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Category: Hot Take (page 1 of 2)

U.S. Permanent Resident Almost Deported Until HLS Crimmigration Clinic Proved the Government Wrong

By: Alexis Farmer

Source: Pixabay

Raymond* lived as a legal permanent resident in Arizona for nearly 30 years before being apprehended by local law enforcement and charged with possession of narcotics with the intent to sell. Not long after serving time in prison for his offense, the father of three spent seven months in La Palma Detention Center.

This was Raymond’s first criminal offense, but one that almost got him deported. Immigrations and Customs Enforcement (ICE) argued that his prior criminal conviction was one of the disqualifying crimes that makes someone with legal status in the U.S. deportable. Although Raymond had paid his debt to society in prison, the government said his offense prompted a second and grave consequence: leaving the United States for good. The Crimmigration Clinic at Harvard Law School, which represented Raymond, challenged the government’s claim and eventually proved them wrong. An Arizona immigration judge ruled in Raymond’s favor, but ICE appealed the decision, arguing that Raymond’s conviction triggered a provision under federal immigration law that required his removal.

Criminalizing immigration status has been increasing over the past twenty-five years, according to Phil Torrey, the managing director of the Crimmigration Clinic at Harvard Law School. Crimmigration – the intersection of criminal law and immigration law – became a burgeoning field of law in the late 1980s and ‘90s when Congress passed a number of measures responding to concerns of unauthorized immigration. These policies made many more types of crimes by noncitizens deportable, emphasized border enforcement and increased the use of detention facilities.

Numerous studies have shown that immigrants are less likely to commit crime than native born U.S. citizens, and the numbers are even lower for immigrants like Raymond that are lawfully present. A 2018 report from the Department of Justice (DOJ) stated that almost 7 percent of the “known or suspected aliens” in DOJ custody were legally present and undergoing removal proceedings. According to a 2018 U.S. Sentencing Commission report, immigration offenses and minor drug related offenses are the most common crimes of noncitizens.

Source: Flickr

An expert in crimmigration law for over ten years, Torrey says, “there has been an exponential increase in prosecution of certain federal crimes and the use of criminal enforcement mechanisms in the immigration context.” Immigration infractions are one of the most federally prosecuted crimes, including drugs, firearms, and fraud according to a the Sentencing Commission’s recent report. Just over 200 private immigration detention facilities currently exist across the country housing close to 400,000 individuals. The Pew Research Institute found that “immigrants with past criminal convictions accounted for 74 percent” of all U.S. Immigration and Customs Enforcement (ICE) arrests in 2017. Many of these offenses, however, are minor and can be classified as non-violentdrug offenses or simply re-entering the U.S. without authorization.

“Deportation is an extreme consequence for many of the charges,” Torrey said, “but efforts to decouple criminal and immigration law from the federal government are unlikely to happen during this administration.” Torrey noted that many local and state jurisdictions like Philadelphia, Chicago, and Boston have established protections that block local resources from aiding civil immigration enforcement efforts ICE.

Source: Flickr

2020 Democratic presidential candidates have voiced ideas for decriminalizing immigration if elected. Presidential hopefuls Julian Castro and Elizabeth Warren supported repealing Section 1325 of the U.S. Code which makes entry into the U.S. a criminal offense. Torrey thinks that  “decriminalizing unlawful entry and re-entry would be a tremendous first step in ensuring an immigration system that remains civil rather than criminal and protects individuals with bona fide aslum claims.” Castro and former Vice President Joe Biden say that immigration enforcement should focus on individuals with “serious” or “major” criminal convictions – similar to what both President Obama and President Trump claimed to prioritize – but it is unclear whether there would be mitigating provisions for individuals with legal status like Raymond. It’s also unclear what would be considered a “serious” or “major” conviction.

While Raymond was detained, Immigration and Customs Enforcement (ICE) officials confiscated his green card, which isn’t supposed to happen, according to Torrey. Raymond’s time in the detention center was “very stressful.” “I suffered a lot when I was inside there being away from my family. They give you bad food, there is no attention, and they treat you very bad. I was hopeless.” He also said the facility was overcrowded, estimating that, “there were maybe 3,000 people in the center while I was there.”

When ICE appealed the immigration judge’s decision, the case moved up to the Board of Immigration Appeals, (BIA) the administrative appellate body responsible for immigration-appellate appeals. An HLS alumnus who monitors the BIA docket at the Catholic Legal Immigration Network, Inc. (CLINIC), a non-profit organization that provides legal services for immigrants, referred the case to the Crimmigration Clinic. Torrey and two Harvard Law School students, Joy Lee, J.D. ’19 and Harry Larson, J.D ’19 represented Raymond during the appeals process. Torrey and the students were based in Cambridge – some 2,500 miles away from Raymond who was detained in Arizona. Their only interaction was through the phone and mail. “I had a lot of confidence and patience. I trusted them,” Raymond said when reflecting on his experience with the students.

The clinical students argued that in Raymond’s case, the federal drug schedule – categories of drugs classified by the drug’s safety, the potential for abuse or dependency, and acceptable medical use – did not match Arizona’s drug schedule, and therefore did not qualify as the type of crime that should make Raymond deportable. The team was victorious in upholding the immigration judge’s ruling, allowing Raymond to stay in the country he knows as home. “The clinic helped me a lot. Thank God.”

Raymond was successfully released from the detention center in December 2018. In the time since, Raymond resumed his job in maintenance and construction and found an apartment for himself. “I have a different perspective on life,” he said and he was happy to be working again. He was released around the start of the government shutdown, which made it an administrative headache to try and retrieve his green card. Six months later, he’s still missing his green card, which means he can’t travel to Mexico to see his family. “It’s been 4 years since I’ve last seen my kids. What I need is help, for them to give me back my green card. If I don’t get it back, I don’t know what I’m going to do.”

*Names changed for the client’s confidentiality.

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

Via the Harvard Negotiation and Mediation Clinical Program

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

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

Listen to the podcast here.

First Impressions: Judicial Process in Trial Courts Clinic

Source: iStock

By: Judge John C. Cratsley (Ret.)

The 2019 Spring Term Judicial Process in Trial Courts Clinic involves twenty students in placements with federal and state trial court judges. Three judges from Japan and one from Korea attend our weekly classes, adding their international perspectives.  The clinic provides students the unique opportunity to discuss judicial reasoning with the judges. Students shared the lessons they are beginning to learn in their first-day-in-court papers.  Among these are their first impressions of the necessary qualities of a good judge:

“…throughout the day, I found myself thinking about how patient my judge was and how well he matched the ideals of judicial temperament that we discussed in class. . . I was very impressed by his calm demeanor and strong focus on procedural fairness. There were moments that would have tried my patience …”

“…for a judge like mine who is handling many high-profile cases at the center of public controversy and media attention, courage would be a particularly important virtue. It would be challenging to stay strong and unaffected amidst public criticisms or unfair characterizations of her reasoning or ruling in news reports.”

“Sentencing must be one of the most challenging responsibilities that a judge undertakes and having compassion during that process, as my judge exemplified on Tuesday, is critical to criminal justice.”

Another student expressed surprise at the teamwork exhibited by her judge and clerks, “The judge eats lunch with the clerks (and now, the intern) every day. While we sometimes talk over our cases, more often, we’ll discuss current events and our thoughts on the criminal justice system. There is an emphasis on valuing interpersonal relationships and spending time together as a team.”

Other students stressed the value of the opportunity the clinic presents for improving their writing skills:

 “I feel assured that my time this semester will be highly productive, filled with substantive work and real opportunities to think deeply about the legal issues presented at the trial court.”

“First, with respect to the work, I could not be more thrilled. It is clear from my conversations with clerks and an outgoing intern that I will get to work on many of the same assignments as clerks. Indeed, after my trip to HR, I hit the ground running in reviewing a habeas petition. In digging into the material, I could see complex legal issues, remnants of a complex legal battle for the petitioner thus far, and a man’s life hanging in the balance.”

Finally, watching attorneys at work in the courtroom, understanding court practices and procedures, and then evaluating what succeeds, fills out law school experiences such as the Trial Advocacy Workshop (TAW):

“. . .I had the opportunity to observe some outstanding lawyers at work. . .Having recently completed TAW, I was very impressed by the closing arguments given by both sides.”

“I had an extremely rewarding experience. . . I had exposure to opening and closing statement, direct and cross examination from the Trial Advocacy Workshop, but had never seen a jury selection before. I was struck by the judge’s patience and professionalism, but surprised by the repetitive, and even slow nature of the process.”

“My first day in court was incredible. . .  On a single Friday in a community court, I probably saw as many different kinds of cases as I did in the whole semester working in the federal courthouse in Boston.”

All of these first impressions papers contain one truth about experiential education – when students leave the classroom and enter the courtroom, they gain significant new insights about our judicial branch of government.

Higher Education is Failing Students of Color, but Congress Can Help

Via the Project on Predatory Student Lending

Source: Pexels

The harsh reality is that the burdens of student debt are not shared equally. Students of color borrow more on average than other students seeking the same degree, and are two to three times more likely to default than their white counterparts. Furthermore, because they borrow more, students of color are disproportionately impacted by the negative effects of poor student loan servicing, which contribute to the racial wealth gap.

Beyond the financial barriers to equity in higher education, more generally, students of color are less likely to graduate with degrees than their white peers and are more likely to be pushed out of their schools due to safety concerns. These systemic problems require policymakers to come to the table to drive real change.

Fortunately, select leaders in Congress are acknowledging the issue and are researching ways to address it. Earlier this year, Senators Doug Jones, Elizabeth Warren, Kamala Harris, and Catherine Cortez Masto asked the Project on Predatory Student Lending and other experts to recommend legislative changes to address racial disparities in student debt, as well as the various challenges students of color face in college and career training programs. In partnership with the Lawyers’ Committee for Civil Rights Under Law, Mississippi Center for Justice, North Carolina Justice Center, and Southern Poverty Law Center, we recommended five areas where focused reforms could decrease racial inequality in higher education: (1) more oversight and accountability of for-profit colleges; (2) more data collection and transparency; (3) better oversight and management of loan servicers; (4) eliminate several specific barriers to student access and success; and (5) better protect student safety. Here is a brief summary of our recommendations.

