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A milestone in LGBT rights

by Brett Milano

via Harvard Law Today

Credit: Shutterstock/Rena Schild

While calling the United States Supreme Court’s ruling this week barring discrimination based on sexual orientation and gender identity “a massive, monumental, landmark decision,” Alexander Chen ’15, the founding director of Harvard Law School’s LBGTQ+ Advocacy Clinic, also warns that the struggle for LGBT rights is not yet won.

In a 6-3 vote, the Court ruled Monday in a case called Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act, which forbids job discrimination based on a person’s race, religion or sex, also covers sexual orientation and gender identity. Writing for the majority, Justice Neil Gorsuch ’91 made the textualist argument that because the Civil Rights Act protects against sex discrimination, members of either sex cannot be penalized for doing something—partnering with a man or a woman, for instance—which would be acceptable in the other.

“We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

He was joined by Chief Justice John G. Roberts Jr. ’79 and the four progressive members of the Court.

Chen says that the ruling addresses a longstanding source of discrimination for the LGBTQ community. “Even from the very beginning of the 1960s, employment protections were one of the major priorities of gay and transgender activists even back then, because it really goes to the heart of economic independence and peoples’ ability to survive in this country. Of course, it was incredibly significant that we had the decriminalization of sodomy laws, that we had the recognition of marriage equality. But this set of protections for employment, nondiscrimination, and the doctrinal impacts that are going to follow from that, I think will have a more sweeping impact on people’s lives overall.”

Alex Chen

it: Lorin GrangerHarvard Law School Lecturer on Law Alex Chen ’15 is the founding director of the Harvard Law School LGBTQ+ Advocacy Clinic that launched this January.

After the Court heard oral arguments in October, many observers thought the ruling might go the other way. “A lot of advocates were concerned about the outcome based on some of the questions that the justices asked—about bathrooms and locker room usage,” Chen says. “But the decision said, ‘these are not the issues before us’. The issue is whether you can fire or refuse to hire someone because of their gay or transgender status.”

The Bostock decision consolidates three cases, one of which had a transgender plaintiff, Aimee Stephens, who died in May. “It was also important,” Chen argues, “that the Court used the correct pronouns for Aimee Stephens, treating her gender identity as valid and legitimate.”

Being treated as equal in the eyes of the law is absolutely critical. But it is also the beginning of the fight when it comes to all these systematic aspects of inequality that we have in our country.

Alex Chen

Chen believes that the Court’s ruling effectively undoes a rule proposed by the Trump Administration last Friday, which would have restricted the definition of sex to that assigned at birth.

“They have really done just about everything possible in this administration to roll back everything the last administration did in terms of sex discrimination,” he says. “So, when you think about backlash [over the current Supreme Court decision], the backlash in many ways already came. And one thing I think is heartening is that the president and the GOP don’t seem to have that much of an appetite for continuing to demonize LBGT people. People can speculate why Chief Justice Roberts and Justice Gorsuch crossed over and made this a 6-3 decision, but it’s possible that they actually just thought this was the right call.”

“Before the decision came out, over 70 percent of Americans supported the idea of extending protection of LBGT people in the workplace,” he says. “I think there has been a massive public opinion shift on that as well. The more people come out to their friends and family, the more it undermines the idea that there’s some kind of hidden agenda. What’s been percolating is the idea that maybe LGBT people are just ordinary people.”

But Chen also warns that racial discrimination has continued more than half a century after it was legally banned by the 1964 Civil Rights Act, and says there will inevitably be battles left to fight. “One set of areas where I think you’ll see some questions is that, if we can’t discriminate based on sexual orientation or gender identity, what exactly constitutes that type of discrimination? We have a case now [Prescott vs. Rady Children’s Hospital-San Diego] involving discrimination against a teenage transgender boy in a hospital where he was repeatedly misgendered; that ended in tragic circumstances. The district court found that this did constitute gender identity discrimination, which constitutes sex discrimination under the Affordable Care Act.”

Chen predicts a wave of new litigation as employers and employees attempt to apply the ruling in the workplace. “Suppose for example that you are a transgender woman, and your job says, ‘We can’t fire you, but we’re not going to refer to you by the name that’s now your legal name, and we’re going to put you in the male uniform, and we’re going to make you use the men’s bathroom’,” he says. “I think we’re going to see these kinds of factual situations play out.”

“And if you look at what is going on in the country politically with Black Lives Matter,” Chen adds. “I think another big area of work for the LBGT movement is to work on intersectional issues, where black and brown LBGT people are more likely to experience employment discrimination, housing discrimination, healthcare discrimination and to have a lower income level than white and Asian LGBT people.”

“Being treated as equal in the eyes of the law is absolutely critical,” Chen says. “But it is also the beginning of the fight when it comes to all these systematic aspects of inequality that we have in our country.”

Harvard Law School LGBTQ+ Advocacy Clinic and NCLR Release First-of-Its-Kind Comprehensive Legal Resource for Transgender Youth

via National Center for Lesbian Rights

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work.

The Handbook was written by HLAC’s Alexander Chen and NCLR’s Asaf Orr, who served as the lead authors for the resource, and was produced with the support of volunteers from Salesforce, Baker McKenzie, and Equal Justice Works.

“Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.”

“The Trans Youth Handbook gathers critical information transgender youth need to understand their legal rights in an easily accessible and digestible form,” said Asaf Orr, Esq., Senior Staff Attorney and Director of NCLR’s Transgender Youth Project. “We hope the handbook will give transgender youth the tools and confidence to advocate for what they need—and are entitled to—so they can thrive. We are excited to co-author this incredible resource and look forward to updating it as our laws and society continue to recognize the unique needs of transgender youth and protect this vulnerable group from discrimination.”

“In our pro bono work, we look for ways to help with the most compelling justice challenges, particularly youth justice,” said Angela C. Vigil, Partner and Executive Director of the Pro Bono Practice at Baker McKenzie. “That is why we are so proud to support the Trans Youth Handbook project, which serves a community in critical need of legal resources. This Handbook provides the most thorough and comprehensive summary of trans youth rights across the US.”

“Equal Justice Works is proud to support the creation of the Trans Youth Handbook,” said David Stern, executive director at Equal Justice Works. “This is a critical resource to help ensure trans youth, a particularly at-risk group, and their families are aware of their legal rights. We are thankful to the Harvard Law School LGBTQ+ Advocacy Clinic, National Center for Lesbian Rights (NCLR), and the leadership of Alex Chen, 2017 Equal Justice Works Fellow, and Asaf Orr, senior staff attorney at NCLR. We’re also tremendously grateful to Salesforce.org and Baker McKenzie for sponsoring Alex’s Equal Justice Works Fellowship and for launching his public interest career.”

