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From the Boston Marathon to a deadly meningitis outbreak, a prosecutor shares negotiation lessons

Via Harvard Law Today 

By: Adriel Borshansky

Credit: Lorin Granger

This spring, George Varghese, an assistant U.S. Attorney based in Boston, delivered a guest lecture to the Harvard Negotiation and Mediation Clinical Program’s (HNMCP) Spring 2019 Negotiation Workshop, a limited-enrollment course that combines theory and practice with the aim of improving both the participants’ understanding of negotiation and their effectiveness as negotiators. Drawing from a wide variety of prosecutorial experiences from his current work in Boston, and from his previous work as an assistant U.S. Attorney in Washington, D.C., Varghese shared insights and riveting anecdotes about what it is like to negotiate in the real world.

In the lecture, Varghese described three high-profile cases he worked on, and explained how the process of engaging in plea bargain negotiations provides a unique context in which to apply basic principles and theories of negotiation. While criminal law often features high-profile trials, he noted that 97% of cases are resolved through plea bargains.

He pointed out that several features characterize plea bargain negotiations. First, the stakes for defendants can be particularly high (often their lives are on the line). Second, the interests of defense counsel—seeking the best outcome for specific individuals—and the prosecution—representing the government and seeking the best outcome for a just society, broadly defined—often diverge significantly. Third, agreement reached through plea bargain negotiations involves a third party—a judge—who is not at the table, yet wields ultimate authority. Moreover, he said, plea bargain negotiations can be particularly complicated due to differing assessments of the law and uncertainties regarding the facts of a given case.

Varghese’s first example came from the case against Oscar Ortega-Hernandez, who shot at the White House in November 2011. After firing on the White House, Ortega-Hernandez fled and was ultimately apprehended after an extended manhunt. He was initially charged with the attempted assassination of President Barack Obama. However, during negotiations with defense counsel, this charge was dropped and Ortega-Hernandez was instead charged with destruction of property and discharging a firearm during a crime of violence, ultimately resulting in a 25-year sentence after the application of a terrorism enhancement. Varghese explained that the specific nature of the charge mattered to the defense, while the prosecution was more concerned with the ultimate sentence. This difference, he said, provided an opportunity to negotiate.

By contrast, he offered the Boston Marathon bombing case, where he said the focus of Dzhokhar Tsarnaev’s defense counsel was on avoiding a death penalty. According to Varghese, the defense was willing to accept a resolution of life imprisonment. The Department of Justice believed it was more appropriate to leave this issue to the determination of a jury. Varghese later explained the complexities of representing the public interest as a prosecutor, and how in some instances there was a compelling public interest in rigorously presenting evidence at trial and letting the jury decide. (At trial, Tsarnaev was sentenced to death.)

The case against fourteen employees of the New England Compounding Center provided a third distinct context. NECC, based in Framingham, Mass., was responsible for distributing contaminated drugs to patients in several states; nearly 800 people developed meningitis and other infections as a result of fungal contaminants. An investigation into NECC’s practices revealed that their facilities were improperly cleaned; mold and bacteria grew regularly inside NECC’s “clean rooms”; expired drugs were relabeled and reused; required tests for sterility and potency were not always conducted; negative test results were not shared with medical providers; and a pharmacy staff member worked there despite having his license revoked.

Varghese explained how the prosecutors spoke extensively with victims to ascertain their interests in prosecuting NECC, and how the governmental interests at play included revealing the fraudulent behavior to the public. While there was little opportunity to negotiate plea bargains with most defendants in this case, some of the lower-level actors did plead guilty and cooperated with the government. The strategy of negotiating with low-level actors can be effective in situations in which the government interest in obtaining testimony against higher level defendants outweighs its interest in charging everyone involved in wrongdoing.

Ultimately, the levers available to prosecutors in plea bargains consist largely of the specific charges to be brought and recommendations for sentencing. Defendants may care not only about the type and duration of sentences, but also the reputational costs of certain charges. Because plea bargain negotiations are confidential, prosecutors and defense counsel can be more candid and transparent in their assessment of the case, and this transparency facilitates frank discussions of the deals to be made (which can be helpful for prosecutors seeking agreement). At the same time, the lack of public transparency around these kinds of negotiations can mean that any given defendant has limited information to use in negotiating their deal. The dynamics of plea bargains are also strongly influenced by the rhythm of the criminal trial process—defendants may be more or less likely to consider striking a deal from moment to moment.

In the question and answer session, Varghese revisited one particular theme that emerged over the course of his talk: the notion of victims and the general public as stakeholders; what it means to consider the interests of victims or stakeholders; and how one even registers or understands those sentiments. Varghese recalled his experiences sitting down with victims of NECC’s fraud. Echoing the principles of active listening taught in the Negotiation Workshop, Varghese insisted on the importance of prosecutors’ efforts to ask open-ended questions about what victims had experienced, and what they wanted going forward.

Varghese’s visit to the Spring Negotiation Workshop is the latest installment in an annual feature of the course in which a prominent real-life negotiator speaks to  students about their professional negotiation experience in an area of practice. Past speakers have included Wendy Sherman (in 2016 and 2018), Sarah Hurwitz, Bob Barnett, Ron Shapiro, Rose Gottemoeller, Grande Lum, and Clifford Sloan. The Negotiation Workshop, offered during the January term and spring semester, combines theory and practice to improve students’ understanding of negotiation and their skills as negotiators.

Legal Services Center Housing Clinic wins precedent setting case for domestic violence survivors facing eviction

Via the Legal Services Center

Source: flickr

Survivors of domestic violence in Massachusetts and nationwide facing eviction have won a major victory in the Supreme Judicial Court of Massachusetts (SJC)* with a new ruling that the federal Violence Against Women Act (VAWA) protects tenants in federally subsidized housing from being evicted when the cause of eviction is tied to their domestic abuse. The court ruled that a domestic abuse survivor is protected even if he or she reveals the abuse late in the eviction process or after defaulting on an agreed upon payment plan, and that it doesn’t matter when or how the survivor alerts the court and the landlord that she is the subject of abuse.

The new precedent reduces the risk that domestic violence will lead to eviction and homelessness, a decision that has vital implications for survivors of domestic violence who are facing eviction in Massachusetts and across the nation.

The decision marks the end of a multi-year effort by a low-income Boston tenant to stay in her home. The client in this case, Y.A., is a mother of two who had been in an abusive relationship and had been trying to stave off eviction since 2014, when she first received an eviction notice for nonpayment of rent. Her abuser subjected her to physical and emotional abuse and stole the income she earned from her job.

At a hearing in the Eastern Housing Court in January 2018, where she was facing immediate eviction, Y.A. explained that domestic violence caused her to fall behind on her payment plan. Nevertheless, the judge granted the Housing Authority’s motion to forcibly remove Y.A. from her home. In doing so the judge ignored a key provision of VAWA, the landmark 1994 law, which includes protection for tenants and applicants of federally funded subsidized housing from denial of housing or eviction from housing “on the basis that the applicant or tenant is or has been the victim of domestic violence.”

The WilmerHale Legal Services Center of Harvard Law School (LSC) began representing Y.A. after she lost her case in Housing Court and helped her appeal the decision. The SJC took up the appeal of its own accord, and the case received national attention, with 14 advocacy groups filing amicus briefs in support of the survivor. Oral argument was held on January 7, 2019.

The SJC’s May 10, 2019 decision was unambiguous, declaring that: a survivor may raise a VAWA defense to eviction at any time during an eviction proceeding; there is no prescribed method or words needed to do so; there is no restraining order prerequisite to prove eligibility for the defense; domestic violence can be disclosed to the court without first disclosing to the landlord and still form the basis for a defense; the defense can be raised even in instances of chronic non-payment; covered housing providers have an affirmative duty to help survivors and not evict them for reasons directly related to domestic violence; and that judges, upon hearing evidence of domestic violence, are obligated to inquire further to fully evaluate the applicability of VAWA and write findings before issuing decisions.

“Housing is a basic human right, and stable housing is critical to stemming the cycle of the trauma faced by survivors of domestic violence,” said Congresswoman Ayanna Pressley, Representative of the Massachusetts 7th Congressional District. “This ruling is a victory not only for Y.A. and LSC, but for every survivor who has faced housing instability as a result of domestic violence. I’m eternally grateful to Y.A. for her bravery and to LSC for reaffirming protections for survivors.”

Before releasing its full opinion, the SJC issued a brief order reversing the Housing Court’s earlier decision. The order allowed LSC to negotiate a new agreement with the Housing Authority on behalf of Y.A. that will allow her to stay housed and avoid another hearing in Housing Court.

Y.A., who fought her eviction for years without legal representation before finding LSC, expressed her happiness at the decision after a long and difficult fight, saying, “I tried for so long to get help, and to explain my situation. When [the Housing Authority] told me I had to leave the apartment, I cried, night and day. It was wonderful to get help from LSC, and I’m so glad that my case will help others.”

The result represents the culmination of a determined, collaborative effort by LSC’s Housing Clinic, including lecturer and attorney Julia Devanthéry, clinical student Emily Mannheimer ’19, and numerous allies around the state who helped prepare the Clinic for oral argument. Massachusetts-based organizations contributing amicus briefs in the case include the Boston Area Rape Crisis Center, Casa Myrna, the Domestic Violence Institute of Northeastern University School of Law, Greater Boston Legal Services, the Foley Hoag Domestic Violence Prevention Project, Jane Doe Inc., the Massachusetts Law Reform Institute, the Volunteer Lawyers Project, and the Women’s Bar Foundation. In addition, national and out-of-state organizations including the ACLU of Massachusetts, the ACLU Women’s Rights Project, Community Legal Services of Philadelphia, Mid-Minnesota Legal Aid, the National Housing Law Project, the National Network to End Domestic Violence, and the Sargent Shriver National Center on Poverty Law filed amicus briefs with the court.

The SJC’s decision not only had a clear and immediate impact for Y.A. in this case, it also created an important precedent that will be useful to housing advocates in Massachusetts and across the country. Daniel Nagin, Faculty Director of the Legal Service Center, described the decision as “a powerful example of how LSC’s individual representation cases have the potential to make real change for entire communities.”

* Boston Housing Authority v. Y.A

Read the full SJC decision: https://www.mass.gov/files/documents/2019/05/10/12623.pdf

Refugee Protection at Risk: Remain in Mexico and Other Efforts to Undermine the U.S. Asylum System

Via Harvard Law Review Blog 

Tijuana, Mexico – Long lines of both cars and pedestrians wait on the Mexican side of the border to cross from Tijuana to San Ysidro, California. The Tijuana – San Ysidro crossing is widely considered to be the world’s busiest land border crossing. Otay Mexico border crossing, U.S. Customs and Border Protection Otay Mesa Port of Entry.
Source: iStock

By: Sabrineh Ardalan

For the past year, the Trump administration has been hard at work trying to unilaterally rewrite asylum law.  Its latest attempt, the so-called Migrant Protection Protocols, informally known as Remain in Mexico, is yet another unlawful gambit.

Announced in January by former Secretary of Homeland Security Kirstjen M. Nielsen, Remain in Mexico requires that certain asylum seekers leave the U.S. and wait in Mexico while their cases are pending in U.S. immigration court.  The policy makes it almost impossible for these individuals to access counsel and precludes them from effectively presenting their claims for relief in court.

The U.S. government has sent around 6,000 asylum seekers back to Mexico since this policy was first enacted. The asylum seekers, many of them families from Central America who have suffered brutal violence and threats of death, are then forced to wait in Mexico for the duration of their court proceedings.

Given the current backlog in the immigration system, the policy could mean years without a place to call home, under precarious conditions in Mexico, where migrants are often targeted for kidnapping and attack.  And given Mexico’s aggressive practice of rounding up and deporting Central American migrants, this new policy puts these asylum seekers at significant risk of return to torture or death in their countries of origin.

