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Category: Clinical Spotlight (page 1 of 16)

Understanding Victim Assistance and Environmental Remediation under the Treaty on the Prohibition of Nuclear Weapons

Via the International Human Rights Clinic

By Bonnie Docherty

The humanitarian impact of the Treaty on the Prohibition of Nuclear Weapons (TPNW) depends on both its comprehensive ban on nuclear weapons and its obligations to assist victims and remediate the environment affected by use and testing. The former aims to prevent future harm, while the latter addresses harm that has already occurred.

The Clinic is releasing new papers on victim assistance and environmental remediation in order to increase awareness of these elements of the treaty. The short publications provide an overview of the provisions in the TPNW and guidance from other humanitarian disarmament treaties as to how they might be implemented.

The TPNW’s so-called “positive obligations” establish a framework of shared state responsibility for helping victims and cleaning the contaminated environment

During last year’s treaty negotiations at the United Nations, the Clinic worked closely with the International Campaign to Abolish Nuclear Weapons (ICAN), which received the 2017 Nobel Peace Prize. A team from the Clinic, along with advocates from Article 36, Mines Action Canada, and Pace University, played a leading role in ensuring that the treaty included the positive obligations.

Humanitarian Disarmament: The Way Ahead

Via Harvard Law Today

Experts gather to reflect on a growing movement to end the international proliferation of inhumane and indiscriminate weapons

Humanitarian Disarmament: The Way Ahead 1

Credit: Heratch Ekmekjian
In early March, international experts gathered for “Humanitarian Disarmament: The Way Ahead,” the inaugural conference of the Armed Conflict and Civilian Protection Initiative (ACCPI) at Harvard Law School.

Earlier this month, about two dozen international experts gathered for “Humanitarian Disarmament: The Way Ahead,” the inaugural conference of the Armed Conflict and Civilian Protection Initiative (ACCPI) at Harvard Law School.

Drawing on their own involvement in creating international law, conference participants reflected on the development of the humanitarian disarmament movement, which strives to end civilian suffering caused by inhumane and indiscriminate weapons, and discussed where the movement should go from here. Humanitarian disarmament is a key focus of the ACCPI, which formally launched under the leadership of Associate Director Bonnie Docherty ’01 on March 5.

“I was thrilled to have the key players in humanitarian disarmament on campus, and the energy they brought was inspiring,” said Docherty. “It was the perfect way to kick off the ACCPI.”

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One win against weapons could fuel another

Via Harvard Gazette

Successful campaign banning landmines could provide blueprint against nuclear arms, panel says

During "From Landmines to Nuclear Weapons," a panel featuring Steve Goose (from left) and Beatrice Fihn and moderated by Bonnie Docherty of the Law School addressed the origins and evolution of humanitarian disarmament while reflecting on their roles negotiating treaties that ban landmines, cluster munitions, and nuclear weapons.

During “From Landmines to Nuclear Weapons,” a panel featuring Steve Goose (from left) and Beatrice Fihn and moderated by Bonnie Docherty of the Law School addressed the origins and evolution of humanitarian disarmament while reflecting on their roles negotiating treaties that ban landmines, cluster munitions, and nuclear weapons.
Kris Snibbe/Harvard Staff Photographer

When the movement began in 1992, the International Campaign to Ban Landmines was considered quixotic, its proponents unrealistically idealistic, its efforts doomed to fail. Twenty-five years and one Nobel Peace Prize later, more than 180 countries have signed its 1997 treaty, agreeing not only to avoid using the weapons but to help remove them from areas where they have been abandoned and remain a danger to life, limbs, and livelihoods.

Nuclear weapons, now a reality of our modern world, could go the same way, say the activists behind the International Campaign to Abolish Nuclear Weapons. Indeed, humanitarian rights activists say, they must. On Monday at Harvard Law School’s Austin Hall, the anti-nuclear campaign’s executive director, Beatrice Fihn, joined Steve Goose, co-founder of the landmines-ban group and executive director of Human Rights Watch’s arms division, to discuss the origin and evolution of the mine campaign, and how the tactics of the first can be applied to the next.

“Everybody said it was impossible to do,” said Goose, looking back at the long road to the 1997 landmine treaty. “After we finally did it, people said, ‘Oh, that wasn’t that hard. It was a one-off. Circumstances allowed that to happen.’” They also, he reported, said its success could not be replicated.

Monday’s discussion was designed to prove that false. Indeed, this first public event of Humanitarian Disarmament: The Way Ahead (moderated by Bonnie Docherty, associate director of Armed Conflict and Civilian Protection at Harvard Law School’s International Human Rights Clinic) started off by outlining the similarities — and the successes — of other recent campaigns.

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Bonnie Docherty Launches Armed Conflict and Civilian Protection Initiative

Via International Human Rights Clinic

Bonnie Docherty, Associate Director of Armed Conflict and Civilian Protection, talking with colleagues.

The International Human Rights Clinic (IHRC) is thrilled to announce the launch of the Armed Conflict and Civilian Protection Initiative (ACCPI), which aims to reduce the harm caused by armed conflict through targeted advocacy, leadership development, and the generation of innovative solutions.

The ACCPI will be led by Bonnie Docherty, Lecturer on Law and Associate Director of Armed Conflict and Civilian Protection, who is an internationally renowned leader in the field of humanitarian disarmament. Docherty has worked at the heart of almost every major civil society campaign to ban inhumane and indiscriminate weapons, or curtail their use to minimize the impacts on civilians. She was a critical player in the 2008 cluster munitions ban, as well as the nuclear weapons ban, adopted in July of last year.

“Today’s armed conflicts are causing countless civilian casualties, destroying infrastructure and the environment, and driving people from their homes,” said Docherty, who also works as a Senior Researcher in the Arms Division of Human Rights Watch. “This initiative represents a unique opportunity to provide focused support to the movement dealing with these issues, as well as to students interested in making a career in the field.”

Since she arrived at the Clinic in 2005, Docherty has put clinical students at the heart of her advocacy, supervising them on everything from field research in Lebanon to lobbying at the UN. Under her leadership, and through her mentorship, students have gone on to work as field researchersadvocates in peace negotiations, and policy analysts, actively working to protect civilians from the effects of armed conflict.