# # #

The Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) engages in impact litigation on, policy advocacy, and direct representation on behalf of the LGBTQ+ community, with a particular focus on issues affecting underrepresented groups within the LGBTQ+ umbrella. HLAC works with community members, advocates, non-profit organizations, educators, medical professionals, and governmental entities to advance the rights of LGBTQ+ people at both the national and local levels. http://clinics.law.harvard.edu/lgbtq

The National Center for Lesbian Rights (NCLR) is a national LGBTQ legal organization the forefront of advancing the civil and human rights of the full LGBTQ community and their families through impact litigation, public policy, and public education. NCLR has been a leading advocate for the rights of transgender youth for over a decade. Through litigation and advocacy, NCLR has expanded legal protections for transgender youth in schools, sports, healthcare, and custody disputes, among many other areas. Touching on every aspect of their lives, the work of NCLR’s Transgender Youth Project is to ensure transgender youth have the support and opportunity they need to thrive. www.nclrights.org

For-Profit Colleges, Long Troubled, See Surge Amid Pandemic

By Sarah Butrymowicz and 

via The New York Times

Tyler Hutchinson, standing, dropped out of American Public University after one semester because, he said, the college never disbursed his federal financial aid. Credit: Lindsay D’Addato for The New York Times

In March, as colleges and universities shuttered campuses under a nationwide lockdown, Strayer University updated its website with a simple message: “Great things can happen at home.”

Capella University, owned by the same company as Strayer, has run ads promoting its flexibility in “uncertain times” and promising would-be transfer students that they can earn a bachelor’s degree in as little as a year.

Online for-profit colleges like these have seen an opportunity to increase enrollment during the coronavirus pandemic. Their flexible programs may be newly attractive to the many workers who have lost their jobs, to college students whose campuses are closed, and to those now seeking to change careers. The colleges’ parent companies often have substantial cash reserves that they can pump into tuition discounts and marketing at a time when public universities and nonprofit colleges are seeing their budgets disintegrate.

Few of the largest for-profit colleges operating primarily online have track records to justify the optimistic advertising pitches. Some have put students deep in debt while posting dismal graduation rates amid a history of investigations by state and federal agencies, including many that have led to substantial financial settlements.

Still, there is evidence that interest in the schools has increased.

“I hate to call anybody a winner in this crisis,” said Jeffrey M. Silber, managing director at BMO Capital Markets, a financial services company, “but I think growth will increase this fall and could continue thereafter.”

For-profit colleges have long devoted large sums to advertising, spending almost $400 per student in 2017, according to research from the Brookings Institution. For nonprofit institutions, that figure was $48, and for public colleges it was $14.

“Unfortunately, because of the financial distress a lot of not-for-profits are facing, they may have to cut back on marketing,” Mr. Silber said. “I think the for-profits may be at a competitive advantage.”

Ashford University has received so many new inquiries in recent months that it has announced plans to hire 200 additional “enrollment advisers” to field them. Another school that operates largely online, Grand Canyon University, says it has had a surge in enrollments. (Grand Canyon has nonprofit status in Arizona and with the Internal Revenue Service but is designated as a for-profit institution by the U.S. Department of Education.) Capella and Strayer have reported increases in requests for information.

The trend concerns many student-protection advocacy groups, which point out that the colleges that stand to gain are among those with the most troubling records. For the most part, the largest online for-profit universities have poor graduation rates — often no higher than 25 percent, and sometimes as low as in the single digits. Several have been accused of intentionally misleading students about potential job prospects to persuade them to enroll and often to take on tens of thousands of dollars in debt.

Eileen Connor, the legal director at the Project on Predatory Student Lending at Harvard Law School, said she was worried by the prospect of a resurgence for online, for-profit schools.

“In times of economic downturn, that’s when the for-profit colleges start to thrive,” she said. Online colleges “have a running start, especially now, when there’s an economic downturn keeping people in their homes,” she added. “That is a perfect storm for the thing that they’re trying to do.”

These schools often attract low-income, nontraditional college students who tend to have lower completion rates than those who enroll straight from high school and attend full time. Many have family pressures that interfere with study.

In recent earnings calls, many companies emphasized the quality of the education they provide. Karl McDonnell, the chief executive of Strategic Education Inc., the parent company of Capella and Strayer, told investors in March, “We’re going to continue to focus on maintaining the highest possible academic quality figuring that that’s really the best way to sort of position yourself vis-à-vis any kinds of regulatory or legislative initiatives.”

In the first quarter, Strategic Education took in $46.5 million in profit, up from $36.7 million over the same quarter last year. Its executive chairman, Robert Silberman, told investors that the company had a “fortress balance sheet with over $500 million in cash.”

Before the broad market decline last week, Strategic’s stock price had climbed steadily since early April, as had those of other publicly traded companies that own universities and college-related education services, including Grand Canyon Education Inc., Perdoceo Education Corporation and Zovio. But for many of their students, the future is precarious.

At Capella, only 11 percent of undergraduates earn a degree within eight years, according to the most recent federal statistics. At Strayer, graduation rates range from 3 percent at its Arkansas campus to a high of 27 percent in Virginia.

Fewer than a third of students at Perdoceo campuses graduate within eight years. The company’s schools were recently barred from receiving G.I. Bill money from new students after the Department of Veterans Affairs found that they had used sales and enrollment practices that were “erroneous, deceptive or misleading.”

Ashford University, owned by Zovio, had a 25 percent graduation rate, according to the most recent federal data. Those completing degrees had a median debt of $34,000 on leaving. Zovio is being sued by the California attorney general, accused of making false promises to students and using illegal debt collection practices. The company denies any wrongdoing.

For-profit schools made a similar play for students during the 2008 recession, as people searching for work in a shrinking job market sought new credentials at low cost. Enrollment at for-profit colleges climbed 24 percent at the height of the recession, according to an analysis by BMO Capital Markets.

Along with that surge came increased scrutiny. Government investigators concluded that two of the biggest for-profit operators, Corinthian Colleges Inc. and ITT Technical Institute, had mismanaged or failed to account for millions of dollars in federal financial aid. They were subsequently barred from receiving such aid, which led to their collapse. The companies were also accused of pushing students to take loans they could never expect to repay.

The Obama administration put rules in place to shut down programs whose graduates didn’t earn enough to pay back their student debt and to make it easier for students who had been defrauded to have their loans forgiven. Experts say conditions are ripe for new growth in the for-profit sector because the Trump administration has rolled back those changes.

