in Boston and an Adjunct Lecturer at Boston University School of Law. Both are alumni of Harvard Law School.

Visiting MCI Concord

By: Liz Archer, JD ’20

Students in the Spring 2019 Judicial Process in Trial Court Clinic. Credit: Jean Lee JD ’19

On April 22, students in the Judicial Process in the Trial Courts Clinic visited MCI Concord, a medium security prison for men. While in the clinic, some students observed sentencing hearings where individuals where sent to serve time at MCI Concord. Hon. Judge John C. Crastley (Ret.), the Lecturer on Law for the Clinic, organized a trip to the facility to help students understand the consequence of those sentences. On our tour of the facilities, we visited the segregation unit, a general population unit, and the prison’s religious spaces. In the final part of our tour, we were introduced to the NEADS Program through which inmates train service dogs. The participating inmates gave a presentation demonstrating the particular skills that they are developing with their dogs. For example, one inmate is training his dog to identify and respond to different sounds in order to serve a deaf client. This was the most interesting part of our visit to MCI Concord because of the powerful impact that the NEADS Program seems to have on participating inmates and the clients that they serve. Students also had the opportunity to meet and speak with the inmates following their presentation. During those subsequent conversations, the inmates shared some of their experiences and advice about how students could best serve their future clients.

I left our visit of MCI Concord feeling conflicted. On the one hand, I believe lawyers should have an informed understanding of the implications of their work, including the experience of incarceration. Visiting a prison is one way to get a better sense of what that experience is like and speaking with inmates or formerly incarcerated individuals is another, perhaps better, way to develop that understanding. On the other hand, I worry about the invasiveness of prison tours. There were moments where being on the outside looking in felt uncomfortable, and perhaps the inmates felt the same way. Ultimately, I believe our visit was a valuable experience, particularly because students had the opportunity to engage with the inmates about their experiences. But I also think that, when visiting these institutions, visitors should be aware of the privilege they carry and the weight of the activity they are engaging in.

“Friendo y comiendo” in Puerto Rico—my experience at the FOMB

By: Eloi Colldeforns Papiol, LLM ’19

Eloi in front of a sign at the FOMB.

When our plane landed in San Juan, a warm breeze welcomed us. Accompanied by the evening calls of the tiny coquí frogs, an island full of natural and cultural wonders revealed itself, and we were soon embraced by the hospitality of the Boricuas.

As one of the ten J.D./LL.M. Harvard Law students participating in the Spring break pro bono trip to Puerto Rico in March 2019, I realized that I had to (partially) resist indulging in tourist pleasures. My mission was to spend four days at the Financial Oversight Management Board for Puerto Rico (FOMB) doing legal work, and I wanted to make my stay there as useful as possible.

Three students standing in front of the San Felipe del Morro fort.

Maria, Andy, Brian, and Eloi on their way to the Fuerte San Felipe del Morro.

But the FOMB, frequently referred to by some Puerto Ricans as la Junta (after its name in Spanish, Junta de Supervisión y Administración Financiera), is no ordinary place to work. Created in 2016 under the federal statute Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA (48 U.S.C. 20)), the FOMB is entrusted with finding a way for Puerto Rico to “achieve fiscal responsibility and access to the capital markets.” Easier said than done. The Commonwealth of Puerto Rico, with more than $70 billion in public debt, is facing a large debt restructuring effort, and its shrinking economy does not offer the best prospects. 40% of Puerto Ricans live below the poverty line (with an unemployment rate that more than doubles the U.S. average), access to electricity is expensive and unreliable (the street where our hostel was located had a couple of power cuts during our stay) and the island’s infrastructure was seriously affected by the devastating Hurricane María in 2017.

Revamping Puerto Rico’s economy is an overwhelming challenge for the FOMB, the Puerto Rican government and the United States in general. A challenge thus beyond the reach of a single foreign lawyer, like me, who had just tried his first—but delicious—mofongo. Being a qualified Spanish-law practitioner in Barcelona and having taken an HLS course on the Regulation of Financial Institutions were my only, very modest, credentials. I would only have four days to get to know my FOMB colleagues, become familiar with Puerto Rico’s 148-page fiscal plan, and mentally disentangle the complexities of Puerto Rico’s mixed and bilingual legal system—English for U.S. federal law, and Spanish for Puerto Rico’s civil law, which is strongly modeled after the Spanish civil code.

As if this was not enough, I was also confronted with unexpected situations. On my second day, a group of nearly twenty protesters wearing T-shirts with the face of the (late) independence activist Lolita Lebrón gathered in front of our building and a police cordon was deployed. No violence ensued, but those facts opened my eyes to a reality that I had ignored: the FOMB’s role in Puerto Rico is politically controversial.

Some perceive it as an external force that interferes with the role of democratically-elected Puerto Rican institutions. After all, while the FOMB is an entity formally ascribed to the Commonwealth of Puerto Rico—as opposed to a U.S. federal agency or instrumentality—its seven members were appointed by former U.S. President Obama (six from a list provided by congressional leaders and one in his “sole discretion”). The President and the Congress are two institutions in which Puerto Ricans have no voting representation. Others, in contrast, consider the FOMB a necessary tool to address Puerto Rico’s inadmissible debt financing levels, public sector and structural deficiencies, and the only way to ensure an optimal spending of the federal funds received by the island.

This confrontation reflects a characteristic tension in Puerto Rico’s unique situation as an Estado Libre Asociado (Free Associated State, a meaning which the official term of “Commonwealth” fails to capture). This tension looms over the somewhat difficult institutional relations between the FOMB, run by its executive director Natalie Jaresko, and the Puerto Rican government, led by Governor Ricardo Rosselló.

Eloi with Exeuctive Director Natalie Jaresko

In light of this institutional struggle, the ultimate purpose of my legal work at the FOMB was to help achieve collaboration with the Puerto Rico government. There was a clear connection between the tasks that I was assigned and the legal challenges and uncertainties that the FOMB has to resolve to fulfil its congressional mandate.

Having had the opportunity to participate, even if briefly, in the examination of key legal issues during this critical time for the future of Puerto Rico is a unique learning experience that I will never forget. Nor will I forget the people that I met at the FOMB. The members of the elite team assembled by Natalie Jaresko possess not only a superb technical expertise, but also an admirable degree of courage, determination and commitment to their mission. Extraordinary men and women who firmly believe that “Puerto Rico will shine again,” as the banner outside their office reminds them every day. And so, when my fourth—and final—day arrived, I left the FOMB with the feeling that I had been in the right place, at the right time.

Puerto Ricans have a saying, friendo y comiendo (i.e., frying while eating), which figuratively means that some things must be done right away, without excessive consideration. They know exactly when to apply this philosophy, and so did the FOMB with my integration process. I was treated like one of their own family since the very first day. Special thanks go to Sebastián Negrón for making this collaboration possible, and to my FOMB colleague Jean-Carlos “JC” García-Rosa, for his unconditional help and friendship.

JC and Eloi at the office. Credit: Alexis Farmer

This friendo y comiendo philosophy allowed me not only to work on legal issues of relevance to the FOMB, but also to have a coffee with Alejandro García Padilla, the former Governor of Puerto Rico, and Emiliano Trigo-Fritz, who worked closely with him when he was in office, but currently advises the FOMB. I was also invited by my colleague JC to teach a Corporations class at Universidad del Sagrado Corazón, where he is a lecturer.

The last days of this unforgettable Spring break trip rewarded me with other memorable experiences, like the visit of the communities around the Caño Martín Peña that were affected by Hurricane María, an afternoon hike in the beautiful El Yunque rainforest and the discovery of the Playa Flamenco in Culebra island and its turquoise waters.