1. Oversight and Accountability of For-Profit Colleges

For-profit colleges play an outsized role in generating and perpetuating disparate outcomes for students of color. People of color are significantly overrepresented in the for-profit college student population: although they account for less than one third of all college students, Black and Latino students represent nearly half of the students enrolled in proprietary colleges. In order to attract and enroll these students many for-profit colleges engage in unfair and deceptive practices, including deceptive advertisements and unrelenting recruiting, and leave students without the education and career development support they were promised. In order to combat these predatory for-profit colleges and protect students of color, we proposed:

  • Codification of robust borrower defense protections
  • Regulating spending on marketing and recruiting
  • Strengthen the 90/10 rule
  • Bolster the federal role in the regulatory triad

2. Data Collection and Transparency

The Department of Education’s current data on federal financial aid is limited. In order to make fully informed legislative decisions, more comprehensive data collection and rigorous analysis are necessary. We proposed:

  • Codification of a gainful employment standard
  • Study the student unit record ban to determine whether the department should track student loan defaults by race

3. Loan Servicing

Loan servicer misconduct comes in many forms, all of which harm borrowers. Student loan servicers commonly steer borrowers into payment plans that are cheaper for the servicer, and costly for the borrower. Additionally, vague communication, misapplied borrower payments, and other customer service misconduct cost borrowers dearly. Because Black students are more likely than other racial groups to borrow, and borrow more, for their education, the negative effects of poor student loan servicing are disproportionately damaging to student borrowers of color. To combat the harmful practices of loan servicers, we proposed:

  • Simplification of federal student loan repayment and increased access to repayment information
  • Statutory support for a Student Loan Borrowers’ Bill of Rights
  • More specific requirements for communications and customer service

4. Student Access and Success

Students of color face many barriers in accessing and succeeding in higher education. College degrees have become even more necessary over time to achieve upward mobility and live a healthy economic life in the United States, but students of color lag behind their white counterparts in achieving associate degrees or higher. To increase access for students of color, we proposed:

  • Removing the consideration of criminal background in the determination of eligibility for federal student aid
  • Expanding opportunities for DREAMers to pursue higher education, and allow undocumented students to access federal student aid
  • Increase resources and support to HBCUs, Tribal colleges and universities, Hispanic serving institutions, and Asian American and Native American Pacific Islander serving institutions

5. Student Safety and Rights

U.S. Department of Education data show that incidents of hate crimes on college campuses have been increasing over the years and target students of color. This type of crime pushes students of color out of school. To combat this problem, schools must proactively create safe spaces for students of color. To promote student safety, we proposed:

  • Require schools to prevent campus sexual violence, appropriately investigate and respond to instances of sexual violence, and support survivors
  • Require schools to protect students from hate crimes while ensuring First Amendment protections

To learn more about the Project on Predatory Student Lending’s work on racial justice, click here.

Could Marijuana Policy Be The Sleeper Policy Issue of 2019?

Via the Semester in Washington Blog 

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

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

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

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

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

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

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

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

Chapter Three

Via The Semester in Washington Blog

Source: Pixabay

By: Johnathan Wroblewski, Lecturer on Law for the Semester in Washington Externship

For the presidency of Donald Trump, 2019 has ushered in a new and very different kind of chapter.  The first chapter began with Trump’s 2016 election.  A few days after the election, I travelled to Cambridge and met with three different groups of students, including the incoming Semester in Washington Class of 2017.  You may remember those days and what people on campus and around the country were feeling then.  For liberals and conservatives, there was anxiety, bred by an uncertainty of what the future would hold, and shock after an election result almost no one expected.  That uncertainty and shock held sway in D.C. too, with anxiety slowly morphing into questions and strategizing: How would the President govern?  What would the new Administration look like and who would join it?  How would the President impact the work of Congress and the bureaucracy?  What would be the policy agenda?  And how should each of us react?

Chapter Two of the Trump presidency was about governing in a time of unified, Republican control of U.S. government.  Not that the President was any more predictable or stable or graceful in his actions or his politics during this phase of his presidency.  But some things became much clearer.  For one, the President would continue to tweet and speak in the tone that sets him apart, with all of its ramifications.  For another, the White House’s lack of policy craft — or even a significant policy agenda — left a critical and consequential vacuum.  The vacuum was partially filled by establishment Republicans who controlled Congress and the levers of power in Washington — think the filling of the federal Judiciary and tax cuts.  Where the views of these leaders were shared across almost the entirety of the party, there was action.  The vacuum was also partially filled by strong agency leadership — think Attorney General Jeff Session’s undoing Obama-era actions at the Department of Justice, or deregulation in other agencies, or the end of net neutrality.  And finally, the vacuum was partially filled by inaction and chaos — think the budget, immigration and many other policies — where the Republican party itself has been fractured and thus there has been an inability to make policy deals.  Policy craft still matters.  And the lack of it in the White House has consequences.  The shutdown of January 2018 was one of them.

And now Chapter Three.  The President’s policy agenda, beyond stricter immigration controls, remains foggy at best.  Policy craft at the White House has not improved, with the exception of the passage of criminal justice reform legislation, led by presidential son-in-law Jared Kushner, just hours before this most recent shutdown.  And of course, most importantly, Paul Ryan has been replaced by Nancy Pelosi as Speaker of the House, and a new Democratic majority has taken control of the House of Representatives.  That really matters.  And the first manifestation of it was the capitulation by the President on Friday to end the longest shutdown in American history; at least temporarily.  Elections matter; and leadership matters.  And the new Democratic majority in the House will make for — has already made for — a completely new policy and political dynamic in Washington.  It will manifest itself in ways large and small over the semester and over the next two years.  We’ll talk about all this on Tuesday and Thursday and what it means for us and the country.

For the Semester in Washington Program, 2019 is shaping up to be a fascinating year (from day one).  The policy vacuums, opportunities, fights and chaos will be all around us.  So will varying tones of debate, and certainly some crudeness.  How will we deal with it?  What will we do in our placements?  We have a terrific group of very talented students who have arranged — and for some, rearranged — wonderful placements in and around Washington.  These placements began for some in the Winter Term (during the shutdown), and will begin for others this week.  Regardless, the placements will give us the opportunity to be part of government litigation, legal advice and policymaking.  In addition, our class will read and think and discuss policymaking by the government lawyer.  We will consider a framework for policymaking; discuss the ethics of government lawyering (who do we really work for); and practice some of the skills needed for the government lawyer engaged in policymaking and legal advising.  And we will have a front row seat to — and a role to play in — the history unfolding before our very eyes.  We will examine it all throughout the semester, beginning on Tuesday.

We will also meet some fascinating people who have made government lawyering and policymaking at least a part of their careers and get their take on the events of the day.  We will attend a Supreme Court argument.  We will discuss the policymaking process with those who have lived it.  We will find some folks who represent private companies and try to figure out what drives their interactions with the federal government and their policy work.  We will share a few meals together, and we will do some pro bono work that will take us away from the Washington of the monuments and majestic government buildings and to the Washington where many poor people live and work and need legal services.  I think it will be a terrific few months.

I will be blogging twice a week, a day or two before class, linking to policy issues in the news and trying to make connections to our study of policymaking and our experiences working every day in the federal government.  Please comment now and then and let us know what you’re thinking.

Here’s to a great semester!

Can District Courts Hear Innocent Spouse Refund Suits?

Via Procedurally Taxing

Source: Flickr

By: Carl Smith

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks for Listening – Episode 1

Via the Harvard Negotiation & Mediation Clinic

Source: Pixabay

This podcast will spotlight efforts to bridge the political divide in the U.S. through dialogue and collaborative processes, profiling the important and often courageous work of individuals and organizations who are helping citizens engage with one another on challenging topics. Episodes will dive deep into such issues as: managing difficult family dynamics and relationships affected by partisan differences; bridging the divides in Congress, the media, and in our social media spaces; training youth to move through conflict and toward civic responsibility; embracing dialogue in the face of extremism; engaging with others on highly emotional issues; and on working to restore divided communities. We hope that through the everyday examples of ordinary and extraordinary people all over the country, listeners will find optimism that we can—and are—moving beyond partisan divides, as well as inspiration to become part of the solution.

In this first episode we’ll look at politics around the Thanksgiving table—the start of a long month of family gatherings and meals to celebrate the holidays.

Click here to read a transcript of the episode.

What Relevance for ADR in situations of Domestic Violence? Part 2: The design and challenges of Bhutan’s Consensus Building Initiative for certain types of domestic violence

Credit: Adam Dean
Princess Sonam Dechan Wangchuck LL.M. ’07 is honorable president of Jigme Singye Wangchuck School of Law, named after her father, the fourth king of Bhutan.

By: Stephan Sonnenberg ’06

Last month, I wrote about the fundamental debate over whether ADR processes should have any role to play in situations of alleged domestic violence. The answer I proposed was essentially a longer version of the standard ‘it depends’ response to difficult questions that law school professors have so fondly committed to memory.

My answer adopts neither the universalist nor the culturally relativist approach. The universalist approach would adopt and promote globally the western (or legalist-individualist) ideal, according to which all domestic violence cases should be handled exclusively by means of formal judicial remedies. The culturally-relativist approach, by contrast, would hold that any practice, no matter how inhumane and undignified, can be shielded from human rights critiques on the grounds that they are associated with the culture of a place. Marie Bénédicte-Dembour, an anthropologist who studies the application of human rights standards in transnational contexts, described the first position as “arrogant” and the second position as “indifferent.”[1] Left with no easy answers, she condemned the thoughtful human rights practitioner to a perpetual “dialogical dialogue,” swinging like a pendulum in the uncomfortable grey zone between these two ideologically pure, but ethically suspect, polar positions. That same grey-zone space, I fear, is where we also find ourselves as dispute systems designers when we discuss how to encourage domestic violence survivors to seek redress in the unique cultural, historical, and philosophical context of Bhutan.

In this post, I would like to describe how our clinic at the Jigme Singye Wangchuck School of Law,and our project partners at RENEW (which stands for Respect, Educate, Nurture, Empower Women), maneuvered this “dialogical dialogue,” as well as the resulting dispute system that emerged from it.

