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Category: In the News (page 1 of 11)

When does the ‘affordable’ in the Affordable Care Act kick in?

Via The Hill 

Source: Pexels

By: Merrill Matthews

It’s a good thing Democrats made health insurance “affordable” when they passed the Patient Protection and Affordable Care Act in 2010. I’d hate to see how much health insurance would cost if it were expensive.

The Kaiser Family Foundation just released its annual survey of employer-sponsored coverage, finding that the average premium for family coverage increased 5 percent to $19,616.

To put that in perspective, the real median household income in 2017 was $61,372. Thus family health coverage costs nearly a third of the median family’s income.

But citing the average family premium of nearly $20,000, as high as that is, can be misleading. A small employer, especially a one with older-than-average employees, likely blew through $20,000 a few years ago. The premium for a couple in their 50s with a teenager can easily run $25,000. Bump that up by $4,000 or more for each additional child.

However, those outrageously high premiums would be even higher if employers and health insurers hadn’t taken a number of steps to contain the cost explosion by adjusting benefits and exposing employees to significantly higher out-of-pocket costs.

The Kaiser survey points out that since 2008, annual deductibles for covered workers have increased 212 percent — eight times the rate of inflation. And to think Democrats used to call high deductible coverage “junk insurance.” Yet, under ObamaCare deductibles have exploded.

Insurers are also taking steps to increase out-of-pocket spending in less-noticeable ways. For example, in years past insurers charged one copay for a generic drug, say $10, and a slightly higher copay for a brand name drug, say $25.

Then insurers moved to three copay tiers or more. The generic might still require a $10 copay, while some brand name drug copays could run between $25 and $250.

In addition, some insurers now require co-insurance of 20 percent to 40 percent of a drug’s cost for some of the newest and most expensive drugs. If a drug costs $5,000 a month — and some cancer drugs cost that much or more — 40 percent co-insurance could cost the patient several thousand dollars a month. And that comes on top of other health care-related expenses and premium costs.

Imposing such high co-insurance rates on specific drugs has raised concerns that insurers were trying to discourage some of the sickest patients from enrolling in their plans. As Kaiser Health News noted a few years ago:

  • In 2016, Harvard Law School’s Center for Health Law and Policy Innovation filed complaints with the U.S. Department of Health and Human Services’ Office for Civil Rights alleging that health plans “offered by seven insurers in eight states are discriminatory because they don’t cover drugs that are essential to the treatment of HIV or require high out-of-pocket spending by patients for covered drugs.”
  • Consulting company Avalere Health found that several insurers’ silver plans had been adversely targeting some of the sickest populations with higher drug costs. “An analysis found that in the case of five classes of drugs that treat cancer, HIV and multiple sclerosis, fewer silver plans in 2016 placed all the drugs in the class in the top tier with the highest cost sharing or charged patients more than 40 percent of the cost for each drug in the class.” Pulling some of the most expensive drugs from the top tier was likely due to protests and threats of legal action.

To be fair, insurers and employers felt they had to take steps in order to control their costs, otherwise premiums would likely have been even higher than they are.

Other factors are also playing a role in the premium increases. Hospital systems were consolidating prior to ObamaCare, but the ACA put that trend on steroids, enabling hospitals to demand higher reimbursements from insurers.

Consulting firm Kaufman Hall reported in January there were 115 hospital and health system mergers and acquisitions in 2017, up 13 percent from 2016, and the largest number in recent history. For comparison, there were 50 hospital M&A transitions in 2009, the year before ObamaCare passed.

Unfortunately, options for containing premium increases and coverage reductions are limited. The Trump administration is trying to provide as much insurer and state flexibility as possible under ObamaCare, but it’s unclear yet as to how much those efforts can achieve.

And there’s a new proposal, the Health Care Choices Proposal, backed by a number of health policy analysts. It seeks to block grant current federal health care spending on Medicaid and ObamaCare to the states along with some regulatory reductions.

Since Washington has done such a terrible job trying to make health insurance affordable, maybe it’s time to give the states a chance. How much worse could they do?

Clinical Instructor John Salsberg Quoted in Boston Globe Article about MA Show Cause Hearings

Inside Our Secret Courts

Via The Boston Globe

Credit: Brooks Kraft

Senior Clinical Instructor for Harvard Defenders John Salsberg was quoted in an article describing Massachusetts’ unique “show cause hearings,” hearings that are presided over by court clerks and usually held in private, to determine if there is probable cause to issue a criminal complaint.

“Criminal defense attorney John Salsberg said he has seen countless cases that have been correctly resolved in clerks’ hearings — cases that should never have gone into the regular criminal justice system. Since the 1980s, he has worked as a supervising attorney with the Harvard Defenders, a Harvard Law School organization that represents individuals at these [hearings]. ‘Just because something’s a crime doesn’t mean it needs to be prosecuted,’ Salsberg said. “And I think the clerks have enough experience to know which complaints should end up issuing and which shouldn’t.’”

John elaborated on his statement to the Globe, saying: “Harvard Defenders is the only program in Massachusetts which provides free legal services to the indigent accused defendant who has not been arrested. At show cause hearings we first identify and challenge charges which are legally deficient. If there’s enough evidence to establish probable cause to issue a complaint, we focus on alternative dispositions so that our clients can avoid the stigma of a criminal record and collateral consequences, such as inability to get a job, loss of public housing and deportation. Oftentimes, the police see the need to bring a case before the court, but provide people an opportunity to change their behavior. One of the benefits of private hearings is to provide a safe environment for an apology, which doesn’t have to be public. The system works well, as it currently operates and doesn’t need substantial change.”

Read the full article here.

How Tech Swagger Triggered the Era of Distrust in Government


Source: Pixabay

By: Susan Crawford

Last month, I heard Jill Lepore give a talk about These Truths, her single-volume history of America from the 15th century through the 2016 presidential election. She got her biggest laugh when she made fun of WIRED for predicting in 2000 that the internet would both lead to the end of political division and be a place where government interference would be senseless.

There are many famous WIRED moments that also fit this description, including Jon Katz’s assertion in 1997 that Netizens had nothing but contempt for government, John Perry Barlow’s 1996 Declaration of the Independence of Cyberspace, or the Joshua Quittner profile of EFF in 1994 depicting Electronic Frontier Foundation co-founder Mitchell Kapor and the fabled Esther Dyson as people who “got it.” Their goal was to have the net be a wiring together of humanity that would restructure civilization. The EFF would “find a way of preserving the ideology of the ’60s,” Kapor told WIRED.

Much of that early libertarian net culture—white, rich, smart, and full of “let’s just geek around it” swagger when it came to government—has become mainstream in Western democracies in 2018. Paradoxically, that ideology came from a time when, in fact, government was doing a lot for people.

Those baby boomers profiled by WIRED had only known a United States full of generous government support for education, a time of continuous upward mobility,  and an America that could carry out enormous and inspiring public infrastructure projects – including requiring that phone companies permit competing internet service providers to use their lines. The voices in WIRED were those of a very secure bunch of people. And they were bored by it all; they saw government as a set of clueless, bland bureaucracies. Who needed that?