“A lot of the pieces are in place to be right back where we were in 2008, and the regulations that had come out of lessons learned are being whittled away,” said Yan Cao, a fellow at the liberal-leaning Century Foundation who studies higher education.

The Trump administration’s Department of Education has disputed criticism of its oversight of for-profit colleges. It notes that it has expanded information on its websites to help students make informed choices.

Shawn Cooper says he was twice given the go-ahead on his dissertation project at Capella University, only to be told to start over. Credit: Caitlin O’Hara for The New York Times

Shawn Cooper, an Air Force veteran, said he was twice given approval for his dissertation project at Capella and worked on it for months, only to be told that he needed to start over with a new topic. He said he was forced to leave, despite a 4.0 grade-point average.

Mr. Cooper says he owes more than $100,000 in student loans after his time at Capella. “At the end of the day, I feel like it’s all just a facade on their end,” he said. “Get people in, take their money and get them out, usually without anything to show for it.”

A lawsuit was filed against Capella seeking class-action status for students like Mr. Cooper who say the school intentionally and needlessly prolonged their doctoral programs, costing them tens of thousands of dollars. Last year, a judge allowed three counts in the suit to continue, all regarding the time it took a “typical” student to complete programs, but dismissed most other counts, including those about how long the programs were “designed” or “structured” to take.

Strategic Education officials did not reply to requests for comment.

Angela Selden, the chief executive of American Public Education Inc., which owns American Public University and American Military University, told investors that the company has started spending part of its marketing budget originally earmarked for later this year. “The pandemic has created an unexpected opportunity,” Ms. Selden said.

Wallace Boston, the president of American Public’s two universities, said both schools offered a high-quality education. “People who are critical of the sector on a whole tend to be looking at things on the surface, and marketing is one of the things they pick on the most,” Mr. Boston said. “I don’t think that those critics are justified unless they do their homework.”

Relative to some other online-only institutions, the American Public University System is cheaper, at $6,880 a year in tuition and fees, and has higher graduation rates. Still, 22 percent of American Public University’s 36,000-plus students graduate after eight years, according to the most recent federal data.

Mr. Boston said the university allowed students to take up to a decade to complete their programs. The most recent 10-year graduation rate was 35 percent, he added.

Tyler Hutchinson, of Brigham City, Utah, enrolled at American Public University in 2017. He had three children and worked part time, so the flexibility of taking online classes offered hope a degree in environmental science that would lead to a well-paying job.

But Mr. Hutchinson, 31, dropped out after one semester because, he said, the college did not disburse his federal financial aid. The school also sent him a bill for more than $1,000 for classes the next semester that he had never signed up for, he said — a bill that has been sold to a collection agency.

Mr. Boston said the university could not provide information about a student without the student’s consent. Mr. Hutchinson gave his consent by email, but a spokesman said the university needed a formal consent filing and would have no further comment.

Having been laid off at a convenience store and with his work as a United States Census worker suspended because of the coronavirus pandemic, Mr. Hutchinson has no income.

“When they advertised, what got me was the work-life balance. And with financial aid, it was really attractive,” he said. “Even though I really enjoyed it, the financials were such a burden we just decided to discontinue.”

American Public Education Inc.’s net income of $2.4 million in the first three months of 2020 was more than double that of the same period last year, and on June 9 its stock price hit its highest closing point in a year.

Supreme Court decision shielding DACA draws relief, celebration

by Colleen Walsh

via The Harvard Gazette

Dreamers and DACA supporters rally outside of the U.S. Supreme Court. In a 5-4 vote, the court rejected the Trump administration’s push to end an Obama-era program that gives nearly 700,000 Dreamers the ability to work in the United States and avoid deportation. Bill Clark/CQ Roll Call via AP Images

In a closely watched and hotly awaited ruling, the U.S. Supreme Court narrowly rejected the Trump’s administration’s move to end a program protecting young undocumented immigrants brought to the country as children, shielding for now nearly 700,000 so-called Dreamers from deportation.

The 5-4 decision on the Deferred Action for Childhood Arrivals (DACA) program was written by Chief Justice John Roberts ’76, J.D. ’79, who sided with more-liberal justices for the second time this week in a major, high-profile case. News of the judgment was met with relief and celebration by Dreamers and supporters of immigrants’ rights across the country, as well as by DACA recipients, professors, and staff in the Harvard community.

“Congress should now turn its attention to immigration reform and provide a pathway to citizenship for these young people and others, including individuals with temporary protected status,” wrote Harvard President Larry Bacow in a letter to faculty, staff, students, and alumni. “I also hope that rather than reflexively closing our borders to immigrants, and to nonimmigrants who wish to pursue educational opportunities in America, we can once again live up to our promise as a nation that welcomes those who seek a better life for themselves and their children — people who have traditionally contributed much to the fabric and greatness of our country,”

Protecting undocumented students both on Harvard’s campus and beyond has been a priority for Bacow, who is the son of immigrants. “There are complex issues that need to be addressed, but America will be better — and stronger — for all parties coming together to find common ground on this issue. Until then, I will continue to advocate for Dreamers and for their ability to contribute to a country that has been their home since childhood,” he wrote.

Members of the community, including students and alumni who are protected under DACA praised the Court’s ruling, among them Mitchell Santos Toledo, J.D. ’20, a recent Harvard Law School graduate who arrived in Cambridge not long after President Donald Trump announced his plans in 2017 to cancel the program, which had been instituted by President Barack Obama in 2012.

“It was rough. You’re talking about moving across the country, starting this huge academic journey at a School at Harvard, and then having the only semblance of protection that you’ve known for the past five, six years sort of just yanked from underneath you,” said Toledo, whose name was listed in the documents submitted to the court in support of DACA.

Toledo called the court’s decision “a validation of the years of advocacy, by undocumented folks and our allies, on the streets and in the halls of our nation’s courts and congressional chambers.”

“This ongoing effort reflects not only the passion and dedication of the undocumented community but also the resiliency instilled in us by generations of our ancestors without which this outcome may have been different,” he said. “While this is a moment for the DACA-eligible community to take in a breath of relief, we absolutely cannot forget the bigger picture — comprehensive immigration reform benefiting all undocumented folks.”

Daniela Castro, a rising junior and sociology concentrator at the College originally from Honduras, voiced similar sentiments.

“I grew up with the fear of deportation and would have nightmares of being forced to return to a country I only experienced in scraps — of stories, photographs, and handmade bracelets sent by relatives,” said Castro, who is also the advocacy chair at Act on a Dream, a student-based group on campus that supports immigration reform. And as appreciative as she is of the protection DACA affords youth like her, Castro notes that the program “forgets about parents, forgets about people that have established roots and relations in a country that refuses to accept them and threatens to dismantle their legacies.” It also fails, she said, to further the goal of “citizenship for all undocumented people.”