The whole HLS group at El Yunque rainforest. Credit: Alexis Farmer

Gracias, Puerto Rico, ¡y hasta siempre!

Challenges and opportunities in organics recycling

Via Supermarket News

Source: Pixabay

Harvard Law School’s Food Law and Policy Clinic and the Natural Resources Defense Council estimate that up to 40% of all food produced in the United States is lost or wasted every year. Meanwhile, Feeding America estimates that one out of every eight Americans, or more than 40 million people, is food-insecure (almost 13 million of whom are children). According to the Food and Agriculture Organization, each year consumers in wealthy countries allow almost as much food to go to waste (222 million tons) as the entire net food production of sub-Saharan Africa (230 million tons).

While these statistics could make the most optimistic among us waver, there is cause for encouragement among the data.

Wednesday, April 24, is Stop Food Waste Day. Described as “a day of action and awareness to focus attention on the global epidemic of food waste and the solutions to combat the problem,” the goal behind this awareness campaign is to make individuals and businesses alike aware of their surplus food by not wasting anything for an entire day. This means everything from making a grocery list and taking it to the supermarket so you’re not tempted to pick something up that you don’t have a plan for, to making sure you chop up and serve every inch of a vegetable, to, of course, finishing everything on your plate.

Source reduction must come first

The greatest challenge and opportunity for food waste is source reduction. While composting is important — we’ll get into more details on this — when your business reduces the volume of food it produces or purchases in the first place, composting gets that much easier. This has the additional benefit of saving your business money.

The Food Recovery Hierarchy, developed by the Environmental Protection Agency (EPA), is designed as an inverted pyramid that clearly prioritizes the different actions that a business or individual can take to ensure that they prevent and, when not preventable, convert, wasted food to its highest possible use.

With each tier of the Food Recovery Hierarchy focusing on a different strategy for managing food waste, this top-down approach shows that the highest tier in the food recovery pyramid is source reduction — the act of reducing the volume of surplus food being generated in the first place.

Food donation and animal feed

The second priority is food donation. Many grocers are generally very good at setting aside baked products and finding partners that can distribute these items to people in need. Donating fresh fruits and vegetables is more complicated, and even more difficult is getting perishable items such as meat, dairy and prepared foods to those who can use them. However, there are organizations that are well equipped to help with these surplus foods.

Animal feed programs and rendering are other examples of higher uses of wasted food. There can be challenges with finding local farmers who can provide reliable pickups, but, again, there are companies that make these programs efficient and manageable.

Organics is more than just food

Of course, organics recycling doesn’t only refer to food waste.

While discarded food takes up a large proportion of the organics recycling category — with this including everything from fruits and vegetables, to meats, poultry, and seafood (including bones and shells), to coffee grounds, egg shells and bakery ingredients — organics includes other organic materials, food-soiled paper, coffee filters and plant material such as leaves and stems.

While organics recycling includes much more than food waste, these programs typically have the same contamination challenges as mixed recycling (paper, plastics, metal and glass). Plus, separating food waste for collection has the added hindrance of being an unfamiliar experience, which holds back many individuals and organizations from trying it for the first time.

Organics recycling opportunities

While this may be a challenge to take up, it also presents an opportunity. Businesses can educate their employees, and themselves, on how to best deal with their wasted food and other organics to ensure they’re being separated correctly. If your waste and recycling partner doesn’t currently offer organics recycling, find out if another company can pick these materials up for you.

Technology can help to improve upon our current organics recycling efforts. For businesses looking to implement organics recycling programs either on a small scale, or across an international footprint, food waste reduction programs can first help you to uncover what you are discarding. With data that shows what is left, donation and organics recycling programs can be designed and implemented that keeps these useful resources out of the landfill.

Stop Food Waste Day is a reminder to all of us that the biggest opportunity in organics recycling, as in all other forms of recycling, is source reduction. The less we produce, the less we need to recycle. After that, we need to put in the work to make sure that we educate our employees, and ourselves, on why putting the food we produce toward a beneficial use is so important.

Emmett Clinic Files Comments Opposing EPA’s Proposal to Undermine Mercury Standards for Coal-fired Power Plants

Via the Emmett Environmental Law & Policy Clinic

Source: Pixabay

The Emmett Environmental Law & Policy Clinic submitted comments today on behalf of a group of leading scientists in opposition to the Environmental Protection Agency’s (EPA) proposal to rescind the finding underlying its regulation of mercury and other toxic air pollutant emissions from coal-fired power plants.  This proposal, if finalized, could lead to the repeal of regulations for the largest source of mercury emissions in the United States.

The Clinic filed the comments on its own behalf as well as on behalf of Elsie Sunderland, Charles Driscoll, Kathy Fallon Lambert, Joel Blum, Celia Chen, David Evers, Philippe Grandjean, Robert Mason, and Noelle Eckley Selin—leading experts in the fields of atmospheric transport, ecosystem fate and effects, bioaccumulation, human exposures, and health outcomes associated with environmental mercury contamination.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho.

EPA regulates emissions of toxic air pollutants such as mercury under section 112 of the Clean Air Act.  When Congress amended the Clean Air Act in 1990, it directed EPA to set emissions standards for all major sources of 189 toxic air pollutants under a strict timeline.  The one exception was emissions from coal-fired power plants.  Congress in those same 1990 amendments had created the acid rain cap-and-trade program—which applied only to coal-fired power plants—and it was thought that the controls that power plants installed to reduce sulfur dioxide emissions might also reduce emissions of mercury and other air toxics.  Therefore, Congress instructed EPA to determine whether it was “appropriate and necessary” to regulate power plant emissions under section 112 after taking into account the effect of the acid rain program.

In the end, power plants largely complied with the acid rain program by switching to low-sulfur coal, and coal-fired power plants remained the leading source of mercury emissions in the United States.  EPA therefore determined in 2000 that it was appropriate and necessary to regulate toxic air pollutant emissions from power plants.  It confirmed this finding in 2012 and imposed emissions standards at that time.  All coal-fired power plants are now in compliance with those standards.

Nevertheless, EPA has now proposed to reverse its prior findings and conclude that it is not “appropriate” to regulate these emissions.  As our comments explain:

  • EPA’s proposal is based on an eight-year-old analysis which even at that time was incomplete and which underestimated the benefits of regulating power plant mercury emissions.
  • The scientific literature includes significant new evidence of the benefits of regulating power plant mercury emissions, including estimates of those benefits that are orders of magnitude larger than EPA’s.
  • It is now clear that reductions in mercury emissions from power plants result in localized and regional reductions in atmospheric mercury deposition, which amplifies the benefits of decreasing domestic emissions.
  • The entire industry has by now come into compliance with the mercury and air toxics standards. It is therefore no longer necessary to rely on predictions of the compliance costs.  Multiple analyses have estimated that the actual costs of compliance are less than a billion dollars per year compared to the $9.6 billion per year EPA predicted in 2011.
  • Regardless of whether EPA can reverse the appropriate and necessary finding, it does not have the authority to delist power plants or repeal their emissions standards without going through the section 112(c)(9) delisting process

The Clinic’s comments are available here.

New Federal Interagency Strategy Provides Opportunity to Advance Food Waste Reduction Efforts

Via the Center for Health Law and Policy

Source: Pixabay

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste. As FLPC wrote in an earlier blog post, this strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. This post outlines several actions that the federal agencies can take within these priority areas to maximize food waste reduction.