As it turns out, we all did. Today, globally interconnected changes in climate and widespread disdain for democratic institutions are the key titanic, messy trends that are likely to begin producing shocking results 25 years from now. At that point, with the globe dealing with punishing heat and alarming levels of water, it won’t be internet technology that will be doing the disrupting. There are signs that the internet will be fading from view as distinctive “place” promoting political and social changes. Indeed, if we keep to our current course, communications capacity and what humans do online may be controlled by a few highly profitable actors who will be uninterested in teh unpredictable. Given this context, there is a substantial risk that 25 years from now the breathlessly libertarian views trumpeted by WIRED’s early voices will have reached their unpleasant apotheosis.

I hope I am wrong.


Read the full article here

California, New York and 6 Other States Side with Scammed Students in Battle with DeVos

Via MarketWatch 


By: Jillian Berman

Several states are throwing their support behind scammed student-loan borrowers hoping for relief.

Led by Xavier Becerra, the attorney general of California, eight states including, Massachusetts, New York and Illinois, filed an amicus brief [last] Wednesday in a closely-watched class-action lawsuit challenging Betsy DeVos-led Department of Education’s approach to calculating relief for federal student-loan borrowers who say they’ve been scammed by their schools.

An amicus brief, also known as a friend-of-the-court brief, allows entities with an interest in the litigation to weigh in with what they believe to be relevant information about the case.

At issue in the case is whether the agency can legally provide only a partial discharge of federal student-loans a group of borrowers acquired to attend Corinthian Colleges, a for-profit college chain that collapsed in 2015 amid claims the school misled students about job placement and graduation rates. During the Obama administration these borrowers received a full discharge of their loans.

In the brief, the states’ attorneys general argue that these borrowers are entitled to full relief under the law, known as borrower defense, which aims to make federal student-loan borrowers whole who have been defrauded by their schools.

“Amici States have a strong interest in safeguarding the economic well-being of their residents who the Department has already determined are qualified for complete cancellation of their federal student loans because they were defrauded into attending various educational programs offered by Corinthian,” the state attorneys general write in the brief.

. . .

Other states, including Massachusetts and Illinois, provided the Department with thousands of pages of evidence that Corinthian violated the law in their state, according to the brief. What’s more, state attorneys general offices took pains to find residents who might be eligible for relief.

The states hired a company to the tune of at least $290,000 to coordinate contacting borrowers, according to the brief. They also created their own bespoke outreach efforts. For example, in Massachusetts, the attorney general’s office held 19 workshops across the state to help students fill out the claim form. They also called, emailed and mailed letters to borrowers who were likely qualified for relief.

The states “spent significant resources trying to ensure that people who were eligible for loan cancellation because of Corinthian fraud would get it,” said Eileen Connor, the director of Harvard Law School’s Project on Predatory Student Lending, one of the organizations representing the borrowers. “It’s just really outrageous that the Department really capriciously turned away from that.”

The policy being challenged in the suit would allow for borrowers determined by the Department to have received some benefit from their education — based on whether the average earnings of their Corinthian program is 50% or more of the earnings of a typical graduate in a comparable program — to receive only a partial discharge of their loans.

Read the full article here.

Lack of Planning Has Left Parts of N.J. Without Grocery Stores Nearby

Via NJ. com

Source: Pexels

By: Ekaterina Valiotis

New Jersey has 25 percent fewer supermarkets per capita than the national average, according to the Harvard University Center for Health Law and Policy Innovation. Unfortunately, the Garden State does not live up to is name for many, with 340,000 New Jersey residents living in food deserts.

Nothing could be more fundamental to our well-being than healthy food and nutrition, and people have become increasingly focused on the sourcing and quality of what they eat.

As a nation, several decades into an obesity epidemic that has brought far-reaching and negative consequences, we are waking up to the fact that the items we select at the supermarket will go a long way towards determining the quality and length of our lives.

Unfortunately, though the knowledge of how to eat better is becoming more universal, access to healthy food is not distributed evenly. For every high-end, expensive supermarket that opens in a wealthy or upper-middle class neighborhood, large parts of our population, particularly in urban areas, remain bereft of such choices.

Read the full article here.

How It Feels When Students Stand Up to the Department of Education and Win

Via the Legal Services Center

Source: Pixabay

Meaghan Bauer and Stephen Del Rose, former students of EDMC-owned New England Institute of Art, were cheated by their school and left with a massive pile of debt.

Like the hundreds of thousands of students who were cheated by predatory for-profit colleges, they trusted in institutions like their school and their government. Their school not only let them down, but actively misled, cheated and harmed them. Then, the Department of Education doubled down on that harm. Under Betsy DeVos, the Department repeatedly delayed the implementation of a new Borrower Defense rule, which offered critical protections for students and would have allowed them to bring their case against their school to court on behalf of a class.

Meaghan and Stephen fought back. They filed a lawsuit against the Secretary of Education for illegally delaying a rule intended to protect borrowers’ rights. And this month, a federal judge agreed – ruling that the Department of Education broke the law when it delayed the rule.

When she learned of the ruling, Meaghan Bauer was elated. But despite her happiness about winning a major victory for students, Meaghan was still angry. She said:

We are supposed to be able to trust our government and know that when they make a new policy it is with our best interests in mind. It is really sad that the government dragged this out for so long and acted so childishly that they needed a judge to tell them that what they are doing is illegal. I hope this ruling reminds the government of its obligation to care for its citizens who are the future of this country, instead of focusing on lining the pockets of for profit institutions. They should admit they were wrong and take the necessary actions to remedy their policies and reestablish some of the faith in our government that has been lost.

Meaghan and Stephen are represented by the Project on Predatory Student Lending and Public Citizen. Click here to read more about their case.

How Policy Could Impact Food Waste (Part One)

Via Waste360 

Source: Wikimedia Commons

Sixty-three million tons of food is wasted in the U.S. every year, a staggering volume that exacerbates multiple issues within the food system. It translates to huge losses along the supply chain. It wastes water and fertilizer. Then, there are environmental concerns, as rotting organics pile on landfills and release methane into the air.

On the flip side, focused efforts to reduce food waste create jobs, provide opportunity to make compost and energy and could help feed the 40 million hungry people in the U.S., according to the United States Department of Agriculture (USDA). The problems and opportunities around food waste are why organizations like Harvard Law School Food Law and Policy Clinic and nonprofit Rethink Food Waste through Economics and Data (ReFED) are pushing for policy around this issue.

ReFED recently put out its “Roadmap to Reduce U.S. Food Waste by 20 Percent,” a national study and action plan to cut food waste at scale.

“When we published the Roadmap report, we found a few top-level areas that can be used to accelerate food waste reduction, with one area being public policy. You can get more people involved,” says Chris Hunt, communications director for ReFED.

A lot is going on at the state level. And the first comprehensive piece of federal legislation around food waste has been in the works for a couple of years.

“Some current laws make it hard to reduce food waste, like date label laws in several states that restrict donations past a certain date,” says Hunt.

“But laws can also provide incentive to do good, like tax incentives for donating. So, laws can be a barrier, or they can be used to drive people to make better decisions,” says Emily Broad Leib, director of Harvard Law School Food Law and Policy Clinic.