The Remain in Mexico policy is legally problematic on any number of fronts, but I will focus on three here.  First, it flies in the face of U.S. obligations under the Refugee Act of 1980 and the Protocol to the Refugee Convention, as well as under the UN Convention Against Torture, which require the U.S. not to return individuals to countries where they face persecution or torture.

Second, the policy undermines due process protections for asylum seekers by imposing barriers to legal representation and violating their right to counsel. The policy also significantly increases the risk of missed hearings due to bureaucratic failures to transport asylum seekers to immigration court, potentially leading to in absentia removal orders.

Third, the new procedures for screening asylum seekers’ fears of return to Mexico set forth in the policy are arbitrary and capricious and violate the Administrative Procedures Act (APA).  The procedures deviate from well-established practice without explanation or acknowledgement and fail to comply with the APA’s notice and comment requirements.

The administration insists that these new procedures are necessary to “reduce threats to life, national security, and public safety” due to “the urgent humanitarian and security crisis at the Southern border.”  But longstanding processes we have in place already address concerns about border security.  The expedited removal system set forth in Section 235(b)(1) of the INA was specifically designed to remove individuals who are inadmissible to the U.S. because they lack documents or have fraudulent documents, unless they express a fear persecution or torture.

Moreover, establishing eligibility for asylum is already difficult to do.  People often leave their home countries in a hurry, with little or no proof of what they’ve experienced.  Or, they may lose whatever they have on their journey to the U.S.  Although both U.S. and international law dictate that asylum seekers be afforded the benefit of the doubt, adjudicators often impose unreasonable credibility and corroboration requirements.  In some U.S. immigration courts, grant rates are as low as two percent.

A Court Challenge

As with so many of the Trump administration’s attempts to undermine protections for asylum seekers, Remain in Mexico was immediately challenged in the courts as unlawful, relying on some of the arguments I’ve outlined above.

On April 8, 2019, a federal court enjoined the program’s implementation, in response to a lawsuit filed by a coalition of nonprofits and asylum seekers from Central America forced to remain in Mexico under the policy.  Judge Richard Seeborg of the Northern District of California found that the government improperly relied on section 235 of the INA as a basis for the program.

Indeed, as the district court emphasized, Remain in Mexico ignores the plain language of the statute.  Section 235(b)(2)(C), on which DHS relies, provides that individuals “described in subparagraph (A),” arriving “from a foreign territory contiguous to the United States,” “may [be] return[ed] . . . to that territory” pending immigration court proceedings.  Yet, subparagraph (A) prescribes that “its application is subject to subparagraphs (B) and (C).”  Subparagraph (B), in turn, explicitly states that “Subparagraph (A) shall not apply to an alien . . . to whom paragraph (1) applies”—namely, the expedited removal provision, which describes the procedures that govern the treatment of migrants subject to the policy.

The district court also determined that the government failed to establish adequate procedures to comply with the nonrefoulement provisions in U.S. law and safeguard those who feared for their lives in Mexico.

When the government appealed, the Ninth Circuit temporarily stayed the district court’s decision, allowing the program to take effect, pending a ruling on the validity of the injunction.  At oral argument on April 24, two of the judges questioned the statutory basis for the policy and expressed concern that the program was arbitrary and capricious in its failure to ask those affected whether they feared return to Mexico.  Despite these concerns, the motions panel subsequently granted the government’s emergency motion for a stay of the injunction on May 7, pending appeal.

Two harsh concurrences, one by Judge William A. Fletcher, the other by Judge Paul J. Watford, accompanied the per curiam ruling.  And, despite concurring, Judge Fletcher wrote in a dissenting style, underscoring his strong disagreement with his colleagues.

Judge Fletcher rejected the government’s statutory arguments as “baseless” and emphasized that “[u]nder a plain-meaning reading of the text, as well as the Government’s longstanding and consistent practice, the statutory authority upon which the Government now relies simply does not exist.” He lambasted the government for putting forward “an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated” and expressed “hope[] that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are[.]”

Judge Watford focused his criticism on the policy’s failure to comply with U.S. nonrefoulement obligations, noting that “DHS will end up violating the United States’ treaty obligations by returning some number of asylum seekers to Mexico who should have been allowed to remain in the United States” and concluding that “it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious.”

Litigation is ongoing, and it remains to be seen who will ultimately prevail on the merits.

The Administration’s Efforts to Deter Asylum Seekers from Coming to the U.S.

Remain in Mexico is only part of the Trump administration’s larger plan to gut the U.S. asylum system.  While the administration has long been openly hostile to Central American migrants, its assault on the asylum system ramped up last spring when the administration implemented its draconian “zero-tolerance” family separation policy.  The administration based that policy, like the ones that have followed, on the misguided assumption that introducing barriers to asylum would deter families who fear for their lives from coming to the U.S.

Then, last summer, former Attorney General Jeff Sessions issued a decision in Matter of A-B-, asserting, without basis,that people fleeing domestic violence and violence at the hands of gangs are generally not eligible for asylum.  From there, the president’s unlawful proclamation addressing “mass migration” in November (which he has since extended) sought to foreclose individuals crossing the border between ports of entry from applying for asylum.

Now the president has issued a memorandum mandating that the Department of Homeland Security (DHS) propose regulations barring asylum seekers who enter the U.S. without proper documentation from applying for work authorization, and imposing a fee for asylum applications and for work authorization for those still eligible to apply for it. The memo also calls for the “reprioritization” of officers within DHS, which would allow Customs and Border Protection (CBP) agents, or others, to adjudicate whether or not individuals have a credible fear of return to their countries of origin.

The current credible fear process requires that asylum officers, not CBP agents, do the screening and for good reason.  These officers undergo extensive training, including in trauma sensitivity, cross-cultural communication, and working with interpreters, all of which are skills critical to conducting fair and effective interviews.  Assigning CBP agents to the task would eviscerate procedures safeguarding individuals from return to persecution or torture.

In a further move to undermine the credible fear screening process, the government just revised its training materials for those interviews, mandating greater scrutiny of asylum seekers’ credibility and a written case analysis explaining the basis for a credibility finding. According to the new guidance, officers must probe inconsistencies in testimony, including discrepancies between statements documented by CBP and those made during the credible fear interview—despite long-standing recognition that the sworn statements completed by CBP are often rife with errors.

Fear-mongering and false facts

These policy changes are taking place against the backdrop of the president’s fear-mongering rhetoric and his repeated references to the asylum system as a loophole or a scam.  The administration and media alike have fanned fears about the number of migrants coming from Central America, regularly invoking the concept of a national emergency and suggesting the U.S. immigration system is at a breaking point.

Yet, fewer migrants are coming to the U.S. border now than a decade ago. In 2018, Border Patrol apprehended the fifth lowest number of migrants at the U.S.-Mexico border since 1973.

The administration also regularly conflates asylum seekers with criminals and gang members—incendiary rhetoric that ignores reality.  Many recent arrivals are Central American families, who have escaped violence and threats and fear torture or death if forced to return.  Moreover, the existing bars to asylum already screen out individuals who present a danger to the U.S., including those who have committed serious crimes or engaged in terrorist activities.  In fact, those existing bars are themselves overbroad in their application and implementation in the U.S.

So we find ourselves yet again facing an administration that struggles with both the facts and the law.  This country has long been committed to providing humanitarian protection to those who fear return to their home countries.  Through fear mongering, xenophobia, and racism, the administration is betraying that commitment and, with it, our standing in the world.

Mission Hill landlord-tenant relations highlight changes in Boston real estate

Clinical instructor Maureen McDonagh was quoted in  The Huntington News’s article by Ava Sasani about the rising costs and maintenance issues that have caused frustrations among residents in Mission Hill. The excerpt reads:

Maureen McDonagh, a lecturer at Harvard Law School, works with law students at the Harvard Legal Services Center’s Housing Law Clinic to advise tenants facing eviction cases. McDonagh said it is difficult to gauge the frequency of landlord retaliation cases because of the inherently subjective nature of retaliation allegations.

“It’s difficult to determine because it’s not like people say, ‘I’m going to evict you because you complained!’ The jury or judge has to look into the landlord’s head and try to figure out why they did what they did,” McDonagh said. “We do see retaliation cases fairly regularly, or allegations of retaliation.”

Read the full article here.

Taxi industry insiders — not Uber — created New York City’s cab-tastrophe

Via The Hustle 

Source: Pexels

By: Conor Grant

Since the New York City taxi medallion market crashed in 2014, 950 cab drivers have declared bankruptcy, causing criticism of Uber and Lyft.

But, a damning report from The New York Times reveals that ridesharing companies weren’t responsible for New York’s cab crash — instead, it was industry insiders who systematically drove up the price of medallions.

A bubble in the medallion market

New York City created taxi medallions in 1937 to cap the number of taxis, creating a market where medallions were exchanged like stocks.

But between 2002 and 2014, brokers, lawyers, fleet owners, and debt collectors drove up medallion prices to increase profits.

Although medallion prices quintupled from $200k to more than $1m, cab drivers’ salaries stayed the same, so lenders offered drivers predatory loans to buy medallions.

“I don’t think I could concoct a more predatory scheme if I tried,” Roger Bertling, an expert on predatory lending from Harvard, told the NYT. “This was modern-day indentured servitude.”

Downfall of the drivers

Lending companies targeted low-income immigrants who didn’t understand the terms, suckering cab drivers making $30k into $1.7m loans. Some drivers — who often spent half their income paying off these loans — took their own lives.

Yet the “taxi tycoons” who sold them their medallions made enough money to buy yachts or hire Nicki Minaj to perform at a kid’s party.

So, how did manipulative medallion merchants avoid scrutiny? 

Easy — they directed all the blame at Uber and Lyft, whose negative reputations made them easy targets.

Since Uber arrived in New York in 2011, cab revenues have fallen 10% due to the new competition — but medallion prices have lost more than 90% of their value.

Last year, New York City officials capped the number of rideshares allowed in the city in an apparent effort to protect cab drivers.

But behind the scenes, city officials helped create the medallion mayhem by advertising medallion sales — which earned $855m for the city under mayors Bloomberg and de Blasio — and then turning a blind eye to extortionate lending practices as they screwed over drivers.

Key Takeaways from Day Two of WasteExpo 2019

Waste 360’s recap of the second day of WasteExpo 2019 written by Cristina Commendatore, Mallory Szczepanski, and Arlene Karidis highlights a panel featuring Katie Sandson of Harvard’s Food Law and Policy Clinic. This excerpt of the article reads: 

In a session called “Organic Waste Bans, Mandatory Organics Recycling Laws, and Related Strategies for Food Waste Management,” Katie Sandson of Harvard’s Food Law and Policy Clinic Center for Health Law and Policy Innovation and Lorenzo Macaluso with the Center for EcoTechnology (CET) dove into what’s going on with the five states with food waste bans. They talked of a flurry of legislative activity suggesting more local governments may adopt similar policies. And they shed light on what’s entailed in setting up infrastructure to make a ban work.

The states that have some form of a food waste ban are California, Connecticut, Massachusetts, Rhode Island and Vermont—and in 2022, New York will adopt a policy that includes a ban for some businesses. In the most recent legislative session, another 30 states had bills addressing food waste “so it’s on state policymakers’ minds,” Sandson told a captive crowd.

There are issues around developing infrastructure. And bans often present a chicken-and-egg scenario; no one wants to build capacity without guaranteed feedstock, but governments hesitate to take the policy plunge without knowing the waste will have a place to go.

The Food Law and Policy Clinic is releasing a toolkit in the next few weeks to help with some of the challenges, incorporating some ideas that came from speaking to states that have taken the lead.

One reality that became clear to Sandson and her colleagues is as new policy evolves, permitting requires more thought.