In 2017, RENEW’s domestic violence community support volunteers articulated the urgent need for there to be an informal means to address alleged instances of domestic violence in Bhutanese communities. Survivors of domestic violence, they reported, were for a variety of reasons unwilling to take their concerns to the police or the courts. Many of them might be willing to approach a village elder, but those elders increasingly had been trained not to accept cases involving domestic violence. Left with no forum where they felt comfortable enough or welcome enough to discuss their concerns about domestic violence, many survivors turned to RENEW’s domestic violence resource persons begging them to act as mediators. Those RENEW volunteers were then left with the uncomfortable choice of either accepting to quietly—and illegally—mediate the case, or knowingly leave the survivor in a vulnerable position with literally no recourse at all. This damned-if-you-do, damned-if-you-don’t scenario served neither the RENEW community support volunteers’ interests nor did it serve the interests of the survivors.

During their annual retreat, these RENEW community support volunteers formally asked RENEW’s management to train them as mediators. In response RENEW asked our law clinic, along with Bhutan’s judicial training institute and a few other lawyers, to discuss the proposal. It soon became clear, however, that the volunteers’ request was much more complicated than it might at first have appeared. First, mediation in Bhutan is allowed only in civil cases. Bhutan’s legislation clearly defines all forms of domestic violence as criminal offenses. Furthermore, Bhutan’s lawmakers have made it clear that domestic violence must not only be physical or sexual in nature, but can also be financial or emotional. All four types of domestic violence are defined as criminal. Therefore, even domestic violence cases that might otherwise be addressed by means of counseling or neighborly intervention (ex: less serious forms of emotional abuse) would in Bhutan fall under the definition of a potentially criminal offense. Second and more fundamentally, we discussed the dangers of using a less-transparent mediation process, premised on voluntary participation and lacking many of the procedural safeguards inherent in formal judicial process, to resolve domestic violence cases. Structurally speaking, we explored how difficult it is for mediators to work with parties whose relationships are characterized by serious power imbalances and a history of verbal and emotional abuse.

To move the conversation forward, and in light of our ongoing consultations, our clinic put forward three hypothetical models for a future ADR initiative focusing on domestic violence, inviting both positive and negative feedback from stakeholders. Those were (1) a consensus building approach, where RENEW’s community volunteers would serve as facilitative problem solvers, with the backing of local elders and the police, but stripped of any authority to formally write up an agreement; (2) a transformative mediation approach, whereby mediators would act essentially as counselors tasked with helping the parties understand the impact of their actions on others around them; and (3) a victim-advocate model, where RENEW’s community volunteers would stand in solidarity with domestic violence survivors and help them maneuver a dispute resolution process run by someone else.

These consultations quickly converged on the first option as the preferred model to use as a starting point for further discussions. Over the course of a few months, our clinic and RENEW—in consultation with various justice sector stakeholders, including the Royal Bhutan Police (RBP), Bhutan’s National Commission on Women and Children (NCWC), Bhutan’s judicial training institute (BNLI), and RENEW’s community-based support volunteers and counseling department—came up with the present model of consensus building.

Cases can come to RENEW volunteers either directly or by referral from the RBP. In the first instance, the RENEW volunteer would first have to check with a designated RBP officer, usually one specially trained to handle issues relating to domestic violence, to seek official leave to act as a consensus builder in a given case. That request can be granted or denied based on the criteria detailed in a very important clause of Bhutan’s Domestic Violence Prevention Act of 2013 that sets forth a number of criteria that—if satisfied—allow a police officer to refer a case involving allegations of domestic violence to a “negotiated settlement” proceeding. These criteria collectively ensure that only first-time alleged offenses would ever be referred for consensus building, and further only those that would not qualify as potential felony offenses. In other words, the consensus building option would be available primarily for alleged instances of emotional or financial domestic violence.

Once the RENEW Volunteer is properly engaged, she or he would begin to act as a consensus builder, employing many of the skills one might teach in a traditional facilitative model of mediation. The consensus builder would also, however, be empowered specifically to employ a “gender-informed” facilitative style, urging the parties to think about how any agreements they contemplate might be seen by the police, who ultimately would have to re-approve and ratify any final agreements. The prospect of the RBP’s eventual review of any proposed outcomes gives the consensus builder the mandate to encourage the parties to think creatively about how to ensure that a basic sense of equity and dignity—and justice—is incorporated into their mediated agreement. By the same token, the consensus builder can also ensure that the interests of third parties (ex: other family members, neighbors, or other relatives) are also addressed as part of the mediation.

In the event that the parties reach an agreement, the consensus builder must turn to the RBP, a lawyer, or a traditional village elder to write up the agreement. If the case was originally referred to the RENEW volunteer by the police, the final agreement must also include a statement stating that the negotiated agreement formally settles any potentially criminal complaints they survivor may have originally levied with the police. In all cases, however, the settlement must be written, which also serves the secondary purpose of creating evidence; evidence that can be used in a subsequent criminal proceeding should there ever be a resurgence of the same pattern of abusive behavior between the parties in the future.

What then, are our challenges as the designers and now promoters of this new dispute system? For one, we are keenly interested to see if we struck the correct balance, given the ethically and legally perilous terrain in which we found ourselves as designers of this dispute resolution process. To do so, we are trying to come up with meaningful indicators that we can use to determine whether the dispute system is achieving its intended purpose, and more specifically to determine whether it indeed represents an improvement over existing process alternatives such as the formal justice system. We are also concerned about the challenge of sustaining the initial energy and enthusiasm about this new strategy for handling domestic violence cases. Have we succeeded, we wonder, in developing a clear and easily replicable training that will allow future generations of RENEW volunteers to understand the complexity of the issues they are dealing with, and act responsibly and ethically within the bounds of the program as it was originally designed? Finally, we need to ensure that the initiative does not inadvertently give the volunteers confidence to act beyond the boundaries of their mandates, no matter how tempting it may be for them to quietly expand their roles in the name of this consensus building process. Most importantly, we are determined to keep ourselves honest as well—honest and humble enough to accept the need to rethink the system we designed if and when it begins to appear that it might be causing more harm than good.

[1] Dembour, Marie- Bénédicte (2001), “Following the movement of a pendulum: between universalism and relativism,” in Jane K. Cowan et. al. Culture and Rights: Anthropological Perspectives, Cambridge, UK: Cambridge University Press.

Challenging Immigration Law’s Conviction Definition

Via the Harvard Civil Rights-Civil Liberties Law Review

Source: Pexels

By: Philliip Torrey

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

In 1996, the “conviction” definition was codified in our country’s primary immigration statute known as the Immigration and Nationality Act (“INA”). The INA’s “conviction” definition includes two distinct prongs. If either prong is satisfied, then the state criminal disposition at issue is rendered a conviction for immigration purposes regardless of how the state categorizes the disposition. The definition’s first prong is straightforward. It simply requires a final judgment of guilt entered by a court. The second prong, however, turns any guilty plea, no contest plea, or admission to “sufficient facts to warrant a guilty finding” plea into a conviction for immigration as long as some punishment, penalty or restraint on liberty is imposed — even if that plea is held in abeyance or later vacated. The second prong, as currently interpreted, morphs many deferred adjudications and expungements into convictions for immigration purposes even though most states would not consider dispositions from those types of ameliorative programs convictions for state law purposes.

Sweeping ameliorative programs into the “conviction” definition was no mistake. The definition was codified in the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRAIRA”), which was passed during an election year when Congress was eager to demonstrate that it was tough on crime and determined to secure our borders — both of which were considered winning campaign slogans. Although IIRAIRA has a dearth of legislative history, the following quote from a conference report is illustrative:

[A]liens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. . . .  [E]ven in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.[1]

But in the age of the plea deal where “innocence is irrelevant” and mass incarceration and racial discrimination have become synonymous with criminal justice, the assumption that individuals who pursue an ameliorative program are “clearly . . . guilty of criminal behavior” is baseless at best and overtly vindictive at worst.

In fact, all states offer ameliorative programs that were designed to respond to rising incarceration rates and the devastating effects of the War on Drugs on communities of color. For example, Missouri has a suspended sentencing program that does not result in a conviction for state law purposes and therefore allows certain criminal offenders the opportunity to avoid the societal disenfranchisement that typically comes with a criminal conviction. Describing that ameliorative program, the Supreme Court of Missouri noted that “[t]he obvious legislative purpose of [the program] is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”[2] The Court further recognized that the deferral program was an important “tool” for criminal sentencing courts to allow certain offenders “a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.”[3] When the INA’s “conviction” definition attaches immigrations consequences such as detention and deportation to these ameliorative programs, it frustrates the state’s desire to facilitate the rehabilitation and reintegration of individuals in those programs.

A California expungement law is now at the center of litigation because of the inherent federalism tension created by immigration law’s “conviction” definition. The California expungement statute allows a defendant to withdraw a guilty plea when subsequently imposed conditions of probation are met. A final plea of not guilty is then entered by the court, which effectively vacates the prior guilty plea. The purpose of the law is to “help further reduce recidivism, building upon statewide efforts to assist those who have served their time and proven their willingness to be productive, contributing, law-abiding members of society.”[4] California’s expungement law is a legitimate exercise of its reserved powers to regulate the health and safety of its residents because it designed to encourage “rehabilitated individuals to obtain a decent paying job, qualify for secure and safe housing, or pursue their educational goals.”[5] The purpose of that law is thus undermined when individuals with expunged convictions are detained and deported by the immigration enforcement system.

The obvious federalism tension between the INA’s “conviction” definition and California’s expungement law is at issue in a lawsuit currently pending before an en banc Ninth Circuit. In that case, I recently co-counseled an amicus brief on behalf of immigration professors arguing that a California expungement should not be categorized as a conviction for immigration purposes. The brief argued that the expungement law was a valid exercise of a state’s reserved police powers and that the INA’s “conviction” definition must be interpreted to avoid purposefully obstructing a state’s ability to exercise that power. In other words, the federalism principles upon which our government is founded do not grant Congress the unfettered authority to undermine a state law duly enacted pursuant to a state’s constitutional authority.

At a time when the current Administration invokes the “rule of law” to justify the reprehensible use of detention and deportation to tear families apart, it is more important than ever to confront nefarious parts of our immigration law that have gone overlooked for decades. The “conviction” definition is one such feature of our immigration law that advocates should continue to challenge.

[1]  See H.R. Conf. Rep. No. 828, 104th Cong. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996).