In the most recent legislative session, 91 pieces of food waste-related laws were proposed in 30 states, 22 of which have passed into law.

“There’s been a lot of activity. But a lot of change is needed yet,” says Broad Leib.

Read the full article here.

Emily Broad Leib Named One of the 28 Inspirational People Working to Reduce Food Waste


Food Law and Policy Clinic (FLPC) Director Emily Broad Leib is one of 28 “food waste warriors” named by Food Tank.  Food Tank has highlighted chefs, scientists, activists, academics, entrepreneurs, and others who are working to prevent food loss and waste across the globe.


Emily Broad Leib (Assistant Clinical Professor, Harvard Law School), U.S.

Emily Broad Leib’s work in food law and policy in the U.S. has earned her recognition as a national leader in the subject. Founder of Harvard Law School’s Food Law and Policy Clinic, Broad Leib uses her position to tackle major issues in the food system, including food waste. Her project, “Reducing Food Waste as a Key to Addressing Climate Change,” was awarded Harvard University’s Climate Change Solutions Fund in 2015. Her work on topics such as food safety regulations and food date labels, in collaboration with others at the Harvard Food Law and Policy Clinic, has been highlighted in the media and through speaking engagements.

Read the full article here.

Crimmigration Clinic Issues Resources for Advocates Defending the Rights of Immigrants

Via Harvard Law Today

The Harvard Immigration and Refugee Clinical Program’s Crimmigration Clinic and the Immigrant Defense Project issued two new resources for advocates and attorneys defending the rights of immigrants fighting removal to countries where they will be persecuted.

A report,“United States Failure to Comply with the Refugee Convention: Misapplication of the Particularly Serious Crime Bar to Deny Refugees Protection from Removal to Countries Where Their Life or Freedom is Threatened,” examines how U.S. implementation and interpretation of the “particularly serious crime” bar to withholding of removal and asylum in the U.S. fails to comply with the Refugee Convention. It also looks at how the U.S. diverges from the standards and practices of the international community and other countries.

Another resource,“Particularly Serious Crime” Bars on Asylum and Withholding of Removal: Legal Standards and Sample Case Determinations,” is designed to aid in the legal representation of immigrants in criminal and removal proceedings. Specifically, this chart is designed to help attorneys evaluate whether a criminal conviction constitutes a “particularly serious crime” barring asylum or withholding of removal.

Harvard Law School Lecturer on Law Phil Torrey, HIRC managing attorney and supervisor of the Crimmigration Clinic, helped create these resources, along with Clarissa Lehne ’18 and Collin Poirot ’18.

While a student at the Crimmigration Clinic at HLS, Lehne successfully argued before the Board of Immigration Appeals that her client’s conviction should not result in his detention and deportation. Poirot is current a Public Service Venture Fund Fellow working on immigrant rights at Project South.

Crimmigration—the intersection of criminal and immigration law—is the newest policy area for HIRC, one of oldest clinical programs at Harvard Law School. 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 field. Learn more about the clinic and read an interview with Phil Torrey at Harvard Magazine.

The Lawsuits Challenging DeVos’ Anti-Student Higher Education Agenda

Via the Center for American Progress

By: Sara Garcia

Under the leadership of Secretary Betsy DeVos, the U.S. Department of Education has sought to unravel protections for college students. In an attempt to push back against the department’s dubious legal maneuvers, a number of state attorneys general, civil rights organizations, and advocacy groups have engaged the courts. The National Student Legal Defense Network (NSLDN), the Harvard Legal Services Center, the National Consumer Law Center, and others have sought to prevent the rollback of crucial regulations and bring more transparency to the department’s decision-making.

Earlier this month, a federal judge issued a blockbuster decision in one of these cases, ruling that the department had illegally delayed the Obama administration’s borrower defense regulation, which provides students who have been misled by their institutions the ability to seek relief from their federal student loans. While the judge has yet to decide if the department will need to begin implementing borrower defense, the decision is proof of the importance of challenging the extreme measures that Secretary DeVos and her department have taken to undo protections for students.

This column details some of the most troubling cases currently under review in the areas of consumer protection, accountability, student loan servicing, and civil rights.

Read the full article here.

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

Via The Harvard Crimson

By: Alexandria A. Chaidez

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SABI ARDALAN Assistant Clinical Professor, Harvard Law School

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

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

CHRISTINE DESAN Leo Gottlieb Professor of Law, Harvard Law School

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

JUDGE NANCY GERTNER Retired, Harvard Law School

ROBERT GREENWALD Clinical Professor of Law, Harvard Law School

MICHAEL GREGORY Clinical Professor of Law, Harvard Law School

JANET HALLEY Royall Professor of Law, Harvard Law School

JON HANSON Professor of Law, Harvard Law School

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

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

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

MARTHA MINOW 300th Anniversary University Professor, Harvard University

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

INTISAR RABB Professor of Law, Harvard Law School

DAPHNA RENAN Assistant Professor of Law, Harvard Law School

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

JOSEPH WILLIAM SINGER Bussey Professor of Law, Harvard Law School

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

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

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

LUCIE WHITE Professor of Law, Harvard Law School

ALEX WHITING Professor of Practice, Harvard Law School

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

Cities Are Teaming Up To Offer Broadband, and the FCC is Mad


Source: Pixabay

By: Susan Crawford

This is a story that defies two strongly held beliefs. The first—embraced fervently by today’s FCC—is that the private marketplace is delivering world-class internet access infrastructure at low prices to all Americans, particularly in urban areas. The second is that cities are so busy competing that they are incapable of cooperating with one another, particularly when they have little in common save proximity.

These two beliefs aren’t necessarily true. Right now, the 16 very different cities that make up the South Bay region of Southern California have gotten fed up with their internet access situation: They’re paying too much for too little. So they are working together to collectively lower the amounts they pay for city communications by at least a third. It’s the first step along a path that, ultimately, will bring far cheaper internet access services to the 1.1 million people who live in the region.

You might think this is impossible. It’s true that many city officials have argued that regional collaborations are resource-intensive and bound to fail. That’s the case in the Boston area, where a city official in Malden (7 miles from Boston City Hall) bluntly told researchers, “I couldn’t support regional government at all. Each community has its own unique set of circumstances and facts and issues.”

The South Bay partnership suggests a promising alternative: Maybe cities can cooperate and save money without compromising their local autonomy. At this same moment, though, the FCC is on a march to smother local authority by blocking states from regulating any aspect of broadband service, supporting states that have raised barriers to municipal networks, deregulating pricing for lines running between cities, and removing local control over rights-of-way that could be used to bring cheaper access into town.

Read the full article here.

New York’s Making It Easier for Makers to Start Selling from Their Home Kitchens

Via Edible Brooklyn

By: Lisa Held

Source: Pixabay

What do the founders of Early Bird GranolaPilot Kombucha, and Hungry Bird Eats have in common?

They started baking oats, fermenting tea and rolling crackers at home before turning their kitchen habits into food businesses.

It’s a story that’s so common it’s become a trope: Cool Brooklynite makes innovative food for friends. Friends urge him or her to sell said food. Food becomes top seller at Whole Foods.