“Rhode Island revised its original permit regulations. It developed a permit structure with a tier system based on throughput. Those at the lower end of the tier have the least amount of obligations and risk. The more food waste, the stricter the permit regulations,” she said.

There can be back-and-forth conversations over multiple issues, as she pointed out New York, whose ban just passed late April.

“It’s been a long process,” she explained. “Among issues they needed to work out is a distance exemption [whereby generators beyond a certain distance from a processor do not have to participate.]”

Read the full article here.

‘Food is Medicine State Plan’ to Begin Providing Services in June

Via 22 WWLP-22News

Source: Pexels

By: Jennifer Zarate

A group met on [May 22] to make sure healthy food is available to everyone in western Massachusetts.

The Franklin County Food Council brought together groups from across the state on Wednesday to talk about expanding access to food services.

Among those in attendance was the Center for Health Law and Policy Innovation of Harvard Law School, who spearheaded the Food is Medicine State Plan along with Community Servings, a Boston-based nonprofit that provides food services to people with critical and chronic illnesses.

“We want to make sure that we bring those resources to western Mass as well. And so the Food is Medicine State Plan is an attempt to do that, right, to figure out where the resources are across our state and where the need is,” said Sarah Downer from the Center for Health Law and Policy Innovation of Harvard Law School.

Downer told 22News, it’s been a year and half of gathering data to finally release the State Plan in June of this year.

“That will begin the kick off of the implementation of the recommendations and the blueprint for expansion of services that we’ve created,” she added.

The state’s Department of Agriculture Assistant Commissioner Ashley Randle told 22News, the passing of the 2018 federal farm bill helped Franklin County farms produce the food needed to help make programs like Food is Medicine possible.

“There’s a lot of growth in the area; in the amount of farmland and their production levels, and for our farmers they’re looking to produce a wholesome, healthy, high-quality product from the Berkshires down to the Cape,” said Randle.

The upcoming launch event will be held at the State House in Boston on June 18.

ACLU Vermont and Harvard Law School file class action suit on behalf of prisoners

Via Vermont Business Magazine

Door marked treatment room in hallway of old institution.

Source: iStock

After years of advocating for Vermont prisoners to have access to life-saving medication for Hepatitis C Virus (HCV), the ACLU of Vermont and the Center for Health Law and Policy Innovation at Harvard Law School, with cooperating counsel James Valente, yesterday filed a class action lawsuit challenging the state’s refusal to treat hundreds of inmates diagnosed with chronic Hepatitis C. The case was filed in the federal district court in Burlington on behalf of two Vermont prisoners, Richard West and Joseph Bruyette, who seek to represent a class of inmates who have been or will be denied treatment without medical justification.

The Plaintiffs assert the Agency of Human Services (AHS), Department of Corrections (DOC), and Centurion of Vermont’s systematic denial of the HCV cure to prisoners diagnosed with chronic HCV violates the Eighth Amendment’s prohibition on cruel and unusual punishment as well as the Americans with Disabilities Act. They are asking the court to end the Defendants’ policy of categorically denying effective, efficient, and medically appropriate HCV treatment.

ACLU of Vermont Staff Attorney Jay Diaz: “State officials are purposefully withholding the cure for Hepatitis C from hundreds of Vermont inmates, many of whom would have received it long ago it if they were not imprisoned. This is not only inhumane and short-sighted—it is unconstitutional. Vermont cannot rely on cost considerations to try to justify unlawful treatment of the people in its care and custody.”

Hepatitis C is a progressive infectious disease—identified by the CDC as the deadliest infectious disease in America—that if left untreated is likely to cause a variety of medical symptoms, including permanent liver damage, and in some cases, cancer and death. More than five years ago, the FDA approved breakthrough medication with few side effects that effectively cures the disease.

After years of advocacy by the Vermont Coalition for Access to HCV Treatment, of which the ACLU of Vermont is a member, in 2018 DOC began to provide the cure to some inmates on a more regular basis, but still denied it to the vast majority because of the associated expense. Prior to this lawsuit, Coalition members appealed to DOC to stop denying access to the HCV cure to the hundreds of other Vermont inmates who were categorically excluded. DOC refused and to date has only treated about one-fifth of the more than 300 people with chronic Hepatitis C it has identified.

Kevin Costello is the Director of Litigation for the Center for Health Law and Policy Innovation of Harvard Law School: “Hepatitis C is responsible for more deaths in the United States than any other infectious disease by a mile. There is no medical reason to actively prevent hundreds of incarcerated people from receiving curative medications for Hepatitis C. In fact, the refusal to treat prisoners needlessly prolongs suffering and heightens the risk of serious health problems for a group of people who are completely at the mercy of the State of Vermont to provide their health care.”

Similar lawsuits challenging denial of Hepatitis C treatment to individuals in state custody have been won or favorably settled by ACLU affiliates and other organizations in several states, including Colorado, Florida, Massachusetts, Missouri and others, with more cases pending in additional states.

The plaintiffs are represented by the ACLU of Vermont, Harvard Law School’s Center for Health Law and Policy Innovation, and the law firm of Costello, Valente & Gentry.

The Complaint is available here (link is external)

The Motion for Class Certification is available here

Three students win the David Grossman Exemplary Clinical Student Team Award

Via Harvard Law Today 

David Grossman Exemplary Clinical Student Team Award winners pictured left to right: Lisandra Novo ’19, Lindsay Bailey ’19, Elisa Quiroz ’19 Credit: Lorin Granger

By: Alexis Farmer

Lindsay Bailey ’19, Lisandra Novo ’19 and Elisa Quiroz ’19 are the winners of the 2019 David Grossman Exemplary Clinical Student Team Award. The award, named in honor of the late Clinical Professor of Law David Grossman ’88, a public interest lawyer dedicated to providing high-quality legal services to low-income communities, recognizes students who have demonstrated excellence in representing individual clients and undertaking advocacy or policy reform projects.

The trio was honored for their exceptional work with the International Human Rights Clinic on a complicated lawsuit, Mamani, et al. v. Sánchez de Lozada and Sánchez Berzaín. The Mamani case was litigated in U.S. federal court on behalf of the family members of Bolivian citizens who were killed by the Bolivian military in 2003. The suit brought claims against Bolivia’s former president and minister of defense for their roles in orchestrating these killings.

Over the course of two years, the students were involved in many aspects of the case — from discovery and depositions, to summary judgment, to a month-long trial, to the current appeal.

Professor Susan Farbstein praised their advanced level of legal analysis, judgment, creativity, and empathy with clients. “Together, Lindsay, Lisandra, and Elisa have demonstrated all the hallmarks of thoughtful, critical, and reflective human rights advocacy,” she said. “They have done it as a team which is, in fact, the only way real change ever happens. Each of them is whip smart, passionate, and committed, and can be depended on to tackle the toughest assignments with rigor and produce the highest quality of work. Yet together, they are even greater than the sum of their individual talents.”


Lindsay Bailey

Lindsay Bailey has long been actively involved in international human rights focused organizations. Prior to HLS, she spent three years in Ghana working with municipal governments to improve project planning, budgeting, and municipal taxes. In Ghana she worked for a variety of organizations, including Engineers Without Borders Amplify Governance, Global Communities, and UNICEF.

Since beginning law school, she has spent four semesters in the International Human Rights Clinic, volunteered with HLS Advocates for Human Rights for two years, and has been a research assistant at the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC). She currently serves as the co-president of the Harvard Law and International Development Society (LIDS).

Bailey spent a winter Independent Clinical with the Public International Law and Policy Group in Jordan as part of the Reginald F. Lewis Internship Program. She also was an article editor on the Harvard Human Rights Journal, and an article editor and community development director for the Harvard International Law Journal, in which she published an article, “Can There Be an Accidental Extrajudicial Killing? Understanding standards of intent in the Torture Victim Protection Act” last August. Next year, Bailey will continue her work in human rights litigation at the Center for Justice and Accountability.


Lisandra Novo

Born in Cuba, Lisandra Novo narrowed her interest in international human rights and criminal law early on, focusing particularly on accountability for human rights violations committed by state officials. She was awarded a Chayes Fellowship in 2017 to work at the Inter-American Court of Human Rights in San José, Costa Rica. There she worked primarily on cases related to the justiciability of social, cultural and economic rights. In her first year at HLS, she was a member of the Harvard Immigration Project’s Removal Defense Project (HIP’s RDP), an interpreter for the Harvard Immigration and Refugee Clinical Program (HIRC), co-communications chair for the Harvard European Law Association (HELA), and an article editor for the Harvard International Law Journal’s Online Symposium on the crime of aggression. She spent the fall semester of her third year at the Graduate Institute for International Law and Development in Geneva, Switzerland. Novo and Quiroz both participated in a spring break pro bono trip in Puerto Rico for hurricane relief work in March 2019. After graduation she will be conducting independent research on enforced disappearances in Spain as a Fulbright Fellow.


Elisa Quiroz

Elisa Quiroz had an interest in pursuing a career in international human rights work long before coming to HLS. Her childhood in Chile exposed her to human rights issues early on. “If you grow up in a country that has lived through a dictatorship, you hear the stories all the time, and that makes human rights law very tangible in a way that maybe countries that are more removed from that experience don’t know,” she told Harvard Law Today. In 2017, Quiroz was also awarded a Chayes Fellowship to work in the Office of the United Nations High Commissioner for Human Rights in Geneva (OHCHR). At OHCHR, Quiroz worked on projects with the UN Special Rapporteurs on freedom of expression, independence of judges and lawyers, the right to health, and the right to education. During her 2L year, she was awarded a Human Rights Program travel grant to conduct research in Chile examining the government’s legislative and policy responses to the country’s rapid rise in migration. Next year, she will be working as a legal fellow at TRIAL International in Geneva, Switzerland.

Emanuel Powell wins Gary Bellow Public Service Award

Credit: Lorin Granger

By: Alexis Farmer

Harvard Law School (HLS) student Emanuel Powell J.D. ’19 is the winner of this year’s Gary Bellow Public Service Award, established in 2001 to honor Professor Gary Bellow ’60, his commitment to public service, and his innovative approach to the analysis and practice of law. Professor Bellow was a pioneering public interest lawyer who founded and directed Harvard Law School’s clinical programs.

Each year, the Gary Bellow Public Service Award recognizes a student who exemplifies how lawyers can litigate, educate, advocate, and organize to promote social justice. The HLS student body nominates and selects the winner. This year, the finalists were celebrated at an award ceremony and reception on April 23. At the ceremony, Emanuel encouraged his classmates to be mindful of the ways lawyers can either help or hinder social movements. While at HLS, Emanuel worked in a variety of practice areas that focused on movement lawyering.

Emanuel Powell J.D. ’19

Hailing from Liberty, MS, a town of a little over 700 people, Emanuel has always felt called to work in spaces that fight for racial equity. During his undergraduate studies at the University of Southern California (USC), Emanuel was a part of the governing board of the Norman Topping Student Aid Fund. Concerned by the lack of diversity of the undergraduate and graduate student population, two USC undergraduates started the Student Aid Fund, financed by a student tax that helps support low-income students from communities surrounding USC. Next to singing in the gospel choir, he considers his experience on the board “the most fun thing I’ve done at USC.”

After graduating from the Marshall School of Business at USC in 2012, Emanuel spent a summer in Rwanda helping rural farmers start co-ops, using his undergraduate training to help develop social enterprises. He then moved to New York and worked for two consulting organizations. At one, he helped a philanthropic organization focus on investing in racial equity, which culminated in designing a fellowship program for individuals in South Africa and the U.S. fighting to dismantle anti-black racism. That led him to be an active voice in the organization, helping other nonprofits think about funding racial justice work. It was through his experiences that he noticed that lawyers were always in the room. He began to see the law as a path to achieving black liberation and decided to go to law school.