[2]  Yale v. City of Independence, 846 S.W.2d 193,195 (1993).

[3]  Id.

[4]  A.B. 1115, Comm. on Pub. Safety, 2017-18 Sess., at 2 (Cal. 2017).

[5]  A.B. 1115, Third Reading Bill Analysis, 2017-18 Sess., at 5 (Cal. 2017).

Back to Myanmar with fresh insights

Via The Harvard Gazette 

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

By: Liz Mineo

When Myanmar’s military junta tightened its grip in the late ’80s to quash a nationwide democracy movement, Yee Htun fled the brutal crackdown on dissent along with her mother, a doctor turned human rights activist, and three siblings. After five years in a refugee camp in Thailand, they immigrated to Canada as government-sponsored refugees, unsure of when they might return home.

It turned out to be decades. After the junta transferred power to a civilian government and opened Myanmar to the world, Htun went back. She had grown up in Vancouver and was an up-and-coming attorney, and was hoping to reconnect with her roots. She did more than that. Htun ended up staying in Myanmar for four years, working as a human rights advocate for local farmers, journalists, and activists, and training local lawyers on strategic litigation and international law.

“It was the perfect opportunity,” said Htun, who worked as director of the Myanmar Program for Justice Trust until she came to Harvard Law School (HLS) in 2016. “I wanted to go back to Myanmar and use my legal education to do my part to help the country move forward.”

Harvard Law students have also had the chance to do their part in Myanmar, formerly known as Burma, an unlikely destination to practice law. Htun took her students from the International Human Rights Clinic of the Human Rights Program at HLS to Myanmar four times. The students met with community activists and lawmakers to work on women’s rights, LGBTQI rights, advancing legal reform around land rights for vulnerable communities, and changing criminal defamation provisions that allow the government to target activists and journalists.

On another trip, students went to refugee camps in neighboring Thailand, where hundreds of thousands of refugees from the conflict in Myanmar have been living for more than 30 years, waiting for peace and a chance to return home.

For Htun, teaching Myanmar human rights advocacy to Law School students is a full-circle experience.

“Growing up in a refugee camp in Thailand, I was exposed to humanitarian work and service,” said Htun, now a clinical instructor and lecturer on law. “There is no doubt in my mind that my formative childhood shaped me and made me believe in the need to serve and use our freedom and privileges to make a contribution.”

This fall, Htun is teaching a human rights advocacy course covering fact-finding, media and political advocacy, and how students can become effective, ethical human rights advocates and practitioners.

She expects to continue working to improve human rights in Myanmar, as the country struggles with the legacy of a long military dictatorship, a problematic legal system, and lack of accountability for crimes committed by the armed forces.

Ha Ryong Jung, J.D. ’18, traveled to Myanmar with the clinic led by Htun. He said the experience was an eye-opener because it helped him learn how to analyze and spot gaps in laws.

“One thing that really stuck out to me while doing the work was how the law can be abused to target specific populations,” said Jung. “It is unclear if the laws were drafted in that manner to specifically enable this form of violence, but nonetheless it forced me to think outside of the box when reading any law thereafter to spot those loopholes.”

Given the magnitude of the Rohingya refugee crisis, Htun hopes that her students’ future work will include protecting the rights of ethnic and religious minorities, promoting tolerance, and peace-building.

Women’s rights have also been on the agenda because they’re close to Htun’s heart. In 2011, Htun worked as a coordinator with the Nobel Women’s Initiative to launch the first international campaign to end sexual violence in armed conflicts. Part of her students’ work has focused on working with local partners to draft a law to prevent violence against women, and also on building community support for what would be a historic milestone for the country.

“Even though women and girls have been adversely affected by the conflict in Myanmar, women’s rights are rarely deemed a priority,” said Htun. “The law will be the first of its kind and is a crucial step for advancing women’s rights in Myanmar and ensuring that survivors have protection and redress under the law.”

By having students work on the ground with activists, government officials, and legislators, Htun hopes to make the work of a human rights advocate come to life for students. The work is challenging but also rewarding, she said.

“We want to show that the law cannot only be a tool for oppression,” said Htun. “What drew me to law was the fact that it is a crucial tool for change and can play a key role in safeguarding democracy and enshrining rights. That’s the lesson I have learned in my personal journey and one that I hope to share with my students and the communities we serve.”

What Relevance for ADR in situations of Domestic Violence?

Via the Harvard Negotiation & Mediation Clinical Program 

Source: Pexels

By: Stephan Sonnenberg J.D. ’06

Domestic violence, as we are all by now painfully aware thanks to the #MeToo movement, continues to be a shockingly widespread and under-reported scourge.

The statistics are sobering: The World Health Organization estimates that over 1 in 3 women worldwide (approx. 35%) have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime, with that vast majority of that violence being perpetrated by an intimate partner. The United States is not exempt from this global trend. In 2010, the Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey found that just under 1 in 10 women in the U.S. would experience rape by an intimate partner during her lifetime, and that just under 1 in 4 women and nearly 1 in 7 men would experience some form of severe physical violence by an intimate partner at some point in their lifetime. Nor is the situation any different in Bhutan, where a 2013 survey conducted by the National Council on Women and Children (NCWC) found that approximately 1 in 3 “ever-partnered” women would be likely to experience some form of intimate partner violence during their lifetime. And of course, even a cursory look at the front pages of our newspapers reveals just how widespread the impunity still is for these serious crimes, not just in Washington D.C. and Hollywood, but globally.

Can we do a better job addressing this scourge of daily hidden violence, abuse and humiliation? More to the point: can alternative dispute resolution processes, which here I define as “anything-other-than-formal judicial remedies” play a role in that improved justice response?

Continue reading.

Heartbreak at the Border: Cindy Zapata on Her Trip to Karnes Detention Center

Via the Harvard Immigration and Refugee  Clinical Program

By: Cindy Zapata

There are some memories that remain so vivid in my mind. Some of them are obvious ones, like the day I got married and the day my son was born. Others are not so obvious, like the time my mother made me pay for a 5 dollar chicken shawarma in dimes and nickels. She laughed hysterically from afar as I ashamedly walked over and paid the man in countless coins. She insisted that it was a life lesson on the value of money – money is money, whether it comes in the form of a bill or a coin.

Often these memories evoke the emotion I felt in that very moment – joy, happiness, embarrassment – but there are some memories that not only evoke the emotion, but, in a way, transport me to the very moment of the experience. An example? Volunteering at the Karnes Family Detention Center.

During the four day stretch we were there, we met with countless fathers and sons. We helped represent some for their credible fear interviews or drafted affidavits. For others, we represented them for their reasonable fear redetermination appeal before an immigration judge. In three days, we had more than ten hearings.

Each had a very unique story, but they all shared a similar sentiment: they were scared of returning to their home country. Each had suffered or witnessed unimaginable horrors – sexual violence, physical assault, and death.

In my work, I’ve visited various different prisons and detention centers. As one can imagine, it’s a challenging experience. They’re physically and emotionally cold, and you can almost feel the desperation and lack of liberty in the very air you breathe.

But Karnes. Seeing fathers and children in detention. Seeing a three-year-boy in detention. It’s an image I can’t get rid of.

There were so many moments in our time there where I saw the law simply not protect the people that it was intended to protect. I saw the law fail miserably in upholding due process and basic fundamental rights. Individuals with valid asylum claims were not even allowed to explain their fear and experiences in court or they were denied interpreters or legal representation despite their affirmative requests. One father told me he had been separated from his five-year-old son – he was simply taken away. During that time of separation, he received his credible fear interview (CFI). I read his CFI and it was clear that this heartbroken man was incapable of understanding the questions before him. The only questions he asked over, and over, and over again were – Do you know where my son is? When will he come back? Can you help me find my son? Questions the asylum officer could not answer.

By the time I met this father, I was helping him finalize his affidavit to request a new interview before the asylum office. He was closing in on approximately three months in detention. He was tired and desperate. Despite having an extremely strong political asylum claim, he just couldn’t handle the thought of him and his son being in detention even a week longer. He was close to giving up.

My return home from Karnes was difficult. I’d see my son playing and I’d be immediately overwhelmed with guilt, knowing that I’d never have to make the impossible decisions these parents have made. I couldn’t shake the thought that at any given moment this father and his son, and countless other parents and children, are in detention.

Whenever I see kids coloring, I sometimes find myself back at Karnes. The kids weren’t allowed to color.

Whenever I see an image or a drawing of a dove, I sometimes find myself back at Karnes. An indigenous boy I met with had drawn a dove on his school folder. He was very talented.

I find that individuals in detention often draw doves.

A symbol of hope for a new beginning.

Cindy Zapata is a Clinical Instructor at HIRC and supervises the HLS Immigration Project (HIP).

A Victory for Software Preservation: DMCA Exemption Granted for SPN

Via the Cyberlaw Clinic

Source: Pixabay

By: Kendra Albert

The Library of Congress handed a significant win to digital preservationists. On October 26, 2018, the Library of Congress granted an exemption to the DMCA’s anti-circumvention provision for libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired software for the purposes of preserving software and materials that depend on it. This exemption will significantly reduce the legal risk involved in preserving software that is no longer available for purchase. The new exemptions [went] into effect on October 28, 2018. The announcement came after a year of rulemaking proceedings before the Copyright Office, and the involvement of several semesters of Clinic students, including Evelyn Chang, Anderson Grossman, Jillian Goodman, Erika Herrera, Austin Bohn, and Erin Thomas. You can read our previous blog posts about the Clinic’s involvement here and here.

Background

17 U.S.C. § 1201 prohibits circumvention of a “technical measure that effectively controls access” to a copyrighted work. This provision has the effect of forbidding someone from breaking “digital rights management” or “DRM” technology – think, for example, of the copy-control technologies that restrict copying of DVDs or CDs (containing film or software). Under Section 1201, the circumvention of the access control measure is itself a violation — one can be held liable for violating Section 1201 by breaking DRM even if the underlying use of the work protected by that DRM is lawful. This can lead to strange results — e.g., someone copies a clip from a DVD for educational purposes (clearly a fair use under Section 107 of the Copyright Act, no liability) but breaks DRM on the DVD in doing so (thus violating Section 1201 and incurring potential liability for that violation).