However, there are many factors that influence how successful makers are at moving through that timeline, and a new report from Harvard Law School’s Food Law and Policy Clinic digs into one that doesn’t get a lot of attention: state laws that regulate the sale of small-batch foods made outside commercial kitchens.

“Cottage Food Laws in the United States” provides a comprehensive overview of how states create legislation and regulations related to cottage foods, common elements from state to state (like which foods are allowed and sales limits) and recommendations to strengthen laws.

It’s an important resource for makers in Brooklyn (and across the country) who are just starting out and may find it difficult to navigate issues like which foods they can make and where they can sell.

The team at food incubator Pilotworks, for example, said that it was common for students in its Launchpad program to experiment with production and sales from home kitchens before moving into a production facility like theirs, and that helping makers understand regulations is a critical role they fill. “We have to be deeply knowledgeable about federal, state and local regulations and how they apply to all types of food companies, large and small.”

In terms of findings (and especially given Brooklyn’s reputation as a maker mecca), how did New York’s cottage food law stack up against others across the country?

Emily Broad Leib, director of the Food Law and Policy Clinic and one of the authors of the report, said that New York’s law is generally supportive of cottage food producers and has eliminated most big barriers. “For example, New York is one of only a dozen states that allows for some wholesale sales of cottage food products, and one of 17 states that explicitly allow for online sales, which 13 states explicitly prohibit. It is also more permissive than many states by not setting an annual gross sales limit,” she said. “Further, New York meets one of our most important recommendations to provide easy-to-follow guidance, so cottage food producers are able to take advantage of the exemptions and know where to find relevant information.” (That information is available through the Department of Agriculture.)

The one area that the state could improve upon, Broad Leib said, is expanding the kinds of cottage foods that are allowed, since they are restricted to a specific list. State laws tend to allow for what they consider low-risk foods (like baked goods, jam and shelf-stable sauces) in terms of food safety concerns, since these small-batch businesses are often not required to adhere to the food safety regulations of bigger companies. (High-risk foods include dairy, meat, fish, eggs and so forth that require time and temperature controls to prevent the growth of microorganisms and the production of toxins.)

Another big finding from the report is that, nationwide, more states are introducing cottage food laws. Every state except New Jersey now has one, compared to 42 states in 2013, and a few states (like Wyoming) have introduced new “food freedom” laws that essentially allow almost any foods to be sold to an “informed consumer.” “Many states that allowed some cottage foods in 2013 have also broadened their laws to allow more types of sales,” Broad Leib added.

The authors of the report see this shift as overwhelmingly positive and write that making it easier for small-batch food producers to get started supports local food economies. Evidence on the impacts of the laws, however, is basically nonexistent, and Broad Leib sees it as an area ripe for research.

“What we do know is that there is a lot of consumer interest in purchasing food from their neighbors and from within their own communities, whether or not this food follows safety regulations, and that there are many producers interested in using cottage food production as an avenue to start a small business, or at least to test out their markets before building a more traditional food business,” she said. “To the extent that cottage food laws allow these new market opportunities to take place without any costs to the state, they bring a lot of benefit.” In other words, other states likely want in on the Brooklyn maker phenomenon, too.

Cyberlaw Clinic Represents Amicus Party in Net Neutrality Case

“DC Circ. Sets Net Neutrality Oral Arguments For February”

Via Law360

By: Kelcee Griffis

The D.C. Circuit has set oral arguments in the consolidated net neutrality cases for the morning of Feb. 1, when attorneys in the contentious suit will get face time with the court to air their positions against the Federal Communications Commission’s deregulation of internet service providers.

According to the Friday order, the court will begin arguments at 9:30 a.m. on that day, but more details about how the testimony will be apportioned will be released as the date gets closer.

The FCC decision at issue overturned prohibitions on internet service providers, or ISPs blocking, throttling or granting paid prioritization to preferred web content, and it reclassified the internet as a Title I information service. The reclassification returned online abuses to the regulatory sphere of the Federal Trade Commission, as the internet had been treated before the 2015 Open Internet Order took effect. The FCC’s Republican majority says the move will return the internet to the “light touch” regulatory framework that helped the web thrive in its early stages.

Petitioners in the case disagree with that optimistic view of deregulation. In opening briefs, critics including Mozilla and Public Knowledge said the agency backfilled its reasoning for scrapping the regulatory regime and ignored millions of public comments that urged the commission to leave the Obama-era rules intact. Other primary challengers include Etsy, Incompas, nearly two dozen state attorneys general and other government entities.

Amicus filers that chimed in to support the petitioners include Twilio, the Internet Association, the Computer and Communications Industry Association, Consumers Union and Engine Advocacy. Those groups argued in amicus briefs that the FCC ignored data that suggested the market for internet services isn’t competitive and refuted the FCC’s reasoning that broadband providers will be held in check by fierce broadband competition in most communities, among other points.

In particular, Twilio took issue with the FCC’s reasoning for its actions, which the agency described as necessary to encourage broadband providers to invest in and expand their networks. However, Twilio said, contradictory evidence suggests new products and services are most likely to proliferate and drive demand for network capacity when platforms are guaranteed unbiased internet access. Engine similarly said the reversal harms venture investors and startups that relie on the open internet rules.

The consolidated case was originally assigned to be heard in California, but the parties won an unopposed transfer to the D.C. Circuit, where other net neutrality cases have played out. Final briefs are due Nov. 27, according to the docket.

Mozilla is represented by Markham C. Erickson and Georgios Leris of Steptoe & Johnson LLP.  Public Knowledge is represented by Kevin Kendrick Russell of Goldstein & Russell PC.

Twilio is represented by Adrienne E. Fowler of Harris Wiltshire & Grannis LLP. CCIA is represented in-house by Matt Schruers and John A. Howes Jr. The Internet Association is represented by Christopher J. Wright, Scott Blake Harris, Stephanie Weiner and E. Austin Bonner of Harris Wiltshire & Grannis LLP. Consumers Union is represented by Andrew Jay Schwartzman and James T. Graves of the Institute for Public Representation at Georgetown University Law Center. Engine is represented by Christopher T. Bavitz of the Cyberlaw Clinic at Harvard Law School.

The FCC’s in-house representation includes lead counsel Thomas M. Johnson Jr.

The lead case is Mozilla Corp. v. FCC, case number 18-1051, in the U.S. Court of Appeals for the District of Columbia.

Courts Force States to Provide Costly Hep C Treatment

Via Stateline 

Source: Pixabay

By: Michael Ollove

Recent court rulings and settlements have found that states cannot withhold potentially life-saving but expensive medications from Medicaid beneficiaries and prison inmates who have chronic hepatitis C. In the latest ruling, chief judge of the U.S. Southern District of Indiana Jane Magnus-Stinson said that withholding or delaying treatment from hepatitis C-infected inmates was unconstitutional, amounting to cruel and unusual punishment in violation of the Eighth Amendment.

CHLPI Faculty Director Robert Greenwald was quoted in the article. The excerpt can be found below:

“If there were a cure for breast cancer or Alzheimer’s or diabetes, people would be storming the White House to make sure those medicines were available to everyone, you can be sure of that,” said Robert Greenwald, a professor at Harvard Law School and the faculty director of the school’s Center for Health Law and Policy Innovation. “But we’ve responded completely differently with the cure for hepatitis C because of the stigma associated with that disease.”