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Clinic’s case against former Bolivian president for role in 2003 massacre to proceed to trial

Via International Human Rights Clinic

Plaintiffs Eloy Rojas Mamani and Etelvina Ramos Mamani and their children, Rosalia Rojas Ramos, Heide Sonia Rojas Ramos, Nancy Rojas Ramos, Maruja Rojas Ramos, and Marlene Rojas Ramos (named after her sister who died), with Thomas Becker, JD ’08, at top right.

February 20, 2018, Miami, FL – A federal judge has ruled that the former president of Bolivia and his minister of defense must face trial in the United States in a civil case alleging that the Bolivian military massacred more than 50 of its own citizens during a period of civil unrest in 2003. This is the first time that a former head of state will sit before his accusers in a civil human rights trial in a U.S. court. Last week, the judge rejected the defendants’ final effort to avoid trial, denying a motion filed by the former Bolivian president, Gonzalo Sánchez de Lozada, and his former defense minister, José Carlos Sánchez Berzaín, both of whom live in the United States. The trial will begin in the federal court in Fort Lauderdale on March 5, 2018.

“The former president and his minister of defense must now listen as we testify about what happened,” said Teófilo Baltazar Cerro, a member of the indigenous Aymara community of Bolivia, which led the protests where the government security forces opened fire. “We look forward to this historic opportunity to have our day in court.”

In Mamani v. Sánchez de Lozada and Sánchez Berzaín, as detailed in the Court’s February 14 order, the families of eight Bolivians killed filed suit against Sánchez de Lozada and Sánchez Berzaín, alleging that they planned the extrajudicial killings. The lawsuit alleges that, months in advance of the violence, the two defendants devised a plan to kill thousands of civilians, and intentionally used deadly force against political protests in an effort to quash political opposition. In addition to the deaths, more than 400 unarmed civilians were shot and injured.

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Cyberlaw Clinic Year in Review: 2017

Via Cyberlaw Clinic

We in the Cyberlaw Clinic believe that the statute of limitations on year-in-review blog posts expires at the end of the first quarter of the following year. (If you require evidence for this claim, we’ll kindly point you to Orin Kerr’s “Theory of Law.”) With that in mind — as we dig into our newest batch of projects during the Harvard Law School spring term — it seems like a good time to look back and reflect on the past year.  It was — to say the least — an eventful one here in the Cyberlaw Clinic, for students and staff alike.

Students

We had two students enrolled in the Clinic during winter 2017, thirty-four in the spring, and 31 in the fall. Three summer interns ably helped to keep our docket of projects afloat during the summer months. We continued in the mode in which we’ve operated in recent years, with a Cyberlaw Clinic Seminar in the spring and fall complementing the day-to-day work of the Clinic and offering students an opportunity for discussions about substantive and procedural aspects of technology law, including through case rounds focused on our own ongoing projects. We are thrilled that we have been able to scale the program, actively engaging our students and zealously representing our clients as the program has continued to expand.

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Working on real-world issues through the Sports Law Clinic

By Matthew Rosenthal,  J.D. ’19

Matthew Rosenthal,  J.D. ’19

Growing up in New England, sports fandom has been a constant throughout my life. And as my interest in the law grew, I gravitated toward areas of the law that tend to intersect with the world of sports (antitrust, intellectual property, labor, and commercial litigation, to name a few). So when I learned that I would be attending Harvard Law School, I was immediately drawn by the opportunities available to students interested in learning about and working in the sports industry. Among these opportunities (which include the courses taught by Professor Carfagna, the Committee on Sports and Entertainment Law, and the Journal of Sports and Entertainment Law), perhaps the most unique opportunity that the law school has to offer is the Sports Law Clinic.

Through my participation in this clinic, I was able to spend my Winter Term working for the National Football League (NFL) in New York City. Over the course of my clinical experience, I received substantive and challenging assignments from my supervising attorneys. Specifically, I was tasked with a range of assignments that dealt with issues relating to NFL team ownership and stadiums—among the most public-facing and important areas of the league’s business. These assignments required me to apply the skills that I’ve gained in the classroom to real-world issues faced by the most successful professional sports organization in the country. Ultimately, I was able to gain practical, on-the-job experience, while learning from all-star attorneys who have worked their way from law school to the major leagues.

The Sports Law Clinic is perhaps the best program in the country for law students who plan to represent and work for clients in the sports industry. Indeed, my time spent at the NFL proved to be an invaluable complement to my legal education, and the knowledge that I gained during this experience will doubtless carry over into my post-graduation professional endeavors.

Working for a sports league through HLS’s Sports Law Clinic

By Benjamin Roth, J.D. ’19

Benjamin Roth, J.D. ’19

Over J-term, I worked at the NFL headquarters in New York for their legal department. For me it was a dream come true to work at a place that fused together my two passions: legal analysis and NFL football.

The first thing that struck me when I arrived was just how professional and polished everyone and everything in the office was. My name was on my cubicle, I had a standing desk with a dual screen setup, and I immediately met with my attorney supervisor.

She assigned me two principle projects. The first was to redo the law enforcement training module on identifying authentic NFL merchandise. The main point of the assignment was to dress up the power point presentation and to update it, and it was a really great way for me to learn about the security features that the NFL employs to protect its fans and partners, the common ways in which counterfeiters fail to emulate authentic merchandise, and the tricks they utilize to fool unwitting consumers into purchasing the bootleg products.

My second project was to research the current law in China regarding the copyrightable status of a live sports broadcast. This project was especially interesting because it was an entirely different kind of research from what I was taught in law school. There were no cases in Westlaw, so I needed to go to the web and be creative. I had to find English translations of cases and articles and I reached out to a speaker at a symposium on the topic. After focusing on publicity rights in class during the semester, it was fascinating to explore the different system in China. This was a memo unlike any I had written over the summer or in school as it wasn’t predictive or persuasive, and so it felt like I was learning an entirely new skill set.

