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HNMCP Celebrates 2019 Art Award Winners

via HNMCP

The Harvard Negotiation & Mediation Clinical Program (HNMCP) is pleased to celebrate the winners of its 6th Annual Art Award Contest. The purpose of this annual award is to honor artists who, through their creative expressions, contribute to the work of conflict resolution and peacemaking.

As a clinic, HNMCP seeks to explore challenging interpersonal dynamics leading to conflict and build community around the honing of skills associated with effective dispute resolution.

Given our dedication to the creation of an environment conducive to those goals, we hope that our physical office space is reflective of our values as well as the ambitions we have for our work.

We believe that art has the power to illuminate what connects all of us and to encourage the engagement of empathy. We are fortunate that the artwork detailed below will be on display in our offices for the remainder of the academic year, and in the case of a couple of the pieces, join our permanent collection.

Please visit our offices on the fifth floor of Pound Hall (P513) in the coming weeks to join us in appreciating these awe-inspiring works of art!

 

2019 Winners

Allow Me To Flower One More Time/ Déjame Florecer Una Vez Más”

Painting depicts a large colorful mural. Paintings in the middle show the stages of the undocumented immigrant experience. Images include an angel, a heart with flowers growing out of it, butterflies, a city skyline, hands tearing a heart in half. Smaller rectangular paintings surround the large centerpiece, each with a separate image. Images include flags, a sunset over an ocean, a camera, hearts.

About the Piece: This mural was designed and painted by undocumented, unaccompanied Central American minors currently detained in a maximum security prison in the United States. The mural is the outcome of a six- years art in prisons project that artist Claudia Bernardi has been facilitating, reaching Central American incarcerated minors who had been detained at the US/ Mexico border.

About the Artist: Claudia Bernardi, socially engaged and community-based artist, printmaker and installation artist, whose artwork is impacted by the effects of war and political violence. Born in Argentina, Bernardi endured the military junta (1976-1983) that caused 30,000 “desaparecidos”. Bernardi participated with the Argentine Forensic Anthropology Team in exhumations investigating human rights violations against civilians. This experience impacted her commitment to community arts. In 2005, Bernardi created the School of Art in Perquin, El Salvador, a community-based art project replicated in Colombia, Mexico, Guatemala, Argentina, Switzerland, Germany and Northern Ireland. Bernardi is Professor of Community Arts, Diversity Studies and Critical Studies at the California College of the Arts.

Lina

A portrait of a Syrian woman with her arms wrapped around herself. She is wearing a colorful floral print dress. The background behind her is a blue map showing the aerial view of Aleppo.

About the Piece: This artwork is a digital reproduction of Lina 2018, a pastel, gunpowder & powdered graphite drawing of a Syrian woman framed by an aerial view of Aleppo. This work is a companion piece to the artist’s video and mixed-media series, ‘Forced to Flee’, inspired by one woman’s escape from Syria and her ongoing effort to find a safe home for herself and her family. The artist hopes to humanize the abstraction of the crisis in Syria and to communicate her subject’s struggle, courage and tenacity with her work.

About the Artist: Linda Bond is a Resident Scholar at the Brandeis Women’s Studies Research Center and a former faculty member of the Massachusetts College of Art & Design. She was recently awarded a grant from the Chenven Foundation and in 2017 was awarded grants from the Pollock Krasner Foundation and the Puffin Foundation. Her exhibitions include Kean University, Brandeis, Simmons, Southern New Hampshire University, B’NK’R Munich, Germany, Museo de Arte de Zapopan, Jalisco, Mexico, the MFA in Boston, Brattleboro Museum, Art Complex Museum, Fitchburg Art Museum, and the Corcoran Gallery. Her upcoming solo exhibition at Drexel University in Philadelphia will open in April 2020.

Mutuality

Two photos are shown side by side. The photo on the right shows an elderly man pouring something into a bowl as a young boy stands beside him holding a lit candle. The rest of the room is dark. The photo on the right depicts two young children, a girl and a boy, in a dark room looking at a candle that burns bright on a table.

About the Piece: Swiss photographer, Saskia Keeley, runs photography workshops in which participants unpack decades of fear and bias through the simple yet profound acts of looking and listening. She is exploring where these workshops can be helpful in global conversations toward peace and coexistence. Since 2016, Keeley has brought together Israeli and Palestinian women for photo workshops at the Roots Center on Israel’s West Bank.

The Roots Center was founded by a Palestinian peace activist and two rabbis for the purposes of promoting dialogue and understanding between Israelis and Palestinians who live in neighboring towns and villages. Saskia’s workshops provide an opportunity for Israeli and Palestinian women to have real contact with one another through a personal interaction. After each session, the participants bring the cameras home to photograph details of their life settings. The objective is for them to capture specific moments that are special and meaningful to them

In between sessions during a recent workshop, a threatening post on Facebook denounced the Palestinian coordinator for his connection to Roots, calling him an instigator and a “Jew collaborator.” The escalating provocations and threats caused great distress and the Palestinian participants were too scared to return. Saskia retrieved the cameras that had been in the women’s homes for 48 hours.

Out of fear of reprisal for this brief encounter with the Israelis, half of the Palestinian women had erased all the images from the memory cards. But in one of the cameras, the anonymous photographer captured the setting she saw a few days prior in the workshop, in the Havdalah photo. From memory, she replicated the image in all of its aspects: subject matter, emotion, and composition. The result is a similar moment in an Israeli home and a Palestinian one.

About the Artist: Saskia Bory Keeley is a Swiss photographer, educated at Geneva University, Sotheby’s, and the New Academy for Art Studies in London. She trained at the International Center for Photography in New York City and is enrolled in the Interspiritual Counseling Program (ISC), a 3-year training at the leading edge of the newly emergent field of Interspiritual Counseling (One Spirit Learning Alliance—NYC).

Saskia runs the Accompagnateur Workshops, photography workshops in which participants unpack decades of fear and bias through the simple yet profound acts of looking and listening. She is exploring where these workshops can be helpful in global conversations toward peace and coexistence (working with NGOs like Roots and Taghyeer in the West Bank) and within divided communities (collaborating with NGOs like Pico Union Project in Los Angeles and the Women’s Prison Association in New York City).

 

Founded in 2006, the Harvard Negotiation & Mediation Clinical Program focuses on cutting edge work in dispute systems design, negotiation, mediation, and facilitation.

Our clients are U.S.-based and international and include private corporations, non-profit organizations, government agencies, and community groups. Our students develop critical problem-solving skills, apply theory to practice, and deliver tailored conflict management solutions to our clients.

Why Maine’s Ranked-Choice Voting Could Go National

A voting ballot it spread out neatly on a table, with a pen to the left.

Set of voting ballot ready to be send.

Via Campaigns & Elections

By Peter Brann

For many years, Maine’s gubernatorial election was held in the September of presidential election years. That made it a bellwether for the subsequent presidential election two months later — leading to the phrase, “As Maine goes, so goes the nation.”

Maine no longer conducts its gubernatorial election in September or even in presidential years. But Maine has taken the lead in a new way. In 2018, Maine became the first state in the country to conduct federal congressional elections using ranked-choice voting. Our experience shows that voters can and will embrace new ways of conducting elections, which could help improve voter turnout.

Indeed, Maine saw more than 47 percent of its eligible voters cast ballots in the first general election using ranked-choice voting — a half-century high for midterm elections and substantially higher than the national average.

For instance, in Maine’s second congressional district, incumbent Republican Congressman Bruce Poliquin won a plurality, but not a majority, of the first-choice votes in the 2018 general election. When the lower-ranked candidates were eliminated and their second-choice selections were counted, Democrat Jared Golden won a majority of the votes and was declared the winner.

As the lawyer who successfully defended Golden in the federal constitutional challenge to his election, I believe that Maine could be the ranked-choice voting bellwether for other states. The 2018 election proved that it not only works quite well, but that it is court-tested.

Historically, court challenges to ranked-choice voting almost always fail and the same held true in Maine. In the three state court and two federal court challenges to ranked-choice voting the courts rejected every constitutional and statutory objection to its use in congressional elections, and its use in state primary elections.

This includes equal protection, due process, free speech, freedom of association, the constitutional provisions concerning congressional selection and qualifications, and the Voting Rights Act. In other states that have adopted ranked-choice voting for various local elections, every single court challenge likewise has failed.

In the specific federal court challenge brought by Poliquin and his supporters, they didn’t produce evidence of a single voter who was confused by the process. Probably that’s because ranked-choice voting, also known as instant runoff voting, is simple to describe.

In a multi-candidate race, voters have the option to rank their choices from first to last. Or they just vote for one candidate or rank just some of the choices. If anyone wins a majority on the first round, that candidate wins the election. If no one wins a majority, the lower-ranked candidates are eliminated, and their voters’ lower-ranked choices are counted, and this process continues until someone wins a majority.

Maine is a good petri dish to test the efficacy of ranked-choice voting given its rich history of electing independent or third-party candidates. One of Maine’s two senators is an independent. In three gubernatorial elections since 1974, independent candidates have defeated both major party candidates. In virtually every other gubernatorial election since 1974, independent candidates have either finished second or been the margin of difference between the two major-party candidates.

Even though other states don’t have this tradition, every state holds multi-candidate local or primary elections that might benefit from ranked-choice voting. In most elections, the winning candidate is the one who wins a plurality of the votes, even if a majority prefers someone else. In multi-candidate elections, a small base of dedicated followers often is a winning strategy over a broad base of lukewarm supporters. Voters are discouraged from voting for “spoiler” candidates who are unlikely to win, and instead, are encouraged to vote for the “lesser of two evils.”

In the second most popular form of elections, separate run-off elections, the top-two finishers in a multi-candidate race face off if no one wins outright in the first round. The major objections to this form are the cost and delay of holding a second election and the usual drop in voter turnout for the run-off election. Also, “I wish there were another month of political ads,” said no voter ever.

Ranked-choice voting has been billed as a panacea for all of these evils. I must confess that I was skeptical at first, thinking that it would appeal only to political junkies and political scientists, but no one else. In the various primary and general multi-candidate elections held in Maine in 2018, the ranked-choice voting process actually worked quite smoothly. The election officials collected the relevant ballots from across the state, fed them into a computer, and winners were declared with a push of a button, all within a couple of weeks of election day.

When Maine voters were given the opportunity in 2018 through public referendum to repeal ranked-choice voting, they rejected the referendum by a fairly wide margin. Maine voters appear to understand and like ranked-choice voting.

So, what’s not to like? Maine’s state motto is Dirigo, which means, “I lead.” Perhaps one again, as Maine goes, so goes the nation.

Peter Brann is a Maine lawyer and visiting lecturer at Harvard Law School. He defended the winning candidate in a federal lawsuit challenging the use for the first time of ranked-choice voting in a congressional general election and wrote the chapter on ranked-choice voting for the American Bar Association’s election law book.

Human rights seminar tackles barriers to women’s leadership

Via Harvard Law Today

By Dana Walters

Susan Farbstein sits to the left at the head of a conference table, hands gesturing, as she speaks to a table of studentss

Credit: Lorin Granger

Susan Farbstein ’04, clinical professor of law and co-director of the International Human Rights Clinic (IHRC), stands with chalk in hand under a blackboard bearing the word “inspirational.” For the third session of “Human Rights Careers: Strategic Leadership Workshop,” Farbstein has kicked off the discussion by asking students to identify qualities of effective leaders. Adjectives like “empathetic” and “selfless” are enthusiastically shouted across the room.

Throughout the conversation, students are outspoken about considering words like “nurturing”—often traditionally associated with women—along with words like “assertive” and “decisive”—characteristics traditionally coded as masculine, according to “What Makes a Leader?”, an article assigned for class that day. With Farbstein at the helm, the seminar aims to accomplish two goals: to explore the strategic considerations critical to protecting and promoting human rights across the globe, and to investigate the barriers that women face in professional settings, especially in the human rights field.