Leo Garcia ’21 co-directs Act on a Dream. A native of Bogota, Colombia, he came to the U.S. at the age of 3 and grew up in Houston. Garcia received protection under DACA several years ago, but said he still lived in fear for his parents and for the millions of other undocumented immigrants living in the U.S.

Garcia called Thursday’s ruling, along with the court’s decision earlier this week protecting gay and transgendered workers’ rights, “a reminder this is a bare-minimum recognition of these communities being human and being deserving of rights. I think that these are small victories. We need to push for a more inclusive solution, a more long-term solution” that covers the millions of immigrants and provides a pathway to citizenship.

Roberto Gonzales, a professor of education at the Harvard Graduate School of Education, has helped lead a study that tracks how the administrative policy has affected the lives of hundreds of people living under its protection. Bracing for a different decision, Gonzales said he, along with a number of his Harvard colleagues, was surprised by the court’s ruling.

“The longer this decision got put off, I think that many of us really thought that it was going to go the other way. But the decisions of the last two weeks, I think, represent a small but significant, tiny change. And so I had a sliver of hope that it might go this way, and it did,” he said.

The judgment was an important win for DACA advocates, but it remains to be seen how the administration will react to it, and whether it will try to push back with an election looming and the political landscape potentially shifting, Gonzales added.

“Immigration has been Trump’s central issue from his campaign through his policymaking as president. But consistently, polls show that the American public favors immigration reform. They favor a legalization, and more so for something to be done for young people who don’t have legal status. And so I think that what perhaps we’re seeing here is pushback that is gaining momentum, a pushback against the kind of running rhetoric that’s coming out of the White House and the Trump policies.

“It will be interesting to see what advocacy looks like moving forward on this issue in the wake of the Supreme Court decision on LGBTQ, in the wake of the Black Lives Matter protests. Will we see more kinds of expansive, intersectional arguments and advocacy coming from immigrant rights groups? All of this is speculation, but I think today’s decision opens up a lot of possibilities.”

The White House did not have an immediate comment, but Trump blasted the DACA decision as well as Monday’s ruling on LGBT rights on Twitter. Calling them “horrible & politically charged decisions” he characterized them as “shotgun blasts” to Republicans and other conservatives.

Ximena Morales ’22 said that she thinks the next election will be a turning point for Dreamers. “I think November is going to be such a critical time,” she said. “I think it’ll be the deciding factor in how the future of DACA will play out.”

A rising junior, government concentrator, and co-director of Act on a Dream, Morales was born in Mexico and brought here as a toddler. She said she was always aware of her undocumented status and took pains to try to hide it from friends when she was growing up in southeastern Wisconsin. Being able to apply for DACA protection in high school changed her life, she said, and opened up important doors to work and education.

At Harvard Law School, Professor Sabrineh Ardalan broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful.

“The court says that if the administration wanted to end DACA, it would have had to engage in a much more rigorous analysis, including of the reliance interests at stake, and it didn’t provide a reasoned explanation for its decision. And so, its decision to end the program was arbitrary and capricious because it didn’t go through those steps,” said Ardalan, who directs the Immigration and Refugee Clinic at Harvard Law School, which helps hundreds of people with undocumented status through a range of programs.

Ardalan also called the ruling “hugely important for so many members of the Harvard community, for so many Americans. These are young people who are part of part of our community, who are our community, whose home is here. And this decision recognizes that.

“Ultimately, what DACA recipients need is a long-term solution on a path to citizenship. And so, my hope is that Congress can act to provide them with that, and not just DACA recipients, but also [Temporary Protected Status] holders and so many others.”

Earlier this month Bacow sent a letter to Secretary of State Mike Pompeo and Acting Secretary of Homeland Security Chad Wolf urging them to support nonimmigrant visas and their work authorizations, and reject attempts to restrict Optional Practical Training (OPT) and the STEM extension, programs that lengthen academic student visas.

Such programs offer students vital training opportunities, are critical to fields such as engineering and health care, and are essential to helping universities attract top candidates, said Bacow.

Supreme Court blocks Trump’s DACA shutdown

by Sarah Betancourt

via CommonWealth Magazine

Estefany Pineda, DACA recipient and University of Massachusetts-Boston student, during a protest with the Student Immigrant Movement.

IN A MAJOR SETBACK for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported.

The 5-4 ruling allows the immigrants, who were brought to the US as children and are known as DREAMers, to maintain their legal status, at least for the time being. The decision, written by Chief Justice John Roberts, said the Trump administration’s move was “arbitrary and capricious” and failed to adhere to procedures required by administrative federal law. Roberts was joined in the decision by the court’s four liberal justices, while the four most reliable conservatives dissented.

The Deferred Action for Childhood Arrivals, or DACA, program was launched by President Obama in 2012 through executive action. It provides law-abiding beneficiaries that fit certain parameters (like being present in the US before 2007) with provisional rights like driver’s licenses, work permits, and the ability to go to college. It was rescinded by former attorney general Jeff Sessions in August 2017, who wrote at the time that the program was an “unconstitutional exercise of authority by the Executive Branch.”

But the court’s decision, upholding the rulings of three federal appeals courts, said the Trump administration failed to consider the impact of its DACA decision on those who had come to rely on the program for employment and protection from deportation.

“We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action,” wrote Roberts. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

The DACA case marks the second time the Trump administration has lost an administrative law case, the first of which involved the US Census.

Trump responded to the decision on Twitter by retweeting a screenshot of Justice Clarence Thomas’s dissent, saying, “Do you get the impression that the Supreme Court doesn’t like me?” He also attempted to turn the ruling to his political advantage, tweeting out that “we need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

The program’s specifications were remanded back to the Department of Homeland Security to be “considered anew,” which means, for now, the Supreme Court’s decision applies only to current DACA recipients.

Since 2017, current recipients are allowed to renew their status, which is adjudicated by the US Citizenship and Immigration Services agency on a case by case basis. No new applicants have been accepted since late 2017, and advocates said a total of 1.5 million people could be eligible or benefit from the program. For some DACA recipients who were unable to successfully renew in the past three years, issues like losing health insurance and employment had arisen, since a Social Security number is required for that.

The Department of Homeland Security and US Citizenship and Immigration Services, which adjudicates DACA renewals, did not respond to requests for comment. Ken Cuccinelli, the acting deputy secretary of Homeland Security, condemned the decision in a series of tweets, saying Obama made up “laws” on sticky notes. “We need more good justices,” he tweeted.