Whereas those initial projects were somewhat out of the box, legal research and writing wise, my last two projects were much more conventional, and one of them was almost a direct review of Prof. Peter Carfagna’s Sports Law class I took this past semester. I was asked by my supervisor to assist a different member of the legal team by writing two separate memos about the laws regarding trademark and publicity rights in video games throughout the United States. It was a very typical law school memo, with a ton of research on Westlaw and the like. It was really interesting to deal with the issue of publicity rights, given that we had done an entire class on it, and it was intellectually satisfying to see the legal difference between the rights of publicity and a trademark in the law. It was especially interesting to me to be able to deal with a national organization like the NFL, and really get to focus on which circuit might be best for which claim.

In between researching and writing the memos I was assigned, I had a chance to learn from a lot of people in different departments. I met some wonderful people and forged new connections. I also learned a lot about being in-house counsel to a big company, and I got to see firsthand what working for a sports league entailed.

The Cyberlaw Guide to Protest Art

Via Cyberlaw Clinic

In the wake of Trump’s election and the resurgence of political art inspired by movements like the Women’s March, the Cyberlaw Clinic was approached by artists seeking clarification of their rights and responsibilities as creators and activists online. In response, a team of Berkman Klein staff, Clinic students, and allied creative folks created this Guide. It’s in plain language, meant to be accessible and helpful for folks across the political spectrum who are using art to engage in civic dialogue, to minimize their risks and maximize their impact.

We took on this project because art plays a significant role in American democracy. Across the political spectrum, protest art — posters, songs, poems, memes, and more —inspires us, gives us a sense of community, and provides insight into how others think and feel about important and often controversial issues.

While protest art has been part of our culture for a very long time, the Internet and social media have changed the available media and the visibility of protest artists. Digital technologies make it easy to find existing works and incorporate them into your own, and art that goes viral online spreads faster than was ever possible in the analog world. Many artists find the law that governs all of this unclear in the physical world, and even murkier online.

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Cyberlaw Clinic Assists with Amicus Effort in Byrd v. U.S.

Via Cyberlaw Clinic

The United States Supreme Court heard oral arguments last Tuesday, January 9th, in Byrd v. United States, Case No. No. 16-1371.  The case concerns the question of whether a person can assert Fourth Amendment protections in connection with a search of a rental car in which that person was not an authorized driver.  The case raises important questions about privacy in response to law enforcement, including about standing to assert defenses under the Fourth Amendment and about the interplay between private contracts (such as the contract between one renting a car and the rental car company) and Fourth Amendment rights.

The Supreme Court has posted a transcript and audio recording of the oral argument. Helpful reports about the case and argument include:

The Cyberlaw Clinic was pleased to have had the opportunity to support our friends and regular collaborators Restore the Fourth with the drafting of an amicus brief, filed in support of petitioner Terrence Byrd.  The brief focuses on the interplay between contracts and Constitutional protections, arguing that private agreements should not limit Fourth Amendment rights.  Fall 2017 Cyberlaw Clinic students Chloe Goodwin, Matthew Sacco, Devony Schmidt, and Brian Yost worked on the brief alongside Kendra Albert and Vivek Krishnamurthy on the Clinic’s teaching team, and Mahesha Subbaraman, Restore the Fourth’s counsel.

Gaining a global perspective on securities regulation

By Elizabeth Ferrie, J.D. ’19

Photo of Elizabeth Ferrie, J.D. ’19 standing infront of ASIC sign

Elizabeth Ferrie, J.D. ’19

This January, I interned at the Australian Securities and Investments Commission (ASIC) in Sydney, Australia. I was fortunate to have dedicated supervisors and mentors that provided me with a broad range of experiences to enhance my knowledge of international capital markets.

My 3 weeks at the ASIC were a great learning opportunity and instilled in me the importance of a global business perspective. Indeed, most of my assignments involved an intricate understanding of global market structures and coordination with foreign securities regulators in investigations. I performed research and drafted memos on a variety of cases tackling market manipulation. Having taken a Securities Regulation course in the fall provided useful background knowledge since there are many fundamental commonalities in the approaches taken by securities regulators in both the U.S. and Australia. For example, I noticed striking similarities between U.S. and Australian securities laws while helping advise senior attorneys about ASIC’s disclosure obligations to a third party under the Freedom of Information Act. 

I have a strong interest in international law and business, especially as it relates to the Asia-Pacific region. Previously, I spent my 1L summer at a corporate law firm in Seoul, South Korea and I will be working at a corporate law firm in NYC for my 2L summer. However, this was my first experience performing legal work for a government organization and it was incredibly meaningful to gain experience outside of the private sector in a foreign jurisdiction.

For the 15-page paper requirement that accompanies the independent clinical project, I will be writing a paper comparing the approaches of securities regulators around the world in regards to cryptocurrency regulation under the supervision of Professor Kathryn Spier. It is an emerging area and there is notable variation in the approaches of different countries in classifying and regulating cryptocurrencies. I am excited to gain a deeper understanding of this fascinating topic.

Community Enterprise Project Helps Empower Small Business Owners in Boston

By Alex Glancy, J.D. ’19

Caption: Alex Glancy (J.D. ’19) and Michael Trujillo (J.D. ’18) present to a group of community leaders and small business owners in Jamaica Plain about commercial lease basics. This workshop was co-hosted by the Jamaica Plain Neighborhood Development Corporation (JPNDC).

On a winter afternoon, I met with Mehedi* at CVC Unidos, a community center in Boston’s Dorchester neighborhood. Mehedi is a convenience store owner. He has a bright smile and will never let you leave without offering you a soda or water bottle. He was opening a second convenience store and had recently received the lease for that property. CEP was holding office hours, and he came to get legal advice. He handed me the 6-page unsigned lease agreement, filled with dense contract language. I took a deep breath and started reading.

As Mehedi waited for my opinion on his lease, he asked, “So did my landlord give me a good lease?” I began scrutinizing Mehedi’s lease. I noticed a problem. The lease contained a subordination provision, which meant that his lease could be terminated if the landlord’s mortgage lender ever foreclosed on the property. “You could lose your lease if your landlord defaulted on his loan,” I explained. This was a risk Mehedi did not want to take.

During my time in the Community Enterprise Project (CEP), we developed a presentation and corresponding Commercial Leases 101 Toolkit  designed to assist small businesses in Boston and Somerville. To develop these materials, we met with numerous community partners, canvassed commercial districts in Boston (such as the Bowdoin-Geneva area, where I first met Mehedi), and consulted with experienced clinical instructors familiar with real estate law.