Since starting at HLS, Emanuel has been a member and a leader of the Mississippi Delta Project (MDP) and Harvard Defenders. Additionally, he spent two years at the Harvard Legal Aid Bureau. In MDP, he worked on the Child and Youth team, and in Defenders, he represented clients at show-cause hearings. “The classroom setting is valuable for getting the foundational understanding [of the law] . . . but the way I learn best is through experiential learning.” He chose these organizations because, he says, they each orient students to be of service to the community, whether it be individual clients or movement organizers in a specific geographic area. It’s a principle of his to engage with the community in an authentic way. “I have a belief that you should work in community and with movements.”

Emanuel served as the managing editor of the Harvard Black Letter Law Journal, which uses legal scholarship to support Black communities, and is a member of the political action committee of the Black Law Student Association.

Referencing Audre Lorde’s quote, “the master’s tools will never dismantle the master’s house,” and Emanuel said that “law school helped me realize I didn’t even want the master’s house dismantled, I want our own house or our own safe communities. That’s what I’m most excited about.” He lights up when he speaks about supporting movements creating alternative systems for economic, legal, and social prosperity that truly support disadvantaged communities. He wants to use the law to support these alternative structures. He says there is a lot of opportunity to support those leading movements for social change, “but,” he cautions, “if we’re not careful, we [as lawyers] have the power to stop them from accessing a better future.” He looks to Fannie Lou Hamer as an example, a “regular” person who saw there could a different way of life for Black people in Mississippi. She advocated creating a new structure for jobs and political parties. “As lawyers we can help people like Fannie Lou Hamer or stop people like Fannie Lou Hamer.”

Reflecting on the award and his three years at HLS, Emanuel said, “I was surprised to be nominated. One thing I’ve learned is that there are many students at HLS involved in public interest work across many different issue areas. I am deeply grateful for the opportunity to accept this award, especially given the legacy of Gary Bellow and the opportunity to share the great work of some of the community-based organizations I have had the opportunity to work with. I hope I can live up to that legacy as I begin my career as an attorney.”

Upon graduation, Emanuel will be clerking for a judge in Jackson, MS and hopes to work in the South as a movement lawyer.

Liz Soltan, using law as a means to help people who need it most

Via Harvard Law Today  

Credit: Lorin Granger

By: Lewis Rice

Liz Soltan ’19 is not like some Harvard Law School students who have known for a long time that they wanted to be a lawyer. After college at Cornell University, she taught English in Malaysia and then worked at a nonprofit that connected clients to pro bono lawyers in her native Philadelphia. She interacted with public interest lawyers at the nonprofit, as well as lawyers practicing in big firms, small firms, and solo — all of whom wanted to serve their community. And she realized that the law could be a means to do exactly what she wants to do — help people who need it the most.

Now she is on the cusp on being a public interest lawyer herself, slated to begin a two-year Skadden Fellowship at Community Legal Services of Philadelphia. But she has already gained experience as a legal practitioner through extensive work with the Tenant Advocacy Project during her 1L year and thereafter with the Harvard Legal Aid Bureau (HLAB), including arguing one case before the highest court in the Commonwealth of Massachusetts.

That case involved a practice area that Soltan immersed herself in — wage theft, a problem that particularly affects immigrant workers in low-paying jobs, she said. HLAB students worked on the case for several years, previously helping to secure a settlement for two workers at a dry cleaner whose employer did not compensate them for all the hours they worked, including overtime. But the employer refused to pay attorneys’ fees, arguing that it only was required to do so if it had lost the case in court. HLAB filed an application for Supreme Judicial Court review, which was granted. Soltan wrote the brief with Kenneth Parreno ’19, and she appeared before the Court in December 2018, ultimately winning the decision that gave the workers “prevailing party” status that entitled them to attorneys’ fees.

“The reason we thought this was important is that it will help more workers get competent representation and be able to pursue their rights,” she said. Hopefully it will also have a deterrent effect on employers.”

In other cases she worked on, she represented people threatened with eviction and facing possible homelessness. One woman was in subsidized housing that failed inspection and, according to Soltan, the landlord maneuvered to evict the tenant rather than improve conditions. Another client was a survivor of domestic abuse whose path to apply for public housing was impeded by poor references from previous landlords based on the actions of her abuser.

Of course, it’s important to know the law in these cases, and Soltan credits HLS Clinical Instructor Patricio Rossi for guiding her through the process. But she also emphasizes the importance of knowing her clients as people with other concerns besides their case, who have histories and hardships. She makes it a point not only to talk to them about the facts of the case but about their lives.

“You’re coming to people at a really tough moment in their life and asking them about really sensitive personal subjects. And you’re a total stranger,” said Soltan. “I think a lot of it has been trying to be humble and listen to people and not assume that I know anything.”

She developed her focus on social justice growing up in Philadelphia, a place she loves but which also exposed her to problems in the city with injustice, racism, and educational inequities, she said. Her parents, devout churchgoers who still help prepare free meals for people in the community, influenced her as well. “My parents have always had the sense of there’s a lot of things that are wrong in the world, and it’s not good to do nothing about it,” Soltan said.

She hopes to improve conditions for people in her city on her fellowship, where she’ll be working with parents of newborns to ensure that they have needed resources during their child’s first year of life, including legal aid and access to benefits. HLS’s Office of Public Interest Advising helped her secure the fellowship and the law school has provided resources to help her fulfill her goal to pursue public interest work, she said.

Looking back at her HLS experience, Soltan said: “It’s been really hard but it’s also made it possible for me to develop the skills to do important work and get to interact with a lot of amazing people who’ve been my clients or have been organizers or lawyers doing work that is not evil. So it has expanded my view of what legal work can mean and hopefully given me the tools to keep expanding that view.”

Finding Your Startup Lawyer: What Every Entrepreneur Should Know

Via Xcomony 

Source: Pexels

By: Linda Cole and Joshua Fox

Successful management of any new enterprise, regardless of industry, is a process demanding of concerted effort to realize opportunity with a finite set of resources. As an entrepreneur, perfecting your vision, securing and managing funds, building a team, marketing and selling, and executing on plan, all while navigating unexpected obstacles, likely occupy your every day. At the core of whether you can succeed is whether your principal team has not only the requisite ability and experience, but the support in place to sustain it. This support, typically, derives from academic advisors, industry experts, professional consultants, and, eventually, from investors.

From whom you choose to seek advice, including from which startup lawyer, will significantly impact your progress. To assume that any corporate lawyer—and there are many able ones out there—can meet the demands of your business need not be one of your early fails. The right lawyer for your startup will not purely be a legal advisor but a strategic one—that is, an integrated teammate who is uniquely prepared to support your mission.

What makes a particular lawyer worthy of this role? A set of professional skills and personal attributes that combine with your own in just the right balance to drive success. Whether this lawyer is with an outside law firm or in house as part of your core team, our collective experience across both roles reveals a strikingly similar skillset. What, precisely, do these skills look like? You may be surprised to learn that the most predictable is, in fact, not necessarily the most impactful.

1. Risk Management

If your first contact with a lawyer is prompted by risks associated with your business, such as how to document equity owned by the founders, protect intellectual property, or engage human resources, then you are not alone. It is this expectation of risk management that creates what is, in theory, where the value of the lawyer’s contribution to your startup lies. It is, of course, imperative that your lawyer be prepared to identify, analyze and recommend steps to eliminate or, at the very least, mitigate risk.

If your startup is highly data driven, for example, your lawyer must not only understand the applicable legal and regulatory framework around the collection, storage, use, and/or sale of the particular type and form of data but, likewise, the related risks and remedies, if any, that may be employed to avoid them. There are multiple means of managing risk, such as through informed decision making, contract drafting and liability insurance, but before risks can be addressed, they must first be identified.

You absolutely need to be able to look to your lawyer for input into cost-benefit analyses relative to legal risks to your business. Ideally, you will want to choose a lawyer who has experience with companies similar to your own, either in terms of industry or issues, including having worked on the types of transactions you expect to engage in. Contrary to popular belief, however, understanding and analyzing legal risk is not the only, nor is it even the most beneficial, skill that the right lawyer will bring to your startup. It is, more specifically, the lawyer who is able to adroitly shift between advisor on risk to participant in solutions from whom you will derive the greatest value. This agility is as much a mindset as it is an expertise.

2. Partnership

Your choice lawyer may be an individual attorney or a law firm, but, in either case, you should expect and receive consistent proof that your legal counsel is an engaged member of your team. Whether a lawyer (or firm) inwardly identifies as “your business partner” will noticeably manifest, in both character and actions.

Your lawyer should be ready, for example, to support the business through creative and flexible billing practices, including offering alternative fee arrangements, such as a discounted hourly rate or fixed fee per project; estimating legal fees before commencing work; or deferring collection until your startup has realized a certain amount of revenue or capital. Willingness to experiment with such measures demonstrates that a lawyer is “on your side” by supporting your financial goals, despite the risk, and taking a long-term view of the relationship—in effect, making an “investment” in you and displaying confidence in your business’s likelihood of success.

The lawyer who thinks like a partner will consistently demonstrate that he or she cares and can be depended upon. You should feel valued after interactions with your lawyer, regardless of his or her workload, and confident that you and your business will take priority at the appropriate times. Your lawyer should be reliable and responsive, promptly returning phone calls and emails; mindful of your timeline; and able to deliver work product on time and within budget. You should never be left to worry that more mature businesses, which are larger paying clients, will monopolize the attention of your lawyer.

Perhaps the most meaningful attribute and indicator that a lawyer is prepared to be an effective teammate is a genuine interest, not simply in the business but in you as a person. The right lawyer will take the time to get to know you—your personality, your leadership style, your expectations, your work routines, and even your communication preferences—and proceed to accommodate them. In cases where you expect help analyzing risk but prefer to make the final decision yourself, your lawyer should facilitate that, by guiding you through pertinent pros and cons; but, in cases where you, instead, prefer a definitive opinion, your lawyer should provide one.

Say, for example, that you are a first-time entrepreneur negotiating a term sheet for an initial round of financing, and, with negotiations faltering, you ask your lawyer whether he or she would sign the term sheet “as is.” If your lawyer understands you to have a need for clear and concise guidance around integral business decisions, your lawyer must be able to provide you with a “Yes” or “No” answer, and not an exhaustive recitation of terms. You will likely desire some balance between analysis and opinion from your lawyer, and where he or she is adeptly able to gauge which one you prefer and when, you have forged a strong partnership.

3. Collaborative Communication

Being a good communicator is essential to being a good lawyer, partner and problem solver, especially when navigating the bumpy terrain of a startup. Your lawyer should, therefore, routinely be asking incisive questions about the particular business issue, goal, or transaction at hand. How else will he or she be able to clearly comprehend what you are looking for, what you care about most, and, alternatively, what you may not think is important? It is only through asking questions that your lawyer can construct and tailor recommendations that are both sound and relevant. After all, your business is not a hypothetical, and legal advice should never be delivered to you in a vacuum.

While posing the right questions is a necessary first step toward effective communication, your lawyer should not stop there. It is equally imperative that he or she pay careful attention to your answers. Only through active listening will your lawyer be able to understand the broader context within which your specific need has arisen. If, for example, you ask your lawyer to review and interpret a contract, the advice that you receive will be most useful to you when generated from a clear understanding, not only of the proposed transaction, but, more specifically, of your objectives and leverage relative to those of the counterparty to the contract.

Returning to our example above, if you are a first-time entrepreneur engaged in collapsing negotiations for seed financing and looking to your lawyer for guidance on whether to sign the term sheet “as is,” only if your lawyer has been carefully inquisitive might he or she know, for example, if you have spent months chasing financing, have received only this one offer, and are increasingly concerned over the resulting delay in technology development. Advice appropriately shaped by these facts would include a shift in focus toward negotiating a smaller subset of your most important issues (perhaps even just one or two) in order to make sure that a deal gets done as quickly as possible.