Priority Area 1: Enhance Interagency Coordination

The strategy’s first priority area calls for improved coordination between EPA, FDA, and USDA in order to maximize resources and avoid redundant efforts. FLPC has long advocated for improved interagency coordination on the issue of food waste. Food waste is often left out of the calculation when policies are developed simply because it is not on the radar of decision makers. Better coordination among agencies can ensure that measures to address food waste are included in relevant federal programs, such as conservation programs and food assistance programs.

FLPC has also been an advocate for enhanced coordination across the food system more broadly. In February 2017, FLPC and the Center for Agriculture and Food Systems at Vermont Law School published a report proposing a national food strategy that would require a coordinated approach to policymaking and regulation of the food system. We are pleased to see the federal agencies recognize the need for improved coordination and hope that their efforts around food waste can serve as a template for other areas of the food system.

Priority Area 2: Increase Consumer Education and Outreach Efforts

Recognizing that many consumers do not know about the issue of food waste, the second priority area proposes the development of a consumer education campaign by the federal agencies in partnership with public and private sector entities. According to ReFED, consumer education campaigns are one of the top two most cost-effective food waste solutions and have the greatest overall diversion potential at 584,000 tons. In the United Kingdom, a similar national education campaign led to a 21% reduction in consumer food waste over five years and had a 250 to 1 benefit-cost ratio.

Several national consumer education campaigns, such as the Save the Food campaign created by NRDC and the Ad Council, already exist in the U.S., as do various local, state, and regional campaigns. Federal government support can build on existing campaigns like Save the Food and utilize their research and materials to help ensure that the information is disseminated more widely and better incorporated into other relevant federal programs and materials.

Priority Area 3: Improve Coordination and Guidance on Food Loss and Waste Measurement

Priority Area 3 proposes enhanced coordination and guidance on food waste measurement in order to help refine food waste reduction goals and better report on progress. Data on food waste trends can help government entities, businesses, and other stakeholders identify the most effective solutions and track progress over time.

States and localities have been at the forefront of efforts to measure food loss and waste. For example, the Oregon Department of Environmental Quality, in partnership with Portland State University’s Community Environmental Services, is conducting a five-part Wasted Food Measurement Study that will look at the amount of food waste generated in the state and seek to identify drivers of food waste. In addition to coordinating among federal agencies and developing voluntary guidance on best practices, the federal government can advance food waste measurement efforts by providing funding to support state studies and initiatives to measure food waste.

Priority Area 4: Clarify and Communicate Information on Food Safety, Food Date Labels, and Food Donations

The fourth priority area seeks to reduce confusion by providing guidance on food date labels, food safety, and liability protections for food donation. Federal action to streamline and provide clarity on each of these topics is consistent with longstanding FLPC recommendations.

Date Labels

Confusing date labels result in unnecessary food waste among consumers and in the retail sector. Because of a lack of federal law standardizing date labels, date labeling language varies from state to state and across food products, and date labels generally have no relation to a food’s safety. Yet 84 percent of consumers report discarding food close to or past the date on its package. Federally-standardized date labels are the most cost-effective solution to food waste according to ReFED and have the potential to divert an estimated 398 thousand tons of food waste.

Important steps have been taken in recent years to reduce consumer confusion by encouraging the use of standard date labeling terms to indicate quality and safety. In particular, FLPC applauds USDA’s industry guidance, which encourages manufacturers to use the standard term “Best if Used by” to indicate product quality. We have also been excited to see industry action to standardize date labels, most notably the voluntary Product Code Dating Initiative. Launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA), this initiative encourages businesses to use only one of two standard phrases on any food product: “BEST if used by” for products where it is an indicator of quality, and “USE by” on products that may have a safety risk over time. However, due to conflicting state laws and the voluntary nature of this initiative, universal adoption of these voluntary standards cannot happen without federal action. Therefore, the federal agencies should work with Congress to support federal legislation to standardize date labels; alternatively, FDA and USDA can require the use of standard date labeling language on products within their jurisdiction through regulations. Once labels are standardized, the three agencies can work to educate consumers to make better decisions and waste less.

Liability Protections

The Bill Emerson Good Samaritan Food Donation Act provides strong liability protection to food donors and nonprofit organizations that distribute donated food. Yet many food retailers, restaurants, and manufacturers still cite liability as a barrier to food donation. The federal agencies can promote food donation by raising awareness of the liability protections available under the Emerson Act. Additionally, USDA can provide clarity on ambiguous terms in the Act by developing guidance on the scope of the available protections. These actions are consistent with provisions in the 2018 Farm Bill instructing USDA to create guidance on elements of the Emerson Act and to raise awareness of the liability protections provided by the Act. With the focus on this topic as part of the interagency food waste strategy, FLPC hopes to see agency action to clarify and raise awareness about this important protection so that donors are encouraged to donate safe, surplus food. We also hope that the agencies will support efforts to enhance Emerson Act protections to better align with the modern food recovery landscape, such as the Food Donation Act of 2017 or similar efforts.

Food Safety

Another key barrier to food donation is confusion about what safety procedures are required for food donation. A fifty-state survey of state food safety officials, conducted by FLPC and the Food Safety for Donations Working Group, found that one reason for this confusion is that most states and localities do not have regulations or guidance on this topic. Most states and localities use the FDA Food Code, a model code developed by the Conference of Food Protection, as the basis for their food safety regulations for restaurants and retailers. Because the FDA Food Code does not include information about food donations, very few state or local regulations address this topic. The agencies, particularly FDA, can support safe food donation by creating guidance for restaurants and retailers on food safety practices for food donation; this guidance could be part of the FDA Food Code or separate. FDA can also create similar guidance for food facilities.

Priority Area 5: Collaborate with Private Industry to Reduce Food Loss and Waste Across the Supply Chain

The fifth priority area calls for collaboration between the federal government and the private sector. Food businesses have been leaders in food waste reduction efforts, with many adopting food waste reduction goals and implementing practices to reduce food waste in their operations. Yet limited data exists on the scope of these goals and the impact they have made. The federal agencies can help advance private sector initiatives by working with food businesses to collect, analyze, and report information about their efforts and their progress towards their goals.

Priority Area 6: Encourage Food Waste Reduction by Federal Agencies in their Respective Facilities

The final priority area seeks to position federal agencies as leaders by example, by encouraging federal agencies to reduce food waste in their own cafeterias and events. The Federal Food Donation Act of 2008 represented an important first step in this direction; the Act encourages executive agencies entering into food service contracts above $25,000 to donate excess food. Agencies must include clauses in their contracts encouraging the contractor to donate surplus food to the extent possible. However, the Act does not actually require the agencies or their contractors to donate, or even to report on the amount of food that is donated. FLPC has made recommendations to strengthen this Act by requiring federal agencies to report on the amount of food they donate and requiring contracts to include language mandating that contractors take steps to donate surplus food.

EPA, FDA, and USDA can model the federal government’s commitment to food waste reduction by including provisions in their own food service contracts that require the contractors to enter into agreements with food recovery organizations to donate excess food. The agencies can also commit to taking steps to reduce the amount of food waste generated in their cafeterias, and to sending excess food that is not edible to organics recycling facilities to the extent possible. Finally, the agencies can commit to collecting and publicizing data on the amount of food that they donate and recycle.

FLPC is thrilled to see the agencies begin to take coordinated action on food waste, and we hope to work with the agencies and other stakeholders to implement some of these next steps.

My Experience at the 2019 Food Law Student Leadership Summit

Via the Center for Health Law and Policy 

By: Oliver Brown

This April, I attended the Food Law Student Leadership Summit (FLSLS) in hopes of broadening my knowledge of emerging legal issues in food law. I came to law school with an interest in food and agriculture reform. Through my participation in the Harvard Food Law & Policy Clinic, I was able to translate that passion into practical tools for advocacy. FLSLS offered a unique opportunity to further develop that skillset alongside professors, practitioners and students from around the country.