Caption: This is a flyer for one of numerous commercial lease workshops held around Boston during Fall 2017. We distributed the flyer throughout Dorchester. This workshop was co-hosted by the Dorchester Bay Economic Development Corporation (DBEDC)

Unlike residential tenants, commercial tenants have virtually no rights outside of their lease. Any rights are described in the lease agreement, so it is important to sign as good a lease as one can. How can small-business owners, especially the poor or non-English speaking, sign better commercial leases? In navigating the Wild West of commercial real estate, they could use attorneys. But even more crucially, they need community organizations that fight for increased economic and political power. We designed our project to assist small business owners one on one, and also to lay the groundwork for systemic change in the ongoing defense against gentrification.

A transactional lawyer is a luxury for the majority of small businesses, including those in low-income communities facing more pressing legal issues, such as lack of housing or public benefits. Retaining a lawyer might seem so unattainable that the thought does not even cross one’s mind. Although transactional lawyers might seem like last priority, their impact can be long lasting. A transactional lawyer knows that you never know until you ask, and can suggest minor changes that make a big impact. As a first step, transactional lawyers remind clients that a contract is a two-way street, with room to create solutions that will benefit both sides.

At the conclusion of our meeting, we advised Mehedi to add a “non-disturbance” provision to his lease, so that the landlord’s mortgage lender could not unilaterally terminate Mehedi’s lease. We also advised Mehedi to delete certain ambiguous provisions. Mehedi planned on signing the next day, and he walked away jolly knowing that he would be better protected. Small business owners like Mehedi should negotiate their leases in this manner.

With rents on the rise, however, a landlord might not be willing to negotiate. Increasingly, landlords are commercial developers with whom it is difficult to forge a personal relationship. In fact, the majority of land in Boston is owned by a handful of these developers.

Thus the community-wide effort to resist displacement is crucial. We often catered our workshops to community organizers working on these systemic issues. In the case of recent evictions of El Embajador Restaurant and De Chain Auto Service, JPNDC and City Life/Vida Urbana, among others, created a campaign to resist displacement of these neighborhood businesses.

A long-term solution will be city or statewide legislation to create more statutory rights and protections for commercial tenants. Students in CEP next semester are planning to collaborate with community groups to devise such a policy proposal and help these community groups push proposals through Boston’s political machine. By forming a coalition of community groups, our goal is to help empower the community as they fight for increased economic opportunities.

*Name has been changed to protect confidentiality

Cyberlaw Clinic files amicus briefs in patent and online privacy cases

Via Harvard Law Today

The Berkman Klein Center’s Cyberlaw Clinic, which provides pro-bono legal services to clients on issues relating to the internet, technology and intellectual property, has written in support of a number of technology cases in recent weeks.

In December, the Clinic filed an amicus brief in the U.S. Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2. The case—commonly known as the “Microsoft Ireland case”—presents the question of whether a search warrant can compel Microsoft to produce to the US government the contents of an email account stored on Microsoft servers in Ireland.

Also in December they filed an opening comment on behalf of the Software Preservation Network and the Library Copyright Alliance, asking the Library of Congress to grant an exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technology protection measures in order to preserve software and software-dependent materials (digital files that require on software access to be readable).

Last week they helped file an amicus brief with Professor Bernard Chao of the University of Denver Sturm College of Law on behalf of eighteen intellectual property law professors, supporting petitioners’ request that the Supreme Court review a decision of the US Court of Appeals for the Federal Circuit.  That decision—Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017)—awarded patent damages against petitioners. But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits.

For more information on these and other Cyberlaw Clinic endeavors, visit their blog.

Advocating for those without a voice

By Kate Barnekow, J.D. ’19

Kate Barnekow, J.D. ’19

I came to law school because I wanted to help those whose voices are often not represented in the legal system. As a longtime supporter of the animal protection movement, I was thrilled as a 1L to discover HLS’s Animal Law and Policy Program and, subsequently, learn about all of the ways we can help animals—who are still considered property in the eyes of the law—through the legal system. Once I committed myself to a career in animal law, and particularly after a summer spent working with an animal rights organization, I was eager to continue learning from attorneys in the field. Because HLS does not currently have a dedicated animal law clinic, I was excited to learn that I could work for an existing animal protection organization for clinical credit during the academic year through the Independent Clinical Program.

I have been working with the legal team at Compassion Over Killing (COK), a national nonprofit animal advocacy organization that focuses on cruelty to farmed animals used in agriculture. Last semester, I worked on a wide range of projects, researching state criminal law and pending federal legislation, conducting factual research, and helping to brainstorm new approaches to ensure the safety and welfare of farmed animals, as well as the workers who come into contact with them. One of the issues my work touched on was an ill-conceived policy proposal to raise line speeds to levels that present unprecedented and unacceptable risks to both animal welfare and worker safety.

As many law students will tell you, the work you do in law school on a daily basis is often not representative of what you will do after graduation—or of the reason you came to law school in the first place. For those reasons, my time working with COK was invaluable. It has further honed my research and writing skills, as well as introduced me to a wide range of field-specific laws and regulations and ways of thinking about the law, all while allowing me to put into practice the reason I came to law school: to work for the protection of those without a voice in the legal system.

Cyberlaw Clinic Supports Supreme Court Amicus Effort on Patent Damages

Via Cyberlaw Clinic

The Clinic was pleased to have had the opportunity to work with Professor Bernard Chao of the University of Denver Sturm College of Law on an amicus brief that Professor Chao filed in the United States Supreme Court this week.  The brief, submitted on behalf of eighteen intellectual property law professors, supports petitioners’ request that the Supreme Court review a decision of the United States Court of Appeals for the Federal Circuit.  That decision – Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017) – awarded patent damages against petitioners.  But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits. 

The brief points to a long line of precedent describing how patent damages should be apportioned – evaluating “the profits that the patent holder would have made but for the defendant’s infringement” and then “apportion[ing] the calculated profits between those attributable to the infringing features of the product, and those attributable to other, non-infringing, features.”  Amici argue that the Federal Circuit’s decision below is legally deficient (insofar as it fails to follow this precedent) and represents bad patent policy (insofar as it may adversely impact high-tech defendants, which develop products covered by hundreds or thousands of patents, and improperly overcompensate patentees).