Greenwald and others insist that treating prisoners with hepatitis C is an indispensable step toward eradicating the disease in the whole population.

Read the full article here.

City Attorney Sues Blogger for Libel. Is It ‘A Threat Designed to Silence?’

Via the Miami Herald 

By: Sarah Blaskey

Cyberlaw Clinical Instructional Fellow Kendra Albert was quoted in an article by the Miami Herald about a lawsuit where the North Bay Village, FL attorney is suing a blogger for alleged libel:

“The suit is part of a growing trend of public officials taking bloggers to court for posts they see as harmful to their personal or professional image, according to Kendra Albert of Harvard Law School’s Cyberlaw Clinic. Melania Trump filed a high-profile libel suit against a Maryland blogger that settled last year in her favor, with a full retraction and significant reparations. While some cases are legitimate, Albert said, the increase in lawsuits against journalists (think Hulk Hogan vs. Gawker) has publications thinking twice before publishing. These days, even facts can be expensive to defend.

‘Journalistic entities need to have a fair amount of money in order to defend themselves, and I do think that does represent a threat,’ Albert said. ‘Lawsuits can be weaponized by folks with more power to shut down speech they don’t like. But that’s not necessarily what’s happening here.’ Albert did not review the specifics of the case.”

Read the full article here.

Yes, You Can Name A Website “”

Via the Electronic Frontier Foundation 

By: Mitch Stolz

Jeremy Rubin just wanted to speak out about the rise of white supremacist groups in the U.S. and raise some money to fight against those groups. But the Internet domain name he registered in late 2017 for his campaign—“”—ran afoul of a U.S. Department of Commerce policy banning certain words from .US domain names. A government contractor took away his domain name, effectively shuttering his website. Last month, after EFF and the Cyberlaw Clinic at Harvard Law School intervened, Mr. Rubin got his site back.

A government agency shutting down an Internet domain based on the contents of its name runs afoul of the First Amendment. After a long back-and-forth with EFF and the Cyberlaw Clinic, the Commerce Department’s contractor Neustar agreed to give Mr. Rubin back his domain, and to stop banning “dirty words.” has proudly returned to the Internet.

As anyone with a business or personal website knows, having a meaningful domain name can be the cornerstone of online presence. Mr. Rubin, moved to act after anti-Semitic and white supremacist incidents last summer, created a “virtual lapel pin” through the Ethereum computing platform as a fundraiser for opposition to these causes. The virtual pins, and the domain he registered to sell them, declared his message in a pithy fashion: “

The Internet’s domain name system as a whole is governed by ICANN, an independent nonprofit organization. While ICANN imposes questionable rules from time to time, a blanket ban on naughty words in domain names has never been one of them. Unluckily for Mr. Rubin, the .US top-level domain is a different animal, because it’s controlled by the U.S. government.

Originally used only for government websites, .US is now open to anyone with a connection to the U.S. Since 1998, it’s been controlled by the National Telecommunications and Information Administration (NTIA), a part of the Department of Commerce. And it’s managed by registry operator Neustar, Inc., under contract with NTIA.

Shortly after Mr. Rubin registered “,” Neustar suspended the domain, calling it a violation of an NTIA “seven dirty words” policy, a phrase with particular First Amendment significance.

As a general rule, First Amendment law makes clear that the government can rarely impose restrictions on speech based on the content of that speech, and when it does, must show some level of necessity. The well-known case of Federal Communications Commission v. Pacifica Foundation upheld the FCC’s decision to reprimand, though not fine or revoke the license of, a public broadcaster after it aired George Carlin’s famous monologue “Filthy Words.” In so doing, the Court approved of the FCC’s definition of “indecency,” a word otherwise without a constitutional definition. But the Supreme Court explained that “indecency” as a legal concept was limited to over-the-air broadcast media, because broadcasts made use of limited radio spectrum, were a scarce and highly regulated public resource, and were easily overheard by children in their everyday surroundings. Many years later, the Supreme Court directly rejected the US government’s attempt to impose a similar indecency regime on the Internet, and that regime has never been applied to any medium other than over-the-air radio and television broadcasts.

Last month, we learned that Neustar and NTIA were reversing course, allowing Mr. Rubin to proceed with the use of, and more generally removing these kinds of restrictions from future .US domain name registrations.

Thanks to the First Amendment, the .US domain, advertised as “America’s Address,” is a place where one can say “Fuck Nazis” without censorship.


Rand Paul Must Reverse His Position On Judge Kavanaugh’s Supreme Court Nomination – Or Betray His Anti-War Legacy

Via Take Care Blog

By: Daniel Levine-Spound

On July 30th, Kentucky Senator Rand Paul announced his support for Judge Kavanaugh’s nomination to the Supreme Court. Although he had initially voiced concerns regarding Kavanaugh’s “record on warrantless bulk collection of data and how that might apply to very important privacy cases,” Paul ultimately backed President Trump’s choice.

Whatever one makes of Rand Paul’s waffling on privacy issues, his support for Kavanaugh speaks to an arguably deeper betrayal of his principles: opposition to the United States’ ever-expanding and seemingly interminable “War on Terror.” For few judges have shown themselves less willing to impose limits on American war-making, or more flexible in deferring to the Executive Branch on issues related to armed conflict, than Kavanaugh.

In June 2018, Paul chaired a Senate hearing on the Corker-Kaine Authorization for Use of Military Force (AUMF), a bill meant to replace the 2001 AUMF and provide new legal authority for US counterterrorism operations abroad. In his Opening Statement, Paul noted that when the 2001 AUMF was passed, “no one in Congress believed they were voting for a worldwide war on ‘terrorism’ in twenty some odd countries that would go on for decades.” Rather than limiting “the scope of war,” the proposal, Paul explained, would do the opposite, “expand[ing] the current theaters of war” and flipping the Constitution “on its head.” Although the bill references “reassert[ing] the role of Congress,” Paul’s assessment is correct: the bill’s passage would have further ceded Congress’s constitutional war-making authority, allowing “the president to wage war against six enumerated groups and add new groups in the future, all without any geographic or time constraints.”

Paul’s opposition to the Corker-Kaine bill aligns with his long-standing principles. Since his 2011 election, Paul has remained one of the Senate’s staunchest critics of the “Forever War” and unchecked executive power. In 2013, he conducted the “longest talking filibuster in recent Senate memory,” speaking from the Senate floor for over twelve-hours to block the Obama Administration’s nomination of John Brennan as head of the CIA due to his role in Obama’s drone strike program. In September 2017, Paul called explicitly for the repeal of the 2001 and 2002 AUMFs, lambasting the “trillions spent in seemingly endless conflicts in every corner of the globe.” He asserted that, when Congress allows the Executive Branch to “unilaterally” declare war, it “abdicates” its Constitutional responsibilities.

For anyone concerned about the “Forever War,” Paul’s past actions are laudable. But in supporting Kavanaugh, Paul has undermined over a decade of advocacy aimed at restraining US military action abroad. At a time in which the Trump Administration has publicly declared its intention to keep Guantanamo open, and has further escalateddrone strikes, supporting Kavanaugh’s accession to the Supreme Court is particularly inconsistent with Paul’s publicly-stated principles.