Sociologist Roberto Gonzalez, considered by many to be the preeminent scholar on DACA, has studied the program for its duration, surveying thousands of recipients of how the benefits have impacted their lives.

“This decision puts the ball back into the court of the Trump administration,” he said after reviewing the decision Thursday. “While I don’t suspect they will try to move on terminating it any time soon, I don’t think they will expand the program to allow for new applications. Those who have DACA will keep it for the time being. But I don’t think there will be new opportunities to acquire DACA. This would also hinge on what Congress decides to do with respect to a more permanent solution.

The day Estefany Pineda started school at the University of Massachusetts Boston in 2017, the Trump administration announced it was rescinding DACA, which she took advantage of in 2016.

Pineda came to the United States from El Salvador when she was nine after a gang threatened her and her sisters. She and her sisters left in the middle of the night, traveled for three weeks, and met her mother in the US, who had immigrated when she was three.

Pineda pays around $500 every two years to re-apply for DACA status. She has been awaiting the Supreme Court’s decision for months. “I am so happy that they chose to rule in our favor, in favor of Dreamers. I am not a crier and I immediately cried once I saw the decision,” she said.

As Pineda begins her senior year, she said a lot was at stake for her – whether she would retain access to in-state tuition and whether she could get a job after graduation.

Pamela Portocarrero came to the US when she was 10 from Peru, and had concerns over what the end of the program would mean for her; her husband, who is also a DACA recipient; and her recently born daughter, who is a US citizen.

“I’m glad this allows the program to continue, that I get the opportunity to continue to work, to live in this country, which is my home, and to remain with my family and people I care about,” she said.

Portocarrero credits the program for allowing her to be able to finish her bachelor’s degree in political science and international relations at the University of Utah in 2014. It took her seven years to get her degree, juggling work and school. Once she obtained a Social Security number, she was able to get a more secure job and finish her last few semesters all at once.

She moved to Boston with her family in 2018 and said being a DACA recipient allows her to keep her job working at a local university.

Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, commended the court and said “President Trump and his administration’s decision to abandon the DACA program was a political one, not a legal one.”

Attorney General Maura Healey joined one of several lawsuits defending the program, which was later consolidated into a single case resulting in today’s decision. Healey released a statement on Thursday with Oregon Attorney General Ellen Rosenblum, who co-chairs the Democratic Attorneys General Association with her, calling the ruling a “win for democracy.”

Healey said Massachusetts is home to more than 1 million immigrants, including nearly 20,000 DACA-eligible residents, most of whom haven’t had to apply for the program since it was shutdown.

“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”

Pineda agreed with Ardalan, saying that while the Supreme Court decision is a big win, she is hoping for more. “We have no path to citizenship as DACA recipients, so we are stuck,” she said.

Congress also has the DREAM and Promise Act to consider, which would create a pathway to citizenship for the hundreds of thousands of young immigrants living their lives in two-year increments.

Portocarrero said she is hopeful Congress will act. Otherwise, she said, her life in the US continues to have “an expiration date, and living like that is always worrisome.”

Decarceration and Community: COVID-19 and Beyond (Part I)

via Radcliffe Institute for Advanced Study 

Part I of this discussion series, cosponsored with the Charles Hamilton Houston Institute for Race and Justice, focuses on people who are incarcerated and their families, exploring how systemic racism and mass criminalization threaten both incarcerated individuals and their communities. The participants consider how recent events, including the COVID-19 crisis and the police murder of George Floyd, highlight and magnify historical inequities—with deadly results.

The panelists work directly with people affected by incarceration, including several who focus on the all-too-often neglected plight of incarcerated women and their families.

SPEAKERS:
Gina Clayton-Johnson, executive director and founder, Essie Justice Group

Soffiyah Elijah, executive director, Alliance of Families for Justice

Andrea James, founder, Families for Justice as Healing; executive director, National Council for Incarcerated and Formerly Incarcerated Women and Girls

Zach Norris, executive director, Ella Baker Center for Human Rights

Moderated by Dehlia Umunna, clinical professor of law and faculty deputy director of the Criminal Justice Institute, Harvard Law School

Registration for Part II can be found here on the Radcliffe Institute website.

A semester with the Civil Rights Division

by Melanie Fontes J.D.’20

 

Melanie Fontes J.D.20

 

I was fortunate to work at the Civil Rights Division (CRD) of the Massachusetts Attorney General’s Office during the spring semester of my 3L year. I chose to focus my law school work on civil rights lawyering, and this placement offered me the opportunity to understand the role of state actors in this effort. CRD did not disappoint. During my three months at CRD, I worked alongside lawyers enforcing state and federal laws to combat discrimination in everything from housing to education to immigration. I leave law school with a greater appreciation for public service at the state government level.

 

Over the course of the semester, I supported both the investigative work and the litigation in which CRD is engaged. While much of law school focuses on the appellate process, my time at CRD centered on the work that precedes litigation and the early stages of trial work. I was able to interview Commonwealth residents whose children have been bullied in school and whose employers have unfairly denied them medical leave. I practiced compiling supporting documents by writing drafts of complaints and witness affidavits. I learned how to connect people with resources like non-profit groups to help them get the fastest and most effective legal relief. CRD taught me that litigation is not always the answer and that other forms of dispute resolution are necessary for civil rights lawyering.

 

My time at CRD also provided me with the opportunity to build my legal research and writing skills. I witnessed collaboration with the U.S. Attorney’s Office and the Consumer Protection Division as CRD pursued a case against an individual engaged in notario fraud. I researched various causes of action in Section 8 housing discrimination and banking practices to understand the viability of escalating investigations to litigation. I even had the chance to work with the legal librarians to conduct legislative history research to defend against First Amendment challenges.

 

Perhaps most importantly, I am deeply grateful that I was able to support the Commonwealth’s efforts to support residents in the COVID-19 crisis. Although we worked remotely for the second half of the semester, I saw how attorneys and staff quickly shifted attention to supporting hundreds of people facing housing and employment insecurity. It was inspiring to participate as CRD extended itself to support the many people writing into the Attorney General’s Office while simultaneously fighting back against the federal government and corporations’ attempts to infringe on civil rights. I look forward to seeing how else CRD supports the Commonwealth through this pandemic and economic crisis.