Fall term Harvard Law School Cyberlaw Clinic students Brian Lebow and Ben Shiroma worked with Chris Bavitz in the Clinic, and with Professor Chao, on the brief.

The Nobel Peace Prize Celebrations: Recognition and Reinvigoration for Humanitarian Disarmament Advocates

Via International Human Rights Clinic

By Bonnie Docherty, Associate Director, Armed Conflict and Civilian Protection and Lecturer on Law

ICAN Director Beatrice Fihn speaks at 2017 Nobel Peace Prize ceremony in Oslo City Hall. Photo credit: Ralf Schlesener.

On December 10, 2017, at 1 p.m., uniformed musicians on the grand staircase of Oslo City Hall brought their gleaming trumpets to their lips and the audience to its feet. The clarion salute they sounded heralded the arrival of the king and queen of Norway and a new era of nuclear disarmament.

In front of dignitaries, diplomats, and dozens of civil society campaigners, myself included, the International Campaign to Abolish Nuclear Weapons (ICAN) received this year’s Nobel Peace Prize.

The award honors ICAN for having “given the efforts to achieve a world without nuclear weapons a new direction and new vigour.” In particular, the prize recognizes the civil society coalition’s “ground-breaking” work to realize a treaty banning nuclear weapons.

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Cyberlaw Clinic Files Brief for UN Special Rapporteur in Microsoft Ireland Case

Via Cyberlaw Clinic

On December 13, 2017, the Cyberlaw Clinic filed an amicus brief in the United States Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2.  The case – commonly known as the “Microsoft Ireland case”– presents the question of whether a search warrant issued in the United States pursuant to a U.S. statute (the Stored Communications Act, 18 U.S.C. § 2703) can compel Microsoft to produce to the U.S. government the contents of an email account stored on Microsoft servers in Ireland.  The Supreme Court is hearing the case this term on appeal from a decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which held that the U.S. could not enforce a warrant seeking digital information stored on overseas servers.

The Clinic’s brief on behalf of Special Rapporteur Cannataci supports neither party with respect to the question of domestic law at the heart of the case.  But, it offers important context about Internet jurisdiction and places the right to privacy in its proper context against the backdrop of global human rights laws and norms.  Specifically, the brief urges the Supreme Court “to recognize the universality of the right to privacy, as first recognized in New York on December 10, 1948 when the U.N. General Assembly adopted the Universal Declaration of Human Rights.”

The brief goes on to note that, because of the complexities associated with applying traditional international law principles of territoriality to online privacy, there are no easy answers to the questions raised in this case.  Moreover, a sweeping ruling from the Court could have significant repercussions on international efforts–including those already underway–to develop streamlined processes that balance competing interests in scenarios like the one presented by this case.  In light of those efforts, we argue on behalf of Special Rapporteur Cannataci, the Court should rule narrowly and thereby “respect the privacy interests of other nations and foster international cooperation.”

Mason Kortz and Vivek Krishnamurthy on the Cyberlaw Clinic team worked with fall 2017 Clinic students Osvaldo Galeano-Gamera, Devony Schmidt, Jon-Paul Berexa, and Levi Barry – along with Special Rapporteur Cannataci – on the brief.

Software Preservation Comments Filed in 1201 Rulemaking

Via Cyberlaw Clinic

image of blurred, close up code running on a computerBack in December, the Cyberlaw Clinic filed an opening comment in the seventh triennial proceeding for exemptions to the anti-circumvention clause. The comment, on behalf of the Software Preservation Network and the Library Copyright Alliance, asks the Library of Congress to grant an exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technology protection measures in order to preserve software and software-dependent materials (digital files that require on software access to be readable).

As software becomes the default method of production for more and more artistic and cultural works, preserving it gains vital importance, both for the continued longevity of cultural objects, and for the study of software itself. Existing legal alternatives, such as seeking licenses or permissions from rightsholders, have proved insufficient to tackle the substantial problems of preserving software and software dependent materials. To put it simply, digital preservationists need an exemption to anti-circumvention law in order to ensure that software is available to future generations.

Students Evelyn Chang, Jillian Goodman, and Anderson Grossman researched and drafted the comments. As discussed previously on the blog, the digital preservation petition is one of 22 new exemptions being requested in the 2018 rulemaking petition. Opposition comments will be due in February 2018, and the Library of Congress’s final rule is likely be released by next fall.

You can read the full comment, as well as user stories from digital preservationists, here.

Harvard Law students travel across the world in pursuit of clinical work

This winter term, over a hundred students have traveled to 62 cities across the world to pursue clinical projects with governmental agencies, legal services organizations, non-profit organizations and the judiciary.

Students can engage in clinical work with outside organizations through HLS’s Independent Clinical Program and Externship Clinics.  Through the Independent Clinical Program students have the opportunity to be entrepreneurial and design a placement that will meet their individualized learning goals. This semester, students have designed a wide range of projects focusing on issues such as community economic development,  domestic violence, international human rights, consumer rights, and voting rights located in 26 states across the US and 22 countries worldwide.

Through Externship Clinics, students can also participate in on-site clinical work at hundreds of organizations across the United States. This semester they’re working with the Attorney General Offices in California, Iowa, New York, and Ohio; organizations such as the Office of the Federal Public Defender (Sacramento, CA), The Capital Appeals Project (New Orleans, LA), American Civil Liberties Union (Durham, NC); and private entities such as the Kraft Group (Foxborough, MA),  Nashville Predators (Nashville, TN), and the National Football League and Brooklyn Nets (New York, NY). These experiences are further enriched in the classroom through discussions and reflections.

United States Countries Worldwide
Ann Arbor, MI Las Vegas, NV Abuja, Nigeria
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Tax Clinic Student Amy Feinberg ’18 argues in the U.S. Court of Appeals for the Fourth Circuit

Via Harvard Law Today

In December, Amy Feinberg ’18 became the second Federal Tax Clinic student to argue an appeal in a federal circuit court since the Clinic opened at Legal Services Center of Harvard Law School in 2015.