Hosted at Georgetown University Law Center, Washington D.C. was an ideal setting to tackle the public policy and regulatory issues at the heart of food law. Experts like Laura MacCleery and Ricardo Carvajal shared how administrative reforms are enacted and offered insights into legislative advocacy. In a powerful keynote, Navina Khanna, Director of the HEAL Food Alliance, outlined her organization’s comprehensive Platform for Real Food—a roadmap towards a more sustainable food economy. With so many knowledgeable voices in conversation, the outlook for that vision felt a little more hopeful.

Despite the incredible panels and seminars throughout the weekend (David Vladeck’s nerve-wracking lecture on deceit in food marketing was a particular highlight), I was most inspired by the network of passionate food advocates in attendance. It was an incredible opportunity to connect with other aspiring lawyers interested in this practice area. Hailing from law schools nationwide, students came with unique backgrounds and career goals. With food law touching so many legal disciplines (from labor, to intellectual property, to environmental sustainability), each participant brought their own perspective, and weighed how particular policies might impact the issues they cared about most. It was fascinating to see where our interests aligned and where they were in tension. Since the summit, I’ve developed a better understanding of the opportunities for progress in food system reform. I can identify points of collaboration, between farmers and animal-rights advocates, between commercial producers and food-waste NGOs. And most importantly, I have partners I can call on as we work towards meaningful change.

Mayor Pete Answers My Question About Predatory For-Profit Colleges

Via the Project on Predatory Student Lending 

Last Saturday, Linsdey Withem from the Project on Predatory Student Lending attended a town hall in New Hampshire to ask presidential hopeful Pete Burrigeg a question. She writes:

I went to a town hall in New Hampshire hoping for the opportunity to ask Pete Buttigieg one question: Would he encourage his education department to cancel federal student debt from predatory for-profit colleges?

I wanted to ask him this question because, in addition to being a 2020 presidential candidate, Pete Buttigieg is the mayor of South Bend, Indiana. South Bend is only a couple hours from Indianapolis where ITT Technical Institute, one of the largest and most predatory chains of for-profit colleges, was headquartered before they shut down. I know how important my question is because for the past decade I have observed, first hand, how ITT Technical Institute, and other for-profit colleges, shamelessly defrauded students. I was anxious to hear what Mayor Pete plans to do about it.

Ten years ago, I took an entry level position at an organization called The Accrediting Council for Independent Colleges and Schools, also known as ACICS. There, I learned that accreditation is the gateway that allows colleges to participate in federal financial aid programs. There are several kinds of accreditation, and ACICS focuses on the accreditation of for-profit colleges.

In 2010, ACICS was booming. Applications for new schools and new programs poured in from all over the country. Most of these applications were from a handful of large companies that owned chains of schools, including ITT Technical Institute. In my role at ACICS, I coordinated evaluations of these schools.

As I traveled around the country to evaluate ACICS schools, I noticed a trend. Large chains of schools used elaborate advertising techniques to target low-income and minority populations, promise lucrative job prospects, and then charged outrageous tuition for subpar training programs. There was no way the training offered at these schools would give students the earning potential to pay back their student loan debt. Students, fooled by these schools’ lies, were taking out mountains of debt and getting little to nothing in return.

These schools claimed to be invested in helping nontraditional students get an education and better their lives. But when you looked behind the curtain, these companies used predatory practices to target vulnerable populations so that they could profit off federal financial aid, which ACICS accreditation allowed them to access.

As time went on, I realized more unsettling things about ACICS. The Accrediting Council that made decisions about what schools ACICS would accept was largely made of executives from the very same companies engaging in the predatory practices that cheated students for their financial aid money. The fox wasn’t just guarding the hen house–the fox owned the hen house.

After seeing the fraudulent behavior and predatory practices of the for-profit college industry, I made the easy decision to take my career in a different direction and left ACICS. Years later, I was offered a position working for the Project on Predatory Student Lending, an organization standing up for the rights of students who were cheated by the for-profit college industry.

Last Saturday, I was proud to tell Mayor Pete I work with a group that defends former students of predatory for-profit colleges. Our government owes it to students who were sold lies and cheated out of their financial aid to cancel their student loan debt. As Mayor Pete put it, “If we’re going to talk about student loan forgiveness, the very first thing we should look at is the cases of these people who were let down.” I hope that all 2020 candidates see the importance of canceling all student loan debt for students who were let down.

 

Phil Torrey wins 2019 HLS Student Government Teaching & Advising Award

Via the Harvard Immigration and Refugee Clinical Program 

We are proud to announce that our Managing Attorney, Phil Torrey, won a 2019 HLS Student Government Teaching & Advising Award. We are honored to have Phil as part of our team and we thank him for his tireless dedication to his students and to the Clinic. Congrats, Phil!

Here are some quotes from student nominators:

“Phil is responsive, considerate, and provides thorough feedback.”

“Phil has taught me more about lawyering and litigation than any other individual at HLS…The time and energy that he puts into mentoring and teaching is incredible; the behavior that he models as a lawyer is exceptional.”

“He is a tireless advocate for some of the most vulnerable clients.”

“I am truly lucky to have had the privilege to learn from Phil.”

“Phil is the best mentor I have ever had…[he] is able to find that rare balance of providing us with enough guidance and direction to maintain our confidence in and the high quality of our work, while allowing us, the students, to drive our cases and make substantive decisions about our cases.”

“Because of his teaching and guidance…I feel prepared for my summer job and for engaging in legal work upon graduation.”

“I mean it when I say that I wish all other faculty members were more like him.”

Spring Break 2019: Private Probation in Giles County

By: Jimmy Biblarz J.D. ‘21

Source: Pixabay

The informal slogan I heard from respondents was “Come to Pulaski for vacation, leave on probation.” In Pulaski, Tennessee, private probation has wreaked havoc on the community. A federal-class action lawsuit which claims that two private probation services companies have extorted money from impoverished people to generate profit, is trying to change that.

I spent a week in Pulaski, Tennessee working with Civil Rights Corps, one of the three groups of lawyers bringing the suit, was extraordinarily rewarding and educational on four levels. 1) issue exposure (private probation), 2) legal investigative and evidence gathering skill-building, 3) legal strategy skill-building, 4) exposure to inspiring mentors and a unique organizational model.

(1) Before this trip, I knew little about private probation or how the practice affects the lives of hundreds of thousands of people throughout the 14 states who utilize it. We dove right in to the issues, and were tasked with driving around Tennessee (over 200 miles on some days) looking for people who had been affected by the scheme. While the amounts people couldn’t pay were seemingly small (often just $45/month), for individuals on fixed incomes, these amounts were prohibitive.

(2) I was doing the type of legal work you don’t often get exposed to as a 1L – the actual work of putting a case together. Over the course of the week, I spoke with directly impacted people, interviewing them about their experiences with the criminal legal system. I honed my interview skills in a very short amount of time – I thought through how to get people to engage with me across a wide social distance, and developed strategies for getting people to talk to me who were rightfully mistrustful of any and all “authority.” I had to work to build trust; these people were rightfully suspicious of anyone knocking on their door. I saw firsthand just how nuanced individual stories are, and how critical individual facts are to the stories lawyers try to tell. I will remember these conversations in future brief writing and less “on the ground” work.

(3) Not only was the week built on direct client interaction work, there was time for other legal skill building. I started to learn the rules of reciprocal civil discovery, and how they come into play in class action lawsuits.