“The further along I’ve advanced in my profession, the more I’ve become aware of the ways that one’s identity can be both a huge benefit and a huge obstacle,” Farbstein said. Over a 15-year career, she has practiced and taught in the areas of transitional justice, accountability litigation, community lawyering, and economic, social, and cultural rights. Now after working her way into a leadership position at Harvard Law School, she is “trying to make a small intervention for a necessary discussion,” she says. “I want to create space for a conversation that I wish had been taking place more often when I was in law school.”

Alongside Salomé Gómez Upegui LL.M. ’18 and current S.J.D. student Regina Larrea Maccise, Farbstein curated materials on women’s leadership and considered how this topic might be integrated into existing elements of an International Human Rights Clinic seminar, “Advanced Skills Training for Human Rights Advocacy.” Farbstein previously co-taught the class with Tyler GianniniHuman Rights Program and clinic co-director and clinical professor of law. Scenarios and readings in the seminar enable students to target entrenched, structural challenges—inequality, corporate power, climate change—as they prepare to enter the workplace after graduation. The seminar has changed frequently over the years, with students’ interests informing the direction of the class. Throughout, Farbstein and Giannini have always asked students to consider leadership and its interaction with identity.

Over the last year, however, Farbstein realized that she wanted to focus more deeply on the issue of women’s leadership. “It’s so clear from a variety of recent events and public conversations—around unconscious bias, the #MeToo movement, the Kavanaugh hearings, the electability of a woman as president—that we’re struggling with how to achieve true gender parity in our society, including in the workplace,” said Farbstein. “I wanted to do something to respond to this particular moment by bringing those conversations very thoughtfully and intentionally into the classroom and into a field—human rights—where my students aspire to build their careers.”

Susan Farbstein stands in front of a black board, writing the word 'inspiration' in white chalk

Credit: Emma Golding

For the third session of “Human Rights Careers: Strategic Leadership Workshop,” Farbstein kicked off the discussion by asking students to identify qualities of effective leaders.

Farbstein worked with Gómez Upegui and Larrea Maccise to develop four new sessions for the advanced seminar. An introductory session frames the idea of women’s leadership using an intersectional lens, while later classes dissect themes like workplace culture, bias and stereotypes, harassment, and microaggressions within institutional and human rights contexts.

In the first of these four new sessions, Farbstein assigned readings that address the grim statistics around harassment, diversity, and bias. McKinsey’s 2018 Women in the Workplace review, for instance, describes how microaggressions impact a woman’s ability to function in the workplace, with 40 percent of black women surveyed indicating that colleagues routinely question their judgment in their areas of expertise. A Forbes piece on the widespread gender bias faced by female lawyers notes that male law firm partners earn 44 percent more than female partners and that women are more likely to be interrupted when speaking, including at the Supreme Court, where nearly 66 percent of all interruptions are directed at the three female justices.

“To be a working woman is always an act of rebellion,” said Fabiola Alvelais ’20 in response, reflecting on the ways the system simply fails to support professional women.

Beyond exposing the sheer scale of the problem, the statistics serve an additional purpose: They allow Farbstein to engage with her class’s needs and approach the material flexibly, depending on students’ comfort levels. “If they need to stay at a general and abstract level, the numbers are there for them to discuss and reflect on. And if they are comfortable going deeper, which they have been, it gives students who have experienced or encountered gender discrimination in some form the feeling that they’re not the only one out there,” Farbstein said. The statistics hold personal stories within them.

Farbstein’s classroom has a casual intimacy. In part, this is a result of the relaxed tone that she sets and the deep bonds that she develops with her students. The International Human Rights Clinic itself has a community-oriented spirit, and students in the advanced seminar have all spent at least one, and often several, prior semesters together, working on clinical teams or in introductory advocacy seminars.

(From left to right) Fabiola Alvelais ’20, Jillian Rafferty ’20 and Daniel Moubayed ’20 sit in a classroom in front of a blackboard while Rafferty speaks.

Credit: Emma Golding. Students in “Human Rights Careers” describe Farbstein as a professor who fosters an inclusive and comfortable environment. From left: Fabiola Alvelais ’20, Jillian Rafferty ’20 and Daniel Moubayed ’20.

Students in “Human Rights Careers” describe Farbstein as a professor who fosters an inclusive and comfortable environment. From left: Fabiola Alvelais ’20, Jillian Rafferty ’20 and Daniel Moubayed ’20.

Student Monica Sharma ’20 echoed many of the same words her classmates used to define good leadership when asked to describe Farbstein, in particular noting the way she actively listens to students and lets discussions evolve naturally. Sharma described the advanced seminar as unique, a place where one can formally “consider your power as a Harvard student or as a lawyer.” The discussion, while academic, is inclusive and comfortable, allowing students to draw on their own experiences as well as the readings.

“When you’re talking about ethics or morality, personal narrative comes into play,” Sharma said. “We like to dissociate the law from human experience in a lot of ways, but this class helps you to confront both as they exist in reality and in your work.”

Early in the semester, student Daniel Moubayed ’20 had already found it personally enriching to be brought into the conversation on women’s leadership. “Too often those conversations happen in informal environments. It’s critical that we’re doing this inside the classroom and in a professional setting with a cross section of students,” he said.

In her own teaching, Farbstein seamlessly integrates legal expertise with lived experience. She recognizes that students are not blank slates: they have histories and subjective perspectives that contribute to the debate.

“Part of being a good human rights practitioner is sometimes being vulnerable, drawing on your own life experiences without prejudging the experiences of others, and engaging with the emotions that people carry with them,” Farbstein said. She added, “It’s good practice for students to consider: what is your comfort level when you start to enter this kind of territory?”

For Gómez Upegui, the work she did with Farbstein demonstrated how endemic and culturally rooted the difficulties are, creating situations in which women are dispersed across organizations, lack support networks, and are isolated as they attempt to confront significant challenges.

Still, the breadth of research did not adequately address the marginalization Gómez Upegui, who is Colombian, has witnessed in the legal and human rights fields. “There’s a tremendous lack of intersectional content out there,” she said. “We found endless amounts of work in the business sector and much in the corporate law sector within a white feminist context. Once we narrowed to look at the human rights and social justice fields, the literature winnowed. And we had to fight to find research addressing the lives of women of color or women of low socioeconomic status.”

Susan Farbstein sits at the head of conference table along with three students

Credit: Lorin Granger

“These students are each going to be leaders in their own way, and I can already see our conversations informing their decisions and actions,” said Farbstein (center). “Hopefully they will be inspired, and also better equipped, to create more opportunities for women leaders in human rights, and in the legal profession more broadly.”

In addition to the seminar, Farbstein is leading a project in the clinic that investigates gender equity in the human rights field. The team aims to unpack the barriers women human rights advocates face in their professional advancement. Over the course of the year, they will interview a variety of practitioners to provide qualitative evidence to support their findings.

Sharma, who is also a member of Farbstein’s project team, said that engaging with the movement on a self-referential level was vital. She noted that the way lawyers jump to find remedies can often lead to institutional and systemic problems.

Reflecting on the larger importance of the clinical project, Sharma said, “Sometimes in human rights, there is an idea that you sacrifice yourself to the work. Things get lost in the drive to fulfill the mission. It’s important to take a good look and ask, ‘Do organizations practice as they preach?’ I really believe that if you make an atmosphere supportive and encourage diversity of thought, then the work itself will be better.”

The clinical team has already identified factors that may impede gender equity in the human rights field—from the tightly-knit network of practitioners and organizations, to the notion that this is already a progressive space, to a mission-driven “martyr” culture that fosters a sense of selfless dedication to the cause. These initial ideas have, in turn, found their way into the classroom as students consider such obstacles as well as potential strategies to overcome them.

Farbstein hopes that her seminar will help students imagine the kinds of leaders they want to become. “Human rights practitioners talk a lot about how to make the movement more effective and inclusive, but this class is a very concrete step in the right direction,” she said. “These students are each going to be leaders in their own way, and I can already see our conversations informing their decisions and actions. Hopefully they will be inspired, and also better equipped, to create more opportunities for women leaders in human rights, and in the legal profession more broadly.”

Where a Lawyer Makes All the Difference – And Only One Side Has One: Adjartey and the Urgent Need for Court Reform and a Right to Counsel in Eviction Cases

via Boston Bar Journal

by Esme Caramello, Joel Feldman, and Geraldine Gruvis-Pizarro

Each week, more than 750 tenants across Massachusetts face eviction in the courts of the Commonwealth. While the vast majority of landlords bringing eviction cases have counsel—almost 80% in the state’s Housing Courts last year—fewer than 9% of people faced with losing their homes have a lawyer to represent them. See Housing Court Department, Fiscal Year 2019 Statistics (2019). This disparity in access to counsel would create an unjust power imbalance in any legal setting. In the context of eviction cases, with their tight timelines and complicated procedural rules, the advantage that represented landlords enjoy over their unrepresented tenants is even more troubling.

In the summer of 2019, the Supreme Judicial Court took up this systemic inequality in Adjartey v. Central Division of the Housing Court Department481 Mass. 830 (2019). In a striking opinion on behalf of a unanimous Court, Chief Justice Gants reached far beyond the individual claims of the parties to describe an onerous summary process system and the barriers that pro se litigants face in trying to navigate it. In its breadth and detail, the opinion illustrates how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.” Id. at 831.

The decision makes a compelling case. Summary process is procedurally complex to begin with, id. at 834, and this complexity is “exacerbated by the web of applicable statutes and rules.” Id. at 837. The Uniform Summary Process Rules are just one part of the procedural maze. Id. at 836-37. The Rules of Civil Procedure also apply, but only sometimes, as do an array of statutes and standing orders. As the Court observed, “[d]eciding when to apply which of these rules—and how to resolve inconsistencies among them—is [a] formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.

Further complicating the task of the pro se litigant, the Court noted, is the speed at which a summary process case proceeds. Id. Once a case is filed, it is scheduled to go to trial on the first court date, just ten days later. Upon receipt of the Summons and Complaint, a tenant must figure out that an “answer” is required, and file and “serve” it, within a week after the case is filed. If she does not properly assert a “jury demand” in that answer, she waives her Constitutional right to trial by a jury of her peers. The tenant also must understand what “discovery requests” are and make sure her landlord receives them within that same short week. Overall, the time from service of process to judgment and execution can be as little as 19 days. Two business days later, a constable can remove the tenant from her home. As the Adjartey Court observed, “[t]he swiftness of this process … leaves little room for error.” Id. at 837.

As noted above, beyond the inherent complexity and speed of summary process, the vast majority of tenants are attempting to figure out the process on their own. In the words of the Court, “summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.” Id. at 834. Because “in most cases, … the landlord has an attorney who understands how to navigate the eviction process and the tenant does not,” the system is not just out of reach for tenants, but also out of balance. Id. at 838. This imbalance presented an injustice the Adjartey Court could not ignore.

In an “Appendix” following the Adjartey decision, the Court attempted to gather, in one place, all the procedural laws governing summary process cases. Doing so took 35 slip opinion pages. While the Adjartey Appendix might be a useful primer on summary process for a lawyer or experienced advocate, it looks different from the perspective of a low-income mother with limited English proficiency and severe anxiety facing eviction. For her, and for most unrepresented tenants, the Appendix primarily highlights what the rest of the Adjartey decision implies: the eviction system is too hard to understand and navigate without the assistance of a lawyer. And where landlords generally have this assistance and tenants do not, the Appendix is an indictment of a system that aspires but fails to offer equal justice to all.

In a study of summary process judgments listed on masscourts.org from 2007-2015 in three out of the then-five divisions of the Housing Court (Boston, Central and Western), the Access to Attorneys Committee of the Access to Justice Commission found that landlords won judgment a shocking 98% of the time. See Shannon Barnes et al., Final Report of the Access to Attorneys Committee of the Massachusetts Access to Justice Commission, 9 (May 2017). With Adjartey, the Supreme Judicial Court has shown us why.

Court Reform as a Necessary Step

Reforming the summary process system is an urgent need. To that end, the Trial Court has recently created a committee that has begun to work on simplifying court forms. Developing plain-language, accessible forms that the typical pro se litigant can understand and use is a necessary first step.  But forms alone will not level the playing field in a process that is too complicated and too fast to navigate without counsel.