 

 

 

 

 

My Time in the Employment Law Clinic

by Jared Odessky J.D.’20

 

Jared Odessky J.D.’20

 

I came to law school dedicated to pursuing a career in workers’ rights. As a 2L, I was lucky to find a welcome home in the Employment Law Clinic. My placement was at Greater Boston Legal Services (GBLS), which provides free civil legal assistance to low-income clients in the greater Boston area. GBLS is a unique setting for legal practice. Unlike many civil legal aid organizations, it does not accept federal Legal Services Corporation funding. LSC funding imposes significant barriers for legal aid organizations, barring them in many cases from representing undocumented workers, filing class actions, or lobbying. GBLS made the decision to relinquish funding in 1996, restraining its budget but freeing its attorneys to advocate broadly for working people.

 

In my work at GBLS, I saw the rewards of that difficult decision when I was able to assist with a precedent-setting class action case. In October 2018, the Supreme Judicial Court of Massachusetts solicited amicus briefs on the question of “whether a plaintiff alleging a violation of the Wage Act and regulations promulgated thereunder may bring a class action without satisfying the requirements of Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015), where G. L. c. 151, § 20, and G. L. c. 149, § 150, expressly provide that an aggrieved employee may bring an action ‘on his own behalf, or for himself and for others similarly situated.’” In other words, the Court was to decide whether workers could file a class action challenging their employer’s wage-and-hour violations even if they did not meet the high bar for certification set by Rule 23. My assignment was to draft the section of GBLS’s brief arguing that the Wage Act established a separate and lower requirement.

 

The issue may seem picayune, but it had tremendous implications. For low-wage workers, class actions are often necessary to outweigh the monetary, information, and retaliation costs involved in filing a lawsuit. Since low-wage workers are also more likely to work in small and medium-sized workplaces or for larger employers who have subcontracted their work to small firms, Rule 23’s numerosity requirement significantly constrains the ability to file a class action. Absent a lower bar, many workers would be unable to vindicate their rights.

 

Researching and writing the brief was an incredible learning experience. For one, it served as an important reminder that the law’s procedural components are equally as critical to its operation as its substantive rights and protections. It was also useful training for how to write a cohesive and consistent legal work product in collaboration with others, since my portion would be part of a larger brief. While I also provided direct representation to clients during my placement at GBLS, the brief-writing experience showed me how time spent on other types of advocacy, such as amicus writing and policy work, could form part of a broader strategy to benefit our clients down the road.

 

Unfortunately, in April 2019, the Supreme Judicial Court ruled against our position, establishing that class action claims brought under the Wage Act are subject to the Rule 23 standard. But there was still reason to celebrate. The Court also reversed the trial court’s order denying class certification in the case, reviving the class action despite our inability to win a lower standard. I was proud to play a small part in fighting for workers to win their hard-earned pay and am grateful to the Employment Law Clinic for such an enriching experience.

HLS Advocates Co-Presidents Reflect on 2019-2020

via HRP Blog

by Emma Broches J.D.’20 and Samantha Lint J.D.’20

Emma Broches (left) and Samantha Lint (right) are 2019-2020 co-presidents of HLS Advocates for Human Rights.

On March 9, 2020, HLS Advocates for Human Rights hosted a discussion on the oppression of Uyghurs in Xinjiang China. As murmurs about classes moving online circulated, and US leadership continued to doubt the threat of COVID-19, we held what turned out to be our final Advocates lunch talk of the year.

If we had known this would be our final “big event”, it might have felt bittersweet. As Co-Presidents, Advocates has been the most significant part of our 3L year and our entire HLS experience. Since we joined the organization in our first year, it has served as a place of refuge, community, inspiration, and learning. That week, as information about the law school’s operations changed each day, we focused on the task at hand. We felt proud to have played a role in facilitating such a critical discussion. One of the speakers Rayhan Asat LLM’16, has now shared her story beyond HLS as well.

Although the spring semester changed substantially in March, this event, fortunately, was just one of many of Advocates’ accomplishments. With over 70 members supporting 11 projects with NGOs around the world; seven events; four trainings; and a special anniversary project, Advocates had a productive — even if abbreviated — year!

We revamped Advocates trainings, starting with adding sessions on Human Rights 101 and an introduction to conducting international legal research. These trainings provided greater support and capacity building to members, in addition to creating new opportunities for interactions between project members, supervising partners, the HLS librarians, and HRP faculty.

In honor of our 15th anniversary as a student practice organization (SPO), we also worked to connect with Advocates alums and build our community beyond current JDs and LLMs. As part of this effort, current Advocates members conducted interviews with former members, who shared how the skills, experiences, and communities they developed through Advocates has served them beyond graduation (and how much they miss their Advocates community!).

Of course, most of our energy went to our projects. Advocates worked with the International Criminal Court, the Lawyers’ Committee for Civil Rights Under Law, and UN Independent Expert Victor Madrigal-Borloz, among others. One team culminated a three-year partnership by producing a handbook that uses case studies to recommend the best practices for selecting, preparing, and shaping the impact of strategic litigation against corporations. This handbook will provide insights for practitioners in all contexts where corporate actors are involved in human rights abuses. And as some projects came to an end, other projects are just beginning. Advocates took up three new partnerships this year based on issues that students brought to our attention and relationships with organizations that they cultivated on their own.

Finally, Advocates welcomed Beatrice Lindstrom, our first-ever supervising attorney. Beatrice increased our capacity and ability to serve our partner organizations and the HLS community by acting as a mentor, advisor, and sounding board for us as Co-Presidents, and the rest of the board.

What made our experience with Advocates so special, though, were the relationships. The hours spent at meetings with our dedicated Board, calls with partner orgs across the globe squeezed in between classes, drop-ins with the endlessly supportive Clinical staff (which never lasted “just a sec”), grabbing a drink with tireless project members, and dreaming up our futures working to address the human rights issues we are so passionate about, are what made this year and each year of law school fulfilling and fun. We are grateful for the opportunity to be a part of Advocates and are thrilled to pass the baton to the new leaders and amazing students that form this group.

Amid Pandemic, New Research Provides a Roadmap to Fight Hunger and Climate Change through Increased Food Donation

via Globe Newswire

Today, the Harvard Law School Food Law and Policy Clinic (FLPC) released a first-of-its-kind interactive resource to inspire long-term policy solutions to food waste, hunger, and climate change: The Global Food Donation Policy Atlas. In partnership with The Global FoodBanking Network (GFN), and with the support of the Walmart Foundation,  The Global Food Donation Policy Atlas maps the laws and policies affecting food donation around the globe and provides recommendations to prevent unnecessary food waste and improve food distribution to those in need. The research released today focuses on Argentina, Canada, India, Mexico, and the United States, the first five of 15 countries participating in this project.