Recognizing this problem, the law provides that the Copyright Office shall conduct a rulemaking proceeding every three years to consider requests for exemptions from liability under Section 1201. Since the Notice of Proposed Rulemaking initiating the seventh triennial Digital Millennium Copyright Act (DMCA) rulemaking proceedings last fall, the Cyberlaw Clinic has represented the Software Preservation Network (SPN) before the Copyright Office. The SPN and the Library Copyright Alliance (LCA) sought an exemption to the DMCA anti-circumvention provisions to allow libraries, archivists, museums, and other cultural heritage institutions to preserve software and software-dependent materials. SPN is an organization dedicated to digital preservation and ensuring long term access to software. The LCA represents librarians in the United States and Canada in addressing copyright and related IP issues.

Why Software Preservation Matters

Software is an important part of our daily lives, and it has changed how we interact with the world. Many writers turn to word processing software instead of the typewriter, and many artists turn to graphics tablets instead of the canvas. As a result, many creative works today are “born digital,” unlike traditionally analog works like literary manuscripts or paintings. We even rely on software to create digital copies of these old analog works to protect their contents from the inevitable degradation of the physical media.

This increased dependence on software as a medium for creative expression has led to increased efforts for preservation of software and software-dependent materials by university libraries and research institutions. Preservation of these works indisputably serves two laudable purposes: to allow historians to document an important aspect of modern culture, and to enable researchers to understand how older software worked and how past users experienced that software.

But the unrelenting march of technology stymies the efforts of digital preservationists. New software products become outdated and obsolete rapidly due to continuing advancements in hardware and software. The modern practice in the software industry of periodically releasing new products and versions while dropping support for old products and versions means that archivists and preservationists may never be able to obtain copies of certain software for preservation purposes. And since computer programs often use proprietary file formats that can change across versions, losing access to software also means losing access to digital files that can only be opened using that software. For example, current versions of AutoCAD do not support opening old AutoCAD files. And even if some computer programs currently support backward compatibility, there is no guarantee that they will continue to support old filetypes going forward.

How the Law Gets in the Way of Preserving Software

Despite the importance of software preservation and the known technological challenges faced by digital preservationists, current legal frameworks frustrate, rather than facilitate, preservation efforts. Even if a copy of old software can be located, preservationists may have difficulty seeking licenses or permissions because the current holders of rights to the old software may not be identifiable. The older the software, the more difficult. And even if rightsholders can be located, they may have little incentive to incur the transaction costs associated with licensing their old software because no market exists for the software.

Legally obtaining copies of old computer programs is not the end of preservationists’ troubles. Computer programs often include built-in technological protection measures (TPMs) to prevent access by unauthorized users. TPMs may require the user to provide product keys or passwords, insert a CD or dongle, or connect to an Internet server for authentication. But preservationists may not be able to access the software using TPMs in the manner intended by the developers, especially for older software. Old TPMs may require using obsolete operating systems, or inserting floppy disks despite modern computers no longer supporting floppy disk drives. If librarians or preservationists circumvent these TPMs in their efforts to study and preserve old computer programs and files, they would be subject to legal liability under the DMCA. Even if rightsholders never actually bring lawsuits against preservationists for circumventing TPMs, as friend of the Clinic Brandon Butler’s recent report suggests, the mere threat of legal liability causes a chilling effect. The consequence is forever losing software and software-dependent materials to the ages.

The Exemption

Most parties, including the opponents, agreed that software preservation is a worthwhile endeavor. While the opponents objected to the broad scope of SPN’s proposed exemption, the Acting Register of Copyrights agreed that librarians, archivists, and preservationists need more latitude in their ability to access computer programs and computer program-dependent materials. And after a year of public comments and hearings, the Librarian of Congress, adopting the recommendation of the Register of Copyrights, issued a final rule containing an exemption that encompasses much of what the SPN requested.

The final rule allows eligible libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired computer programs (including video games) to preserve computer programs and computer program-dependent materials. The final rule includes the SPN’s suggestion, in consideration of the opponents’ concerns about breadth, that the exemption be limited to computer programs that are no longer reasonably available in the commercial marketplace. The Library of Congress did create some limitations on the exemption, requiring that the computer program is not distributed outside the physical premises of the eligible library, archives, or museum.

Conclusion

On the whole, the new exemption gives digital preservationists significantly more leeway to continue their important work without living under a cloud of litigation risk. The Cyberlaw Clinic will continue to work with the SPN and other software preservation groups to ensure that the law does not inhibit continued access to software for scholarship and research, and will release a more comprehensive guide to the new exemption for preservationists in the coming weeks.

25 Harvard Law Professors to Sign NYT Op-Ed Demanding Senate Reject Kavanaugh

Via The Harvard Crimson

By: Alexandria A. Chaidez

Roughly two dozen Harvard Law School professors have signed a New York Times editorial arguing that the United States Senate should not confirm Judge Brett M. Kavanaugh as an Associate Justice of the Supreme Court.

Harvard affiliates — including former Law School Dean Martha L. Minow and Laurence Tribe — joined more than 1,000 law professors across the country in signing the editorial, published online Wednesday. The professors wrote that Kavanaugh displayed a lack of “impartiality and judicial temperament requisite to sit on the highest court of our land” in the heated testimony he gave during a nationally televised hearing held Sept. 27 in front of the Senate Judiciary Committee.

“Judge Kavanaugh exhibited a lack of commitment to judicious inquiry,” the letter read. “Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners.”

As of Wednesday evening, 25 Harvard Law professors had signed the article, which authors indicated “will be updated as more signatures are received.” The signatories plan to present the story as a letter to the United States Senate on Oct. 4.

Kavanaugh testified in front of the Senate committee to address allegations of sexual misconduct raised by Palo Alto psychology professor Christine Blasey Ford, who has accused the Supreme Court nominee of attempting to rape her at a house party in 1982 in suburban Maryland. Ford recounted these allegations in detail to the Judiciary Committee last Thursday before Kavanaugh himself testified.

After Ford went public with her allegations, two more women — Deborah Ramirez and Julie Swetnick — came forward with their own charges. Ramirez said Kavanaugh shoved his penis in her face at a party during their freshman year at Yale College and Swetnick issued a statement in which she said she saw Kavanaugh engage in “inappropriate contact of a sexual nature with women during the early 1980s.”

Kavanaugh has repeatedly denied these allegations. During last Thursday’s hearing, he vehemently and angrily insisted that the women’s tales of sexual misconduct formed part of a partisan plot by the Democrats to ruin his nomination.

The professors did not take a stance on the allegations against Kavanaugh, focusing instead on the judge’s temperament and writing that “we have differing views about the other qualifications of Judge Kavanaugh.”

The Crimson reported Monday evening that Kavanaugh will not return to teach at the Law School this winter; he was originally slated to teach a class titled “The Supreme Court Since 2005” for three weeks starting in early January. Kavanaugh has lectured at the Law School for roughly a decade.

In their letter, the professors wrote that “judicial temperament” numbers among the “most important qualities of a judge” and that Kavanaugh’s lack of composure at his hearing is “disqualifying” for a nomination “for any court, and certainly for elevation to the highest court of this land.”

The professors also criticized Kavanaugh for calling the hearing “partisan” and for displaying agitation over Senators’ questions.

“Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators,” the professors wrote.

Law School Dean John F. Manning ’82 was not among the letter’s signatories.

As of late Wednesday, the letter had been signed by the following:

SABI ARDALAN Assistant Clinical Professor, Harvard Law School

CHRISTOPHER T. BAVITZ WilmerHale Clinical Professor of Law, Harvard Law School

ELIZABETH BARTHOLET Morris Wasserstein Public Interest Professor of Law, Harvard Law School

CHRISTINE DESAN Leo Gottlieb Professor of Law, Harvard Law School

SUSAN H. FARBSTEIN Clinical Professor of Law, Harvard Law School

JUDGE NANCY GERTNER Retired, Harvard Law School

ROBERT GREENWALD Clinical Professor of Law, Harvard Law School

MICHAEL GREGORY Clinical Professor of Law, Harvard Law School

JANET HALLEY Royall Professor of Law, Harvard Law School

JON HANSON Professor of Law, Harvard Law School

ADRIAAN LANNI Touroff-Glueck Professor of Law, Harvard Law School

BRUCE H. MANN Carl F. Schipper, Jr. Professor of Law, Harvard Law School

FRANK MICHELMAN Robert Walmsley University Professor, Emeritus, Harvard Law School

MARTHA MINOW 300th Anniversary University Professor, Harvard University

ROBERT H. MNOOKIN Williston Professor of Law, Harvard Law School

INTISAR RABB Professor of Law, Harvard Law School

DAPHNA RENAN Assistant Professor of Law, Harvard Law School

DAVID L. SHAPIRO William Nelson Cromwell Professor of Law, Emeritus, Harvard Law School

JOSEPH WILLIAM SINGER Bussey Professor of Law, Harvard Law School

CAROL S. STEIKER Henry J. Friendly Professor of Law, Harvard Law School

MATTHEW C. STEPHENSON Eli Goldston Professor of Law, Harvard Law School

LAURENCE TRIBE Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

LUCIE WHITE Professor of Law, Harvard Law School

ALEX WHITING Professor of Practice, Harvard Law School

JONATHAN ZITTRAIN George Bemis Professor of International Law, Harvard Law School

Survived to Tell the Story

Via The Harvard Immigration and Refugee Clinical Program 

By: Mutasim Ali

Mutasim Ali

This post was written by Mutasim Ali, a summer intern at HIRC. Mutasim is a law graduate of the College of Law and Business – Ramat Gan, Israel.

“As our forefathers were in the distant past foreign workers in countries, not theirs, and in the recent past were knocking on the gates of various countries fleeing the Nazi enemy, and were rejected – we are required to apply the relevant legal rules with compassion and sensitivity to all involved ‘victims of persecution’. This is necessary because we are a Jewish and democratic state.” Meltzer, Israeli Supreme Court Justice.

Every immigrant has a unique story. Some of us are privileged and are able to choose when and where to go searching for a better life, while others who are less privileged are forced to escape involuntarily to survive.  I am one of those who escaped genocide and ethnic cleansing in Darfur and I survived to tell the story of those who didn’t survive.