There are many simple changes that would make summary process more accessible for pro se litigants. At a recent meeting convened by the Trial Court’s summary process reform committee, for example, most tenant lawyers and landlord lawyers agreed that the first court date in an eviction case should not be a trial. Instead, it can be an opportunity for the parties to explore settlement through mediation, and for unrepresented litigants to learn more about the process and seek help from a volunteer lawyer. It also can be a time for tenants to prepare the answers, jury demands, and discovery requests that they may be learning about for the first time when they arrive at court. We are hopeful that the court will soon implement this popular and sensible reform.

A range of other simple reforms are outlined in detail in a December 2017 report that Massachusetts submitted to the Public Welfare Foundation after a yearlong examination of “Justice for All” in the Commonwealth led by a team of judges and practitioners that included Chief Justice Ralph Gants. See The Massachusetts Justice for All Project, Massachusetts Justice for All Strategic Action Plan, 34-56 (Dec. 22, 2017). From rethinking cellphone bans that exclude unsuspecting tenants (and their evidence) from courthouses—a step the Trial Court has recently agreed to take—to promoting flexible scheduling that enables low-wage workers to avoid missing work, the Justice for All report is full of small and big ideas that would make the system fairer. The authors of this article sit on a committee of the Access to Justice Commission tasked with pursuing the report’s recommendations, but a much broader effort is needed for real change to happen.

If Landlords Have Lawyers, Tenants Need Lawyers, Too

In an ideal world, our housing dispute resolution system would be simple enough for people to use on their own, and the systemic power imbalances created by dramatic disparities in representation would be eliminated. But in a system designed for lawyers where only one side has one, access to substantive justice is not and cannot be equal. Tenants need lawyers to make the system work fairly.

Existing fee-shifting statutes should entice private attorneys to represent tenants in many eviction cases, and a few lawyers around the state have built financially successful practices representing tenants, but for reasons the Access to Justice Commission is still studying, fee-shifting statutes are underutilized. “Lawyer for a day” programs are meaningful and certainly help. But the problems Adjartey describes cannot be solved by last-minute limited assistance representation, even with experts doing the work. Too much has transpired by the time the lawyer-for-a-day steps in, when answers and jury trials and discovery have been waived by the unsuspecting tenant and the opportunity to investigate or gather admissible evidence has passed. As a 2012 Boston Bar Association study showed, only vigorous full representation enables tenants to fairly litigate their claims. See Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) (summarizing research by Harvard Professor James Greiner and Harvard College Fellow Cassandra Pattanayak showing dramatic differences in outcomes for tenants receiving full representation by experienced litigators as opposed to advice through lawyer-for-a-day program).

New York City, San Francisco, Newark and Cleveland have all recently implemented a right to counsel for tenants in eviction cases. Massachusetts is poised to follow suit with several bills under consideration on Beacon Hill. The active support of the bar for these bills is crucial to bring balance, and legitimacy, to our summary process system. Adjartey is our call to action.

 

Esme Caramello is a Clinical Professor of Law at Harvard Law School and the Faculty Director of the Harvard Legal Aid Bureau.  She is a Trustee of the Boston Bar Foundation and a member of its Grants Committee, as well as a member of the Massachusetts Access to Justice Commission and co-chair of its Housing Working Group.

Joel Feldman is a shareholder in the law firm of Heisler, Feldman & McCormick, P.C..  He serves on the Executive Committee of the Access to Justice Commission,and co-chairs the Commission’s Housing Working Group.

Geraldine Gruvis-Pizarro has been representing tenants in eviction cases for the past four years and is currently a staff attorney at Volunteer Lawyers Project (VLP) in the housing and family law units. She is also the VLP Chairperson at the statewide Language Access Coaliton. Attorney Gruvis represents VLP at the BBA Real Estate Public Service Committee working alongside private attorneys, the court and the Boston Bar Association to maintain high quality services to the public at the Eastern Division of the Housing Court in Boston.

Clinic Stories: Prepping for the U.S. Court of Appeals

via Harvard Law Today

Through Harvard Law School’s Federal Tax Clinic, students have the unique opportunity represent low-income taxpayers in disputes with the IRS, both before the IRS and in federal court. Working individually and in teams, they represent taxpayers involving examinations, administrative appeals collection matters, and cases before the United States Tax Court and federal district courts.

In this video, we follow Adeyemi “Yemi” Adediran ’21, a second year student in the Clinic, as he prepares to argue an appeal on behalf of a military veteran with PTSD in the United States Court of Appeals for the 7th Circuit, in Chicago. The veteran’s appeal to the Seventh Circuit centered on his eligibility for innocent spouse relief under the Internal Revenue Code. Over a three year period, the veteran’s wife embezzled $500K from the Appleton, Wisconsin Blood Bank—where she worked as a bookkeeper. She was arrested and sentenced to jail, but because the couple filed taxes jointly and embezzled money is taxable, they were both legally responsible for back taxes on the money.

As an important part of his preparation, Adediran participated in a mooting session before a panel of “judges” including Keith Fogg, clinical professor and director of the Federal Tax Clinic, and Clinical Professor Daniel Nagin, vice dean for experiential and clinical education and faculty director of the WilmerHale Legal Services Center at Harvard Law School (LSC), of which the Tax Clinic is a part.

You can read more about the Federal Tax Clinic and other LSC clinics and services at legalservicescenter.org.

Intern Spotlight: Kayla

Via Harvard Immigration and Refugee Clinical Program

What does the day-to-day look like for a social work intern at HIRC? Well, it could look like many different things. At HIRC, we work with a diverse population of clients. Our work consists of providing both emotional support and case management support based on a case-by-case basis. Depending on a client’s needs, a general workday could consist of facilitating cognitive behavioral therapy focused interventions during an office or home visit, supporting attorneys during client interviews that may consist of discussing emotionally heavy topics, or accompanying clients to their local clinic to help them apply for health insurance. Each day can look different depending on the clients’ needs and goals for the day.

There are many highlights and some challenges in doing this work. I enjoyed being immersed in the different cultures and backgrounds of our clients. Social work interns get the chance to build a different kind of relationship with clients through home visits and consistent communication. Another highlight is the relationship that is formed between attorneys, law students and social work interns. This experience is one-of-a-kind as the social work interns and the legal clinic create a team atmosphere where each person supports and learns from one another.

Two challenges that comes to mind include the locations that some of the clients live in and adapting certain clinical interventions for the specific population being worked with in a way that is relevant and helpful for clients. Some clients live very far from Cambridge and this can make it more difficult in terms of providing consistent emotional support and trying to schedule home or office visits. Another challenge I was faced with was learning how to provide emotional support in a way that is validating and supportive to a population that is going through difficult circumstances, which can bring up valid fears and concerns. As an intern, it is important to take the time to check in with attorneys about current laws that could affect a client’s well-being, as well as to be aware of any current policy changes that may be relevant to the case to better understand how to support any needs that may arise.

Lastly, an important part of the social work intern role at HIRC is the intersection of law and social work. The intersection of law and social work is one of the most intriguing aspects of this work. As a social work intern, you are considered to be apart of the legal team, which means that you work with attorneys and law students on mutual cases together. Therefore, in addition to supporting clients’ needs, you also check in and coordinate with attorneys in regards to any important topics that may have come up during individual social work visits that may help the legal team build their client’s case. As a team we learn from one another and support each other with recommendations within our area of expertise. Social work interns learn about current laws and policies that may or may not affect the clients we work with in regards to accessing resources and general mental health, and attorneys and law students learn tips in regards to social work skills, such as positive communication tools, and sharing empathy when interviewing and meeting with clients who may come in with a history of trauma. It is a unique dynamic that is not common among many field placements.

A large takeaway that I will bring with me from this internship is how diverse the role of a social worker can be. Before working at HIRC, the intersection of social work and law was something that never crossed my mind. This experience made me realize that social workers can play an important role in various settings, not just in common settings such as a school or a clinic.

This post was written by former HIRC social work intern Kayla Peña. Kayla is currently pursuing a Masters in Social Work (MSW) at Simmons College.

Paras Shah ’19, fostering inclusion and creativity in human rights

Via Harvard Law Today

By: Elaine McArdle

Source: Harvard Law Today

Paras Shah’s approach to human rights centers on inclusion. In his four terms with the International Human Rights Clinic, Shah has encouraged an international coalition to ban killer robots to integrate diverse perspectives into its campaign, and collaborated with grassroots activists to counter hate speech and de-escalate ethnic and religious ultra-national rhetoric in Myanmar. As a student in the Advanced Skills Training in Strategic Human Rights Advocacy seminar, Shah and two other classmates also designed and led a workshop to increase student leadership, promote self-care, and build bridges between the Clinic and other programs at the Law School.

“I was born legally blind and grew up in the U.S., where the law has always played an important role in making sure I have equal opportunities like everyone else,” said Shah, who was previously the John Gardner Fellow at Human Rights Watch, where he focused on the rights of refugees with disabilities. “I want to use the law to create that kind of opportunity for other people.”

“Heed the Call: A Moral and Legal Imperative to Ban Killer Robots,” co-published by Human Rights Watch, is one of the most complex reports the Clinic has written, said Bonnie Docherty, associate director of Armed Conflict and Civilian Protection and lecturer on law in the IHRC. Shah was “an integral part of the team helping to build the case for why we need the ban.” His work was so outstanding during his first trip to Geneva, Switzerland that the Campaign to Stop Killer Robots invited Shah to return.

“Paras showed an intuitive understanding of and ability to articulate complicated issues,” said Docherty. “It was not just this, but his engagement with campaigners from all over the world, his enthusiasm for the work, his sense of humor, and his commitment to making the world a better place that made such an impression.”

Over J-term 2019, Shah and a team of three other students traveled with Yee Htun, lecturer on law and clinical instructor in the IHRC, to Myanmar and Thailand and met with religious leaders, women’s groups, and LGBTQ+ activists to test a workshop they had developed related to countering hate speech. “Paras rose to every challenge we faced. He was a sounding board and reliable interlocutor for new ideas,” said Htun. “He has the rare ability to think outside the box.”

In addition to his clinical work, Shah recently published an article in the Harvard Human Rights Journal about the use of deadly force against people with disabilities; he also writes for the prestigious national security blog Lawfare.

“The Clinic has been the most important thing I’ve done in law school,” said Shah. He said it sharpened his research skills, and taught him to consider the audience he wanted to reach and message he wanted to convey. “Although I frame an issue differently when briefing a diplomat in Geneva who is likely bound by instructions from her capital than when I discuss an idea with a grassroots activist who might have to later explain it to hundreds of other people in a specific local context, I always strive to understand their perspective and find common ground.”

For Shah, the Clinic was also a home and community. “The classmates I met became my close friends and the instructors became my mentors. I’m very grateful for the opportunity to contribute to issues I care about and make a small impact on people’s lives.”

Shah is going to be an associate at O’Melveny & Myers in Washington, D.C.

This profile is a preview of the 2018-2019 Human Rights Program Annual Report.

Beyond education and litigation: the social work program at HIRC

Via HIRC

By: Mariana Ferreira

Before interning at the Harvard Immigration and Refugee Clinic (HIRC) my understanding of social work was limited to the definitions I had picked up from psychology textbooks. I knew that social work entailed providing people with emotional support. Beyond that, I vaguely understood what kind of work ‘social services’ encompassed. In my mind, social work was like the icing on the cake: important, but not necessarily a defining feature of the dessert. That changed when I interpreted a client meeting together with HIRC’s social worker, Liala Buoniconti. I realized that social work is not the icing at all, but a much more critical ingredient in this metaphorical legal clinic cake.