4. Practical Advice

Although many of the questions that you will pose to your startup lawyer will have complicated answers and, thus, require detailed analyses, you, typically, will need a succinct response. While a lawyer can spend a lot of time over email or on the phone with you summarizing relevant issues and describing the review conducted to reach his or her conclusion, this propensity is contrary to the startup reality. Time is money, and you are, no doubt, both busy and cost conscious. It stands to reason, then, that the more compatible lawyer is the one who is able to “cut to the chase.” While your lawyer should be able to work back to the analysis supporting his or her conclusion, in the course of discussing your questions, practicality dictates that the lawyer should lead with that conclusion, offering a recommendation at the outset.

As an entrepreneur, most likely with a business or technical background (rather than a legal one), you should expect your lawyer to be the one to bridge the gap and have the ability to speak your language. Your lawyer should avoid the use of legalese, so that you find the advice easily understandable and relatable. In fact, an essential component of your startup lawyer’s role is not providing legal advice—that is to say, to offer counsel on related, but non-legal, matters. For example, you may ask the lawyer representing your startup in a venture capital financing to advise you regarding how frequently particular deal terms, like participating preferred stock, are seen. Knowing how prevalent deal terms are is not “legal” advice, per se, but explaining which terms are “market” and which are atypical is a key value-add. This relevant expertise will enable your lawyer to help you to prioritize and determine which terms to negotiate and which to accept.

The ability to provide practical business advice is part of a larger skillset that will distinguish your best startup lawyer from the rest. Most lawyers will be able to educate you on how to interpret a provision in a contract or analyze risk in a transaction, but the lawyer that you want to find exercises sound judgment in the provision of real-world advice. Your world is the startup world, and, as such, your lawyer must be able to expertly determine what is important to you (and what is not), given the stage that you are at. This determination is impacted by the particular circumstances and context, such as when and how urgently you may need outside financing, and the circumstances and context need to figure into the advice that you receive.

If, for example, your startup is running low on cash—with payroll, accounts payable, and other obligations due—but has received a proposal from a prospective licensee of your technology in a specific territory outside of the United States, you may need to accept terms that are less than favorable, and it is the role of the skilled startup lawyer to help you determine what your business can live with. Your lawyer should know not to “over-lawyer,” such as by drafting and negotiating the definitive agreements in a way that adds unnecessary time, complexity, and expense to the deal or, even worse, in a way that puts the deal at risk: By continuing to negotiate a matter for which there could be a compromise or by delaying the closing date through prolonged negotiations, the deal could fall through.

5. Understanding the Business

As an entrepreneur, your business is born of an idea that you believe is unique. It could be an advanced technology, an innovative service, or a progressive social mission. Whatever it is that sets your business apart needs to be substantively understood, in both design and practice, by your lawyer.

If, for example, your startup is a software-as-a-service play, your lawyer must be familiar with the software, its functionality, feasible customizations, and what steps the business is willing to take in terms of customer care, warranty, and support. Otherwise, your lawyer will not be able to negotiate successfully with tech-savvy customers, discuss the finer points of service level agreements, and explain what credits, if any, will be offered in the event of unexpected downtime. If this dexterity is not the case with your lawyer, in order to support your sales team, then you may as well be selling off-the-shelf software, because, before the contract is even signed, the prospective customer may determine that the service piece is missing.

Equally as important for your startup lawyer to grasp is the financial model and underlying accounting principles on which your business runs. Whether you are selling a product or a service, there will be a process by which revenue flows through your business. With working knowledge of this process, your lawyer can draft and negotiate license and services agreements that, to the extent possible, support the conversion of bookings into recognized revenue sooner rather than later. Be sure that the lawyer you select does not plan to simply “do deals” for your startup but that he or she plans to help you craft deals that are structured in such a way as to support your business goals.

While finding “a” startup lawyer may seem a straightforward enough task, finding “your” startup lawyer—the practitioner whose partnership, communication, and practicality will advance your business purpose—requires that you know who and what you are looking for. The right fit from the outset often proves determinative and, therefore, you will want to evaluate carefully skills that many entrepreneurs, especially those searching for a lawyer for the first time, might not intuitively focus on.

Linda Cole is a Clinical Instructor at Harvard Law School and Supervising Attorney for the Harvard Law Entrepreneurship Project. Joshua Fox is a Partner at WilmerHale in Boston and an Adjunct Lecturer at Boston University School of Law. Both are alumni of Harvard Law School.

Challenges and opportunities in organics recycling

Via Supermarket News

Source: Pixabay

Harvard Law School’s Food Law and Policy Clinic and the Natural Resources Defense Council estimate that up to 40% of all food produced in the United States is lost or wasted every year. Meanwhile, Feeding America estimates that one out of every eight Americans, or more than 40 million people, is food-insecure (almost 13 million of whom are children). According to the Food and Agriculture Organization, each year consumers in wealthy countries allow almost as much food to go to waste (222 million tons) as the entire net food production of sub-Saharan Africa (230 million tons).

While these statistics could make the most optimistic among us waver, there is cause for encouragement among the data.

Wednesday, April 24, is Stop Food Waste Day. Described as “a day of action and awareness to focus attention on the global epidemic of food waste and the solutions to combat the problem,” the goal behind this awareness campaign is to make individuals and businesses alike aware of their surplus food by not wasting anything for an entire day. This means everything from making a grocery list and taking it to the supermarket so you’re not tempted to pick something up that you don’t have a plan for, to making sure you chop up and serve every inch of a vegetable, to, of course, finishing everything on your plate.

Source reduction must come first

The greatest challenge and opportunity for food waste is source reduction. While composting is important — we’ll get into more details on this — when your business reduces the volume of food it produces or purchases in the first place, composting gets that much easier. This has the additional benefit of saving your business money.

The Food Recovery Hierarchy, developed by the Environmental Protection Agency (EPA), is designed as an inverted pyramid that clearly prioritizes the different actions that a business or individual can take to ensure that they prevent and, when not preventable, convert, wasted food to its highest possible use.

With each tier of the Food Recovery Hierarchy focusing on a different strategy for managing food waste, this top-down approach shows that the highest tier in the food recovery pyramid is source reduction — the act of reducing the volume of surplus food being generated in the first place.

Food donation and animal feed

The second priority is food donation. Many grocers are generally very good at setting aside baked products and finding partners that can distribute these items to people in need. Donating fresh fruits and vegetables is more complicated, and even more difficult is getting perishable items such as meat, dairy and prepared foods to those who can use them. However, there are organizations that are well equipped to help with these surplus foods.

Animal feed programs and rendering are other examples of higher uses of wasted food. There can be challenges with finding local farmers who can provide reliable pickups, but, again, there are companies that make these programs efficient and manageable.

Organics is more than just food

Of course, organics recycling doesn’t only refer to food waste.

While discarded food takes up a large proportion of the organics recycling category — with this including everything from fruits and vegetables, to meats, poultry, and seafood (including bones and shells), to coffee grounds, egg shells and bakery ingredients — organics includes other organic materials, food-soiled paper, coffee filters and plant material such as leaves and stems.

While organics recycling includes much more than food waste, these programs typically have the same contamination challenges as mixed recycling (paper, plastics, metal and glass). Plus, separating food waste for collection has the added hindrance of being an unfamiliar experience, which holds back many individuals and organizations from trying it for the first time.

Organics recycling opportunities

While this may be a challenge to take up, it also presents an opportunity. Businesses can educate their employees, and themselves, on how to best deal with their wasted food and other organics to ensure they’re being separated correctly. If your waste and recycling partner doesn’t currently offer organics recycling, find out if another company can pick these materials up for you.

Technology can help to improve upon our current organics recycling efforts. For businesses looking to implement organics recycling programs either on a small scale, or across an international footprint, food waste reduction programs can first help you to uncover what you are discarding. With data that shows what is left, donation and organics recycling programs can be designed and implemented that keeps these useful resources out of the landfill.

Stop Food Waste Day is a reminder to all of us that the biggest opportunity in organics recycling, as in all other forms of recycling, is source reduction. The less we produce, the less we need to recycle. After that, we need to put in the work to make sure that we educate our employees, and ourselves, on why putting the food we produce toward a beneficial use is so important.

Mayor Pete Answers My Question About Predatory For-Profit Colleges

Via the Project on Predatory Student Lending 

Last Saturday, Linsdey Withem from the Project on Predatory Student Lending attended a town hall in New Hampshire to ask presidential hopeful Pete Burrigeg a question. She writes:

I went to a town hall in New Hampshire hoping for the opportunity to ask Pete Buttigieg one question: Would he encourage his education department to cancel federal student debt from predatory for-profit colleges?

I wanted to ask him this question because, in addition to being a 2020 presidential candidate, Pete Buttigieg is the mayor of South Bend, Indiana. South Bend is only a couple hours from Indianapolis where ITT Technical Institute, one of the largest and most predatory chains of for-profit colleges, was headquartered before they shut down. I know how important my question is because for the past decade I have observed, first hand, how ITT Technical Institute, and other for-profit colleges, shamelessly defrauded students. I was anxious to hear what Mayor Pete plans to do about it.

Ten years ago, I took an entry level position at an organization called The Accrediting Council for Independent Colleges and Schools, also known as ACICS. There, I learned that accreditation is the gateway that allows colleges to participate in federal financial aid programs. There are several kinds of accreditation, and ACICS focuses on the accreditation of for-profit colleges.

In 2010, ACICS was booming. Applications for new schools and new programs poured in from all over the country. Most of these applications were from a handful of large companies that owned chains of schools, including ITT Technical Institute. In my role at ACICS, I coordinated evaluations of these schools.

As I traveled around the country to evaluate ACICS schools, I noticed a trend. Large chains of schools used elaborate advertising techniques to target low-income and minority populations, promise lucrative job prospects, and then charged outrageous tuition for subpar training programs. There was no way the training offered at these schools would give students the earning potential to pay back their student loan debt. Students, fooled by these schools’ lies, were taking out mountains of debt and getting little to nothing in return.

These schools claimed to be invested in helping nontraditional students get an education and better their lives. But when you looked behind the curtain, these companies used predatory practices to target vulnerable populations so that they could profit off federal financial aid, which ACICS accreditation allowed them to access.

As time went on, I realized more unsettling things about ACICS. The Accrediting Council that made decisions about what schools ACICS would accept was largely made of executives from the very same companies engaging in the predatory practices that cheated students for their financial aid money. The fox wasn’t just guarding the hen house–the fox owned the hen house.

After seeing the fraudulent behavior and predatory practices of the for-profit college industry, I made the easy decision to take my career in a different direction and left ACICS. Years later, I was offered a position working for the Project on Predatory Student Lending, an organization standing up for the rights of students who were cheated by the for-profit college industry.

Last Saturday, I was proud to tell Mayor Pete I work with a group that defends former students of predatory for-profit colleges. Our government owes it to students who were sold lies and cheated out of their financial aid to cancel their student loan debt. As Mayor Pete put it, “If we’re going to talk about student loan forgiveness, the very first thing we should look at is the cases of these people who were let down.” I hope that all 2020 candidates see the importance of canceling all student loan debt for students who were let down.

 

Panelists Discuss Combatting Wrongful Convictions, Reforming the Criminal Justice System

Via The Harvard Crimson

Aditi Goel, a clinical instructor at the Harvard Law School Criminal Justice Institute, spoke about combatting wrongful convictions at a panel event on Monday night. Photo: Amanda Y. Su

By: Amanda Y. Su

Legal experts and criminal justice reform advocates gathered in Tsai Auditorium to discuss mitigating wrongful convictions in the United States criminal justice system Monday evening.