For Feinberg, appearing before the U.S. Court of Appeals for the Fourth Circuit was also the first time she had ever been in a courtroom. Second on the docket that day, she had to wait nearly an hour to put forward her client’s case, even though Feinberg was “hyped and ready to go” almost since she arrived in Richmond, VA., the night before.

Clinical Professor of Law Keith Fogg, who directs the Federal Tax Clinic, notes that many attorneys can be practicing for 10 or more years before they get the kind of experience that Feinberg, and her predecessor Jeff Zink ’17, have gotten while enrolled in the Clinic.

Other students in the Clinic have had the opportunity to file amicus briefs and help prepare appeals for court.  All students work directly with clients and carry a docket of cases. And almost all have the opportunity to negotiate directly with the IRS and state tax authorities – experiences that many lawyers seldom get.

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Interning at the Federal Public Defender Office

By Veronica Saltzman J.D. ’19

Portrait photo of Veronica Saltzman J.D. '19

Veronica Saltzman J.D. ’19

This semester, I interned at the Federal Public Defender Office for the District of Massachusetts. Going into this internship, I hoped to get an in depth look at the criminal justice system at the federal level. Since I will be interning at a state public defender office over winter term, I wanted the chance to compare federal and state systems.

On the first day of my internship, I immediately felt welcomed by the office. My supervising attorney introduced me to every attorney in the office and made sure I was given an assignment immediately. My first assignment (and several other assignments later in the semester) involved researching how certain judges sentenced defendants pleading guilty to particular charges. In some cases, my research involved sentencing in firearms cases; in others, I delved into financial fraud cases. The purpose of these assignments was to present information to clients trying to decide whether to accept a more definite plea deal from the prosecutor, or opt for an open plea deal and leave sentencing to the judge. Working with the attorneys on these projects, I started to understand how difficult it is for an attorney to convince a client to accept what are often lengthy sentences to avoid the uncertainty of judicial sentencing. In addition to research on sentencing, some of my other assignments included writing a letter to a prosecutor requesting pretrial diversion for a client and crafting a memo on habeas law to advice an attorney on whether our client could submit an amended habeas petition. In particular, the habeas memo forced me to learn an entirely new area of law and improved my researching and writing skills as I sorted through complex legal issues.

The most exciting part of my internship was working down the street from the federal courthouse. My supervising attorney constantly encouraged me attend court proceedings. Early in the semester, I visited one of our clients in lockup with an attorney before attending his pretrial release hearing. As the semester went on, I also attended several sentencings. At one, I witnessed the court deport a woman my age and saw ICE agents take her away. At another sentencing involving sex trafficking, I observed intense victim impact statements and an emotional allocution. Finally, I got the chance to attend oral argument at the First Circuit and see a variety of strategies in appellate advocacy.

My internship at the Federal Public Defender Office increased my knowledge of federal criminal law and procedure immensely. I appreciated the opportunity to work with fantastic attorneys and gain experience by working on important tasks and witnessing intense moments during the criminal justice process.

Project on Predatory Student Lending releases report on Veterans complaints about Kaplan Schools

Via Project on Predatory Student Lending 

For-profit colleges have exploited the promise of higher education by deceiving tens of thousands of students seeking a better life. One of the groups the for-profit industry has particularly targeted are veterans and servicemembers.

That is why the Project on Predatory Lending represented the Veterans Education Success organization to prepare a new report outlining the predatory actions of one for-profit institution, Kaplan Colleges and University, against veterans and servicemembers.

VES collected complaints from nearly 100 veterans who attended Kaplan-owned programs. Their complaints include things like:

  • Raising the costs on veterans once they enroll and failing to inform them of additional fees;
  • Misleading veterans about their military benefits covering the tuition costs, resulting in unexpected and burdensome debt; and
  • Borrowing money on behalf of veterans without their consent.

Unlike the for-profits colleges that are forced to shut down when their fraudulent behavior is exposed, Kaplan is still an active and functioning college. In fact, Kaplan University was just purchased by Purdue, a public university in Indiana, to conduct its online programs. And the Department of Education just approved this transaction, which will remove some of the protections for borrowers and taxpayers that apply only to for-profit schools not conducting business under the auspices of public entities.

We hope you will read the full report to understand the extent of the predatory behavior by Kaplan.

Click here to read the report.

Military servicemembers and veterans deserve our respect and gratitude. And, like all students, they deserve to seek higher education without facing fraudulent and unscrupulous companies trying to extract federal funds. Kaplan’s actions run directly counter to that. It’s time for the government to step in to help, or they too will have failed in their duty to support veterans who have sacrificed so much for us all.

My time at the International Human Rights Clinic

Photo of Salomé Gómez Upegui LL.M. '18 sitting at a desk

Salomé Gómez Upegui LL.M. ’18

By Salomé Gómez Upegui LL.M. ’18

I believe in law as an instrument for social change, and I came to Harvard interested in focusing on that. A year is not much time, and as any LL.M. student can confirm, we all suffer from “fear of missing out”.  I’m happy to say the International Human Rights Clinic, was perfect to curb this fear. In a short time I was able to do so much more than I expected. It was a unique opportunity for hands-on learning, while engaging in public service, and making a difference.

Women’s rights are something I particularly care about, and when I got into this clinic I was eager to learn more about how International Human Rights Law is relevant to feminism. Thankfully, I joined Salma Waheedi’s team for a project on this subject, and my expectations were exceeded. We worked in coordination with Musawah, an NGO advocating for equality of Muslim women. In this project, creative thinking was at the center; using comparative law, alternative interpretations of Islamic law, and human rights standards, we drafted thematic shadow reports on women’s rights for the Committee of the Convention on the Elimination of all Forms of Discrimination Against Women. I had the opportunity to travel to Geneva and participate in the 68th CEDAW Session at the United Nations, where the reports we drafted where presented. This trip was a rare chance to network and learn first-hand how international institutions, governments, and NGOs serve to advance (or sometimes set-back) feminist agendas.