HIRC clinical social worker Liala Buoniconti

I remember the meeting was particularly difficult because the legal team needed the client, Julia*, to recount deeply traumatic abuse she suffered in her past. It became clear that Julia was struggling to answer some questions posed by her legal team. This was, in part, because she did not understand their context and, in part, because the questions were about painful things that she wished never to remember. Liala drew on her social work expertise in the meeting to make Julia feel more comfortable answering questions and to make the legal team more comfortable asking them. When Julia did not understand a question, Liala’s culturally sensitive lens allowed her to rephrase questions in a way that was relevant to where and when Julia grew up. Liala also took the time to slow down the pace of the interview to acknowledge why it is so common to have trouble accessing memories when the subject is traumatic. Julia then appeared more at ease, knowing that difficulties with memory are not only typical for trauma survivors, but actually a coping mechanism that many use to deal with the associated emotions. Without Liala in the meeting, Julia would not have been able to share as much as she did about her story with us, and she might have run the risk of becoming re-traumatized.

When certain questions sent Julia into a painful memory, Liala noticed that Julia was dissociating. In an effort to help Julia regain a sense of control, Liala would employ sensory and breathing techniques to help ground Julia in the present. Grounding is a technique used in the social work field, aimed at trying to help someone focus on their present safety, rather than re-living the emotional intensity of their trauma. After the interview, Liala sat with Julia to provide critical emotional support, and to keep her in the present: safe and far away from the people and the place that brought her so much suffering. It was after this meeting that I began to understand how integral social workers are to HIRC’s mission. From addressing the mental health of attorneys, students, and clients to facilitating the logistics of legal objectives, social workers complete the HIRC team.

Together, the legal and social work teams strive to promote justice and better lives for immigrants. Liala shared the following quote with me from Judith Herman, a specialist in the psychiatry of trauma who wrote the groundbreaking work Trauma and Recovery, “Trauma robs the victim of a sense of power and control; the guiding principle of recovery is to restore power and control.” I believe this quote represents the goal of the social work program at HIRC. In addition to Liala, there is a team of social work interns who are completing their fieldwork at HIRC while pursuing their Masters of Social Work degrees. As attorneys work to build clients’ legal case, the social work team attends to their emotional and resource needs in order to facilitate their full participation in their own lives and in the legal process.

When working one-on-one with clients, social workers foster healing relationships that give clients someone to trust. Sometimes, social workers create this relationship by providing emotional support for those struggling with the toll of their immigration case. Other times, social workers connect people to community resources such as food banks or therapists. They also explain mail that people may not understand, find affordable furniture for their homes, accompany them on public transportation so they know how to reach our office, and help them with other everyday life tasks that many people may take for granted.

The social work team also teaches clinic attorneys and students how to be trauma-sensitive. Liala co-teaches the class Trauma, Refugees and Asylum Law, guest speaks at the clinic training and Immigration and Refugee Advocacy Seminar, and conducts trauma-sensitivity orientations for the Harvard Immigration Project. She provides advice to students and attorneys on dealing with cultural differences and with survivors of trauma.

I have learned a lot from Liala during my three months at HIRC. I have come to realize that she is one of the most essential members of the clinic. She creates a safe and supportive environment for everyone at HIRC, including clients, law students, and attorneys, to cope with the intense emotional experience of working on asylum cases. Without the social work team, HIRC could not accomplish all it does today for immigrants. The inclusion of the social work program embodies what the clinic is all about: serving the immigrant community in hopes of improving their lives and their access to justice.

*Julia’s name was changed to respect client confidentiality.

 

Grab the Opportunity to Build a Better HLS

Via The Harvard Law Record

Credit: Martha Stewart

By: Leilani Doktor

Walking into the hallowed halls of Harvard Law School, past the pillars of Langdell Hall, and under countless portraits of Supreme Court Justices can be a hefty experience for anyone and is especially weighty for new students. This establishment brings with it years of history, institutions, and tradition. But the secret of this place is that despite all the pomp, privilege, and circumstance—the thing HLS needs the most to continue being HLS is you.

When I first arrived on campus to pick up my ID Card, room key, and packet of fliers I never read, I met my first classmates: a veteran who had served several tours in Iraq, an elementary school teacher who taught for 5 years in Japan, a Goldman Sachs Analyst who talked about numbers in the billions, and a former 8th grade heavy weight wrestling champion with an uncanny wit for capturing a room. I was so enraptured by how brilliant, sharp, and impressive my classmates were. As I lugged my two overweight suitcases up the stairs to my dorm room and heaved them to the floor of the empty room, I was surprised to find myself crying of happiness. The rat race of high school, college, and jobs had landed me here next to some of the smartest, most capable people I have ever known.

But what is truly amazing about this story is that after two years of intense course work, competitive job searches, and endless reevaluation, I still feel this way about my classmates. Over the years, my classmates have continued to surprise me beyond their intelligence with their humor, see Parody, their compassion, see the Harvard Legal Aid Bureau or the multitude of Student Practice Organizations and Clinics, and their drive to be a part of better world. Yet, in learning and practicing the law I have also been exposed to the cruelty, unfairness, and imperfections of people and our society. Fortunately, we are uniquely positioned to change that reality. But, we can only invoke that change by looking beyond our textbooks and reinvesting in people and our communities.

80% of newly admitted students stated that “the opportunity to be of service to society” was among the reasons they came to law school.[1] While there is a lot of room for improvement in society writ large, there is no better place to start than right here within our own HLS community. In working towards a more open, innovative, and inclusive HLS, we can create one microcosm of the world we want to see. So, I urge you to get involved in this community. Run to be the elected Student Government representative of your classmates. Invest in your new relationships with kindness and generosity. Cultivate a community that inspires new ideas and act on them. Bring your full abilities and diverse experiences to the table unapologetically and join me in building our best HLS.

If anything, this school has taught me that it is the students, with their specificities, experiences, and unique capabilities that have built HLS into the mountain of accomplishment that it is. It is the greatest asset we have here, and deserves to be put to good use. I am thrilled to welcome you to a new year full of possibilities and look forward to seeing what we can collectively create.

[1] Jenee Desmond-Harris, “Public Interest Drift” Revisited: Tracing the Sources of Social Change Commitment Among Black Harvard Law Students, 4 Hastings Race & Poverty L.J. 335, 346 (2007)

Crimmigration

Via Harvard Magazine

By: Marina N. Bolotnikova

Source: Phil Torrey

“It often happens,” says Phil Torrey, managing attorney of the Harvard Immigration and Refugee Clinical Program (HIRC), “that I’ll get a phone call from criminal-defense counsel somewhere random in the country, like the one last week I got from Tennessee. The lawyer says, ‘Hey, I’m about to go into the courtroom, here’s the plea deal that’s on the table—and my client’s not a U.S. citizen. What’s gonna happen?’” Torrey is addressing the four law students in his “crimmigration” clinic, who are learning how to advocate for criminal defendants who are not American citizens. A complex tangle of state and federal offenses—from petty theft to murder and drug crimes—can lead to detention or deportation for non-citizen immigrants, even those with green cards who have lived in the country for many years.

“Crimmigration”—the intersection of criminal and immigration law—is the newest policy area for HIRC, one of oldest clinical programs at Harvard Law School (HLS). In addition to its broader Immigration and Refugee Advocacy clinic, HIRC offers Torrey’s crimmigration clinic in the spring: an opportunity for students to gain direct experience working on and contributing to case law in this young field. When she co-founded HIRC in 1984, says clinical professor of law Deborah Anker, it “was at the bottom of the pile”; immigration issues were barely recognized as a subfield of law. But student interest has spiked since the 2016 election, and now, she says, the Immigration and Refugee Advocacy clinic has one of “the longest waiting lists among [HLS] clinics—about 100 students.”

Continue reading.

When Truth Isn’t Truth

Via the Harvard Negotiation & Medication Clinical Program 

By: Andrew Mamo, Clinical Instructor and Lecturer on Law

I should start by acknowledging that it wasn’t as bad as it sounded. Rudy Giuliani’s infamous claim that “truth isn’t truth” was preceded by an attempt to distinguish “somebody’s version of the truth” from “the truth.” When interviewer Chuck Todd responded that “truth is truth,” Giuliani then stuck his foot in his mouth.

No doubt the statement was interpreted as it was because it fit a larger pattern about our “age of alternative facts,” in which the political right has been accused—since the beginning of this century, at least—of denying objective reality and the possibility of truth. The phrases “merchants of doubt” (describing a concerted effort to muddy scientific claims about climate change) and “the reality-based community” (as distinguished from the policy-makers of the Bush administration) have entered the lexicon, as has the phrase that “reality has a liberal bias.” Within this framing, it’s all too easy to attribute the worst meaning to Giuliani, as part of this right-wing movement.

It was not always thus.

I’m just old enough to remember when it was the academic left that was accused of denying the possibility of truth. Not content to remain on the sidelines of the “science wars,” I went west to get my Ph.D. in the history of science, a discipline that was often perceived as denying the existence of objective reality. The truth of science studies was never quite so grand. Studying the work of science—in the lab, in the classroom, in public; in the journals and conferences where ideas were reviewed and refined and debated—showed that “the truth” wasn’t just out there, waiting passively to be found; it had to be assembled piece by piece, and even then remained subject to further contestation. These studies showed that the theories that we use to make sense of the world influence what we are able to perceive in it. It’s hard to understand what the fuss was about.

These ideas from the world of science studies accord in many respects with some basic premises of alternative dispute resolution: we expect that each party to a dispute comes to the table with a different set of facts and a different narrative of the situation. We recognize the multiplicity of perspectives, we acknowledge that perceptions of the truth often matter more than a coherent, agreed-upon factual accounting of “the truth,” we accept that any given perspective on the truth is not equivalent to “the truth,” and then, if it isn’t important to work through these narratives to get a better handle on the facts (as sometimes it may be), we move forward. What goes unsaid—but perhaps ought to be said—is that the reason we don’t seek out some definitive truth is because doing so is hard, and time-consuming, and expensive. Sometimes it just is not worth the effort.

Why belabor the obvious? Because when we stop at “you have your story and I have mine,” it is all too easy to make the inference that any story is as valid—as true—as another. Which brings us back to Giuliani. In attempting to explain himself, he said “Trump says I didn’t tell them and the other guy says that he did say it. Which is the truth? Maybe you know because you’re a genius.” In a later tweet he added that “Sometimes further inquiry can reveal the truth other times it doesn’t.” The implication is that in this instance there is simply no way of knowing what happened as between two competing stories, that each story has equal weight, and we should give up hope of getting any deeper.

And so we return to considering the work that must be done to ascertain facts, the institutions and processes that give us the possibility of reaching rough agreement on the facts, the culture that believes this is a worthwhile endeavor. Collectively, these provide us with the possibility of producing something like “the truth,” imperfect as it may be. The question raised for me by Giuliani’s statement is whether we continue to have faith in the possibility that thorough investigations by principled and hard-working individuals, following established rules, within institutions consciously designed for these purposes and continually refined, can point us toward a more accurate understanding of the truth—or whether the inevitable existence of gaps in our knowledge and in our practices dooms the entire enterprise. If we reject the possibility that principled investigations can bring us any closer to understanding, must we then fall back on the position that defining truth is purely a function of power?

This should not be read as a claim that there are unproblematic, principled ways of ascertaining the truth, or that we shouldn’t be critical of facts or fact-finding processes. We must continue to be critical. Even in the midst of what one of the grandees of science studies describes as a “war” to regain some authority for science, Bruno Latour insists that we cannot fall back on naïve, idealistic descriptions of scientific method, and that we must continue to make the uncertainties and controversies explicit. So too in the process of divining the truth as amongst competing narratives. We mustn’t shy away from recognizing the ways in which systematic attempts to ascertain the truth of competing narratives can be biased or coercive, even if we insist that such investigations can tell us important things about the nature of our world. We can’t deny the exercise of power in what purport to be reason-based investigations, but neither must we deny the possibility of having principled ways of finding truth solely because power also influences how we do so. When it matters that we get the facts right, we cannot let the practical limitations on our ability to search for truth deter us from doing our best to do so.