Perhaps no issue more clearly highlights the difference between Kavanaugh and Paul than Guantanamo Bay, the infamous prison camp opened by the Bush Administration at the onset of the “War on Terror.” In 2013, Paul was one of three Republican Senators willing to back an amendment to the National Defense Authorization Act (NDAA) loosening restrictions on transferring detainees out of Guantanamo—part of President Obama’s efforts to shrink the Guantanamo prison population. In light of that vote and other actions, Paul was characterized in 2015 as a “rare Republican presidential candidate willing to buck the party’s traditional position on an issue of national defense.”

Kavanaugh could hardly be more different. In a lengthy concurrence in Al-Bihani v. Obama, a 2010 case in which a Yemeni citizen captured in 2002 challenged his continued detention in Guantanamo, Kavanaugh disputed the notion that the international law of armed conflict places any restriction on US wartime detention. Both the Third and Fourth Geneva Conventions—signed and ratified by the United States—strictly limit the permissible length and conditions of detention in armed conflict. But in spite of the Supreme Court’s recognition of these obligations, Kavanaugh would have rejected his court’s ability to enforce them on the President. In his view, “it is hard to conceive of a task less appropriate for U.S. judges…than judicial invocation…of uncertain and changing international-law norms to restrain the President and the U.S. military in waging a congressionally authorized war abroad.”

Three years later, in Razak Ali v. ObamaKavanaugh again disputed the notion that courts, or international law, can regulate the length of detention in Guantanamo: “It is not the Judiciary’s proper role to devise a novel detention standard that varies with the length of detention. The only question before us is whether the President has authority under the AUMF to detain Ali. In conducting that analysis, we must apply the same standard in 2013 that we would have applied in the aftermath of Ali’s capture in 2002.” Following Kavanaugh’s logic, there is no reason why an individual captured in 2002 could not be held until 2030 or 2050, provided the ill-defined armed conflict authorized by the 2001 AUMF continues. For Kavanaugh, the United States’ international obligations regarding wartime conduct appear largely irrelevant: “When Congress has broadly authorized the President to take certain actions, and that broad authorization encompasses actions that might in turn violate international law, courts have no legitimate basis to invoke international law as a ground for second-guessing the President’s interpretation.”

In an op-ed tracing Kavanaugh’s national-security jurisprudence, Professor Stephen Vladeck observes: “Kavanaugh’s many opinions concerning Guantanamo and related matters make it crystal clear that his confirmation would make the court far more deferential to the president’s exercise of aggressive war powers.” Vladeck highlights several decisions animated by the same principle seemingly at work in Al-Bihani: extreme deference to the executive on matters related to armed conflict. In Saleh, et al. v. Titanet al., a federal class action lawsuit filed on behalf of over 250 Iraqi civilians tortured by private US military contractors at Abu Ghraib, Kavanaugh joined a majority decision “barring state-law tort claims against a private military contractor.” Saleh’s majority focused on concerns that liability could hinder the war-effort: “Allowance of such suits will surely hamper military flexibility and cost-effectiveness.” As in Al-Bihaniand Razak Ali, Kavanaugh’s opposition to judicial involvement in armed conflict—and his extreme deference to the executive branch—dictated his vote.

As the “War on Terror” trudges into its 17th year, Rand Paul faces an important choice: will he vote “yes” on the nomination of a judge committed to seemingly unfettered executive power in all matters related to wartime conduct? Or will he uphold the constitutional principles he has long espoused, and refuse to assent to Kavanaugh’s nomination?

His legacy of opposing endless war and advocating checks on presidential power may depend on the answer.

Why An Army of Small Companies is Defending the Sprint/T-Mobile Merger


Source: Pixabay

Cyberlaw Clinical Professor of Law Susan Crawford writes about why small companies are supporting the T-Mobile/Sprint merger and what the consequences are for consumers if the merger occurs:

Last month, Reuters reported that T-Mobile was asking the small operators that resell T-Mobile’s excess network capacity to write letters and opinion pieces in support of the company’s proposed $36 billion merger with Sprint.

T-Mobile’s request wasn’t unusual. Trumping up support for deals that aren’t actually in the public interest is common practice in the swamp we know as US telecom policy. When Comcast was working on its merger with NBCU at the beginning of this decade, supportive comments poured into the FCC from companies across the country who had an interest in keeping Comcast happy. By helpfully suggesting talking points to resellers—or MVNOs, for Mobile Virtual Network Operators—including Mint Mobile, Republic Wireless, and Ting, all of which lease access from the Big Four network operators (Verizon, AT&T, Sprint, and T-Mobile) in order to sell phone and data services to customers, T-Mobile is following the usual “air of inevitability” merger playbook.

What’s so troubling about T-Mobile’s get-out-the-vote campaign is who is aiding the company’s lobbying. MVNOs, who don’t own their own infrastructure but collectively account for about 10 percent of the consumer wireless market in the US, primarily target “value” consumers, otherwise known as low- and medium-income Americans. These small companies, who are utterly dependent on the goodwill of the Big Four, are serving Americans who are making barely enough to survive.

Continue reading.

An Unusual Coalition in Boston Helps Save Homes from Foreclosure

Via Next City

By: Zoe Sullivan

Source: Pixbay

One day in early Summer 2012, a man yelled up to Alma Chislom from the front porch of her triple-decker apartment building, the style so common in the Boston area.

“The man on the porch asked if he bought the house, if we would want to stay,” says Chislom. She had moved just a few months earlier to the Park Street apartment after dealing with a landlord who didn’t pay the water or heating bills. “So here I am again thinking we’re going to be homeless,” she says.

Chislom wasn’t alone in this situation. As the subprime mortgage crisis and subsequent recession dragged on, particularly in poorer neighborhoods, buildings languished in various phases of foreclosure, leaving homeowners as well as tenants in limbo — easy picking for investors looking to flip entire blocks or neighborhoods into luxury housing. Tenant organizers in Boston began to see the foreclosure crisis as a new front.

Lisa Owens was one of the people at City Life/Vida Urbana who eventually helped Chislom stay in her home.

“We had a pretty major campaign that started with the big banks but ultimately ended with a demand directly to FHFA [the Federal Housing Finance Association], and Fannie Mae and Freddie Mac, which ultimately were the largest mortgage holders, to say ‘stop displacing people and do principal reduction for all of these homes that were under water,’” Owens says.

The situation brought together an unusual group of allies. The Coalition for Occupied Homes in Foreclosure, or COHIF as it’s known, includes members such as City Life/Vida Urbana, Boston Community Capital, Harvard Legal Aid Bureau, Greater Boston Legal Services, the Greater Four Corners Action Coalition, the Archdiocese of Boston’s affordable housing development arm, the Massachusetts Association of Community Development Corporations, and others.

“It is probably the only place that I know of where radical housing advocates and more mainstream policy advocacy folks in the housing world, non-profit developers, for-profit developers, financiers, and city agencies all come together to deal with this [foreclosure] crisis and what has turned into now a displacement crisis for renters and owners,” says Owens.