While hunger everywhere is on the rise due to the impacts of COVID-19,  one-third of all food produced for human consumption goes to waste, according to the Food and Agriculture Organization of the United Nations (FAO). There has long been a need for countries to bridge the gap between surplus food and the growing need for food for the most vulnerable; the pandemic has profoundly exacerbated that need. The Global Food Donation Policy Atlas provides guidance so food system actors will be more likely to distribute safe, surplus food to food insecure populations, instead of sending it to the landfill.

The Global Food Donation Policy Atlas looks at six main barriers to food recovery: food safety for donations, date labeling, liability protection for food donations, tax incentives and barriers, government grants and funding, and food waste penalties or donation requirements. It identifies several opportunities for governments to prevent unnecessary waste and to promote food donation. Examples of policy recommendations that apply across several countries include:

  • Clarify national food safety guidance as to the rules that apply to donated products;
  • Establish clear, federal guidelines for dual-date labeling, featuring expiration dates to convey when food is no longer safe to eat or “best by” dates for food that may safely be consumed and donated once the date has passed;
  • Offer liability protection to food donors and food recovery organizations that act in good faith; and
  • Remove tax barriers and provide incentives so it is less expensive to donate food than it is to dispose of it.

“It’s more important than ever for policymakers, government agencies, food donors, companies, food banks, and the public to understand the impact of unnecessary food waste in their countries and the need to change it,” said Emily Broad Leib, Faculty Director at FLPC and Clinical Professor of Law at Harvard Law School. “The Global Food Donation Policy Atlas is the first research study to compare food donation policies and best practices across the world, providing us with the global perspective we need to address this complex issue,” Broad Leib concluded.

Food banks worldwide depend largely on product donations to provide food to those facing hunger. Due to the COVID-19 pandemic, many food banks are seeing increases in demand for service. Through a combination of research and on-the-ground field work with food bank staff, food industry professionals, government officials, and food recovery organizations, FLPC researchers developed accessible country-specific legal guides and policy recommendations to outline best practices and long-term solutions for increased food donations.

“The COVID-19 pandemic is unlike any situation we have ever experienced before. Food bank organizations in our network are struggling to meet demand and get food to those who need it most,” said Lisa Moon, President and CEO of GFN. “The release of this project is extremely timely as it provides a roadmap for organizations and shines a light on global food system challenges for policymakers.”

FLPC will release similar reports for ten additional countries in the coming year: Chile, Colombia, Costa Rica, Dominican Republic, France, Guatemala, Peru, Singapore, South Africa, and the United Kingdom.

“Walmart Foundation has a long-standing commitment to increasing access to healthier foods in communities around the world and we are pleased to support the Global Food Donation Policy Atlas, because of its potential to accelerate effective and sustainable solutions,” said Eileen Hyde, Director of Sustainable Food Systems and Food Access for Walmart.org. “This project provides not only groundbreaking research to address the complexity of public policy relating to food donations, but it also presents clear opportunities to improve how surplus food gets to communities that need it.”

Legal guides, policy recommendations, executive summaries, and an interactive map to compare food donation laws and policies across countries are available at atlas.foodbanking.org/.

###

ABOUT THE HARVARD FOOD LAW AND POLICY CLINIC

The Harvard Law School Food Law and Policy Clinic (FLPC) serves partner organizations and communities by providing guidance on cutting-edge food system issues, while engaging law students in the practice of food law and policy. FLPC’s work focuses on increasing access to healthy foods, supporting sustainable production and regional food systems, promoting community-led food system change,  and reducing waste of healthy, wholesome food. FLPC is committed to advancing a cross-sector, multi-disciplinary and inclusive approach to its work, building partnerships with academic institutions, government agencies, private sector actors, and civil society with expertise in public health, the environment, and the economy. For more information, visit http://www.chlpi.org/flpc/.

ABOUT THE GLOBAL FOODBANKING NETWORK
The Global FoodBanking Network (GFN) is an international non-profit organization that nourishes the world’s hungry through uniting and advancing food banks in 40+ countries. GFN focuses on combating hunger and preventing food waste by providing expertise, directing resources, sharing knowledge, and developing connections that increase efficiency, ensure food safety, and reach more people facing hunger. Last year, 943 GFN member food banks rescued over 500 million kilograms of food and grocery products and redirected it to feed 9.6 million people through a network of more than 55,000 social service and community-based organizations. For more information, please visit www.foodbanking.org.

ABOUT THE WALMART FOUNDATION

By using our strengths to help others, Walmart and the Walmart Foundation create opportunities for people to live better every day. Walmart has stores in 28 countries, employing more than 2.3 million associates and doing business with thousands of suppliers who, in turn, employ millions of people. Walmart and the Walmart Foundation are helping people live better by accelerating upward job mobility for the retail workforce; addressing hunger and making healthier, more sustainably-grown food a reality; and building strong communities where we operate. We are not only working to tackle key social issues, but we are also collaborating with others to inspire solutions for long-lasting systemic change. To learn more about Walmart’s giving, visit giving.walmart.com.

From the 49ers, to the Dolphins, to the Big 12 Conference

by Chase Brownford J.D.’20

Chase Brownford (left) with Professor Peter Carfagna

As a prospective student, one of the biggest draws of HLS was its robust clinical program. My experience as a student in the Sports Law Clinic has undoubtedly proven to be the highlight of my law school experience.

After my 1L year, I thought I wanted to be a litigator, and my internships that summer reflected this. While my 1L summer was an overwhelmingly positive experience, I knew I wanted to try out the transactional side of legal practice prior to my 2L summer at a law firm. I registered for both of Professor Carfagna’s Sports Law classes during the Fall semester and quickly realized how invaluable the contract drafting skills covered were not only to sports law, but to any type of transactional practice.

Wanting to get exposure to this type of work in an in-house environment (and, admittedly, escape the Cambridge winter), I spent the 2019 Winter Term with the San Francisco 49ers. Working in the shadow of Levi’s Stadium, I was able to assist in drafting sponsorship agreements for the team and the 49ers Foundation, review vendor agreements, and was able to witness the 2019 College Football Playoff National Championship Game, which the Stadium hosted. My supervisor in San Francisco, Jihad Beauchman (HLS ’09), also had taken Professor Carfagna’s courses, had participated in the Sports Law Clinic, and had spent several years as an associate at a law firm before transitioning to his present role. Jihad’s guidance on the remainder of my time at HLS, life as an associate, and drafting advice was extremely insightful and helped me prepare for my upcoming summer. I left San Francisco with the strong conviction that this was the type of work I wanted to do for the rest of my career.