When I was forced to leave my home in Darfur in 2003, I didn’t know where was I going and I didn’t know where I would end up. All I knew was that I needed to run as fast as I could to a safe place so that I could survive to tell the story. My home was destroyed by the Sudanese government and its militia called Janjaweed. They murdered tens of people in my village and displaced hundreds of others, among them my family who still live in a displaced persons camp to this day. I recall the atrocities and the extermination of our people, the African ethnic groups in Darfur, for no reason but for their African racial identity. The government of Sudan committed systematic acts of murder which were recently defined as a genocide by the former US State Secretary Colin Powell. I have told my story hundreds of times and every time I feel more pain as I recall the stories of the past, the trauma, and, most of all, I think about those left behind.

More than 300,000 people were murdered, over two and a half million are displaced within Sudan, and tens of thousands of others are in exile. As a refugee, I escaped not only for personal safety, but also to tell my story time and again and to be a voice for those still in the darkness of tyranny and under persecution. I believe in the power of words and as much as telling this story is painful, it is the only way to make the voices of the victims heard and to involve other people in this just struggle. I was raised by community organizing parents. I learned to care for others and I always felt the obligation and the commitment to act. In Sudan, I was imprisoned several times as a result of my advocacy – I didn’t quit because as Albert Einstein said: “The world will not be destroyed by those who do evil, but by those watching them without doing anything.”

It has been almost nine years since I left my home country and now I live in Israel as the only recognized refugee from Sudan. I didn’t expect an easy life, but I did expect compassion and sensitivity and indeed I expected to find a safe haven. In some instances, I feel I don’t belong to Sudan anymore. It is a country of 1,886,068 km sq. that doesn’t have a place for many others like me. I am no longer with my family. I lost my social status, networks, and even habits. Now, I live in Israel the small country of approximately 20,770 km sq. where I find myself without a history and without representation. You hear people label refugees as a threat to society. Some say: “So what if they fled persecution? Why should ‘we’ as a society care? They should look for a shelter somewhere else.” People spew hatred and propaganda, blaming immigrants for almost every problem. They apply offensive policies to dehumanize immigrants, refugees, and asylum seekers. It is so painful when you have to tell your story to prove you are in need of protection and instead of confronting your story with compassion and sensitivity, you are told go back to your home. This is not where you belong, you are an illegal infiltrator, you are told. The terms illegal and infiltrator come with so many connotations, all of which are negative.

Listening to those voices is discouraging because the negative voices are empowered by politicians and have the necessary resources to spread their hatred and propaganda. They base their arguments on false information and it is difficult if not impossible to have a constructive and reasonable debate.

I have tried to use these negative experiences as motivation to succeed. I completed my law degree and currently I am interning at the Harvard Immigration and Refugee Clinic, where we are helping asylum seekers with stories similar to mine. To help someone fleeing MS-13 or Barrio 18 in El Salvador is not just about responding to a story of a stranger, it is also about my story fleeing the brutal and vicious acts of Janjaweed in Sudan. It is personal to me. Listening to asylum seekers is not enough to understand their full stories. Our stories are much more than what is told. To understand our plight, one must experience it and I don’t wish that on anyone. All I wish is for everyone, whether they agree or disagree with welcoming immigrants, to consider the fear and pain asylum seekers and refugees are living in.

I am privileged to be part of this organization and most of all to be mentored by the amazing people who are committed to making our world a better place. For us at the Clinic, it is not just about legal services but also about creating a space for immigrants to feel that they belong and that they are welcome in this community, and where their story can be told and heard.

Building Support for the Expansion of Court-Annexed Mediation in Vietnam

For a week in August, John Cratsley, Director of the Judicial Process in Trial Courts Clinic, was invited to join the teaching team for a Seminar on Commercial Mediation co-sponsored by the Vietnamese Supreme People’s Court and the USAID GIG Program. 

By: Hon. John C. Cratsley (Ret.)

More formally titled “The Business Environment and Commercial Mediation: Resolving Commercial Disputes at Court”, the two day seminar for Vietnamese judges and court clerks was presented first in Hanoi and repeated in Ho Chi Minh City. The organizers, wanting the perspective of a retired American judge with mediation experience, asked me to develop four presentations about: the U.S. experience with court-annexed mediation programs, the basics of the mediation process from start to finish, a review of a mediator’s evaluative rather than facilitative techniques, and a summary of US law on enforcement of mediated settlements.  I also presented two commercial mediation problems for discussion in small groups, one involving a contract dispute over sales of medical devices and the other a dispute about defective motor oil used by large construction vehicles.

What became readily apparent as the seminar proceeded was the importance of the first Vietnamese court-annexed mediation program already underway in Hai Phong City Court. This pilot project, now six months old, was discussed throughout the seminar and, in fact, a Judge of the Hai Phong Court described the pilot in detail in both cities.

For me, as I told the seminar participants, there is much to like and replicate, beginning with the wide range of disputes, including those involving land, family, employment, contract and government agencies, that are quickly screened and referred to mediation early in the process.  The mediators are not the sitting judges who might ultimately try the case but members of a panel of retired attorneys, prosecutors, court officials and judges. If they wish, parties can chose their mediator from among the members of the panel. The cost of the mediation is free as the mediators are paid from the state budget.  For management purposes, a brief but reasonable time period is allowed for the mediation to proceed before the case, if not settled, is returned to the court docket. Plus the time involved does not count against the statute of limitations. Further, of importance in Vietnam, any mediated settlement can be approved right in the same courthouse without the delay of traditional confirmation proceedings.  Each of the Judges from the Hai Phong Court who spoke during the seminar emphasized the increasing number of successfully settled disputes, and the improved social relationships, achieved by this innovation.

While I was given the role of “expert”, or so the program read, the real significance of this seminar was introducing the concept of court-annexed mediation, particularly the Hai Phong pilot program, to judges and court clerks from the North and South.  This introductory seminar, together with follow up  mediation training for members of the mediator panels, city by city, will surely further the expansion of court-annexed mediation throughout Vietnam.

New Clinic Reports Call on NATO Members, Sweden to Join Nuclear Weapon Ban Treaty

Via the International Human Rights Clinic

As preparations for a US-North Korea summit highlight the ongoing threat posed by nuclear weapons, proponents of nuclear disarmament should increase their support for the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW). Momentum has been building. In May alone, three more countries ratified the treaty, bringing the total to 10; another 48 have signed. In addition, several countries have initiated national processes that represent an important step toward coming on board.

In this context, the Clinic is releasing two papers demonstrating why it is legally possible for even allies of nuclear armed states to join the TPN.

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CHLPI to present at Second annual “Food Is Medicine” symposium in Indianapolis

Via Center for Health Law and Policy Innovation

Meals on Wheels of Central Indiana will hold the second annual “Food Is Medicine” state symposium Thursday, April 12  in Indianapolis. The symposium will take an in-depth look at how medically tailored food plays a essential role in outcome-driven, cost-effective health care models.

Medically tailored food is prepared under the direction of a physician to individuals who are chronically ill with the individual patient’s specific nutritional needs in mind.

The symposium, which is in its second year, stems from Meals on Wheels’ involvement in the Food Is Medicine Coalition, a national association of medically tailored food and nutrition service providers. Meals on Wheels  joined the coalition in 2015 as part of an effort to strengthen its services to critically and chronically ill individuals.

“By partnering with medical providers, community organizations, and chronic disease experts to ensure low-income Hoosiers with critical and chronic diseases have access to medically tailored meals and more customized nutritional plans, we have the potential to positively impact their overall health while lowering health care costs,” said Barb Morris, CEO of Meals on Wheels of Central Indiana.

According to a study by The New England Journal of Medicine, food insecurity is one of the top ten causes for costly hospital readmissions. With a food intervention upon discharge, studies show this number can be reduced to as low as eight percent.  The problem is further exacerbated when patients are discharged from the hospital and return home to a bare pantry.

The symposium will bring together leaders representing health care organizations, state and local policymakers, elder care experts, academic and statewide advocacy groups.

Presenters:           

 

Mid Semester 2018 in the Judicial Process in Trial Courts Clinic

By Hon. John C. Cratsley (Ret.)

Twenty-seven HLS students, the largest group ever enrolled in the Judicial Process in Trial Courts Clinic and Class, are well into their work with judges throughout the Massachusetts trial courts. Their judicial internships include the U.S. District Court for Massachusetts, the Massachusetts Superior Court, various Divisions of the Boston Municipal Court, and the Newton District Court. Three LLM students are participating including one judge from Korea. Student placements are nicely balanced between the federal court, the Superior Court, and a variety of community courts throughout the neighborhoods of Boston.

Student observations about their experiences during the semester reinforce the value of direct exposure to the realities of our judicial system. A sample of their reflection papers describe different but equally valuable insights:

“…, I can already tell that this clinic will be an invaluable experience for an aspiring litigator. The opportunity to experience firsthand a trial judge’s decision-making adds a practical dimension to something which had been, for the most part, purely academic.”

“A good lawyer clearly has to treat folks with respect and maintain those relationships on a daily basis. You never know when you’ll need them.”

“Attending the hearing was very enlightening but also very sad. Witnessing a real defendant receive a sentence with her family sitting behind her puts into perspective how many lives are impacted by the judicial system every day.”

“Only one defense attorney was a person of color. The disparity made me extremely uncomfortable – here I was witnessing a body of white people locking up black folks. This was the exact dynamic I had studied in college and worked on in various internships addressing criminal justice reform. It was hard to observe in real life.”

“Essentially I got to see what it is like being chastised by a judge who is extremely unhappy with counsel’s conduct. I’ll certainly keep that lesson in mind and carefully read judicial orders when I am practicing.”

“My judge exemplified many of the features extolled in the Excellent Judges reading. The sentence was not a “mathematical” or “logical” application of the guidelines, it was based on his practice with recidivism, his experience of the human character, and his knowledge.”

Whether gaining insight into judicial reasoning, learning lessons for future practice, or observing justice issues in real time, every student in this clinic is broadening their understanding of the judicial process in trial courts.

Clinical Legal Education beyond the Bicentennial

Via Harvard Negotiation and Mediation Clinical Program

A century ago, Harvard Law School’s centennial report offered a brief comment on the role of experiential learning: “Such experiments have been more successful in affording amusement than in substantial benefit to the participants.  A fact trial now and then is well worth while, but only as a relief to the tedium of serious work.”