The event, entitled “Fighting Wrongful Convictions in the Age of Mass Incarceration,” featured four panelists and centered on the experiences of Lorenzo Johnson, an activist who has personal experience with the issue of wrongful conviction. The panel was co-sponsored by seven organizations including the Harvard Organization for Prison Education and Advocacy, the Committee on Degrees on History and Literature, and the Charles Hamilton Houston Institute for Race and Justice.

Johnson opened the event by sharing the story of his incarceration for being an alleged accomplice in a 1995 murder in Harrisburg, Penn. In 2012, the Third Circuit Federal Court of Appeals granted him release from his life-without-parole sentence after ruling there was legally insufficient evidence for his conviction. Four months later, the U.S. Supreme Court unanimously reinstated his conviction, sending him back to prison. In July 2017, he agreed to a plea deal and was released from prison.

After resuming his sentence, Johnson led a nationwide media campaign to educate the public about his experiences with the support of the Pennsylvania Innocence Project, a non-profit organization that works to correct wrongful convictions.

During the event, Johnson shared moments when he said prosecutors and the police asked him to provide false statements and forced his alibi witnesses to manufacture or change their statements.

“A lot of people got the misconception that the [criminal justice] system is broken,” Johnson said. “The system was never fixed. The system was never designed to be fair.”

Throughout the event, other panelists discussed aspects of the criminal justice system that can enable wrongful convictions.

Aditi Goel, a clinical instructor at Harvard Law School’s Criminal Justice Institute, spoke about “draconian” mandatory minimum sentences, lack of funding for public defenders, and the lengthy amount of time people wait for trial, which can incentivize plea deals.

Rahsaan D. Hall, director of the Racial Justice Program at the American Civil Liberties Union in Massachusetts and a former prosecutor, condemned the “nature and culture” of prosecution itself.

“It is the cultural inertia of white supremacy that uplifts these ideas and practices,” Hall said. “And it funnels through every aspect so that even a black man like myself, as a prosecutor, is an instrument of that white supremacy.”

Radha Natarajan, executive director of the New England Innocence Project, spoke about the preponderance of minor marijuana or driving offenses in criminal convictions as well as prejudice against African American men.

“What is a wrongful conviction? That has to be broader than what people traditionally think of,” Natarajan said. “It has to be about who is brought into the system to begin with.”

Beyond “band-aid” solutions to wrongful convictions, panelists suggested broader solutions and reforms, including using social media as an educational tool and pushing for legislation.

“You can’t just fight the case inside the courtroom,” Johnson said. “You have to fight it outside the courtroom too.”

Joseph R. Feffer ’21, an event attendee and HOPE organizer, said he appreciated the opportunity to learn more about ways individuals can prevent wrongful convictions.

“I think a lot of times people come to panels like these and walk away and go back to our Harvard lives,” Feffer said. “But the things said about going to jury duty, making sure you’re watching court, voting in District Attorney elections, are very easy actions that we all can do. That’s what what I’m going to take away the most from this.”

AG Lecturer on Law Jim Tierney Quoted in USA Today

Lecturer on Law Jim Tierney was quoted in a USA Today article highlighting that President Trump has faced more challenges from states in the first two years of his presidency than Presidents Obama and George W. Bush in their 8 years. Democratic attorneys have been filing more often. They say the multitude of legal challenges is because of Trump’s “dismissal of the rule of law.”

One reason, said former Maine Attorney General James Tierney, stems from a Supreme Court decision in 2007 siding with Massachusetts and 11 other states against the EPA. The states successfully argued that the EPA is required to regulate greenhouse gases as pollutants. The court gave states “special solicitude” – or the authority to challenge the federal government in a way that cities, activist groups and others can’t, said Tierney, a lecturer at Harvard Law School.

. . .

Tierney said Trump made himself especially vulnerable to challenges early on because he was in a hurry to get things done so he made administrative law mistakes. The classic example of that is Trump’s travel ban, which courts rejected twice before letting the third version stand.

Tierney said the administration is making fewer mistakes that could lead to losses on procedural grounds, but he suspects there could be an increase in investigations of Trump by attorneys general.

Read the full article.

Clinical Instructor Eileen Conner Quoted in the New York Times

In a New York Times article, “Education Department Has Stalled on Debt Relief for Defrauded Students” Clinical Instructor and Litigation Director of the Project on Predatory Student Lending Eileen Conner was quoted in the following passage:

Eileen Connor, the director of litigation at Harvard Law School’s Project on Predatory Student Lending, said that she had borrowers who had claims pending from as far back as four years.

The project, which represents thousands of students from ITT Tech and Corinthian, said that it had over 14,000 applications from ITT Tech pending at the department. Only 33 have been approved, and those were by the Obama administration. Zero have been approved under Ms. DeVos.

Debt on the loans has continued to grow, Ms. Connor said. In lawsuits, the group has described how borrowers have experienced anxiety, fear and psychological and financial distress caused by delays.

The project has won several lawsuits against Ms. DeVos. But it said that the department continued to ignore crucial court rulings, including one that found the department could not take tax refunds of former Corinthian College students to pay their student loans while they have borrower defense applications pending.

“The department’s delay is not neutral,” Ms. Connor said. “It’s harming students.”

Big Telecom companies are suppressing fast internet

Via Salon 

Source: Pixabay

By: Keith A. Spencer

The internet is an ethereal concept. The language we use to describe it contributes to that etherealness: we speak of servers being in “the cloud,” as though they were weightless in heaven, and most if not all of our internet access happens wirelessly. Indeed, for most Americans, the internet has little physicality at all anymore: it is probable that you’re reading this article via the miracle of a wireless signal, either wi-fi or cell.

Yet even if the last kilometer of this article’s journey happened through the wireless ether, the rest of its path from my computer to servers to you was achieved via wires. Lots and lots of wires. And even as our dependence on wireless internet grows — as we fill our house with wi-fi–enabled smart devices that communicate with servers all over the world — the need for wires undergirding that system grows exponentially.

Susan Crawford, the author of “Fiber: The Coming Tech Revolution—And Why America Might Miss It,” has spent years studying the business of these underground fiber optic cables that make fast internet possible. As it turns out, the internet infrastructure situation in the United States is almost hopelessly compromised by the oligopolistic telecom industry, which, due to lack of competition and deregulation, is hesitant to invest in their aging infrastructure. “That would never happen,” Crawford told me. “We saw that with electricity. We’ve seen it with internet access in America already.”

This is going to pose a huge problem for the future, Crawford warns, noting that politicians as well as the telecom industry are largely inept when it comes to prepping us for a well-connected future. I spoke with Crawford via phone about her new book and the myriad problems with internet infrastructure in the US. This interview has been edited for clarity.

Keith A. Spencer: You analogize the situation with fiber-optic lines to the history of electrification. Can you elaborate on that comparison?

Susan Crawford: When electricity was young, it was viewed as a luxury, and so, initially it was only for municipal buildings and street cars, very gradually moving to very rich [people’s] houses. There’s a story in the book about the richest house in San Francisco finally getting electric lights. Then only because of FDR did electricity go out into rural regions.

In the middle of that story, a lot of locals — thousands of them and cooperatives across the country — took matters into their own hands, and decided they were fed up with this cartel and decided to build their own electricity network.

We’re at that point in the story with internet: 800 communities and cooperatives across the country have, or are in the process of, building fiber networks. They understand the phase change that fiber plus advanced wireless represents.

Eventually, this activity is going to shame the federal government in action. It’s interesting to see both Mr. Trump and Mr. [Newt] Gingrich saying we have to do this for our national competitiveness. They are right, but they are probably right for the wrong reasons. They’re probably thinking that [they need] to give a series of subsidies to the existing status quo players. This isn’t necessary and we know that leads to divided market, unbelievably high prices, and a lot of people being left out.

Now, having [internet] is as crucial as having clean water or electricity or [a] sewage system — every American deserves and needs [it]. Basically, an unlimited data connection is necessary for participating in the 21st century… [but] to get there, we’ll need more fiber.

It’s a weird thing today, Keith, Newt Gingrich and the President are saying the same thing. There’s a Newsweek piece right now this week about [Trump] talking about the need for carrier-neutral 5G around the country and how important it is. To do that, you need to have fiber everywhere, and the fiber has to be opened to a lot of competition.

That’s interesting that Republicans like Newt Gingrich are into fiber. Tell me if this is accurate: does Newt Gingrich see the barrier to fast internet as there being not enough competition in the marketplace? As opposed to your critique, the left critique, which I’m understanding is that there is too much power is concentrated in an oligopoly of telecom companies, and/or that there isn’t enough municipal power… and this is something that should be regulated more as a utility rather than a private good?

I think [Newt] is probably unaware of the fact that in order to have advanced internet, you’ve got to have fiber everywhere, and I think he’s probably unaware of how oligopolistic this market is. He’s just vaguely thinking we need more shared spectrum. He’s going way up the chain to the airwaves not analyzing all the fundamental stuff that’s underneath that. Saying we need more 5G and never talking about fiber is like saying we need more airplanes and who cares about airports.

So he’s missing a few steps, and also what he’s suggesting is that private companies will sort of magically do this all on their own. That would never happen. We saw that with electricity. We’ve seen it with internet access in America already.

Right. Tell me more about how the telecom corporations prevent this shift from happening and what they’re doing to keep our American internet infrastructure slower and worse than it could be.

The decay started in 2004 when — maybe out of gullibility, maybe out of naivety, maybe out of calculation —then-chairman of the FCC, Michael Powell — now the head of cable association — was persuaded that the telcos would battle it out with the cable companies, that their cable modem services would battle it out with wireless, and all of that competition would do a much better job than any regulatory structure could at ensuring that every American had a cheap and fantastic connection of the internet. That’s just turned out that’s just not true.

Since then, he deregulated the entire sector — and as a result, we got this very stagnant status quo where in most urban areas — usually the local cable monopoly has a lock in the market and can charge whatever it wants for whatever type of quality services they’re providing, leaving a lot of people out…. poor people, people of color in urban areas. And the rural situation is especially dire. It’s an issue that probably isn’t on most politicians’ radar screens.

There’s a Microsoft study from a couple of months ago saying somewhere between half and third of Americans don’t actually use what would qualify as even a very slow high-speed internet access connection. I believe a lot of that is from high prices.

[Editor’s note: the New York Times writeup of the study says: “162.8 million people do not use the internet at broadband speeds, while the F.C.C. says broadband is not available to 24.7 million Americans.”]

That’s the story. It’s a failure of leadership, imagination, and technology. The lack of regulation makes things worse, and the private market isn’t providing high-speed internet.

Why is it that so many people have only one choice for internet in the United States?

Well, there’s no oversight, and then this infrastructure is very expensive to build, and so it only makes sense to control whole markets so that you can monetize the hell of whatever you built. The companies have consolidated, and they can easily swap systems to each other tacitly or explicitly. You only need back office operations for your particular geographic area; when it comes to communications infrastructure and oversight, private players will routinely consolidate and divide markets so as to control a rational portion for themselves and lower their per-unit cost.

These companies aren’t evil. It’s just that we have left them unrestrained.

Today, we’ve sort of fallen in love with the idea that shareholders and profit-making are the only ideologies we value, and that somehow by some magical elixir this is all going to work out. When it comes to internet access, the situation is amplified because of the absence of good data on the price of internet access at any particular location in America, and its availability. In the absence of oversight — and as a result, complete absence of competition — this is what happens with very expensive, effectively natural monopolies like communications infrastructure.

To ask a bigger ideological question, I’m curious about the tendency of all these telecom companies to vertically integrate. Comcast, for instance, owns NBC and Universal pictures, so it produces content. Then it’s involved in distribution – it sells cable TV and internet. And then it owns the wires underground, too, that the data flows through.

What they’re doing is building a castle and then putting a big moat around it — so it’s un-sailable, so that no startups will rise up and compete. So, if you’re in Philadelphia and you wanted to start a rival cable system with the Comcast, you probably need access to local sports. Comcast owns all the local sports content, or it owns programming that you can’t get access to except through them. Or maybe content that you can’t live without, like “Game of Thrones.” So AT&T owns [“Games of Thrones” producer] HBO, and HBO is their premier source for great new television.