The International Human Rights Clinic allowed me to strengthen fundamental lawyering skills. I especially enjoyed learning innovative advocacy strategies, and I have to say I was happily surprised by the people I met. Working alongside individuals with such passion and dedication to human rights was the highlight of this experience. I felt part of something meaningful from day one, there is a real sense of community, and the value of teamwork is constantly stressed. In a world where individuality is the rule, this was an exceptionally wonderful learning environment, and I’m so grateful to have been part of it.

Advancing human rights in the Middle East

Portrait photo of Zeineb Bouraoui LL.M. '18

Zeineb Bouraoui LL.M. ’18

By Zeineb Bouraoui LL.M. ’18

Following the escalation of the Syrian Civil War in 2012, I began working for the Syrian American Medical Society in Washington DC, assisting Syrian refugees in emigrating to the United States, mainly through public policy initiatives. This experience greatly influenced my desire to apply to law school. I was craving the opportunity to acquire effective tools that would allow me to fight back against the injustices that outraged me and to advance economic and social equality in my native region, the Middle East and North Africa.

At Sciences Po Law School, I focused my studies on international investment law and economic development, and graduated in 2016 with a masters’ degree in Economic Law and Global Business Law and Governance.  I then started working at the Organization for Economic Cooperation and Development in Paris, working on policy coordination efforts in order to help governments resist protectionist pressures and develop effective policies to respond to legal concerns raised by international investment.

It was especially important to me to pursue my commitment to advance human rights in the MENA region at Harvard Law School, leveraging the numerous tools that the university provides to its students, in order to conduct the most effective research, and hope to have the most effective impact on the region. 

At the International Human Rights Clinic, I am working on the Yemen project. My team, led by Salma Waheedi, is contributing to a Human Rights Watch report on the growth of the missing file in Yemen. Since 2014, Yemen has become home to one of the most violent non-international armed conflicts in the world. Egregious human rights violations are being committed there on a daily basis. My team focuses mainly on investigating detention-related abuses currently being carried out by all sides to the conflict. We are in the process of mapping the network of secret prisons, and outlining the human rights abuses committed in them. We will then determine the international legal obligations of state and non-state actors involved in the conflict, and investigate enforced disappearances and extra-judicial killings.

The Clinic constituted an eye-opening experience to me, allowing me to understand firsthand the challenges that human rights lawyers and activists are routinely facing with funding, media outreach and advocacy, or even the simple act of gathering accurate and reliable information. It was particularly challenging to work on a non-international armed conflict, as raising awareness on a conflict happening on the other side of the world, with very little interest for the United States can be at times frustrating.

I particularly enjoyed conducting in-depth factual research and interacting with local Yemeni NGOs such as Mwatana, which are doing an incredible job in producing exhaustive accounts of the human rights violations committed throughout the course of the civil war, often at the peril of their lives.

My Experiences in the Cyberlaw Clinic: Expectations Met and Exceeded

By Niklas Andree LL.M. ’18

Participating in the Cyberlaw Clinic was one of the great opportunities that attracted me to pursue my LL.M. degree here at HLS. Upon finishing law school in my home country of Germany, I figured the best way to enhance my academic experience abroad would be to not only focus on the areas of law that I am most interested in — legal education in Germany follows a very broad approach, with wide-ranging basic knowledge being taught rather than specializations in certain fields — but also gain practical real-world experience. The Cyberlaw Clinic promised to offer exactly that, the chance to work on cutting-edge legal matters related to the Internet and technology, as well as learn about today’s major issues of tech advocacy and policy in the accompanying seminar.

The projects I worked on range from very specific questions of copyright law to contributions in a large-scale undertaking of software preservation. As a result, I’ve learned about problems people face in today’s digital age that I had never heard of before. For example, librarians, archivists and academics are being confronted with the issue that their valued digital records may be inaccessible because of outdated software programs, raising the need to preserve such software for future generations. In this project, I had the opportunity to contribute my own ideas and solutions and play a part in an important initiative.

Working in the Cyberlaw Clinic has been a fun and interesting experience. Through my involvement in projects I’ve been able to gain deeper insights into the substantive areas of the law and develop new skills, not only by collaborating and communicating with my team but also by managing tasks independently.  Being self-reliant and able to schedule working hours and deadlines independently is important and something I expected to hone during the semester. Beyond that, the most valuable skill I’ve gained is handling projects and clients on my own. The Cyberlaw Clinic gave me the opportunity to take increasingly more responsibilities in the development of the case/project. This is true for all clinic students: after working closely with supervisors at the beginning, they soon get to communicate with clients and later set up meetings and lead discussions with clients by themselves – valuable opportunities certainly not many internships or even first-year contracts would offer.

Informed Imbibing: Closing the Regulatory Gap in Nutrition and Ingredient Information Labeling for Alcoholic Beverages

By Tammuz Huberman J.D. ’19, student in the Food Law and Policy Clinic

Let’s say you’re a health-conscious consumer at the grocery store deciding on a beverage to purchase. Maybe you glance at the familiar “Nutrition Fact” panels on food and beverage packages to help you decide what to buy. Bottled water displays zero calories, a can of Coke shows 150 calories, and the average protein shake about 250 calories. Wine? Beer? You’re out of luck: most alcoholic beverages are not required to display nutrition or ingredient information. This makes them virtually the only ingestible consumer products not required to disclose comprehensive product identity or quality information.

While the Food and Drug Administration (FDA) instated mandatory labeling rules requiring use of a standard Nutrition Facts Panel and ingredient list, among other things, following the passage of the National Labeling and Education Act of 1990, alcohol is strangely regulated by a different agency – the Department of Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB). TTB oversight of alcohol traces back to the Federal Alcohol Administration Act, passed by Congress in 1935 following the end of the Prohibition Era. Recognizing the tax revenue potential of alcoholic beverages, Congress assigned their regulation to the Treasury Department rather than the FDA. TTB has not adopted a comprehensive labeling regime akin to the FDA’s; as a result, alcoholic beverages fail to provide much in the way of product identity or quality information beyond alcohol content disclosures.

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Project on Predatory Student Lending’s Director of Litigation, Eileen Connor, selected for the 2017 “Rising Star” award from the National Consumer Law Center

Via Legal Services Center

The Project on Predatory Student Lending’s Director of Litigation, Eileen Connor, has been selected for the 2017 “Rising Star” award from the National Consumer Law Center for her significant contributions to consumer law. Eileen’s award comes as a result of her Second Circuit victory in the case Salazar v. King. Her clients were defrauded by the predatory practices of the now-defunct Wilfred Beauty Academy.