Today, at the law school’s bicentennial, clinics are firmly established within the law school.  And yet, as traditional forms of legal education continue to account for roughly 90–95% of a typical law student’s credit load, it remains worth clarifying the role that clinics can play within a legal education and how the law school can use them to accomplish more ambitious goals in its third century.

Clinics are celebrated for giving students opportunities to do important public interest work. Indeed, one vital motivation for the first law school clinic, opened by John Bradway at Duke in 1931, was to provide legal aid in North Carolina, where existing resources could not meet the needs of the community. The wave of clinical expansion of the 1960s and 1970s, exemplified by the work of HLS’s own Gary Bellow, similarly emphasized the role of clinics in advancing justice. The need for such public interest work is no smaller today than it was in those earlier moments: basic legal services remain out of reach for many, and the very existence of the Legal Services Corporation is threatened. It is in this capacity that clinics star in the “HLS in the Community” event, to be held in April 2018.

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Students contribute over 1500 hours of legal research and writing to local state and federal judges

By Hon. John C. Cratsley (Ret.)

The 23 students in this Spring Semester’s Judicial Process in Trial Courts Clinic contributed over 1500 hours of legal research and writing to local state and federal judges. This exceeded by hundreds of hours the assistance provided by clinic students in prior years. The value of this effort, particularly in state courts, comes at a time of tight budgets and limited numbers of full-time law clerks plus expanded litigation demands on judges. All of which makes this amount of law student assistance most welcome.

Judicial Process in Trial Courts Clinic at Judge Cratsley's house for dinner after the prison tour

Judicial Process in Trial Courts Clinic at Judge Cratsley’s house for dinner after the prison tour

The judicial placements in this year’s clinic included 8 with judges in the U.S. District Court, 9 with judges in the Massachusetts Superior Court, 2 with judges in the Land Court, 3 with judges in the Boston Municipal Court, and 1 with a judge in the Massachusetts District Court. While students began with court observation, including motions practice and jury trials, their participating judges quickly made research and writing assignments. The range of student work included habeas corpus petitions, motions to suppress evidence in criminal cases, social security disability appeals, class actions motions, zoning appeals, and various motions to dismiss and for summary judgment. Students also observed sentencing and mental health proceedings as well as the Aaron Hernandez double murder trial in the Suffolk Superior Court.

Two features of this year’s clinic were the participation of five LLM students, including Judges from Japan and Korea, and the prison tour of MCI Concord. The LLM students bring important comparative observations into both their judicial placements and our weekly classes. For example, both the Korean and Japanese Judges made presentations in our class on juries about the relatively new approach to trial by jury in their home countries. Our prison visit, already described in this blog by an LLM student from China, provided students with a realistic view of the challenges of incarceration and re-entry.

Student evaluations of their clinic experiences mention different learning goals and learning outcomes. Many identified “Insights into Judicial Decision Making” and “Learning Court Procedures” as key objectives before starting, but cited “Recognizing Good and Bad Advocacy” and “Improving My Writing” as significant learning outcomes at the end. This is welcome evidence of the changing impact on students from working so closely with a judge in this clinic. Student comments make this same observation, “He gave me thoughtful candid feedback and was always receptive to my questions/input.”;  “My judge was fantastic. She was very accommodating and keen to ensure that I was having a good experience.”; “I learned a tremendous amount and always felt challenged in an exciting way.”; and “My judge is wonderful, very engaging, and gives interns real work.”

Tips from Social Workers

As the fall academic semester continues, clinical students and students volunteering in the Student Practice Organizations continue to learn hands-on, helping clients with real-life legal matters. Often times, this means helping people facing great adversity and trauma in their lives. Our office reached out to the three social workers in our programs, asking their advice for students engaged in this work. Below are some of their suggestions. 

Liala Buoniconti
Harvard Immigration & Refugee Clinic
Liala Buoniconti, HIRC Social Worker

Liala Buoniconti, Social Worker, Harvard Immigration and Refugee Clinic

In the social work field experiential learning has long been an integral part of professional training.  Now that the ABA has recommended law students receive a minimum of six credits of experiential learning it seems budding law students might learn from the social work experience, particularly when it comes to finding balance between the professional and personal.

Often, our personal lives strongly influence our professional lives, and may be the driving force in choosing a career.  Yet without self-reflection and stress-reduction skills, client work can sometimes become overwhelming.  Usually this happens with progressive exposure to the many needs of our clients, especially in the realm of public interest law.  It can be difficult to turn off our thoughts about clients and their needs, particularly when their lives mirror our own.  This is why it is important to take time off, breathe, and do healthy things that help us disconnect from the work.  And yet, not all of the responsibility rests upon us to take care of ourselves.  Research shows that burnout comes easily in settings with high caseloads or demanding work hours.  Work places, therefore, need to recognize that their staff can be most productive when work-life balance is promoted and employees are encouraged to discuss their needs openly.

My advice to clinical students, embarking on experiential learning, is to seek out mentors that allow you to grow both professionally and personally; they are in abundance around our in-house clinical programs and they will help you self-reflect as well as support your professional goals.  HLS also organizes many Wellness offerings that can help you develop a toolbox for stress-reduction skills. I am forever grateful to the mentors and supervisors in my life that recognized the need for balance and am keenly aware that my clients have benefited as a result of my ability to thrive in a supportive work place.  As the airlines always say, secure your own oxygen mask before helping others; do this for yourself and you will be a more efficient zealous advocate.

Anne Eisner
Education Law Clinic of the Trauma and Learning Policy Initiative
Anne Eisner, Social Worker, Education Law Clinic

Anne Eisner, Social Worker, Education Law Clinic of the Trauma and Learning Policy Initiative

One of my roles in the Education Law Clinic is to draw on my training and experience as a social worker to help students navigate their relationships with their clients. I’d like to encourage you to consider in some depth how your relationships with your clients are progressing.  Practicing attorneys, as well as the field of legal education, continually observe that an intentional focus on client relationships is an essential feature of effective lawyering, and that the process of building a positive, trusting relationship with a client can be as important as addressing the legal/advocacy aspects of the case.  It is within the context of a trusting relationship that clients feel heard and understood, are receptive to the counsel you provide, develop clarity and realistic expectations about the possible outcomes, and are able to fully participate in all aspects of the case.

But equally important to the case-related benefits that accrue as the result of this working partnership with clients is the way your clients will feel about their experience with you as they—maybe for one of the few times in their lives—experience being treated with unconditional positive regard, respect, and dignity. While this is important for all clients, it is especially critical for clients whose life histories include chronic adversity, traumatic events, or social or racial injustice, some of whom may find it particularly difficult to develop a trusting relationship given their life experience.  Consider continuously focusing on and sharing with your clinic supervisor your observations and questions about the relational skills you are using to build positive rapport with your clients, as well as to explore culturally-responsive ways of relating and any implicit biases that may get in the way. This focus, along with your active listening and empathic understanding of the full context of your client’s experiences, will enable you to begin developing this critical aspect of effective lawyering skills.

Chris Pierce
Criminal Justice Institute, Harvard Legal Aid Bureau, Prison Legal Assistance Project, Harvard Defenders, Tenant Advocacy Project
pierce_s

Chris Pierce, Social Worker

I think my advice to clinical students might be to enjoy the work you do with your clients. Enjoy the work with grateful and appreciative clients and build your skills of empathy and sympathy for clients who are really in need of your help. Lastly, appreciate that small changes and kind interactions can make a difference. You may not change a life but you can help a person improve the quality of their life and experience they have with you and the legal system.

 

Words of wisdom for clinical students

IMG_9891-2854135880-O_small-1200x902At Harvard Law School, more than 800 students will be doing clinical work this academic year.  They will be engaged in factual and legal investigations; interviewing clients and witnesses; drafting legislation, legal memoranda and briefs; and preparing for trial amongst other legal work. In this blog post, a former clinic student, faculty, and staff share advice as students take on these challenges.

Derek Manner ’16
Winner of  CLEA’s Outstanding Clinical Student Award

Almost every lawyer I’ve spoken with says that their favorite part of law school was their clinic. This was certainly true in my case as well. One of the reasons I enjoyed it so much was that I got some pretty good advice about how to be successful before I started. The head of the department who was supervising me suggested that I needed to spend as much time in the office with the other attorneys as possible to get a feel for the work. It also helped that my direct supervising attorney and I quickly developed a strong working relationship built on an open line of communication.  This was particularly helpful when I knew my schedule would be hectic and I needed to front load some of my hours so I could focus exclusively on law school at times. Finally, clinicals are a big time commitment. So make sure that you’ve built chunks of time into your schedule every week to adequately complete your work. This is easier said than done due to last minute activities that pop up, so try to factor in some flex time.

Danial Nagin
Clinical Professor of Law
Faculty Director of Legal Services Center and Veterans Legal Clinic
Vice-Dean for Experiential and Clinical Education

As you are about to embark upon your first semester in a law school clinic, keep in mind a few key ideas. First, you will be undertaking two roles at once:  student and advocate. Having a client and a cause radically alter the dynamic of being a student. Your client’s stresses and burdens are now yours too. Your obligations are not simply self-generated; they are imposed externally by codes of conduct for zealous and ethical law practice. You are now beholden not just to your own standards and Law School standards, but owe separate duties to your clients, to tribunals, and to third parties. These additional layers both complicate and enrich the experience of being a student. Second, the rhythms of clinical work will feel different. Real cases and projects don’t always follow a linear or expected path. So prepare to face—and embrace—some amount of uncertainty in your clinical work. And third, have fun. Even though the stakes can be very high indeed—saving a family from eviction, keeping a woman safe from domestic violence, protecting the human rights of people in faraway places, negotiating a contract, advocating for legal rights in cyberspace, seeking asylum for someone targeted for his political activity in his home country, improving access to healthcare and healthy foods, and on and on—don’t forget to smile periodically as you undertake this critical work. What a joy and privilege it is to advocate for someone who needs your help.