Erik Federman ’18 discusses how he helped develop an interactive resource for citizen scientists through the HLS Emmett Environmental Law and Policy Clinic. His team analyzed laws in all 50 states to identify obstacles to citizen science, including laws related to trespass, public nuisance, animals and even drones. Learn more about the project and clinical education at Harvard Law School: http://hvrdlaw.me/EGeE30lgcyU

 

Via Harvard Law School’s Facebook

Students help challenge the exorbitant cost of calling from jail

Via Harvard Law Today

By Julie Rafferty, June 8, 2018

When does a simple 10 minute phone call from one spot in Massachusetts to another cost nearly $5?

When you are in the county lock-up in Bristol County in the southeast corner of the state.

These exorbitant fees can mount quickly and are a huge burden for families of people awaiting trial or serving sentences. They are now also the focus of a class action lawsuit that has given a pair of Harvard Law School students the opportunity to help frame both the legal and media strategies for prosecuting a high profile case to upend a lucrative prison telephone company contract that exploits inmates while enriching one county sheriff’s coffers.

Kelly Ganon,’19, Dylan Herts ’19 and Harvard Lecturer on Law Roger Bertling

Credit: Martha Stewart

L-R: Kelly Ganon,’19, Dylan Herts ’19 and Harvard Lecturer on Law Roger Bertling

The case was filed in May against Bristol County (Massachusetts) Sheriff Thomas M. Hodgson and Securus Technologies, Inc., a Texas-based company that provides phone services for inmates across the country. Brought by four named plaintiffs – two of them inmates—the case alleges that the contract between the sherrif’s office and Securus represents an illegal kickback scheme that nearly doubles the cost of calls made from the county jail.

Organizations filing the litigation on behalf of the plaintiffs were the Consumer Protection Clinic at the Legal Services Center of Harvard Law School, the National Consumer Law Center, Prisoners’ Legal Services, and Bailey & Glasser. The lawsuit seeks an injunction to halt the payment scheme and monetary relief to return the money extracted from class members.

Continue reading.

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.

A Victory for Survivor-Tenants in Housing Court

Group photo of students in the Housing Law Clinic

Spring 2017 students in the Housing Law Clinic

By Nino Monea ’17

Every Thursday, the decadent Edward W. Brooke Courthouse in Boston turns ugly. That’s the day of the week for the summary process docket, a euphemism for eviction cases. The building is named after the man who co-authored the Fair Housing Act, but there’s precious little about the modern housing court that could be described as fair. Each week, the tenants facing eviction, typically one hundred or more, are crowded into an undersized courtroom at nine in the morning as the clerk starts taking the roll call. Should you miss your name—perhaps you’re late because you had trouble finding childcare or someone to cover your shift at work—you’ll automatically lose, no questions asked. Ninety percent of tenants do not have a lawyer; nearly ninety percent of landlords do. The vast majority of tenants will end the day by signing one-sided settlements that absolve the landlord of any wrongdoing, waive all rights to appeal, and demand the tenant vacate within a matter of months, weeks, or even days. Those who are evicted suffer from long stretches of homelessness, decreased educational outcomes, and elevated rates of depression and suicide.

These problems are particularly acute for survivors of domestic violence. Over one-third of women in the United States have experienced domestic violence. Its effects are grave and far-reaching. Domestic violence is the leading cause of female homicides, and children who witness it experience similar trauma to those subjected to physical abuse. Cruelly, those who experience domestic violence are often victimized twice: once by the abuser, and again by the legal system. For it is not uncommon for the victim to be evicted because they are blamed for a “disturbance” on the property or even because they simply called the police.

In my final semester of law school, I had the privilege to represent some of these tenants through the Legal Services Center’s Housing Justice for Survivors Project. No class taught me as much. I learned about the practicalities of representing clients, whether it was negotiating with opposing counsel or responding to woefully incomplete discovery productions. I learned how important it is to work with community organizers like City Life/Viva Urbana or social workers to properly represent clients. And I learned that, despite all of the challenges that low-income, unrepresented people face, justice can be done in the most inspiring ways.

This happens in large ways and small. It can be helping a tenant who is illegally charged pet fees for her service animal receive a refund. It can be advocating for a survivor of domestic violence whose landlord refused to allow her exercise her right to terminate a lease early to escape her abuser. It can even mean helping on a case that went all the way up to the Supreme Judicial Court (SJC).

I, along with Tara Knoll ’17 and Michael Zhang ’18, had the opportunity to write an amicus brief in the SJC under the supervision of Julia Devanthéry. We wrote in support of a tenant whose situation is all too common. She is an immigrant, a mother, and a fighter. Unfortunately, she was also in an abusive relationship. Her husband refused to add her to the lease on their apartment as part of the abuse, which impaired her ability to exercise certain legal rights, most pertinently, the right to contest an eviction. She eventually got a restraining order against her abuser, removing him from the home and her awarding full custody of the children. But, almost immediately after she did so, the landlord served an eviction notice after alleging that she was an “unauthorized individual” despite the fact that she lived in the apartment and was raising her children there. Because her husband had refused to add her to the lease, the landlord claimed she did not have the power to defend herself against the eviction. The housing court agreed and ruled she was not entitled to intervene in the eviction proceedings.

Our argument had three main parts (1) domestic violence is a severe and pervasive problem and driving force of family eviction and homelessness, (2) the Violence Against Women Act (VAWA) was designed to protect tenants in just such a situation, and (3) the tenant should be allowed to contest the eviction even if she was not on the lease.

The Supreme Judicial Court not only ruled in favor of the tenant, it did so decisively. It interpreted the rule that allows parties to join a lawsuit broadly. All a person needs to do to join a lawsuit is to claim an interest in the outcome of the eviction. This means that even if a survivor is kept off the lease, they can still challenge an eviction if the practical consequence is losing one’s home. Furthermore, the Court held that a mother can act to challenge the eviction on behalf of her children, who also stood to lose their home.

Although the Court’s ruling does not guarantee that the tenant will ultimately get to stay in her home—it only held she had the power to challenge the eviction—it is nonetheless a meaningful victory. It opens the courtroom door to victims of domestic violence and parents to stand up and exercise their rights. I’m proud of the small role I played in the case. For the work of the clinic is the highest embodiment of Harvard Law School’s mission: to contribute to the advancement of justice and the well-being of society.

My time at the Cyberlaw Clinic: lessons in tech law and human rights

By Alicia Solow-Niederman J.D. ’17

Alicia Solow-Niederman, J.D. '17

Alicia Solow-Niederman, J.D. ’17

The choice to enroll in the Cyberlaw Clinic was easy for me. Having worked as a project manager at Harvard University’s Berkman Klein Center for Internet & Society before law school, I knew I wanted to participate in this Clinic even before I began 1L year. Yet the night before my first meeting with my clinical supervisor, my mind raced. I worried that this opportunity to combine my three years of legal training and my interest in technology policy would not live up to my expectations.

Fortunately, my fears were allayed as soon as I met my project team. My first assignment was to prepare a paper for a panel at RightsCon, an annual human rights-focused summit on the future of the internet. Working alongside Cyberlaw Clinic Assistant Director Vivek Krishnamurthy, Clinic Advisor Nani Jansen Reventlow, and LL.M candidate Javier Careaga Franco, I was asked to connect academic theories with real-world adjudication through an empirical study of how legal actors in different jurisdictions are currently treating requests to remove online content. For instance, if an administrative agency in France demands that Google take down all links on a particular topic across not only Google.fr, but also across all of its global platforms, how is the claim legally resolved? This work was right up my alley because it allowed me to take theoretical issues and legal questions surrounding freedom of expression, access to information, and privacy rights and apply them in the context of concrete disputes across the globe.

Through this project, I was privileged to collaborate with experts in not only tech law, but also human rights and international public law, which allowed me to learn a great deal about core principles of jurisdiction, territoriality, and sovereignty. I was then able to immediately apply this learning as I collected consistent information regarding each case (e.g., country of origin, party identity, cause of action, etc.), and created the actual taxonomy within which to catalog the cases. I really enjoyed the challenge of how to cogently discuss and arrange cases ranging from requests that an internet service provider block defamatory content to orders that a search engine delist copyright-infringing content to demands that a website remove obscene content.

Next, I had the opportunity to analyze doctrine, theory, and pending legal controversies by taking primary responsibility for the opening portions of the RightsCon working paper. My goal was to provide a concise, balanced, and accessible summary of the ongoing debate over whether and if so, how, legitimate national laws and preferences should be applied and enforced online with regard to content takedown requests. As our working paper describes, “at the core of this dispute is whether public international law doctrines of territoriality extend to digital spaces, or whether different presumptions should govern online.” I am hopeful that our contribution is merely the beginning of this broader dialogue about how to translate human rights and sovereignty principles into the digital ecosystem.

Morning in America: November 9, 2016

Via Harvard Law Today

By Heather Scheiwe Kulp, Clinical Instructor and Lectuer on Law, Harvard Negotiation and Mediation Clinic

You roll out of bed, seeking coffee and your morning news. Groggily, you realize it’s Wednesday morning, November 9—the day after the presidential election. S/he’s won.

You may be thrilled. You may not be. Either way, you have to go to work/the dinner table/a church potluck/your kid’s soccer game today with people who may not feel the same way.

It’s morning in America, and it’s time to repair the vast breaches this election season created.

In the lead up to the election, we’ve spent too little attention and energy on what will happen the day, week, and years after the election. By “what will happen,” I don’t mean whether or not the election results will be challenged. Instead, I mean how we will live our daily lives with neighbors and citizens who differ from us.

This campaign season’s bitter rhetoric has not been reserved for—or coming only from—the candidates. We may try to distance ourselves from the violence at campaign events (instigated by both Trump and Clinton supporters, by the way) by saying we would never engage in such behavior. But I have heard and read (and have uttered) uncivil, verbally violent words from people across the political, ideological, and educational spectrum.

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Harvard strengthens ‘living laboratory’ to help mitigate climate impact

Via HLS News

Wendy Jacobs, clinical professor and director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, will lead the Living Lab Course and Research Project
2016_03_10_living_lab__graphic_605x403

Credit: Graphic by Judy Blomquist/Harvard Staff

Healthy buildings and clean air keep people healthy.

That simple premise is driving a series of studies being conducted by Harvard researchers, some of which have gathered insights from University dorms and office buildings. It is part of a multiyear partnership between the Office for Sustainability and the T.H. Chan School of Public Health’s Center for Health and the Global Environment to usecampus spaces to inform public health research and apply the findings in capital projects and renovations.

This partnership and another involving faculty and students working to reduce greenhouse gas emissions are being hailed as models for the type of collaborative work that the University wants to stimulate as it launches a reinvigorated “campus as a living laboratory” initiative. The effort will support projects that use the campus as a test site for developing solutions that enhance well-being and mitigate climate impact, or help neighboring communities tackle these problems. The outcomes will be specifically designed for sharing at local, regional, and global levels.

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Clinic students contribute over 1,000 hours of legal research to Massachusetts Courts

By Hon. John Cratsley (Ret.)

It is no surprise that students in this spring semester’s expanded and more diverse Judicial Process in Trial Courts Clinic and class provided over 1,000 hours of volunteer legal research and writing for their assigned judges. This exceeded the contribution of students in last year’s clinic by several hundreds of hours. The 25 students in the clinic and class were placed with 7 U.S. District Court judges, 10 Superior Court judges, and 8 judges of the Boston Municipal, District, Juvenile and Land Courts. Whether assisting a state or federal judge, the reality of big caseloads, complex litigation, and tight budgets means this extra student help is widely welcomed.

In addition to their judicial placements, students participated in a weekly class emphasizing issues impacting their judges and their courts, including alternatives to incarceration like restorative justice and treatment courts such as drug, mental health and veterans’ courts. Class sessions also focused on access to justice issues involving the unmet legal needs of the poor and the appropriate judicial response to the growth of self-represented litigants. New this year were two presentations by Adam Mansky, Program Director at the Center for Court Innovation, one open to the law school and a second in our class, describing their ground breaking work in promoting community courts.

The variety of student legal research and writing is impressive. It ranges from working on civil motions, like summary judgment and dismissal, and criminal motions to suppress, to the more complex evidentiary issues in antitrust and employment discrimination litigation. Some of the more challenging work included federal habeas corpus and judicial review of state and federal administrative agency decisions, while other students worked on mental health, 8th Amendment cruel and unusual punishment , and class action issues. Students also observed the full range of trial events from jury selection to the cross examamination of expert witnesses to sentencing and probation revocation.