In particular, I feel lucky to count Alison Horn, an Investigative Supervisor, and Jonas Wang, an Attorney, as friends and mentors. I went out investigating with Alison on the first day, and I quickly saw what a skilled interviewer and evidence collector she is. I learned just how essential the facts are to a case. Jonas is an incredible attorney – he is able to see the forest and the trees at the same time, and to think two steps ahead of whatever we were doing. He is patient and thoughtful, a careful writer, and clearly deeply committed to individual clients.

Civil Rights Corps is an amazing organizational model, combining direct service with impact litigation. I was inspired by how unwilling the organization is to lose sight of the actual people affected by the issues they’re working on. This spring break experience gave me wide exposure to the issue and I am much more committed to abolishing the practice than I was at the start of the week.

Panelists Discuss Combatting Wrongful Convictions, Reforming the Criminal Justice System

Via The Harvard Crimson

Aditi Goel, a clinical instructor at the Harvard Law School Criminal Justice Institute, spoke about combatting wrongful convictions at a panel event on Monday night. Photo: Amanda Y. Su

By: Amanda Y. Su

Legal experts and criminal justice reform advocates gathered in Tsai Auditorium to discuss mitigating wrongful convictions in the United States criminal justice system Monday evening.

The event, entitled “Fighting Wrongful Convictions in the Age of Mass Incarceration,” featured four panelists and centered on the experiences of Lorenzo Johnson, an activist who has personal experience with the issue of wrongful conviction. The panel was co-sponsored by seven organizations including the Harvard Organization for Prison Education and Advocacy, the Committee on Degrees on History and Literature, and the Charles Hamilton Houston Institute for Race and Justice.

Johnson opened the event by sharing the story of his incarceration for being an alleged accomplice in a 1995 murder in Harrisburg, Penn. In 2012, the Third Circuit Federal Court of Appeals granted him release from his life-without-parole sentence after ruling there was legally insufficient evidence for his conviction. Four months later, the U.S. Supreme Court unanimously reinstated his conviction, sending him back to prison. In July 2017, he agreed to a plea deal and was released from prison.

After resuming his sentence, Johnson led a nationwide media campaign to educate the public about his experiences with the support of the Pennsylvania Innocence Project, a non-profit organization that works to correct wrongful convictions.

During the event, Johnson shared moments when he said prosecutors and the police asked him to provide false statements and forced his alibi witnesses to manufacture or change their statements.

“A lot of people got the misconception that the [criminal justice] system is broken,” Johnson said. “The system was never fixed. The system was never designed to be fair.”

Throughout the event, other panelists discussed aspects of the criminal justice system that can enable wrongful convictions.

Aditi Goel, a clinical instructor at Harvard Law School’s Criminal Justice Institute, spoke about “draconian” mandatory minimum sentences, lack of funding for public defenders, and the lengthy amount of time people wait for trial, which can incentivize plea deals.

Rahsaan D. Hall, director of the Racial Justice Program at the American Civil Liberties Union in Massachusetts and a former prosecutor, condemned the “nature and culture” of prosecution itself.

“It is the cultural inertia of white supremacy that uplifts these ideas and practices,” Hall said. “And it funnels through every aspect so that even a black man like myself, as a prosecutor, is an instrument of that white supremacy.”

Radha Natarajan, executive director of the New England Innocence Project, spoke about the preponderance of minor marijuana or driving offenses in criminal convictions as well as prejudice against African American men.

“What is a wrongful conviction? That has to be broader than what people traditionally think of,” Natarajan said. “It has to be about who is brought into the system to begin with.”

Beyond “band-aid” solutions to wrongful convictions, panelists suggested broader solutions and reforms, including using social media as an educational tool and pushing for legislation.

“You can’t just fight the case inside the courtroom,” Johnson said. “You have to fight it outside the courtroom too.”

Joseph R. Feffer ’21, an event attendee and HOPE organizer, said he appreciated the opportunity to learn more about ways individuals can prevent wrongful convictions.

“I think a lot of times people come to panels like these and walk away and go back to our Harvard lives,” Feffer said. “But the things said about going to jury duty, making sure you’re watching court, voting in District Attorney elections, are very easy actions that we all can do. That’s what what I’m going to take away the most from this.”

What’s the Deal with Transparency in Science? The Emmett Environmental Law & Policy Clinic filed multi-disciplinary comment letters challenging EPA’s scientific “transparency” rule

EPA logo

Source: Wikimedia Commons

By: Lynne Dzubow, Clinical Fellow

The Emmett Environmental Law & Policy Clinic (EL&PC) submitted two sets of comments in August 2018 challenging the Environmental Protection Agency’s (EPA) proposed rule on scientific “transparency” in its decision-making. While transparency is a laudable goal, EPA’s rule would wrongly limit—not clarify or expand—the pool of scientific and medical knowledge available to the agency when issuing regulations to protect human health and the environment.

The Trump Administration has a troubling, topsy turvy relationship with the concept of transparency. On the one hand, it uses “transparency” as a pretext for preventing federal agencies from using the best available science to inform policy decisions. On the other hand, it tries to restrict access to government records, for example, through recently proposed Freedom of Information Act (FOIA) regulations.

Indicative of this trend, EPA issued a proposed rule entitled “Strengthening Transparency in Regulatory Science” in April 2018. The proposal requires that certain data and models be made “publicly available in a manner sufficient for independent validation,” and indicates that information will only satisfy this standard when “it includes the information necessary for the public to understand, assess, and replicate findings.”

By conflating public disclosure with the peer review process available and necessary to validate research, this requirement would deprive EPA of the data necessary to inform environmental health standards. Indeed, the proposal could have severe deregulatory effects by preventing EPA from using studies which rely on confidential medical data, older information that is not readily available, or evidence that was obtained from one-time events that cannot be replicated for moral or ethical reasons. Using the false crisis of “secret science” as a red herring, this proposed rule would not only threaten EPA’s mantle as one of the world’s leading environmental and human health research organizations, but would also place the agency in untenable legal jeopardy for most future regulatory actions.

Confidentiality of Private Health Information

As written, the proposal requires that the raw data establishing the scientific foundation for EPA’s regulations be made publicly available. However, as the Clinic’s comment letter representing the medical and research community points out, studies conducted on human research subjects are generally held to strict confidentiality standards. Under federal laws such as the Health Insurance Portability and Accountability Act (HIPAA) health care providers and associated research components are required to protect research subjects’ private health information. The Federal Policy for the Protection of Human Subjects, also known as the Common Rule, further requires federally-funded researchers to obtain Institutional Review Board (IRB) approval and informed consent of research subjects, during which process the researcher will typically need to make promises regarding confidentiality. Many academic institutions adopt the Common Rule as best practice for their research, even when it is not federally-funded.

These laws, along with customary research contracts and the Hippocratic Oath, form the basis of trust between a physician/researcher and her patient/subject. Requiring health study data to be made publicly available would have a chilling effect on the types of research necessary to inform standards on multiple environmental issues, from particulate matter in air to lead in drinking water.

For example, EPA’s 1997, 2006, and 2012 National Ambient Air Quality Standards (NAAQS) for fine particulate matter all relied on studies using confidential data, such as the 1993 Harvard Six Cities Study. Under the proposed “transparency” rule, such studies (and dozens of others) would be excluded from EPA’s regulatory process, likely skewing cost-benefit analyses and scientific conclusions to favor dangerously lax standards.