What this does is allow them to use that content as a sledgehammer. It keeps any distribution competition at bay. The telecom startups just won’t be able to afford to pay for content people must have, in addition to just their data connection.

The other thing that’s going on at the same time is that Comcast is sort of playing both games… so they bought Sky, and that’s so that they can develop premium, exclusive content. That’s their goal with that purchase. At the same time, they’re making all of their profits these days on raising prices on their data service. They’re calling it their connectivity-centric idea. To the extent that anybody else is making money sending content over Comcast’s wires, Comcast can try to capture a portion of that by charging consumers ever more for more data. That make sense?

Yes.

Businesspeople always fear, “oh my god, [consumers] are cutting the cord, that means trouble for Comcast.” No, it doesn’t, because all that Comcast has to do — in its footprint, in its physical areas where it has data connections — is just charge more per subscriber. People slowly get used to it. We’re like frogs being boiled in water.

This whole story is little understood by the American public. I have no clients and no consulting relationships, and my whole goal with these books is to make it so everyone understands what’s actually going on. Because Americans don’t travel, you don’t get the sense of what a third-world country the US is becoming when it comes to communications.

# # #

Susan Crawford’s book, “Fiber: The Coming Tech Revolution―and Why America Might Miss It,” is out now from Yale University Press in print and audiobook formats.

The Law and the Digital World

Via Harvard Law Today

By: Erick Trickey

Credit: Martha Stewart

 

When Sara Cable was a Harvard undergraduate, she took Harvard Law School Professor Morton Horwitz’s class about the public-private distinction in the law. Now the director of data privacy and security for Massachusetts Attorney General Maura Healey, Cable says figuring out where that line falls is something she thinks about every single day.

Cable returned to campus recently to talk about those issues again. She represented Healey’s office at the AGTech Forum symposium on cybersecurity and privacy, hosted by Harvard’s Berkman Klein Center for Internet & Society. While there, she thought anew about Horwitz’s class. “Who would have thought I’d be dealing with those issues?” she says. “There was something delightfully circular about that.”

Cable was among officials from 23 offices of state attorneys general who met at HLS on February 28 and March 1 to discuss technology-driven challenges to privacy and data security that vex state regulators and threaten consumers. Twice a year, since fall 2017, the AGTech Forum series has brought together representatives from state AG offices across the country to network and learn from academics and other experts about the privacy and other concerns associated with emerging technologies. The goal is to make state attorneys general more effective in advocating for the public interest.

“That kind of education is incredibly useful,” says Cable. In some cases, the only other way for attorneys general to get similar insight about new technology is “using our investigative tools to ask the company directly,” says Cable. That adversarial process, she adds, can color the information the states get.

The AGTech Forum is the brainchild of Lecturer on Law Jim Tierney, who served as Maine’s attorney general from 1980 to 1990 and directs the Attorney General Clinic at HLS. Outside certain limited sectors, state law—not federal law—tends to govern privacy in the United States. Yet state attorneys general do not always have cutting-edge knowledge about technology’s effects on privacy, Tierney says.

“Attorneys general did not have access to the very top experts, who could see not only the tech issues now, but the tech issues of the future,” says Tierney, who often consults with attorneys general as director of the educational website StateAG.org. “They’ve had to make tough prosecutorial decisions about tech-related matters, [without] access to those experts.”

So, Tierney pitched Berkman Klein Center Directors and Professors Chris Bavitz and Jonathan Zittrain ’95 on the idea of hosting tech conferences for attorneys general. The AGTech Forum fits neatly with Berkman Klein’s long-term goals, says Bavitz, who is managing director of HLS’s Cyberlaw Clinic. “We at Berkman like doing research but also having impact,” says Bavitz. “The idea of talking to people who are on the front lines of doing the work seemed very appealing.”

So far, 36 state attorneys general have sent lawyers to at least one of the four forums, thanks in part to grants and foundation support that help to cover travel. The gatherings give state attorneys a place to learn and connect without being lobbied by the very companies that could become enforcement targets. “We have really tried our best to make sure this is not tainted by commercial interests on any side,” says Bavitz.

Continue reading.

Laws in states with the most lead service lines support using rates to fund replacement on private property: New analysis

Via the Environmental Defense Fund 

Source: Pixabay

By: Tom Neltner

Lead service lines (LSLs) – the lead pipes that connect a building’s plumbing to the water main under the street – are a significant source of lead in drinking water for those homes that have them. In light of the well-documented benefits to society from reducing children’s exposure to lead, there is a consensus that we need to replace the estimated six million LSLs remaining in the country. It will take time, but it needs to be done.

One challenge to this goal is how to fund replacement of the portion of the service line on private property. Because LSLs extend from under the street to a building, typically about half of the line is on public property and half is on private property. The perception among utilities has been that they do not have the legal authority to use rates paid by customers to cover the cost of replacing the portion on private property because it provides a benefit only to that property owner. This view was reinforced when the Wisconsin Public Service Commission blocked Madison from doing it, forcing the city to use other funds to complete the work. That decision from the early 2000s came before the risks of even low-level exposure to lead were well understood.

Many utilities have therefore taken to replacing only the portion of the LSL on public property when the property owner is unwilling or unable to pay to replace the portion on private property. The practice, often called “partial replacement,” is not only inefficient but can actually exacerbate residents’ exposure to lead. As evidence of the risks of even low-level exposure to lead—and of the society-wide benefits of reducing lead exposure—have mounted and the tragedy in Flint, Michigan made clear the need to replace LSLs, states like IndianaMissouriNew JerseyPennsylvania and even Wisconsin, have adopted new laws or policies that have allowed funds from rates, with some limitations, to be used to replace the side on private property. Michigan has gone further and adopted rules mandating the practice, although some utilities have challenged the rule in court.

Given the funding challenge and the trends in the states, EDF partnered with the Emmett Environmental Law & Policy Clinic at Harvard Law School to review the state laws and policies in the 13 states with the most LSLs. Clinic Deputy Director Shaun Goho and law student Marcelo Saenz conducted a state-by-state review of the laws, court decisions, and policies. The authors:

Found no explicit barriers to using rate funds to replace the lines on private property. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.

Continue reading.

JET-Powered Learning: New 1L January Experiential Term courses focus on skills-building, collaboration and self-reflection

Via Harvard Law Today 

By: Elaine McArdle

Imagine that you’ve come to law school knowing that you want to be a great public interest lawyer or an inventive entrepreneur or a savvy trial lawyer. Or you want to focus consciously on what it takes to be an effective public- or private-sector leader. Or perhaps you don’t yet know exactly what you want to do but you’re curious about the options the world holds for you. Through a sweeping array of new, innovative, hands-on courses, Harvard Law School’s new January Experiential Term gives 1L students a chance, early in their time on campus, to learn by doing, to work in teams, and to explore—or discover—what inspires their passion in the law.

For Armani J. Madison ’21, the new JET offerings did just that. Madison arrived at Harvard Law School with the goal of working for the public interest, possibly with a civil rights law firm that represents lower-income clients. For his J-term course, Madison chose “Lawyering for Justice in the United States,” one of eight courses developed for the new JET curriculum designed to give students time to develop practical lawyering skills, to reflect on their studies and careers, and to connect with each other.

Lawyering for Social Justice explores how lawyers can contribute to broader movements for social change through such means as impact litigation, legislative and policy advocacy, transactional work, and community lawyering. Team-taught by four clinical professors—Esme Caramello ’99, faculty director of the Harvard Legal Aid Bureau; Tyler Giannini, co-director of the International Human Rights Clinic; Michael Gregory ’04, clinical professor, Education Law Clinic; and Dehlia Umunna, faculty deputy director of the Criminal Justice Institute—Lawyering for Justice focused on a different social justice problem each day. Covering areas as diverse as criminal justice, education, human rights, immigration, predatory lending, and more, this unique course enabled students to practice core competencies required for effective systemic advocacy including diagnosing problems, identifying stakeholders, and designing remedies. Working in teams, students also engaged in exercises such as participating in a mock bail argument on behalf of a client they’d just met, and counseling clients on whether to take a settlement. The course culminated with a day-long “hackathon,” in which student teams developed a plan of action to address a specific social justice lawyering challenge.

Madison, who calls the course “amazing,” says he valued the opportunity to see what actual lawyering is like; the mock bail hearings, for example, had a significant impact on his understanding of the criminal justice system. “We not only had the opportunity to argue our points and rebut the other side, but we were in front of someone playing a judge with all the characteristics [a real judge] might have,” he says.

Credit: Lorin Granger
Dehlia Umunna (left) team-taught “Lawyering for Justice in the United States” with Esme Caramello ’99, Tyler Giannini, and Michael Gregory ’04.

Credit: Lorin Granger
“The Lawyering for Justice” course culminated with a day-long “hackathon,” in which student teams developed a plan of action to address a specific social justice lawyering problem.

. . .

The new courses are part of a series of initiatives that stem from an effort to rigorously examine and question assumptions about the Law School’s curriculum—all with an eye toward better preparing students for legal practice in the 21st century. One of the first steps Dean John F. Manning ’85 took after beginning his deanship in July 2017 was to constitute a curricular innovations committee, chaired by deputy deans John Goldberg and Kristen Stilt. The committee’s work during its first year included outreach to students, alumni, and other members of the practicing bar through surveys, focus groups, and multiple individual conversations. The aim was to get a firm understanding of what students and practitioners valued and hoped for in the 1L curriculum and how individual courses influenced career paths and professional success. In addition, Manning and the curriculum committee, which includes the deputy deans and Catherine Claypoole, associate dean and dean for academic and faculty affairs, began to hold “curriculum committee open office hours” to create an another venue in which students could share their thoughts about the School’s curriculum, including what was working, what wasn’t, and what courses students would like to see added. Feedback throughout was overwhelmingly in support of rethinking the academic experience for 1Ls students during the January term.

Continue reading.

Zero Waste: From Farm To Trash (Not To Table)

Director of the Emily Broad Leib of Harvard Food Law & Policy Clinic was quoted in a Los Alamos Daily Post  article on the financial and social costs of food waste, and how  “sell by,” “best by,” or “expiration dates” add to the tons of food discarded daily.

“It has nothing to do with safety. It is the manufacturer’s best guess of when food will be the freshest and the best quality.”

Project on Predatory Lending Quoted in Several Articles

The Project on Predatory Lending attorneys have been quoted in recent articles regarding the Department of Education’s decisions to cut federal financial to Argosy University, a for-profit college, and rescind its policies on student loan funds forgiveness.

“The industry was on its heels, but they’ve been given new life by the department under DeVos,” said Eileen Connor, the director of litigation at Harvard Law School’s Project on Predatory Student Lending. –“A College Chain Crumbles, and Millions in Student Loan Cash Disappears”, New York Times

 

Toby Merrill, who directs the Harvard Law School’s Project on Predatory Student Lending, said that DeVos is making basic legal mistakes.  “It speaks to the Department of Education’s unwillingness or inability to follow the basic law around how federal agencies conduct themselves,” Merrill told Politico. Adding, “At the very least, they cross their Ts and dot their Is and therefore are less vulnerable to some of the procedural challenges that have been the undoing of so many of this Department of Education’s policies. – “Besty Devos’ war on Obama’s legacy is losing badly because of her ‘inability to follow basic laws'”, Raw Story

 

Federal student loans are supposed to be forgiven if the feds determine a school defrauded its students, consumer attorneys say, but as we reported last year, that still hasn’t happened for some Corinthian students. The Project on Predatory Student Lending, a legal clinic at Harvard University, is suing the federal government on behalf of thousands of former Corinthian College students. – “Argosy University closing leaves students scrambling”, Consumer Affairs

Supreme Court Rules for Death Row Inmate With Dementia

Via the New York Times 

Source: Pixabay

By: Adam Liptak

WASHINGTON — The Supreme Court ruled on Wednesday for a death row inmate, for a criminal defendant who said his lawyer had not followed his instructions, and for farmers and fishermen in India suing an international organization over air and water pollution.