Many of the students write their final papers on topics of current concern, including access to justice , sentencing policy, and re-entry issues. For example, one student who worked in a court service center in college assisting pro se litigants is writing an evaluation of the new court service centers in Massachusetts. Another is studying the impact of the recent changes in the Code of Judicial Conduct which clarify the role trial judges may play in assisting pro se litigants. And a third is exploring how new evidence based sentencing data could be incorporated into the existing sentencing guidelines. The emphasis is on student writing that explores, evaluates , and possibly reforms current judicial practices.

Here is what students had to say about their experience in the clinic:

“With plans/hopes to eventually work in a prosecutor’s office, [I valued] the opportunity to get a “behind the scenes” view of a federal judge’s approach to criminal justice issues and sentencing decisions.” — Sandra Hough, J.D. ’16

“Seeing the criminal justice system up close, both in the courtroom and during our prison visit, was profoundly effective at forever molding my view of what is currently wrong and the ways to address it.” — Michal Hain, LL.M. ’16

“I think the moment /image that will stay with me [from the clinic] is when my judge invited me to sit with her on the bench during a civil trial. The view of the court room is very different from up there.” — Samuel Wagreich, J.D. ’16

Community Lawyering for Change

Via Harvard Legal Aid Bureau

Harvard Legal Aid Bureau

L-R: Andres (community organizer); Nan McGarry J.D. ’17; Natalia (client); Pedro Spivakovsky-Gonzalez J.D. ’17; and Stanford Fraser, J.D. ’16

In a cramped church basement in East Boston, people gather together for a common purpose: to stay in their homes. East Boston is ground zero for no-fault evictions brought by investors seeking to increase rents and profit off of increased housing demand in the Greater Boston area. At their core, no-fault evictions are evictions where the tenant has done nothing wrong—hence the name “no-fault”. A tenant can have paid rent on time and abided by his or her lease regulations for decades and still be thrown out for no reason other than the whims of an investor landlord. Despite these evictions, a group gathers and organizes to fight back against the displacement.

City Life/Vida Urbana (CLVU) is a community organization focused on supporting homeowners and tenants who have been hit hardest by the foreclosure crisis and now the displacement crisis. The model that CLVU and Harvard Legal Aid Bureau (HLAB) attorneys have developed together is called “the Sword and Shield.” The sword is composed of CLVU protests, rallies, eviction blockades, and other activist measures to fight back against evictions and displacement. The shield is composed of community legal services, including HLAB. Along with Greater Boston Legal Services (GBLS) and others, HLAB has worked with CLVU to represent tenants facing evictions in Boston Housing Court. Another Harvard Law student organization, Project No One Leaves, supports the work of HLAB and CLVU by canvassing homes facing foreclosure and buildings investors have purchased where tenants may be at risk of facing no-fault evictions. These canvassing efforts bring in potential members to CLVU, strengthening both the sword and the shield. In the basement of the East Boston church where CLVU meets, a group of tenants came to seek legal help and their case became a rallying point and exemplar of the fight against displacement throughout Boston.

The Bennington Street building is a three story mixed use building, with a nail salon on the first floor and four residential units on the second and third floors. The tenants of the four residential units had been living in their apartments for various lengths of time, from several years to up to twenty years. Several of the tenants have families, including small children.

These families had been paying their rent on time, but one day the owner of the building sold it to an investor landlord who wanted to double it. Five days after purchasing the building, the new landlord sent all the tenants No-Fault Notices to Quit, saying they had to leave the premises or face legal action. The tenants’ landlord offered them an impossible choice: $500 to leave their homes of many years or a doubling of their rent. This is a common extrajudicial tactic amongst investors in East Boston, in part because it is much cheaper to pay off tenants with the threat of a rent increase than to go through the court system. Oftentimes the threat of legal action also makes some tenants decide to leave their homes, because they are unaware of their legal rights and do not realize that the courts could rule in their favor. Instead of accepting this offer, the Bennington tenants came to CLVU looking for help in their fight against losing their home.

HLAB member and President Pedro Spivakovsky-Gonzalez was the first student attorney on the Bennington Street cases, in August of 2015, although the team eventually expanded to include Nan McGarry, Jack Solano, and Stanford Fraser in January in anticipation of four possible jury trials. The case came to HLAB as four separate cases, one for each apartment in the building. HLAB entered into a joint representation agreement with the tenants, meaning that while we still would represent each household in their individual eviction case, we would also represent them as a group. The significance of this was that for months client counseling and negotiations with the landlord’s attorney involved a great deal of communication with the residents of each apartment regarding their individual cases, but also clear communication about the impacts of each decision on the group as a whole.

Although the landlord’s attorney attempted to consolidate the four cases, Pedro successfully opposed the motion in October, thus allowing all of the Bennington tenants their opportunity to be heard in court in front of a jury. Negotiations with the landlord’s attorney continued, and HLAB requested an inspection of the building, which revealed a number of conditions of disrepair. Although the tenants had been paying their rent for years, there were important repairs that still needed to be made for the landlord to be compliant with Massachusetts housing law. Through the course of representation, the landlord started to make some repairs to the building. Months of motions in court to compel discovery, among others, and months of settlement discussions, exchanging offers and counteroffers, led up to the scheduling of jury trials in February.

In fact, four jury trials had been scheduled, forcing Pedro, Nan, Jack, and Stanford to prepare as if all four trials were going to happen. Substantial HLAB resources were dedicated to this trial preparation, as the Bennington cases together involved eleven witnesses, including two expert witnesses. The whole team engaged in rigorous trial preparation, including preparing motions for the inclusion and exclusion of evidence, putting together several evidence binders, and preparing direct and cross examinations of witnesses. Throughout all of this work, the trial team also maintained communication with CLVU and GBLS.

The Bennington cases provide a glimpse at the type of cross-coordination work common in community lawyering. The tenants often attended CLVU meetings, where tenants from many other households gathered to share their own stories, many very similar: landlords purchasing properties, not making any repairs, and then seeking to evict tenants that had been paying their rent. HLAB student attorneys attended these weekly community meetings in East Boston, and also consulted with CLVU organizers and GBLS attorneys about litigation and settlement strategy.

As the Community Lawyering Clinical Instructor and a Lecturer on Law at HLAB, Eloise Lawrence supervised the student attorneys and provided guidance in critical moments of the process. Lawrence leads HLAB’s community lawyering efforts, following in the footsteps of the late David Grossman, who helped to pioneer community lawyering. Lawrence’s experience as a community lawyer in Lynn, where she still takes cases, continues to inform HLAB’s work in this area.

After all of the trial preparation and coordination with CLVU, the day of the first Bennington trial came on February 1. The trial would end up lasting four days and involving multiple witnesses, several of whom needed translators. Before the trial even began, key testimony and reports from the Boston Public Health Commission about the nail salon in the first floor of the building, were excluded from the trial, even though they showed noxious fumes from the nail salon endangering the health of the Bennington tenants. Nevertheless, the first trial team of Pedro and Nan, with the support of Eloise Lawrence fought through this exclusion of evidence and other challenges throughout the trial.

In one particularly memorable moment from the trial, Nan cross-examined the landlord about a back fence that had been padlocked. Under the law, every residential building over a certain number of units needs two ways to enter and exit the building, in part for fire safety reasons. This back fence, being padlocked, made it impossible to leave out the back of the building. In her cross-examination, McGarry asked specifically how the family would escape. The landlord responded, “What do you mean, if there was a fire? They could jump over the fence.”  In her closing argument, McGarry returned to this picture of a family, including a 67-year-old grandmother and a small child, trying to jump over a fence as their home burns. In the words of Eloise Lawrence, “You could feel the jury listen to every word and identify with our clients. If you didn’t know better, you would have thought Nan was a very experienced litigator, not that it was her first trial.”

Pedro and Nan won that first trial, with the jury returning a verdict in favor of the tenants on all counts, including attorney’s fees for HLAB. After winning the first trial, the team was able to successfully negotiate a settlement for all cases—including the other three cases that would have otherwise gone to trial—that included new long-term leases at affordable rents and landlord responsibility for repairs and maintenance to the units. As a result of these settlements, all the residents of this Bennington Street building will be able to stay in a home, with repairs being made by the landlord.

While not all cases have such a happy ending, the Bennington Street cases represent a window into how community lawyering can achieve individual results that are tied into a larger movement.

The tenants now have affordable and habitable apartments, while landlords in Boston understand that tenants will stand up for their rights. They will fight, with the help of organizations like City Life/Vida Urbana and the Harvard Legal Aid Bureau, and they will win.

Six trials, Six wins, two appeals, and a successful motion to suppress

This year, faculty and students in the Criminal Justice Institute (CJI) have been investigating criminal cases, interviewing witnesses, conducting research, and arguing motions and trials before several courts.

At CJI students find the opportunity to combine their classroom education with hands-on experience, representing indigent criminal defendants and juveniles. Students are assigned cases in local district and juvenile courts and handle everything from arraignment to trial. Under the supervision of experienced clinical instructors, students handle an average of six to eight misdemeanor and felony cases during the semester. Below are some of their recent successes in court.

Via the Criminal Justice Institute

Trial 1

Dehlia Umunna, Clinical Professor of Law

Dehlia Umunna, Clinical Professor of Law

In December 2015, Clinical Professor of Law and Deputy Director of CJI, Dehlia Umunna, along with Clinical Instructor Jennifer McKinnon, had a jury trial in Dorchester Court. Our client was accused of an assault and battery with a dangerous weapon on the mother of his younger daughter. The client has legal custody of his oldest daughter and had been sharing custody of his youngest one for the first two years of her life. The client and the alleged victim, although no longer in a relationship, continued to have an amicable relationship up until he began dating someone new. That is when she began stalking him and making his life very difficult. After she lodged her allegations against him, she did not allow him visitation with their daughter. However, after a two day jury trial, our client was acquitted. The first thing he said after the verdict was read was that he hoped to litigate for visitation of his little girl now that this nightmare was over. Several jurors found our client in the hallway after the trial, shook his hand, and wished him and his girls the best in life.

Trial 2

In February 2016, Umunna and student attorney Brittany Llewellyn J.D. ’16 successfully defended their client, a young man who had been charged with assault. The client had been accused of assaulting two security guards almost three years ago, despite the fact that there was no tangible, unbiased evidence that our client had touched, hit or raised his fists to the security guards at all. At trial, the Commonwealth’s only evidence came from the complaining witnesses who then changed their stories when they testified on the stand. Llewellyn argued the motions and conducted the opening statement for the defense, while Umunna cross-examined witnesses, conducted the direct examination of the defense witness, and closing argument. The result was a not guilty verdict.

Says Llewellyn, “this was my first time trying a case, and the trial was an enriching and rewarding experience. Apart from allowing me an opportunity to develop my speaking, advocacy, and other courtroom skills, this trial experience also reinforced to me the importance of being well-prepared for court, in order to be able to forcefully advocate on behalf of your client. I was nervous during the 15 minutes that we waited while the jury deliberated.  But then I thought about our client, and considered how nervous he must be because he had so much at stake.  The incident at issue in the trial had occurred in 2013, and our client had to wait years to be found not guilty for something he did not do.  It was meaningful to see justice done.”

Trial 3

Kristin Muniz, Senior Clinical Instructor

Kristin Muniz, Senior Clinical Instructor

Sarah Teyssen J.D. ’16 and Jacob Loup J.D. ’16 conducted a trial on a charge of assault and battery. After several delayed trial dates — due to court congestion, delays by the prosecutor, and an absent police officer witness — the trial finally took place on March 15–16. Teyssen gave the opening statement, cross-examined the alleged victim and a civilian witness, and made the arguments for specific jury instructions at the end of the trial. Loup argued the opening motions, cross-examined a police officer, and delivered the closing argument. After about an hour of deliberation, the jury returned a verdict of not guilty. The charge had been hanging over the client’s head for almost a year and a half; he was very happy to finally have the matter behind him. The students were supervised by Senior Clinical Instructor Kristin Muniz.