Best Available Science

The proposal not only conflicts with privacy laws, but also undermines the mandate Congress has imposed on EPA to use the “best available science” in developing regulations and standards. As an illustration, the Safe Drinking Water Act requires that EPA use “[t]he best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices,” and the Toxic Substances Control Act states that EPA “shall use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science.” While the precise terminology varies across statutes, a common theme of these requirements is that EPA use scientific information that is considered “best,” regardless of whether the underlying raw data is publicly “available.”

By preventing EPA from considering peer-reviewed studies whose underlying data is not publicly available, the proposal unlawfully restricts and undermines EPA’s regulatory process.

Preparing for Litigation

The Clinic’s comment letters representing both the scientific and legal communities demonstrate the multi-disciplinary outreach of the EL&PC and the important connection between science, law, and the environment.

EL&PC’s letter on behalf of the scientific and medical community was signed by nearly 100 people, including Harvard President Larry Bacow, the deans of Harvard Medical School (HMS) and the Harvard T.H. Chan School of Public Health, and the presidents of Massachusetts General Hospital (MGH), Brigham and Women’s Hospital, Beth Israel Deaconess Medical Center, and Massachusetts Eye and Ear.

The Clinic’s letter on behalf of itself and other environmental law clinics had 12 signatories, representing clinics from the Columbia University School of Law, University of Chicago Law School, and University of Colorado Law School, among others.

EPA has delayed the finalization of the “transparency” rule until 2020. The significant backlash against the proposal by public health, medical, academic, and scientific groups has seemingly given EPA pause. Should EPA, however, move forward with the rule, these comment letters will become an important part of the administrative record. By reaching out and forming a coalition between the medical and legal communities, EL&PC created a strong basis for challenging EPA’s justification for implementing the “transparency” rule in court.

A Win for Criminal Defendants at the U.S. Supreme Court

 

By: Dalia Deak J.D. ’19

On February 27, 2019, the U.S. Supreme Court restored the appeal rights of Mr. Gilberto Garza, Jr., and other criminal defendants like him. In a 6-3 opinion, the Court found that Mr. Garza’s defense attorney had improperly forfeited his appeal in violation of Mr. Garza’s constitutional rights — even though Mr. Garza had signed a plea agreement that contained an appeal waiver.

Background

In 2015, Mr. Garza signed two plea agreements, each with an appeal waiver. After Mr. Garza’s plea agreements were accepted by the court, and he was sentenced, he asked his attorney to file a notice of appeal. Mr. Garza’s defense attorney refused to file the notice of appeal before the deadline, despite Mr. Garza’s repeated requests that he do so. By refusing to file the notice of appeal, Mr. Garza’s attorney cost him his appeal altogether.

As a result, Mr. Garza sought post-conviction relief in Idaho state court, alleging that by refusing to file the notice of appeal, Mr. Garza’s attorney had rendered constitutionally deficient performance. The Idaho trial court denied relief, and the Idaho Court of Appeals and Idaho Supreme Court affirmed the trial court’s decision. The Idaho Supreme Court ruled that, in order to succeed on his claim, Mr. Garza had to show deficient performance and resulting prejudice from his attorney’s actions. It also ruled that Mr. Garza could not make that showing. By requiring Mr. Garza to show prejudice instead of presuming it, the Idaho Supreme Court acknowledged that it was aligning itself with a minority of courts on the issue. Indeed, eight out of ten federal courts of appeals disagreed with the Idaho Supreme Court on this issue. The Supreme Court granted certiorari to resolve the split.

The Opinion

The Court began its analysis by holding that the Roe v. Flores-Ortega presumption of prejudice that applies when an attorney forfeits a proceeding a defendant would have otherwise taken continues to apply even when the defendant has signed an appeal waiver. The Court then addressed the procedural devices at play in the case: appeal waivers and notices of appeal. The Court emphasized that appeal waivers do not serve as “an absolute bar to all appellate claims.” Indeed, it noted that “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts,” and, as with any contract, large variations in the language and scope of appeal waivers exist. As a result, directing counsel to file a notice of appeal does not mean that defendant or his counsel “undertake a quixotic or frivolous quest.” With respect to notices of appeal, the Court underscored its statements from Flores-Ortega that “[f]iling such a notice is a purely ministerial task that imposes no great burden on counsel.”

Turning to Garza’s ineffective assistance of counsel claim, first, the Court concluded that, consistent with Flores-Ortega, the decision of whether to appeal is ultimately the defendant’s to make, and, thus, Mr. Garza’s attorney had rendered constitutionally deficient performance. In doing so, the Court rejected Idaho’s argument that the risk of defendant’s breach of a plea agreement does not render counsel’s decision a strategic one. The Court emphasized that “simply filing a notice does not breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.”

Then, turning to the “crux” of the case, the Court held that the Roe v. Flores-Ortega presumption of prejudice applies with equal force when an appeal waiver is present. The Court made clear that, as in Flores-Ortega, “to succeed in an ineffective-assistance claim in this context, a defendant need only make one showing: ‘that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.’” The Court went on to explain that the presence of an appeal waiver does not “complicate this straightforward application.” This is because the Court’s precedents make clear that the presumption of prejudice applies whenever counsel’s deficiency forfeits the defendant’s appellate proceeding altogether. This reasoning applies with equal force to Garza because he had a right to a proceeding and retained some appealable issues, despite the presence of his appeal waiver.

By ruling in Garza’s favor, the Court rejected arguments by Idaho and the United States as amicus that Mr. Garza never had a right to an appellate proceeding, stating that Mr. Garza did have a right to an appellate proceeding, but could only raise fewer claims. Second, the Court also rejected the United States’ suggested rule, indicating that the Court has consistently refused “to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit.” Finally, the Court also refused to push this type of analysis to the post-conviction context, citing a study by Professor Nancy King that over 90% of noncapital habeas petitioners are unrepresented.

Working at MacArthur Justice Center

The win in Garza was an important challenge to a fundamentally unjust practice.  In that respect, it was a win, certainly for Mr. Garza, and, more broadly, for criminal defendants who sign appeal waivers. It was also a rewarding moment for the attorneys and staff that had worked on Mr. Garza’s case. I was lucky enough to play a small role in Mr. Garza’s case as an appellate intern at the MacArthur Justice Center (MJC). There, I spent the summer working with and supporting an extraordinary team: Amir Ali, the Supreme Court and Appellate Counsel at MJC, who argued the case and was counsel of record; Julius Mitchell, Caroline Li, and Ben Gunning, three talented co-interns from Harvard Law; and Earl Lin, Emily Clark, and Josh Frieman, brilliant attorneys and staff at MJC.

As an intern at MJC, my summer was focused on research and writing to support the development of the brief on behalf of Mr. Garza. Quickly, I was exposed to the fundamentals of appellate advocacy in an area of the law I had never taken a class in. This exposure came in the form of a diverse array of research and writing questions, which included combing through the record around Mr. Garza’s plea agreement, developing arguments based on the interpretation of plea agreements as contract, synthesizing Idaho criminal procedure, finding data in secondary sources, writing the first draft of a section, and researching court of appeals’ case law on what claims remain even when an appeal waiver is present. This incredible opportunity was only made better by the result. My co-interns and I eagerly e-mailed the day the decision came down. It was exhilarating to see small pieces of the work we did that summer in the Supreme Court’s words as it accepted Mr. Garza’s arguments and ruled in his favor.

 

 

The Trump Administration’s Wonderland View of Transparency: Is an Agency’s FOIA Process Still Transparent if an Information Request Goes Nowhere?