Wilfred, a for-profit chain of cosmetology and business trade schools, came under government investigation in the 1980s for the misuse of student aid funds and the falsification of loan applications. The result of the investigation was an overwhelming amount of evidence proving Wilfred’s fraud in certifying students’ eligibility for loans. In 1996, the Department of Education found that Wilfred’s fraudulent practices were widespread and recommended that all Wilfred students who were improperly enrolled receive a loan discharge, reimbursement for money they had paid, and a restoration of their credit. Despite its own recommendation, the Department continued to collect on these loans, including through involuntary collection methods such as seizing tax refunds and garnishing wages.

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Native leader, legal beacon

Via Harvard Gazette

Julian SpearChief-Morris is the first indigenous student to head Harvard Law School’s venerable Legal Aid Bureau

Portrait photo of Julian SpearChief-Morris

Jon Chase/Harvard Staff Photographer
Julian SpearChief-Morris is the first indigenous president of the Harvard Legal Aid Bureau, the country’s oldest student-run organization providing free legal services, in its 104 years.

Growing up in the mostly white city of Lethbridge in southern Alberta, Canada, Julian SpearChief-Morris often felt out of place.

With an African-American father from Los Angeles and a Canadian mother from the Blood reserve, one of the four indigenous nations that make up the Blackfoot Confederacy, SpearChief-Morris found it hard to feel completely at home either at the reserve or in the city where he was raised.

“It was pretty difficult, especially in high school, because there weren’t many people who looked like me, or came from a background like mine,” he recalled. “I often felt I didn’t fit in.”

But after graduating from a local college and coming to Harvard Law School(HLS), with its diverse student body, SpearChief-Morris felt right at home. And when he was admitted to the Harvard Legal Aid Bureau, one of the three honor societies at the School, he found a family. It’s a place that SpearChief-Morris has made his own.

In his last year at the School, SpearChief-Morris has left a mark in the storied history of the organization, which was founded in 1913 to provide legal services to low-income clients in the Boston area.

He is the first indigenous student to lead the bureau.

Like the Harvard Law Review and the Bureau of Student Advisers, the bureau is a highly selective organization that has featured among its members former first lady Michelle Obama, J.D. ’88, former Massachusetts Gov. Deval Patrick ’78, J.D. ’82, and former Attorney General Loretta Lynch ’81, J.D. ’84, all of whom represented low-income clients before the courts.

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Clinic Releases Joint Report on Challenges and Significance of Documentation for Refugees in Nairobi

Via International Human Rights Clinic

The International Human Rights Clinic and the Norwegian Refugee Council (NRC) Kenya released a report today in Kenya detailing the challenges refugees in Nairobi face in obtaining the official documentation needed to secure their status and identity, as well as the significance of documentation to their daily lives. Most of the nearly half a million refugees in Kenya live in refugee camps, but approximately 64,000 live outside the camps, in Nairobi.

report coverThe report, “Recognising Nairobi’s Refugees,” highlights refugees’ experiences in Nairobi with registration and refugee status determination – processes that lead to documentation. The challenges refugees described included stalled or suspended processes; inconsistency in requirements and information; substantial delays in receiving documentation; and confusion about the next steps to take in a process. The report relies on interviews with more than 30 refugees living in Nairobi, as well as with representatives of local and international non-governmental organizations; the Office of the United Nations High Commissioner for Refugees; and the Kenyan government’s Refugee Affairs Secretariat.

In interviews, refugees described the critical importance of documentation to establishing a sense of security in the lives, as well as to proving their identity in official and informal settings. Without documentation, many reported frustration, stress, and even a feeling of hopelessness. Refugees lacking documentation also reported problems with police, such as harassment, which in turn led them to restrict their movements.

In their joint report, the Clinic and NRC recommend that, among other things, the Government of Kenya should continue to register refugees living outside camps; recognize refugees’ right to freedom of movement within the country; produce and widely disseminate clear guidance on registration and refugee status determination procedures; and undertake measures, such as training of relevant officials, to ensure refugees can live without fear or restriction in the city.

Today’s report is part of the Clinic’s ongoing focus on legal identity and refugee documentation. In previous years, the Clinic has collaborated with NRC to examine the challenges and significance of documentation – such as birth certificates and ID cards – for Syrian refugees living in Jordan.

Is VA Wrongfully Excluding Hundreds of Thousands of Veterans from Needed Care

Via Veterans Legal Clinic

In a publication of the Penn State Law Review, Dana Montalto of the Legal Services Center of Harvard Law School, along with colleague Bradford Adams of Swords to Plowshares, provides a legal history and analysis of how the Department of Veterans Affairs (VA) determines who is eligible for basic health care and support services – and who should be excluded.  Although the 1944 GI Bill of Rights makes clear that only those veterans who “engaged in severe or repeated misconduct without explanation” should be barred from receiving benefits, Montalto and Adams argue that the VA incorrectly interprets the law, thereby unfairly preventing hundreds of thousands of former service members from receiving needed benefits.

Since World War II, the VA has been required to provide veterans’ benefits to all service members who left under conditions classified as “other than dishonorable,” so that only those who received or should have received a “dishonorable discharge” should be barred.  Service members who engaged in less severe misconduct, who were experiencing mental illness, or who suffered from other hardships should still be eligible for benefits.  Montalto explains that the VA has improperly implemented Congress’s statutory standard, excluding former service members for minor disciplinary problems during service and failing to consider extenuating or mitigating circumstances.

Montalto and Adams propose that the VA adopt a more holistic approach when determining whether a veteran is eligible for benefits.  Some changes to the VA’s eligibility review procedure could include starting with a presumption of eligibility instead of ineligibility for former service members, including a consideration of positive or mitigating factors in each eligibility case, and providing access to basic healthcare while eligibility reviews are pending.

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For more information regarding the Veterans Legal Clinic’s advocacy on behalf of veterans with bad paper discharges, read the following publications:

Underserved

Petition to amend regulations restricting eligibility for VA benefits based on conduct in service

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