Shaun Goho
Senior Clinical Instructor, Emmett Environmental Law and Policy Clinic

So you are about to start your first clinic—what can you expect?  My answer is based on what you would experience in my clinic, the Emmett Environmental Law and Policy Clinic, but I expect that it would also apply to most other clinics here at HLS.  First, you should not expect to be stuck in a back room researching legal memos to answer simple, clearly-defined questions. On the contrary, you should expect to be dealing with challenging problems to which there is no easy answer.  Second, you will be front and center in each project and will interact frequently with clients and government decisionmakers—legislators, regulators, or judges.  This role can seem frightening for some people, but it ultimately makes the clinical experience far more rewarding. Third, clinics can be hard work.  This does not mean that you are expected to put in extra hours; we make sure that all students can stick to their allotted clinical hours.  The clinic is hard because you don’t just spend your time reading a casebook; instead, you need to engage in original legal and policy analysis and work on your writing and oral presentation skills.  Again, however, you will find that the time spent working on these skills pays huge dividends.  Finally, you are not left entirely to your own devices.  You will have clinical faculty and staff, as well as your fellow students, supporting you each step of the way.  In the end, I think you will find your time in a clinic to be one of the best learning experiences you have in law school.

Laura Johnston
Administrative Director, Center for Health Law and Policy Innovation

If you’re feeling overwhelmed with balancing the clinic work with your other law school and life responsibilities, don’t hesitate to reach out for help to your clinic supervisor, faculty, clinic administrator, the Office of Clinical and Pro Bono Programs, or any of the health and wellness resources available to you at HLS and Harvard.  All of us in the clinical community are invested in making a successful and meaningful experience for students – we are here to help!

Cyberlaw Clinic — Academic Year in Review: 2015-16

Via Cyberlaw Clinic

As often happens during the heat of the New England summer, we on the Cyberlaw Clinic team find ourselves thinking about the past academic year and looking ahead to the next. It is a great time to pause and reflect on the work of our students and the overall state of our program, which has now served the HLS student body and the broader technology law and policy community for more than sixteen years. This post serves as something of an “academic year in review” for the 2015-16 school year and a preview of things to come.

The Clinic settled into an energized and productive routine over the last two years due in large part to the fact that our stellar students have been led by a stellar teaching team — Clinical Professors Chris Bavitz and Susan Crawford, Clinical Instructor and Lecturer on Law Dalia Ritvo, Clinical Instructor Vivek Krishnamurthy, Clinical Fellow Andy Sellars, and Project Coordinator Kira Hessekiel. Given all our successes of the past couple of years, it is with mixed emotions that we bid farewell to two integral members of that team — Dalia Ritvo and Andy Sellars — each of whom is moving on from the Clinic this summer. Dalia, our former Assistant Director, is heading home to Colorado, where she will be closer to family. And, Andy is taking the helm of a brand new tech clinical program just across the Charles River at Boston University, where he and his students will serve BU and MIT students. Both Andy and Dalia will maintain ties to the Berkman Klein Center in 2016-17 as Affiliates, and we know that they will continue to be friends, colleagues, and collaborators in years to come.

In the midst of these changes, we are pleased to report that Vivek Krishnamurthy has been promoted to Assistant Director of the Cyberlaw Clinic and will play a vital role in managing the program going forward. Vivek has also been appointed Lecturer on Law for the coming academic year and will co-teach the Cyberlaw Clinic Seminar with Chris Bavitz. Vivek joined the Clinic in fall 2014, and his diligent work in recent years has significantly expanded the Clinic’s focus on issues relating to human rights, digital civil liberties, and corporate social responsibility. We could not be more excited to have Vivek on board in these expanded roles.

And, as if that weren’t enough excitement on the staffing front…  we’re hiring! Multiple positions, in in fact — a Clinical Instructor and one or two Clinical Fellows. Please help spread the word far and wide as we look to expand our team.

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The Listening Room, Episode 1: A Seat at the Table

Via Harvard Negotiation and Mediation Clinical Program

From a public school to negotiations over the Iran nuclear program to a neighborhood in Baltimore, group decisionmaking is inevitably impacted by who’s at the table—and who’s not. In this inaugural episode of “The Listening Room,” we hear about three very different experiences trying to get individuals to the negotiating table—and what happened once they were there.

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Beginnings in the Judicial Process in Trial Courts Clinic

By Hon. John Cratsley (Ret.)

Twenty-five HLS students, the largest group ever enrolled in the Judicial Process in Trial Courts Clinic and class, have just started their work with judges throughout the Massachusetts trial courts. Their judicial internships include the U. S. District Court, the Massachusetts Superior Court, Boston Municipal Court, Quincy District Court, Boston Juvenile Court and the Land Court.

I am pleased with the variety of placements achieved this year as they both meet the range of student interests and provide for a lively exchange of experiences in the classroom. The four LLM students, including judges from Japan and Korea, further enrich the class with comparative international observations.

Student reflections on their first days with their judges confirm the value of leaving the classroom for the courtroom. Four student comments, each give a different perspective on the value of their clinical opportunity to work with a judge:

  • “I very much enjoyed my first day in court. The judge was incredibly nice to me and impressive on the bench. The trial I watched was complex and emotionally intense.”
  • “This proved a great opportunity to watch lawyers in the courtroom and review their work with a judge. I learned a tremendous amount about how I should act in a courtroom and what proved successful.”
  • “I realized that I’d gained a new-found appreciation for the role of demeanor in helping judges manage their various duties at the head of the court.”
  • “It was totally different from anything I had ever seen before, which was exactly what I wanted in choosing juvenile court; a different perspective on issues that affect children.”

Whether a student gains a new understanding of the judicial role or learns how to be effective in the courtroom, having an inside perspective on the work of the judiciary is a unique opportunity.

Judge John Cratsley (Ret.): A mediation and arbitration champion of the community

Hon. John C. Cratsley (Ret.)

Hon. John C. Cratsley (Ret.)

The Office of Clinical and Pro Bono Programs offers its heartfelt congratulations to Lecturer on Law and Director of the Judicial Process in Trial Courts Clinic, Judge John C. Cratsley (Ret.) on his Community Peacemaker Award.

The award was presented on October 14, 2015 by the Community Dispute Settlement Center (CDSC), a private, not-for-profit mediation and training center dedicated to providing an alternative and affordable forum for resolving conflict. The award celebrates the accomplishments of the mediation community. CDSC also honored the Founder and Executive Director of InnerCity Weightlifting Jon Feinman and the Cambridge Rindge & Latin Mediation Team with similar Community Peacemaker Awards.

Community Dispute Settlement Center’s Profile of Judge John Cratsley 

The Honorable John Cratsley (Ret.) is a mediator and arbitrator in the JAMS Boston Office. JAMS is an internationally recognized ADR firm. His mediations and arbitrations frequently involve business and employment disputes as well as construction and commercial matters.

Prior to joining JAMS in early 2012, Judge Cratsley served on the Massachusetts Superior Court from 1987 to 2011 and on the District Court from 1973 to 1983. In the interim period, 1983 to 1987, he was Chief of the Public Protection Bureau for Attorney General Frank Bellotti. While on the Superior Court, Judge Cratsley served as Regional Administrative Judge in both Suffolk and Norfolk Counties.

Judge Cratsley was instrumental in the passage of the Uniform Rules on Dispute Resolution which were developed during his tenure as Chair of the Supreme Judicial Court’s Standing Committee on Dispute Resolution from 1999 to 2004.

Judge Cratsley currently teaches both at Boston College and Harvard Law School as well as in MCLE and Bar Association continuing education programs. He currently volunteers as a mediator in Suffolk Superior Court for those who cannot afford private mediation. He also serves on the Planning Board and the Community Preservation Committee in his hometown of Concord.

Judge Cratsley is a member of the Board of Directors of Communities for Restorative Justice, a community-based restorative justice program working with police departments in twelve suburban cities and towns. He recently completed two years as one of the five retired judges appointed Special Judicial Magistrates to hear cases resulting from the faulty state drug lab work of the now convicted chemist Annie Dookhan.

On and off the bench, Judge Cratsley’s work continues to reflect his commitment to community peacemaking, an outstanding lifetime achievement.

Criteria Can Solve a Problem, but Delay a Difficult Conversation

Via Harvard Negotiation and Mediation Clinical Program

By Robert C. Bordone

In recent months, the world has been transfixed by the ongoing struggle of migrants and refugees pouring into Europe in search of a better life. The flow of untold migrants into Europe has plunged the continent into a crisis it has not seen since the end of World War II as various European leaders have wrestled with the challenge of integrating these persons into their country and have contended with how many migrants each nation should take. With politicians in Germany and elsewhere calling on each European Union member state to take its “fair share” of the migrants, or to “do their part,” what stands out to me as a negotiation scholar is the perennial question related to criteria for fair distribution: what are the criteria that help us understand the meaning of “fair share?” Insisting on “fairness” is a worthy aspiration, but the devil is in the details.

Negotiation experts typically emphasize the persuasive value of using objective criteria when influencing issues of distribution in negotiation. A common piece of advice suggests that using external criteria in negotiation can serve both as a shield and a sword. By insisting that questions of distribution rely on objective criteria, negotiators can increase the likelihood that a deal will be durable and acceptable to parties over time. Of course, competing criteria exist in many situations, and much of a negotiation often revolves around determining which criteria are most relevant and trustworthy. Similarly, “fairness,” while a widely accepted norm for what makes a successful agreement, is a concept easy to bandy about in academic circles but much more challenging to pin down on the ground.

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Searching For A Leader, Not Just A General

Via HNMCP

Robert C. Bordone & Sara del Nido

Listening to the language that most Presidential candidates have regularly been using in their speeches, it’s hard not to have a bunker mentality: battles, wars, and fights seem to be all around us. From Hillary Clinton to Donald Trump, nearly all the current candidates have engaged in the rhetoric of war to describe their campaigns. Senator Ted Cruz provided an archetypal example of the mindset by asserting during the most recent Republican debate, “We need to stop surrendering and start standing for our principles.” Many media outlets are no better, framing such debates as fights and linking combativeness with perceived strength. The emphasis on “fighting,” “winning,” and “battles” calls to mind a combat mission or boxing match, not an election.

Everywhere we turn, it seems that our politicians are fighting for every possible cause. But against whom? And why?

Truth be told, it’s likely that nearly all of the Presidential candidates aspire to similar fundamental goals – economic and national security, quality education, freedom of expression – albeit with different strategies on how to achieve them. But what gets lost when these differences are persistently framed as zero-sum battles that the President must fight?

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