Trial 4

Angel Everett  J.D. ’16 and Aaron Bray J.D. ’16 successfully defended their client at a jury trial in the Roxbury District Court on a criminal charge of Violating a Restraining Order. Everett gave the opening statement, cross examined the complaining witness and conducted two direct examinations of defense witnesses. Bray lead the attorney-conducted voir dire of the jurors, cross-examined the police officer, directly examined a defense witness and delivered the closing argument. After a brief period of time, the jury returned with a verdict of not guilty. The students were supervised by Senior Clinical Instructor Kristin Muniz.

Trial 5

Clinical Instructor, Jennifer McKinnon

Clinical Instructor, Jennifer McKinnon

Clinical Instructor Jennifer McKinnon and student attorney Rena Karefa-Johnson J.D. ’16 tried a jury trial in Roxbury District Court in March. Our client was charged with two counts of indecent assault and battery and two counts of assault and battery. He was in the process of applying for citizenship when these charges were filed against him. The allegations were made by family friends who were fighting over money with our client’s family. The “collateral” consequences for our client if he were convicted included being required to register as a sex offender and, because of his immigration status, deportation. After a two day trial, our client was acquitted of all charges. When the verdict was read, there was not a dry eye on our side of the room, including the interpreter! As the jurors left the building, several came over to us to wish our client well and congratulate us.

Trial 6

In April, two CJI students, Michelle Elsner J.D. ’16 and Taylor Poor J.D. ’16, led their first jury trial on the criminal charges of assault and battery on a household member, a misdemeanor, and strangulation, a felony. With the help of their classmates, they investigated the case and interviewed witnesses. Elsner gave the opening statement, cross-examined the Commonwealth’s main witness, conducted direct examinations of the CJI students who served as rebuttal witnesses, and argued the sentencing. Poor took the majority of the legal motions, including the motions in limine, the cross-examinations of both police officers, a direct examination of one of the rebuttal witnesses, and the closing statement. After almost five days of trial and deliberation, the jury returned a split verdict: not guilty on the strangulation charge, and guilty on the assault and battery count. At the moment, Elsner and Poor are gathering material to pass on to Committee for Public Counsel Services (CPCS) for the next step: appeal. Elsner and Poor were honored to represent and fight for their client, and greatly appreciated the rare chance to lead a trial as law students.

Motion to Suppress

Lia Monahon, Clinical Instructor, Criminal Justice Institute

Lia Monahon, Clinical Instructor, Criminal Justice Institute

In March, CJI won the outright dismissal of a case charging our client with causing serious bodily injury while driving under the influence. The charge arose out of a nighttime car accident in which a pedestrian suffered significant brain injuries. CJI alum Aaron Webman, HLS J.D. ’15, investigated the case over a year ago and litigated several discovery motions. Webman’s pre-trial litigation revealed that the Boston Police Department had a surveillance video that showed the client was driving safely, his view of the pedestrian was likely blocked by a van in the next lane, and the pedestrian stepped into oncoming traffic far from any crosswalk. Before the video could be used to exculpate Webman’s client, it was destroyed by Boston Police, who failed to take any steps to “preserve” it. CJI alums Samantha Gupta, HLS J.D. ’15, and Michael Dziuban, HLS J.D. ’15, brought and litigated a motion to dismiss the case as a sanction for the loss of the video, without which it was not possible for their client to have a fair trial. Based on the testimony of numerous police witnesses, the judge found that no remedy short of dismissal would protect the defendant’s right to due process of law. The students were supervised by Clinical Instructor Lia Monahon.

Appeals Court

On April 5, 2016, Zoe Bedell J.D. ’16 represented a CJI client in appellate arguments in front of Justices Green, Trainor, and Milkey on the Massachusetts Court of Appeals. At arraignment, the judge had dismissed one charge of stalking against our client and reduced one charge of assault and battery with a deadly weapon to simple assault and battery; the Commonwealth appealed the judge’s decision. We argued that the judge had properly dismissed and reduced the charges given the lack of probable cause to support the charges. Clinical Professor of Law Dehlia Umunna wrote the briefs and supervised the oral arguments. The decision is still pending.

Robert Proctor, Clinical Instructor

Robert Proctor, Clinical Instructor

On April 14, 2016, David Victorson J.D. ’16 argued an appellate case in front of the Massachusetts Appeals Court. The panel consisted of Chief Judge Kafker, Judge Kinder, and Judge Neyman. The issue stems from the fact that Massachusetts does not have a broad obstruction of justice statute. The client is accused of swallowing evidence, but since there is no proper statute to cover that charge, the Commonwealth charged her with “Intimidation of a Witness.” The Intimidation statute makes it illegal to “mislead . . . a police officer,” so the Commonwealth’s argument is that obstruction is misleading. The District Court dismissed the charge, saying that misleading conduct must create a false impression — basically that “mislead” does not mean “obstruct.” The Commonwealth appealed and, as it told the court, is looking for a decision that clarifies what “mislead” means rather than a decision based in the specific facts of this particular incident. Mr. Victorson was supervised by Clinical Instructors Robert Proctor and Lia Monahon. The decision is still pending.

A Semester with Senator Warren

By Zachary D’Amico, J.D. ’16

Zachary D’Amico, J.D. '16

Zachary D’Amico, J.D. ’16 with Senator Elizabeth Warren

Rather than finish off my legal education with yet another series of black-letter law lectures and endless April nights reading outlines, I opted to spend my final four months at Harvard Law School working in the Office of Senator Elizabeth Warren. Thanks to the Government Lawyer: Semester in Washington Clinic, I was able to get outside the classroom and see the day-to-day impact that a lawyer can have working in public service.

I initially reached out to Senator Warren’s office for several reasons. My placement search began with two fundamental questions: (1) Where can I have the most impact? and (2) Where can I do something I believe in? In a time of congressional gridlock – a problem exacerbated by the 2016 election cycle – Senator Warren’s office has proven that it can use informal means to accomplish its goals. Perhaps just as important, many of those were goals I already believed in, some involving issues I had worked on during my time in law school.

While I was lucky enough to work on an array of projects with many individuals over the past four months, I spent the majority of my time working for Sen. Warren’s Oversight and Investigations team. Most offices in the Senate don’t have special oversight staff; these jobs are typically under the jurisdiction of committees. Senator Warren, however, has the power of the public megaphone on her side, and oversight and investigations are two important tools with which she wields that power.

Jumping into an office that has an exponentially larger output than any office with a staff of its size should have, I found myself with more immediate responsibility than I expected. Two projects I worked on during my first month in Washington are representative of my experiences throughout the semester: one involving enforcement efforts and the other a proposed rule from the Department of Labor.

On my first day, my boss briefed me on Senator Warren’s effort to shine a spotlight on the government’s woefully ineffective enforcement practices. I spent over a week investigating and researching dozens of failed prosecutions, toothless settlements, and other government failures of enforcement across a wide range of agencies. Much of this research was incorporated into our office’s first annual enforcement report entitled “Rigged Justice.” Just three weeks into my new job I had made a practical contribution to the legal world in a way that was beyond anything I had done in two and a half years of law school before that.

For my second project, I had to completely switch gears in order to research and gather information for a letter Senator Warren sent to the Department of Labor in support of a proposed rule on fiduciary standards for retirement advisers. The letter helped point out that critics of the regulation were not being completely honest (and in a latter letter Sen. Warren asked the SEC to investigate if these companies were misleading investors about the regulation) and DOL eventually finalized the rule in early April. This project was one of many that taught me my most valuable lesson I learned in four months I spent working on Capitol Hill: don’t be afraid to dive in with your eyes closed. I knew very little about retirement advising when my boss handed me this project. But as I would come to find out, most people in the office faced the same obstacle at some point in their careers. It’s okay to not have a clue what you’re doing at time, as long as you’re willing to do whatever it takes to figure it out.

I’m extremely grateful for the opportunity to work with such an intelligent, hardworking team for such an inspirational woman. For anyone considering the Semester in Washington Clinic, I highly recommend the experience.

 

My home at the law school

By Sam Feldman, J.D. ’16

I came to law school to work on the issues of mass incarceration and prisoners’ rights, inspired by advocates and activists I’d met who were challenging America’s own 21st-century gulag archipelago. I hadn’t actually done much research, though—something I’ve gotten better at over the course of law school—and I was pleasantly surprised to learn that Harvard is one of the only law schools in the country whose students have the opportunity to go into prisons on a regular basis and represent prisoners at hearings. The Prison Legal Assistance Project (PLAP), Harvard’s largest student practice organization, serves (a small fraction of) the Massachusetts state prisoners who desperately need representation and have nowhere else to turn.

PLAP’s bread and butter are disciplinary hearings, in which inmates accused of violating prison regulations have the opportunity to defend themselves before a hearing officer. Accused prisoners are allowed to retain counsel, but very few have the resources to do so. That’s where PLAP comes in: working in teams of one or two students supervised by an experienced attorney, we interview clients, submit discovery requests and motions, cross-examine corrections officers, and defend our clients against charges that can carry serious consequences, ranging from a loss of privileges to punitive solitary confinement.

I took my first disciplinary case in the fall of my 1L year and won a not guilty verdict for my client on a very serious charge, escape or attempted escape. Soon after I picked up a parole case together with a friend from my section, and the following year, while I served as PLAP’s Parole Hearing Coordinator, we represented our client before the Massachusetts Parole Board as he sought a chance to breathe free air after over 30 years in prison. This year I’ve served as one of PLAP’s two Executive Directors, and I’ve taken as many disciplinary cases as I can squeeze in between classes and other clinical work. My parole client was denied release last summer for reasons I believe are unlawful; before I graduate, I’ll have the opportunity to make that argument to the Suffolk Superior Court as part of our impact litigation practice.

Throughout my three years here, PLAP has been my home at the law school. I’ve appreciated our corner office on the 5th floor and the large community surrounding it, including about 200 students, two amazing supervising attorneys, and our dedicated administrative director. I’m also grateful for the chance to work in another type of space entirely: the state prisons in which thousands of people involuntarily reside, a few of whom I’ve had the privilege of getting to know. And I’ve been inspired anew by the motto hanging on the wall of our office: freedom for some, justice for all.

 

Working with PLAP: Opportunities to represent inmates in Massachusetts prisons

By Erin DeGrand J.D. ’16

Erin DeGrand J.D. '16

Erin DeGrand J.D. ’16

Joining PLAP as a 1L, I was most attracted to the fact that it seemed like the only place on campus that would let me get involved without submitting a resume first. In the face of all of the stress that accompanies 1L, PLAP was welcoming and required no application. Not to worry, this Hufflepuff mindset goes Gryffindor quickly, but it is a notable and important aspect of PLAP that we take everyone.

Two things made me continue with PLAP throughout law school: the David and Goliath nature of the work, and the opportunity for as much hands-on experience as I could take. PLAP primarily represents prisoners in two types of hearings: disciplinary and parole. At disciplinary hearings, we defend prisoners from charges that they have violated a prison’s rules; these charges range in seriousness from disobeying a guard’s order to assault. In these hearings, students cross-examine guards and witnesses, they often directly examine their clients, and they make closing arguments to the hearing officer. At parole hearings, we represent prisoners asking the Parole Board to let them out of prison. Here, students rigorously prepare their clients for the Board’s questions, prepare parole memos explaining why their clients have reformed and are ready to return to society, and make opening and closing statements to the Board at the hearing.

These hearings often inspire feelings similar to how the Red Sox must have felt against the Yankees in 2004. Prisoners are the ultimate underdogs: they have no guarantee of counsel in these hearings. In the disciplinary hearings, the standard of proof is low, the prison decides what evidence it will allow, and the judge is often a former corrections officer. In the parole hearings, the board has a lot to lose in granting parole and nothing to lose in denying it. But there is no better win than an underdog win, and getting a ticket dismissed or parole granted can be just as sweet as beating the Yankees.