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29 Little Ways to Cut Back on Food Waste

Via the Center for Health Law and Policy Innovation

Prevention magazine recently wrote an article full of ideas to reduce food waste, quoting FLPC Director Emily Broad Leib in the article.

Excerpt below:

Give milk the sniff test

Think the “sell by” or “use by” dates are there to prevent illnesses? Nope. “They’re not based on any safety test,” says Emily Broad Leib, director of the Food Law and Policy Clinic at Harvard Law School. “Most are just manufacturers’ suggestions for quality, and they vary widely.” If you regularly pitch things whose dates say they’ve just expired, you’re probably throwing away foods that are perfectly fine to eat. Still nervous? Check the USDA’s FoodKeeper app to double-check: It tells you how long various foods typically last.

Read the full article here.

HLPC Clinic Director Robert Greenwald Quoted in Pew Charitable Trust Article


Marsha Mercer’s article in Stateline for Pew Charitable Trust Pew Charitable Trust is about the food is medicine concept as a tool to cut health care costs. The article quotes HLPC Clinic Director Robert Greenwald:

“Food is medicine is an idea whose day has arrived,” said Robert Greenwald, faculty director of the Harvard Law School’s Center for Health Law and Policy Innovation, one of the experts who testified in January at the launch of the congressional Food is Medicine Working Group, part of the House Hunger Caucus.

Read the full article here.

Matters of Life or Death

Via The Harvard Gazette

Credit: Kris Snibbe

It was a chilly afternoon outside the Allan B. Polunsky Unit, a maximum-security prison for death-row inmates in Livingston, Texas. Inside, the mood was somber. An execution was scheduled for later that day, and a sense of foreboding filled the air.

Law School student Jake Meiseles, J.D. ’19, was talking to his client by phone through a thick glass window when he saw the condemned man walking behind the cubicle, followed by corrections officers. The man smiled and nodded at Meiseles, who did the same. The brief human exchange left Meiseles distraught.

“It was sad and upsetting,” said Meiseles, who was there as an intern with the Office of Capital and Forensic Writs in Austin, Texas. “But it kind of put into perspective the work we’re doing.

“It was like the worst-case scenario kind of looked me in the face, because if the work we’re doing fails, that’s the end.”

Meiseles was at the prison as a student in the Capital Punishment Clinic at Harvard Law School (HLS). Clinic students work remotely on the capital cases they began work on as interns with legal organizations around the country during J-term, interviewing witnesses, conducting field investigations, and drafting briefs, habeas petitions, and other motions. For Meiseles, meeting inmates on death row was memorable and deeply meaningful.

“Once you meet people who are facing the injustice that the death penalty is, that is something you can’t walk away from easily,” he said.

Led by Carol Steiker, the Henry J. Friendly Professor of Law and faculty co-director of the Criminal Justice Policy Program, the clinic tests the complex body of constitutional law that regulates the death penalty and its troubled history. The U.S. Supreme Court abolished the death penalty in 1972 but it was reinstated in 1976. The U.S. is the only Western democracy that carries out executions.

“The death penalty is a window into American history and the criminal justice system,” said Steiker, who was drawn to capital cases when clerked for U.S. Supreme Court Justice Thurgood Marshall.

“As a law clerk, you see the whole landscape of capital punishment in the U.S. laid out before you, and you see it’s concentrated substantially, almost exclusively, in the states of the former confederacy,” she said. “You see its roots in slavery, racism, and its current practice today reflects that.”

Nineteen states have abolished the death penalty. Of the 31 that retained it, only seven actually carry out executions. Its practice is concentrated in 10 counties across California, Nevada, Arizona, Texas, Louisiana, Alabama, and Florida. Texas executes more prisoners than any other state.

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How Curbs Became the New Urban Battleground


Susan Crawford of the Cyberlaw Clinic explains what cities should consider when gathering data to assess how curb spaces may be rezoned:

“It’s common knowledge that city curbs are fiercely contested places, what with Ubers and Lyfts hovering inconveniently and blocking traffic; piles of shared bikes and scooters being dropped off and picked up; rapidly climbing numbers of deliveries being made by double-parked trucks; and buses and taxis pulling up—not to mention all the private-car parking going on. These daily dramas will only get more boisterous and difficult in the years to come, when fleets of city-licensed driverless cars join the fray.

Yes, dramas. Calvin Trillin wrote an entire 2002 novel about parking in New York City (Tepper Isn’t Going Out), in which the main character, Murray Tepper, finds a sense of purpose in securing a Beautiful Spot; once he’s in, he usually stays in his car until the meter runs out, reading the newspaper and waving away anyone who asks whether he’s leaving. That’s a use of the curb that planners call, somewhat derisively, “storage”—today’s private vehicles spend 95 percent of their existence waiting to be used.

Planners want curbs and sidewalks, the essential public ways of any city, to go through a phase change from the Tepper storage state (“Where can I leave my car for the day?”) to mobility. (“How will I move along with my day?”) The District of Columbia, along with several other cities, is piloting shared used mobility zones, and city officials are thinking about both how to rezone curb space and what to charge for its use so that the work of the city can be supported appropriately.”

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Congratulations to Esme Caramello, one of the 2018 Top Women of Law

Congratulations to Esme Caramello, who is among the 2018 Top Women of Law honored by Massachusetts Lawyers Weekly! The award ceremony, which will be held on October 18, honors “legal educators, trailblazers, and role models who have demonstrated outstanding accomplishments in social justice advocacy and business.”

Human Rights Watch and HLS IHRC Joint Report States That Using Killer Robots in Wars Would Breach International Humanitarian Law

Via The Guardian

The use of fully autonomous weapons in a theatre of war would breach international law, campaigners and experts say, as longstanding calls for a ban on “killer robots” intensify.

These AI-powered guns, planes, ships and tanks could fight future wars without being subject to any human control, as high-tech nations step up investment in the weapons and inch towards full autonomy.

Twenty-six countries explicitly support a prohibition on fully autonomous weapons, with Austria, Belgium and China recently joining thousands of scientists and artificial intelligence experts and more than 20 Nobel peace prize laureates in declaring their support.

In a new report published jointly by Human Rights Watch and Harvard Law School’s International Human Rights Clinic, the organisations have stated that fully autonomous weapons would violate the Martens Clause – a well established provision of international humanitarian law.

It requires emerging technologies to be judged by the “principles of humanity” and the “dictates of public conscience” when they are not already covered by other treaty provisions.

“Permitting the development and use of killer robots would undermine established moral and legal standards,” said Bonnie Docherty, senior arms researcher at Human Rights Watch, which coordinates the Campaign to Stop Killer Robots. “Countries should work together to preemptively ban these weapons systems before they proliferate around the world.

Read more here.

Why Universities Need ‘Public Interest Technology’ Courses


Cyberlaw Clinic Professor of Law Susan Crawford wrote an op-ed explaining why universities should offer public interest technology courses:

Policymakers at all levels of government are struggling to thoughtfully harness data in the service of public values. Many public servants grew up in an era of firmly separate disciplines: You were either an engineer or an economist, either a programmer or a social worker, but never both. In an era in which data is everything, the risks to core democratic principles—equity, fairness, support for the most vulnerable, delivery of effective government services—caused by technological illiteracy in policymakers, and policy illiteracy in computer scientists, are staggering.