Stack of binders

Source: Pexels

By: Lynne Dzubow, Clinical Fellow

On January 29, 2019, the Emmett Environmental Law & Policy Clinic (EL&PC) submitted comments challenging the Department of the Interior’s (DOI) proposed changes to its Freedom of Information Act (FOIA) regulations.

Consistent with the Trump Administration’s upside-down view of transparency, DOI proposed on December 28, 2018, various changes to its FOIA regulations that would curb public access to the agency’s records.  DOI is one of the largest federal agencies responsible for, among other things, permitting offshore drilling and managing National Parks. Any effort to restrict public participation in and understanding of the agency’s activities would not only be contrary to the intent of FOIA but also undermine public confidence in DOI’s actions.

Congress’s intent in enacting FOIA, the United States’ pre-eminent open government law, was “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Standards for information requests and exemptions to disclosure were clearly set by Congress, ensuring a balance between governmental transparency and agency efficiency. DOI’s proposed FOIA regulations would disturb this balance by imposing additional procedural burdens on the public and eliminating necessary safeguards for misdirected FOIA requests.

Discrete & Identifiable Agency Activities or Programs

The proposal introduces new specificity requirements for FOIA requests, requiring that they identify “the discrete, identifiable agency activity, operation, or program” regarding which the requester seeks information. This requirement is inconsistent with the statute, which requires only that the public “reasonably describe” the records sought. The statutory standard simply means that the information request must describe the records sought in enough detail to enable an agency official familiar with the matter to locate the records with a reasonable amount of effort. The proposed rule not only unlawfully exceeds this standard, but is also problematically vague.

Under this proposed provision, DOI could theoretically reject as overly broad a request for an agency official’s communications with special interest groups during a certain time period as long as the request did not also identify the discrete topics of those discussions. Considering that FOIA requests of this type were the impetus for investigations into apparent ethics violations by several top DOI officials, including Former Secretary Ryan Zinke, it is apparent why Congress did not want to impose excessive burdens on those requesting agency records.

Prohibition of Unreasonably Burdensome Searches

Another problematic aspect of DOI’s proposed regulations is their blanket prohibition against “unreasonably burdensome” searches or searches yielding large quantities of responsive records. As written, FOIA explicitly addresses how agencies should handle requests that result in large quantities of material. That is, agencies should attempt to narrow such requests by communicating with the requesters and are allowed to extend their processing time limits should such attempts prove unsuccessful. An agency is not, however, allowed to completely ignore a request because it is time-consuming or difficult to process. DOI’s proposed regulations do just this by allowing agency departments to “not honor” burdensome requests.

Refusal to Forward Misdirected FOIA Requests  

One of the more disingenuous aspects of the proposed regulations is DOI’s removal of statutorily required provisions guaranteeing that agency officials will forward misdirected requests to the appropriate DOI department. DOI’s justification for the proposal was a “surge” in FOIA requests and strain on administrative efficiency, but the proposed changes will do little to address this alleged problem. Requesters, who are often in the dark as to an agency’s structure and organization of records, may be reasonably uncertain as to the appropriate addressee for an information request. This is especially true with respect to DOI, which houses nine bureaus and eight offices. These components not only communicate internally, but also work together on projects. Accordingly, records regarding a specific topic might be retained by multiple DOI bureaus and offices. Without guaranteed help from knowledgeable DOI officials, the public is either left to guess, fail, and try again or required to preemptively contact the agency to formulate the request (although this may still not guarantee success).

Either way, a burden not envisioned by FOIA is placed on the public and administrative efficiency is reduced. In addition, the proposed removal is antagonistic to the goal of transparency, as information requests may never even meet their intended destination.

Clinics Have a Vested Interest in True Administrative Transparency

The Trump Administration has turned the concept of transparency on its head through its attempt to shield DOI from FOIA requests. Unfortunately, this troubling trend of obfuscation has no end in sight.

As law clinics, such as the EL&PC, depend on transparency from federal agencies to inform student projects and aid clients, EL&PC will continue to challenge attempts by this administration to undermine openness and accountability at the federal level.

Consulting in the Law

By: Julia Nitsche, J.D. ’19

Julia Nitsche J.D. '19

Julia Nitsche J.D. ’19

 

Over the course of my three semesters with the Food Law and Policy Clinic (FLPC), I have worked on numerous projects, from state technical assistance, to the Farm Bill, to international food waste regulations.  All of them presented their unique sets of interesting challenges, and I feel like I have learned a ton from the collective experience of working on them all. Perhaps the most formative experience I had, was the Pittsburgh Food Policy Council Project.

In my first semester with the FLPC, I was assigned to a project where we worked with the Pittsburgh Food Policy Council (PFPC) to help them craft policies that would be more favorable to small or cottage food vendors. PFPC told us that they felt small food vendors in the Pittsburgh area were having a hard time opening new businesses, and they needed both guidance on how to make the process easier, and ideas on how to incentivize healthy food vendors to come onto the market.

The project was broad, and frankly a little scary. I didn’t know the first thing about the cottage food industry, or Pittsburgh, or Food Policy Councils (of which, it turns out, there are many). But with the help of my peers on the project and our clinic supervisor, we designed a plan and got to work. We put ourselves in the mindsets of a new business owner, combed through local food safety and vending regulations, and identified pain points. Then, we did some research on how other cities regulated small food vendors, and what types of incentives people had proposed for healthy food vending, like discounted vending permits for fruit & veg vendors operating in underserved areas. With a little structure and a lot of research, we finally put together a memo on what we had found, and our recommendations for how Pittsburgh could make its regulations less onerous on small, healthy food vendors.

I was lucky enough to go to Pittsburgh in my second semester with FLPC to continue the project and present our findings to the PFPC members. Overall, it was a great experience – they were very receptive, thrilled to have our help, and it really felt like our recommendations might make a difference.

While I am not going to practice law once I graduate, there are many things I take away from this project, and the rest of my experiences at FLPC, that I know will be useful to me in my career as a consultant at Boston Consulting Group. First, I know that I can tackle any project, no matter how large. Combing through all of Pittsburgh’s statutes relating to food safety and vending regulations seemed insurmountable at first. But taking a step back, coming up with a plan, and then assigning jobs amongst our team broke a massive project into manageable pieces. I know that in consulting, this type of approach is paramount (and in law too). Second, this project helped me develop my research skills. I doubt I will have the occasion to look up local regulations in consulting, but there is something to be said for learning how to find information – knowing where to look and knowing when to ask. Third, meeting and presenting to our client, PFPC, definitely prepared me for my future career. And finally, this project centered around teamwork. We so rarely have the opportunity to work with others in law school, but on work projects we are often a much smaller piece of a larger whole. This is true in consulting, in law, and in life. I know that it was really helpful to me to have at least one experience in law school where I worked with someone else and truly had to communicate with them and rely on them to render a good result.

I am so grateful to FLPC for the great projects they have exposed me to and recommend anyone interested in food law or getting practical experience to join!

 

 

PLAP’s Shanell Lavery Honored with WLA Shatter the Ceiling Award

By: PLAP’s Executive Board

On Wednesday, April 17th, the Harvard Women’s Law Association (WLA) is holding their annual Shatter the Ceiling Awards ceremony. Each spring, the WLA recognizes the people who represent the gold standard for promoting inclusiveness and equality, both at Harvard Law School and beyond.

Shanell Lavery, program manager of the Harvard Prison Legal Assistance Project (PLAP), is being awarded with WLA’s Shatter the Ceiling Award for Staff Excellence in Promoting Equity and Justice. Lavery is a tireless advocate and the work PLAP does would not be possible without her. We are so grateful for her leadership and hard work.