Connecting back to my own humanity

By Michelle Ha, J.D. ’16

Michelle Ha, J.D. ’16

Michelle Ha, J.D. ’16

Through my experience in the Harvard Immigration and Refugee Clinic (HIRC) this semester, I had the privilege of representing an incredible woman named Juana* in her application for asylum in the United States.

Juana fled gang violence in Central America with her young daughter and has suffered from threats and abuse that no one should ever have to go through. She is unable to read or write because, while she had wanted to go to school, she had to work in order to help support her family. Her eyes light up when she talks about her children, her husband, whom she calls el amor de mi vida, and her church community. Her voice softens as she remembers how she dreamed of becoming a singer when she was a child.

There are details that demonstrate our true character and make us human, but the law may not provide room for those to come to light. There is no place in her court filings for us to talk about the delicious pastries she baked for us one weekend. There is nowhere we can include how she always washes the dishes from our conversations over tea and hot chocolate before she leaves, no matter how many times we tell her to leave them for us.

This is the case, even though asylum law is one of the most intimate areas of legal practice. As an advocate, you must learn who your client is, her background, experiences, values and beliefs in order to understand her story and how it fits into the legal definition of a refugee as provided for in the Refugee Convention and incorporated into U.S. domestic law.

Asylum law is also the area of law that displays most clearly the role of lawyer as a storyteller and translator. The central piece of evidence in an asylum application is the applicant’s affidavit. The lawyer’s role is to translate the things that happened to the client into a compelling narrative that the law understands to trigger legal obligation.

But there are certain issues of credibility that play out in a court of law that push us, as advocates, to flatten her narrative. Persuasive storytelling is made up of the telling details you are able to weave in, but we think of whether Juana will be able to remember these details when she is being cross-examined on the stand by an adversarial government lawyer. We work with her to parse down the rich details of her life into a clear, condensed, court-ready submission of around 30 pages. I cringe to think that some affidavits, even those written with the help of a lawyer, have less than 10. And I remember the men, women, and children without counsel at immigration court who will face this process alone.

Law lacks a human touch in many ways, but working with Juana, representing her in a case that itself represents her life and receiving her confidence and trust, has been an experience that has connected me back to my own humanity and what justice feels like, and why I came to law school in the first place. In my law school personal statement, I wrote that “justice is a feeling: of right and wrong, balance, compassion, and empathy. Literature depicts the world as it is and engenders, nurtures within us this sense of justice. But laws are the language by which we are able to conceive of how the world should be and articulate the possibilities of change.” Working with Juana during my semester in HIRC gave me the privilege of combining the language of justice with the language of the law in order to make a real difference in someone’s life.

As a 3L looking back on my time at HLS, I am grateful for all the opportunities I had to learn, grow, and prepare myself to serve, and look forward to the new opportunities that my law school training has provided me. I hope that students will continue to pursue opportunities to directly help those in need through providing legal assistance, through participating in student practice organizations, law school clinics, or other pro bono engagements. As the self-professed leaders of our time, we have legal and professional obligations to do so. But most of all, we owe it to ourselves.

*Name has been changed.

Housing Law Clinic: fighting housing displacement and insecurity

By Catherine Peyton Humphreville, J.D. ’16

Credit: Brooks Kraft

Credit: Brooks Kraft
Catherine Peyton Humphreville, J.D. ’16 and Lecturer on Law Maureen McDonagh

Working with homeless and street-involved youth as a legal intern at the Urban Justice Center’s Peter Cicchino Youth Project after my first year of law school, I saw that many of my clients first encountered legal troubles when they became homeless. After arriving back at school that fall semester, I set out to use legal tools to prevent homelessness and housing insecurity before it started. With that goal in mind, I enrolled in the Housing Law Clinic.

During my first semester, I worked on eviction cases. I learned about the unsafe housing conditions faced by many of Boston’s low-income residents and how to use the housing code and consumer protection law to fight these conditions. I also saw how domestic violence exacerbates housing crises and learned to work in tandem with the Family and Domestic Violence Law Clinic to help my client’s family. As a continuing clinical student during the Spring 2015 semester, I wrote an appellate brief in a foreclosure case, representing a single mother who had been fighting for her home for eight years, and attended weekly meetings at City Life/Vida Urbana, an anti-displacement community organizing group blocks from the Legal Services Center. Both semesters, I was able to forge close working relationships with clients through one-on-one meetings while also developing my writing skills and substantive knowledge of foreclosure law under the close supervision of Lecturer on Law Maureen McDonagh and Clinical Instructor Julia Devanthery.

I came to law school in part to advocate for women and LGBTQ people. By participating in the Attorney for the Day program at Boston Housing Court, I saw that it was primarily women and people of color facing eviction, who almost always had no access to legal representation and I began to see housing security as a feminist and anti-racist issue. I hope to be able to use the litigation and client-interviewing skills I learned in the Housing Law Clinic together with the transactional skills I garnered in two semesters with the Community Enterprise Project to fight housing insecurity and displacement in New York after completing a clerkship.

 

EXPIRED in Washington, D.C.

Via Food Law and Policy Clinic

By Katie Sandson,  J.D. ’17

2016-04-05_Date_Labeling_002_s

Image provided by Senator Richard Blumenthal’s office

I have been a clinical student in the Food Law and Policy clinic since January 2016. As a continuing clinical student this semester, I have been working on FLPC’s food waste and food recovery initiatives, including work on the clinic’s expiration date project. As part of its efforts to standardize date labels at the federal level, FLPC has drawn attention to this problem through the creation and promotion of a short film, EXPIRED? Food Waste in America. The film tells the story of how a restrictive date labeling rule in Montana has required countless gallons of wholesome milk to be needlessly discarded once the milk reaches a labeled date that has no basis in safety or science. Montana’s rule is just one example of similarly restrictive rules in place throughout the country.

Throughout the semester, I have worked to promote the film and raise awareness about the connection between date labels and food waste. Two weeks ago, I traveled to Washington, D.C. with the clinic to attend a number of events related to our date labeling projects, including two screenings of the EXPIRED film in two very different settings. On Sunday, I helped give a presentation on date labels at the National Food Recovery Dialogue hosted by the Food Recovery Network. On Tuesday, FLPC’s director Emily Broad Leib and clinical fellow Christina Rice participated in a panel on date labels hosted by Senator Richard Blumenthal’s Office. Senator Blumenthal has announced plans to introduce legislation to standardize date labels at the federal level, an effort FLPC has supported throughout the process.

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Project on Predatory Student Lending: Inspiring My Public Interest Career

By Jessica Ranucci, J.D. ’16 

Jessica Ranucci, J.D. ’16

Jessica Ranucci, J.D. ’16

The Project on Predatory Student Lending, part of the Predatory Lending and Consumer Protection Clinic, has been a tremendously important part of my law school experience. The clinic is housed at HLS’s Legal Services Center (LSC), which is located in Boston, and is only a few minutes drive away from the community center where I worked full-time before law school.

I came to HLS in order to be able to combat the structural inequalities that I saw facing the youth and families with whom I worked. I sought out a clinical experience at LSC because its mission to provide quality legal services to clients in their own neighborhood comported with my own belief in community-based public interest work.

The Project on Predatory Student Lending provides direct representation to low-income student loan borrowers who have experienced illegal predatory activity by for-profit colleges. As a 2L in my first semester at the clinic, I directly represented clients in civil litigation. I also wrote a motion and conducted discovery for the first time. Through the Continuing Clinical Program, I have been able to remain in the clinic for my entire 3L year.

This year, I have a lot of flexibility to work independently while I oversee the clinic’s intake process. I love conducting intakes: they give new potential clients the opportunity to share their stories and give me the intellectual challenge of matching up the clients’ experiences with potential legal claims. After an intake meeting, I make recommendations to the clinic’s attorneys about the legal options we have to assist our clients. In some cases, there is a relatively easy solution and I can help the client apply for an administrative loan discharge. I bring the complicated cases to our weekly team meetings, where the supervising attorneys, fellow clinical students, and I discuss the legal assistance the clinic can provide.

The Project on Predatory Student Lending is also involved in shaping student debt policy on the state and national level. The clinic’s attorneys set policy priorities by listening to our clients’ needs and identifying when the current system is not working for them. What has really inspired me about the Project on Predatory Student Lending is its simultaneous commitment to high-quality direct legal services and pursuit of policy change on our clients’ behalf. I came to law school to find a way to combat structural inequality—and I see the clinic’s combination of legal services and client—driven policy advocacy as a model for how to achieve that. It is a model I hope to emulate in my career.

Judicial Process in Trial Courts Clinic’s prison visit

By Benjamin Sacks, J.D. ’17

To my left, three people sat around a table playing what appeared to be poker. To my right, another pair played Mah Jongg. Behind the tables, one man was holding his dog on a leash, another was talking on the phone, and a third was placing an order for a meal. They all gave me a quizzical look when I entered their room: What was I doing there?

Group photo of students in the class

Group photo of students in the class

Prisoners at Massachusetts Correctional Institution (MCI) in Concord aren’t used to visitors popping into their living quarters, but there we were. The twenty-five of us students in the Judicial Processes in the Trial Courts Clinic, Hon. John C. Cratsley (Ret.), and our tour guide, prison superintendent Lois Russo, standing in the common area which the prisoners’ cells (two to a room) face. We were on a tour of the prison as a culmination to our semester working with various judges in the courts of Massachusetts. After helping judges write opinions and perform legal research, it was only appropriate that we see the consequences of some of our judges’ sentencing decisions.

The prisoners seemed content enough playing their games and making their phone calls, but there was no mistaking that we were in a prison. The impersonal fluorescent lights, uncarpeted cement floors, and heavy metal doors with special locks throughout the facility served as a constant reminder that the people inside were there to stay. During our tour of the facilities, we were escorted by a minimum of two security guards. Each time we moved from one area to another, we went through two sets of doors, the first of which had to close before the second would open, so as to prevent unauthorized use.

Life isn’t easy in prison. At MCI Concord, inmates spend each night in their locked cells, and many hours of the day within the confines of the common area just outside. Surely, poker can only be entertaining for so long. There are prescribed visiting hours, and inmates are entitled to at least one hour a day outside, and one hour of exercise per day, five days per week. We did not go to the outside recreational area, but the indoor exercise area (still exposed to the cold outside air) was nothing but a box, with concrete floor, ceiling, and walls.

Prisoners can earn credits that can be spent on snacks, phone calls, or other amenities. They can also earn credits for sentence reductions by performing services within or outside the prison, depending on their security clearances. For example, a number of them receive training on how to domesticate and train service dogs (like the one we saw) for those with special needs. For two years at a time, they live with the dogs that they train.

Credits are nice, but they are nothing compared to the freedom we felt when we exited the prison after our visit and went to Judge Cratsley’s house, where we enjoyed a warm, home-cooked meal. Our visit reinforced my feeling that the only sentence I want to experience is the one comprised of words.

A reflection on the Crimmigration Clinic

By Anna Byers, J.D. ’16 

For me, the Crimmigration Clinic was a question of whether I believed that the fundamental guarantees of our constitution applied to everyone no matter where they were born. As a law student, it was anathema to me that someone could be imprisoned without a hearing, separated from their family, or penalized twice for the same crime. Yet these are all situations which immigrants who are convicted of crimes find themselves in daily.

Under the leadership of Phil Torrey, we spent a semester in the Crimmigration Clinic writing amicus briefs, providing plea consults, and working to construct a database of controlled substances. Particularly moving for me was the work we did on an amicus for the First Circuit. The petitioner, an immigrant who had fled her country, was at risk of removal despite her very real fear of being killed in her country. She had committed a fraudulent crime as a result of desperation, but to the courts she was just another “criminal alien.” Writing for her, we got to know her story as well as the intricacies of international law and help her triumph in her case before the Court.

It was my first experience writing for a court and collaborating on a case with so many moving parts. I got to hear experienced lawyers talk about case strategy and figure out how our contribution fit into a larger campaign. It was a privilege to work on a case with possible long lasting implications. Hopefully women like our client won’t have to go through this process again. Instead, they will be guaranteed the process and safety that all people deserve.

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