This has happened because traditional academic disciplines, as they currently operate, often aren’t designed to help students study and apply technical expertise to advance the public interest (as distinct from advancing commercial interests). Students doggedly find their own public interest paths; in fact, the digital generation now in college and graduate school craves meaningful work that will change the world. As long as they can make ends meet, they’ll happily work for less money in public interest jobs in government and nonprofits. But most universities haven’t provided pathways for these digital natives to cross-train in policy and computer science by working on real problems, or to combine expertise in data science with the capacity to think deeply about the ethical and social implications of the use of digital technology.

Read more here.

Will the Supreme Court Follow the Catholic Church’s Position on the Death Penalty?

Via Time

Following the Vatican’s rejection of the death penalty, faculty sponsor of the Capital Punishment Clinic Carol Steiker and co-author Jordan Stieker discuss how the U.S. could catalyze progress towards global abolition of capital punishment if the Supreme Court constitutionally abolished the practice.

Read here.

Letter Opposes Possible EPA Shift

Via The Harvard Gazette 

By Alvin Powell, August 10, 2018

Nearly 100 leaders and faculty members at Harvard and its affiliated hospitals have signed a letter calling on the Environmental Protection Agency (EPA) to withdraw its proposed rule on scientific “transparency,” saying that the change would drastically limit the scientific and medical knowledge that underlies a host of EPA regulations that protect human health.

The letter’s 96 signatories include Harvard President Larry Bacow, the deans of Harvard Medical School (HMS) and the Harvard T.H. Chan School of Public Health, and the presidents of Massachusetts General Hospital (MGH), Brigham and Women’s HospitalBeth Israel Deaconess Medical Center, and Massachusetts Eye and Ear. It says that the EPA’s push to require studies to reveal the material that supports their conclusions would bar the best available science from being considered in the regulatory process.

“It does not get at what they’re trying to do,” said Francine Laden, professor of environmental epidemiology at the Harvard Chan School and one of the signatories. “Having data available for anybody to look at does not guarantee you have validity.”

The letter was drafted by Wendy Jacobs, Emmett Clinical Professor of Environmental Law and director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, together with clinic staff and with input from faculty members about the rule’s potential scientific and health ramifications. It was submitted to the EPA on Tuesday during the public comment period on the proposed rule, which is called “Strengthening Transparency in Regulatory Science.”

The letter, which concludes by urging the EPA to withdraw the draft rule, is one of two that Jacobs said the clinic will submit. The second will focus in more detail on what she described as the rule’s numerous legal deficiencies.

The rule would require that the raw data supporting scientific conclusions on which EPA regulations are based be publicly available. Supporters of the move — including former EPA Administrator Scott Pruitt, who submitted the proposal in April — argue that the rule would allow the underlying science to be independently validated. In announcing the proposal, Pruitt hailed the end of “the era of secret science at the EPA” and said the reproducibility that it would enable is “vital for the integrity of the rulemaking process.”

The proposal quickly drew criticism from analysts and scientists concerned about its impact on EPA regulations. In May, members of the EPA’s own Science Advisory Board criticized the proposal, saying it was drafted without input from scientists. A month later, then-Harvard President Drew Faust wrote to Pruitt that his criticism of “secret science” misrepresented a process that has an obligation both to use private health information for the greater good and to protect subjects’ privacy.

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We Won’t Get Fooled Again

Via the American Constitutional Society Blog

By Peter J. Brann, August 6, 2018

Source: Wikimedia Commons

We’ve seen this movie before. President Trump nominates someone to the Supreme Court. The nominee declines to answer questions about Roe v. Wade, or any other hot button issue on the grounds that the issue may come before the Court. Indeed, other than imprecisely praising Brown v. Board of Education, the nominee declines to express a view about any decision that the Supreme Court has issued since its founding in 1789. Instead, the nominee offers fulsome, if vague, support for respecting precedent. As we watch this pas de deux between the nominee and Congress over how much the nominee respects precedent, and wonder whether Roe v. Wade and numerous other precedents will be swept aside, we should compare the statements of Supreme Court nominee Judge Gorsuch to the actions of Supreme Court Justice Gorsuch.

In his confirmation hearing, Judge Gorsuch repeatedly expressed his strong support for precedent. “Precedent is the anchor of the law.” “For a judge, precedent is a very important thing. We don’t go reinvent the wheel every day.” Judges must “start with a heavy, heavy presumption in favor of precedent,” but in “a very few cases,” precedent may be overruled. In deciding whether to overrule a precedent, judges should consider “the age, reliance interests, and the workability of the precedent, among other things.”

Apparently the “other things” that judges should consider are whether the judge simply disagrees with the precedent. In his first term on the Supreme Court, Justice Gorsuch joined virtually every call to overrule a prior precedent, and he suggested that precedents be overruled in nearly 10% of all the cases decided by the Court.

This year, in Janus v. AFSCME, Justice Gorsuch joined a 5-4 majority to overrule Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), on union agency fees. In South Dakota v. Wayfair, Inc., Justice Gorsuch joined a 5-4 majority to overrule National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), and Quill Corp. v. North Dakota, 504 U. S. 298 (1992), in a Commerce Clause case concerning taxation of remote sellers. In SAS Institute, Inc. v. Iancu, Justice Gorsuch, writing for a 5-4 majority in a patent case, stated that whether the administrative deference rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), “should remain is a question we may leave for another day.” AboodQuill, and Chevron have been settled law for decades, and each has formed the basis of a significant part of our economy and society.

In concurring and dissenting opinions this year, Justice Gorsuch was willing to go further than his colleagues in dismantling other long-standing precedent. In Carpenter v. United States, Justice Gorsuch dissented alone in the cellphone warrant case to urge the Court to overrule the Fourth Amendment approach taken by the Court in Smith v. Maryland, 442 U. S. 735 (1979), and United States v. Miller, 425 U. S. 435 (1976). In Byrd v. United States, Justice Gorsuch joined a concurring opinion of Justice Thomas expressing “serious doubts about the ‘reasonable expectation of privacy’ test” from Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring), which has been the touchstone of Fourth Amendment search-and-seizure cases for generations.

In Sveen v. Melin, Justice Gorsuch dissented alone in a Contracts Clause case in which he questioned whether modern Contracts Clause cases, such as Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 (1983), were properly decided. In Jesner v. Arab Bank PLC, Justice Gorsuch wrote separately in an Alien Tort Statute case to state that he harbored “serious doubts” about the “suggestion” in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), that courts could create new causes of action under the statute, which is as old as the Supreme Court itself.

While Judge Gorsuch told Congress during his confirmation that “precedent is the anchor of the law,” Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years in a wide swath of law, including the Fourth Amendment, Commerce Clause, Contracts Clause, labor law, administrative law, and international law. And this was just his first year on the Court.

In evaluating Judge Kavanaugh, Congress shouldn’t be satisfied with empty platitudes about respect for precedent. Instead, it should take its cues from The Who, who warned us over 45 years ago: “We Won’t Get Fooled Again.”

(Additional disclosure: our firm represented Wayfair and the other respondents in South Dakota v. Wayfair, Inc., although I did not personally work on that case.)

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