Shanell Lavery

Below are a few important reflections on Shanell Lavery’s work with PLAP:

“Shanell hit the ground running at PLAP.  She has a deft touch with students, striking that important balance of supporting students as they operate a student-led organization, while being hands-on enough to ensure that the office runs smoothly.  She fulfills an important role for us as the face of the office, interacting with students, interns, prisoners, other HLS offices and staff, prison officials, and parole officials. Across all of those interactions, she demonstrates real professionalism, which ensures that the office runs smoothly and also serves as a model for law students.  We’re lucky to have her.”

– Joel Thompson, PLAP Supervising Attorney

“Shanell goes above and beyond for PLAP. She keeps the office running so smoothly that we often don’t even realize just how much she does. She often gives up her own time to meet with people or help with the office after hours. She also knows virtually every member of PLAP (not an easy task in such a large organization), and has been a wonderful resource and friend. I have loved working with Shanell and I will miss working with her after I graduate.”

– Kaitlyn Gerber, 2018-19 PLAP Executive Director

“In addition to being amazing at her job, Shanell is an amazing mother, commuting all the way from Providence to spend her days with us, but always getting her kids to school before she comes here and supporting them every step of the way alongside her wife. In daily work, Shanell is on top of so many thankless tasks that student attorneys may never even think about because she’s there behind the scenes. Every year, she deals with the logistical nightmare of getting every single member of PLAP approved by DOC. Having the system set up through Shanell means that we don’t run into any issues when we show up at the door. Our work could not happen without her.”

– Rachel Kroll, 2018-19 Legal Resources Manager

This year’s Shatter the Ceiling Award honorees include:

  • Shanell Lavery, for Staff Excellence in Fostering Equity and Justice,
  • Da Lin, for Excellence in Fostering an Inclusive Classroom,
  • Judge Lauren Reeder, for Alumni Excellence and,
  •  All Professors who Signed the Kavanaugh Letter, for Excellence in Promoting Gender Equity (Judge Nancy Gertner will be accepting on behalf of this group)

2019 Skadden Fellows

By: Mahalia Mathelier, OCP Intern

Congratulations to Kamala Buchanan, Elizabeth Soltan, and Michael Zuckerman on their acceptances to the 2019 class of Skadden Fellows! The Skadden Fellowship offers young lawyers two year Fellowships to pursue public interest law on a full-time basis. The Skadden Foundation aims to expand the legal services available to economically disadvantaged communities, by supporting newly graduated lawyers to pursue work they are passionate about, and to help them establish long term public interest careers. The Skadden Fellowship Foundation launched in 1988, and has funded over 800 Fellowships to date.  90% of the former Fellows continue to work in the non-profit sector. All three Harvard Law School (HLS) student awardees actively engaged in the clinical program during their time at HLS.

Head shot of Kamala Buchanan J.D. '19

Kamala Buchanan J.D. ’19 Credit: Dave Cross

Kamala Buchanan is the Executive Director of the Harvard Legal Aid Bureau, a student-run clinic providing civil legal services to low-income people in the Greater Boston Area. Buchanan will spend her Fellowship at the Georgia Legal Services Program. She will provide direct representation and community education to low-income students of color in various Georgia counties to address racially disparate public-school discipline.

Head shot of Elizabeth Soltan, J.D. '19

Elizabeth Soltan, J.D. ’19 Credit: Dave Cross

Like Kamala, Elizabeth Soltan, has spent two years as a clinical student at the Harvard Legal Aid Bureau. During her first year of law school, Soltan was active in the Tenant Advocacy Project, a student practice organization where students represent tenants of and applicants to public and subsided housing at administrative hearings through greater Boston. Soltan will work as a Skadden Fellow at Community Legal Services of Philadelphia. Her project will focus on expanding the medical-legal partnership in West Philadelphia. In this role, she hopes to stabilize the income of families with newborns by providing them with employment and public benefits representation.

Michael Zukerman, J.D. ’10 Credit: Dave Cross

For former Harvard Law Review president, Michael Zuckerman, the road the public-service law was paved from childhood. Zuckerman’s father was an attorney, whose legacy of pro bono litigation and helping others challenge injustice through the law inspired Zuckerman, and made him realize that work in the public-sector was something he could truly take joy in. Zuckerman participated in several clinics during his time at the law school, including Judicial Process in Community Courts and the Criminal Justice Institute. He will be working at the Ohio Justice & Policy Center, an organization fighting to protect the rights and dignities of incarcerated people and helping people who have been incarcerated overcome barriers to rebuilding their lives. As a Skadden Fellow, Zuckerman plans to establish a practice in Avondale, one of Cincinnati’s most disadvantaged neighborhoods and provide direct representation to citizens re-entering from incarceration to help them overcome legal barriers.

Judy Murciano, Associate Director and Director of Fellowships in the Bernard Koteen Office of Public Interest Advising (OPIA) works tirelessly to help students like Buchanan, Soltan, and Zuckerman brainstorm, draft, and polish fellowship applications. She’s helped many students achieve distinguished fellowships that provide a promising launching pad into their career in public service.

Congratulations to all of the Fellows!

Emmett Clinic Submits Comments Opposing Trump Administration’s Proposal to Weaken Clean Water Act Protections

Via the Emmett Environmental Law and Policy Clinic

Source: Pexels

The Emmett Environmental Law & Policy Clinic submitted comments in opposition to the Trump Administration’s proposal to revise the definition of “Waters of the United States” under the Clean Water Act.  This proposal, if finalized, will dramatically reduce the number of streams and wetlands that are protected under the Clean Water Act, with potentially catastrophic consequences for water quality across the country.

The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).  NPCA represents over 1.3 million supporters and members as “the voice of America’s National Parks.”  It has been a leading independent, nonpartisan voice on natural resource issues since 1919.  The rivers, streams, and lakes in many national parks across the country provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks’ unique character and value.  The preservation of water quality and fish and wildlife habitat in national parks depends on the protection of upstream wetlands and ephemeral streams that would lose protection under the proposal.

The precise scope of federal jurisdiction under the Clean Water Act has long been uncertain.  The Supreme Court has weighed in on this issue several times, most recently in fractured set of opinions in Rapanos v. United States, 547 U.S. 715 (2006).  To resolve this ambiguity, the Environmental Protection Agency and the U.S. Army Corps of Engineers during the Obama Administration issued the Clean Water Rule, which identified simple categories of water subject to federal jurisdiction based on extensive scientific and technical analyses, including a synthesis of over 1,200 peer-reviewed scientific publications.  The Trump Administration now proposes to replace that rule with a new one that will substantially reduce Clean Water Act protections and increase regulatory uncertainty.

In the comments, the Clinic explains that:

  • The proposal will significantly reduce the number of waters protected under the Clean Water Act by eliminating protections for ephemeral streams and for wetlands that do not have a continuous surface connection to covered waters.
  • As a result, the proposal will result in significant ecological and economic harm by, among other things, damaging recreation and fish and wildlife habitat in national parks.
  • The agencies ignore the scientific evidence underlying the Clean Water Rule.
  • The proposal will create uncertainty and increase the administrative burden for permitting agencies and regulated entities by introducing several new and poorly defined terms to delineate the scope of jurisdiction.
  • The proposal is inconsistent with Congress’s purpose in enacting the Clean Water Act, which was to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It also mischaracterizes Supreme Court authority and is based on a misunderstanding of the breadth of the agencies’ authority under the Commerce Clause.
  • The agencies are violating the Endangered Species Act and National Environmental Policy Act by not conducting the analyses required under those statutes.

Frank Sturges (JD ’20) wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho and Clinical Fellow Lynne Dzubow.

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