I hoped to spend the 2020 Winter Term with another clinical placement at an NFL team and was fortunate to be placed with the Miami Dolphins at Hard Rock Stadium. The timing of my placement was unique in that preparations for Super Bowl LIV were well underway when I arrived and continued throughout the three weeks I was in South Florida. The breadth of projects that my supervisors Myles Pistorius and Brandon Briggs provided in three weeks rivaled that of my experiences at full summer internships. In addition to honing my drafting skills relating to the Dolphins, Super Bowl, and Miami Open tennis tournament, I was able to complete various projects working with members of the Youth Programs, Ticketing, and IT departments.

When the opportunity arose to spend my final semester at HLS with a third clinical placement, I jumped at the chance to intern at the Big 12 Conference under the supervision of another one of Professor Carfagna’s former students—Kelvin Smith (HLS ’11). The Big 12 placement involved legal research and memo-writing on a variety of novel issues facing the Conference, the NCAA, and student-athletes, in addition to contract drafting and review. When the coronavirus pandemic upended the sports world in March, I was especially grateful for Kelvin’s willingness to continue to provide me with projects, with an increased focus on the legal and policy implications that the virus has and will continue to create.

Overall, I am confident that my time in the Sports Law Clinical Program will be one of the most meaningful and impactful experiences of my legal career. Words cannot fully express the gratitude I have for my supervisors’ mentorship and guidance at each of my placements, the faith and confidence Professor Carfagna has placed in me from the beginning, and the members of OCP that have made all of this possible.

Judicial Process Clinic Students Assist Judges with COVID-19 Issues as Courts Struggle to do Justice

by Hon. John C. Cratsley (Ret.)

Gaia Mattiace J.D.’21

As 24 students in the Judicial Process in Trial Courts Clinic switched to remote work, several found themselves directly engaged with COVID-19 issues. Three students working in the U.S District Court participated by teleconference and did legal research as their judges heard arguments for conditional release of prisoners and ICE detainees due to the threat of illness in their places of confinement.

 

“One of the clinic’s themes or focuses was on innovative ways in which the judiciary has dealt with novel legal problems,” said Gaia Mattiace J.D.’21, one of the three students to conduct work regarding compassionate release. “It was definitely interesting to see how those innovations translated from routine or more pervasive problems to an emergency situation such as this one. More generally, all of the skills that the clinic helped us develop—from honing our legal research and writing and learning good lawyering, to understanding the intricacies of judicial decision making—are crucial to providing legal assistance during this time, or a crisis situation such as this one.”

 

Alex Kontopoulos J.D.’20 spent hours of research and drafted a memo on the question of whether remote hearings, by phone or video, adversely impacted a criminal defendant’s right to be present at all stages of trial proceedings. He noted that the biggest adaptations he and the clinic made were shifts towards pandemic related work and relying on phone and email communication.

 

“I enjoyed the opportunity to provide urgent legal services during the pandemic. I had the opportunity to write draft opinions earlier in the semester, so my clinical experience had prepared me to work on an issue with such a tangible impact on people’s rights” he said.

 

A third clinic student tackled the timely question of whether in the coronavirus pandemic Lyft drivers, usually classified by the company as independent contractors, would likely suffer irreparable harm for purposes of unemployment eligibility without a preliminary injunction enjoining Lyft from classifying them as such.

 

While video and teleconferencing have become common practice in the Massachusetts trial courts, clinic students finished the semester providing their judges with needed legal research and writing not only on these COVID-19 issues but also on the usual variety of pending civil and criminal matters awaiting decisions.

 

Q&A with Olivia Barket

by Grace Yuh

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

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

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

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

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

OCP: Was there anything surprising or unexpected?

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

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

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

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

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

OCP: What inspires you to do this work?

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

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

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

Sejal Singh wins the 2020 David Grossman Exemplary Clinical Student Award

via Harvard Law Today

by Grace Yuh

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

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

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

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

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

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

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

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

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

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

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

Jeremy Ravinsky receives 2020 Andrew L. Kaufman Pro Bono Award

via Harvard Law Today

by Grace Yuh

Credit: Courtesy of Jeremy Ravinsky

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

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

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

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

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

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

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

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

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

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

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

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

via LSC Blog

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

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


The Best Laid Plans

Lowry Yankwich J.D.’21

By Lowry Yankwich

Lowry Yankwich

Lowry Yankwich ’21

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

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

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

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

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

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

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

via LSC Blog

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

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

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

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

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

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

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

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

via LSC blog

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

Veterans Clinic

Getting safety net benefits to veterans in need

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

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

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

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

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

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

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

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

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

Criminal record sealing self-help materials developed

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

Project on Predatory Student Lending

Class action filed against Florida Career College

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

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

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

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

Family Law/Domestic Violence Clinic

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

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

Predatory Lending and Consumer Protection Clinic

Debt extinguished, debt collector punished

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

Tax Clinic

Fighting for tax justice on behalf of exonerees

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

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

via Forbes

by Robin D. Schatz

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

Environmental benefits of upcycled food UPCYCLED FOOD ASSOCIATION

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

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

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

via Lawfare

by Andrew CrespoLaura Londoño PardoKristy ParkerNathaniel Sobel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Need for Independent Review in Flynn’s Case

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

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

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

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

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

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

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

The Government’s Faulty Motion

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

Georgia Copyright Loss at High Court Could Jolt Many States

via Bloomberg Law

by Jordan S. Rubin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Economy Class, First Class

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

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

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

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

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

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

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

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

Advocating for human rights in Myanmar during COVID-19

via Harvard Law Today

by Dana Walters

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This interview was edited for length and clarity.

HIRC at GBLS has Fifth Circuit Court of Appeals victory

via HIRC blog

by Mary Hewey

 

 

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

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

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

Don’t repeat the mistakes of 1918

via Boston Globe

by Carol Rose and Robert Greenwald

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

Virus Poses Extra Obstacles for Attorneys With Tax Court Cases

via Bloomberg Tax

By Jeffery Leon and Aysha Bagchi

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

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

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

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

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

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

Antiquated Practices

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

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

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

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

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

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

Document Access Troubles

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

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

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

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

IRS Weighing Relief Options

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

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

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

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

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

—With assistance from Allyson Versprille.

 

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

via Human Rights Program Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyberlaw Clinic turns 20

via Harvard Law Today

by Carolyn E. Schmitt

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

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

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

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

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

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

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

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

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

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

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

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

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

Credit: Brooks Kraft

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

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

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

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

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

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

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

via Harvard Law Today

by Brett Milano

Computer screen showing Zoom session between three people

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

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

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

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

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

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

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

Robert Greenwald as seen through a video conferencing screen

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

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

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

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

Kiah Duggins ’21, Harvard Legal Aid Bureau president

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

via Harvard Law Today

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

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

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

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

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

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

Read more on the Harvard Law Today website

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