The capital case concerned a condemned inmate suffering from dementia who cannot recall the murder that sent him to death row.

The court’s ruling broke no new ground, and it did not turn on the inmate’s lack of memory. Instead, the court said one of its precedents, which barred the execution of people who lack a “rational understanding” of the reason they are to be put to death, may sometimes apply to inmates who suffer from dementia.

The Supreme Court sent the case back to the lower courts to sort out the matter. The vote was 5 to 3, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing, an increasingly common occurrence. The case, Madison v. Alabama, No. 17-7505, was argued in advance of when Justice Brett M. Kavanaugh joined the court, and he did not participate in the decision.

Justice Elena Kagan, writing for the majority, said a failure of memory alone did not bar the execution of the inmate, Vernon Madison.

“The state seeks capital punishment for a crime, not his memory of the crime itself,” Justice Kagan wrote. “And the one may exist without the other.”

“Do you have an independent recollection of the Civil War?” she asked. “Obviously not. But you may still be able to reach a rational — indeed, a sophisticated — understanding of that conflict and its consequences.”

“Do you recall your first day of school?” she asked. “Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story.”

“And similarly,” she concluded, “if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the state’s desire to impose a penalty.”

In 1985, Mr. Madison killed a police officer, Julius Schulte, who had been trying to keep the peace between him and his ex-girlfriend, Cheryl Greene, as she sought to eject him from what had been their shared home.

Mr. Madison appears to remember none of this. He has had at least two severe strokes, and he is blind and incontinent. His speech is slurred, and what he says does not always make sense.

He has asked that his mother be told of his strokes, but his mother is dead. He soils himself, saying that “no one will let me out to use the bathroom,” though there is a toilet in his cell. He has said he plans to move to Florida. He can recite the alphabet only to the letter G.

Mr. Madison also insists that he “never went around killing folks.”

Justice Kagan wrote that Mr. Madison’s memory loss does not bar his execution. “Moral values do not exempt the simply forgetful from punishment,” she wrote, “whatever the neurological reason for their lack of recall.”

The relevant question, she wrote, was whether he could understand what he is accused of and how Alabama plans to punish him. The evidence on that question was uncertain, she wrote, ordering the state’s courts to consider it.

In addition to the chief justice, Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined the majority opinion.

In dissent, Justice Samuel A. Alito Jr. accused his colleagues of addressing a question different from the one the court had agreed to decide. “What the court has done in this case makes a mockery of our rules,” he wrote.

Justices Clarence Thomas and Neil M. Gorsuch joined the dissent.

The court ruled that lawyers may not disregard their clients’ instructions to file appeals from criminal convictions and sentences even when the clients had agreed to waive appeals as part of their plea agreements.

The case concerned Gilberto Garza Jr., who pleaded guilty in state court in Idaho to possession of a controlled substance and no contest to aggravated assault. He signed “appeal waivers” in both cases agreeing not to pursue appeals.

Mr. Garza nonetheless instructed his lawyer to appeal, but the lawyer refused. That amounted to ineffective assistance of counsel and entitled Mr. Garza to a new appeal, Justice Sotomayor wrote for the majority in the 6-to-3 decision in the case, Garza v. Idaho, No. 17-1026.

“No appeal waiver serves as an absolute bar to all appellate claims,” she wrote, adding: “A defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”

In dissent, Justice Thomas wrote that the lawyer had acted appropriately, protecting Mr. Garza from the possibility of a longer sentence.

“Counsel’s choice not to appeal Garza’s sentence — the only issue Garza asked his counsel to challenge — was not only not deficient, it was the only professionally reasonable course of action for counsel under the circumstances,” Justice Thomas wrote. Justice Gorsuch joined the entire dissent, and Justice Alito most of it.

The court ruled that international organizations like the World Bank and the World Health Organization may be sued for some of their commercial activities notwithstanding a 1945 law that gave them what was at the time nearly absolute immunity from lawsuits.

The question in the case, Jam v. International Finance Corporation, No. 17-1011, was whether that law, which granted immunity “as is enjoyed by foreign governments,” took account of later developments. At the time, foreign government had nearly complete immunity; today, there are significant exceptions for commercial activities.

Writing for seven members of the court, Chief Justice Roberts said the law conferred the same immunity to international organizations as is currently enjoyed by foreign governments.

The case was brought by farmers and fishermen who live and work near a power plant near Gujarat, India, that had been built with money from the International Finance Corporation. They sued the corporation, saying the plant had polluted the air, water and land.

The court’s decision allowed the case to move forward, though it will face other legal hurdles.

Justice Breyer dissented, saying that Congress had meant to provide immunity to international organizations, partly to encourage them to locate their headquarters in the United States. Justice Kavanaugh did not participate in the case, which was argued before he joined the court.

In Cambridge Homeless Court, Another Chance

Via The Harvard Crimson

Homeless Court in Cambridge

The homeless court, the venue where Cambridge judges hold trials for homeless individuals, is held at the First Parish Church in Harvard Square. Photo: Solomina M. Darko

By: Ema Schumer

On the first Monday of every month, defendants and their lawyers file into Judge Roanne Sragow’s courtroom in Harvard Square’s First Parish Church. She wears the same robe there as she does behind the bench in Cambridge District Court, but at the church she sits behind a plastic table on a folding chair.

This nontraditional setting, however, does not make her work there any less important to those who come before her.

Sragow is the presiding judge for the Cambridge District Homeless Court, which offers these monthly sessions to adjudicate on misdemeanor and non-violent felony charges, as well as outstanding warrants, against people experiencing homelessness in the Cambridge area. The court does not sentence the defendants but instead recommends resources for rehabilitation and sometimes requires them to check back in on their progress over the course of multiple hearings.

The court’s most recent session — on March 4 — almost didn’t happen. After heavy snowfall the night before, Sragow and the defendants’ lawyers were worried the people standing trial that day might not make it. But after a two-hour postponement, 14 of the 25 cases on the docket were heard.

Among those who went before the court that day were defendants Cheryl A. Tucker and John A. Chute, alongside their lawyer, Michael C. Hicks, and a team of 12 Harvard Law School students who assist on the cases.

Tucker and Chute were each charged with different crimes, but their defense team, local law enforcement, and Sragow agree that the Homeless Court provides the two of them — and other defendants who appear before the court — opportunities unavailable in the traditional District Court setting.

CRIMES OF NECESSITY

Though less than 0.5 percent of Cambridge’s population was homeless in 2015 — the last year for which statistics are available — homeless individuals accounted for nearly 16 percent of Cambridge arrests that year, according to Cambridge Police Department data.

Hicks, who represents almost all defendants who go before the Homeless Court, said that most of his clients — like many people experiencing homelessness who enter the criminal justice system — commit crimes out of necessity.

“A lot of them are committing crimes because they’re homeless,” Hicks said. “Most people that have access to housing, monetary abilities, medical care, food, clothing, don’t commit crimes.”

Chute, who was before the court this month for charges of breaking and entering a motor vehicle, said that resources for people experiencing homelessness can be hard to come by, driving people to resort to actions they would not otherwise undertake.

“People keep committing crime because they’re broke,” he said. “They don’t have money, they don’t have resources, and they don’t know what else to do.”

But addiction also complicates many defendants’ situations. In Chute’s case, he said he has been under the influence of drugs or alcohol during each of his arrests.

John Chute

John Chute is in the Cambridge Homeless Court system for charges of breaking and entering a motor vehicle. Photo: Ema R. Schumer

Chute, who is 39 years old, first came in contact with the criminal justice system at age 14 for distributing marijuana in John F. Kennedy Park, he said. As a teenager, he started abusing alcohol, which led him to other drugs including cocaine and heroin.

In 2013, he was arrested for robbing a bank and consequently served two years in a maximum security prison in Walpole, Mass. The robbery was the result of an opioid addiction, Chute said. He was medically prescribed opioids after sustaining an injury while working as a carpenter, but eventually the doctor stopped prescribing the pills.

“When I got cut off from my medication, it just became too expensive buying on the street so I turned to heroin, which was a cheaper alternative,” he said. “I needed the money. I was broke and no matter what I did we just never had enough money because of the drugs.”

Law School student Libby S. Bova, who oversees the law students affiliated with the Homeless Court and works with Chute on his case, said that crimes of necessity — such as shoplifting or trespassing — are the result of failed support systems for vulnerable populations.

“We’ve criminalized that behavior, but in some cases if you’re starving or if you really need food or water or you need basic necessities like toilet paper and you’re stealing them from CVS, you can talk about that as a crime,” she said. “But, you can also talk about that as a failure of society to ensure that people of all walks of life regardless of if you have an income or a home have basic necessities.”

Tucker, who also went before Sragow in the most recent session, was arrested as a direct result of substance abuse; her charge was for drinking in public.

Tucker — who is now 49 — was first arrested when she was 29 years old for possession of heroin. Though she did not go to prison for her first arrest, she said she has served a total of 16 years in prison for crimes “primarily done because of drugs” or as “a means to get drugs.”

Bova said that many of the people who come before the court for these kinds of crimes do so because they do not have other places to go.

“They’re just in a situation where they don’t have a lot of options of where else to do that activity, or it’s kind of a side consequence of their status that if you don’t have a home where you could do the things people do day-to-day, all of the sudden when it’s happening on the street it’s a public disturbance or disorderly conduct,” she said.

CREATING HOMELESS COURT

Many cities across the country have variations on Cambridge’s Homeless Court, and the Harvard Square session is one of two located in the state of Massachusetts.

The Cambridge Police Department and the Middlesex County District Attorney’s office created the Homeless Court in 2016 to provide health and social services to Cambridge’s homeless population, according to Middlesex District Attorney Marian T. Ryan. In 2017, the Homeless Court moved from Central Square to Harvard Square.

Sragow said that Cambridge District Court — where homeless individuals’ cases were previously tried alongside all other cases that came before the body — moved to Medford, Mass. nine years ago because of asbestos in its original building.

The court was unable to provide assistance to homeless defendants after its move to Medford because they were not showing up for their court hearings, according to Ryan.

“It was clear that we have a large population of folks who are homeless in Cambridge who often came into contact with the criminal justice system who weren’t really getting those cases resolved,” Ryan said.

The Medford location is not near public transit and takes just under an hour to reach from Harvard Square and Central Square — where much of the city’s homeless population resides — using a combination of both transit and walking. Because the cases could not be resolved without the defendants present, the court was unable to offer medical and mental health care, and other resources, according to Ryan.

Sragow estimated that the default rate — the proportion of defendants who do not show up for their hearings — among homeless individuals in District Court was more than 75 percent. In the Homeless Court, the default rate is negligible, she said.

The Homeless Court brings together representatives from an array of social and health services; Cambridge police, Harvard University police, and MIT police; and the law student defense team.

The multidisciplinary group convenes prior to each court session to discuss each case on the docket. The group works to determine what it believes is the best course of action for each defendant, according to Sragow.

‘REHABILITATIVE RATHER THAN PUNITIVE’

Compared to his experiences in District Court, Chute said the Homeless Court presents distinct advantages for his particular situation.

“It’s a lot better for somebody like me because they’re more geared towards trying to find you help and resolve the problems that led you to be arrested and led you into the court,” he said.

If he had gone through District Court, Chute said he’d likely be “locked up” right now.

“I’d be sitting in Middleton doing absolutely nothing, getting in trouble, no recovery,” Chute said of the jail where he might be held if awaiting District Court trial. “I’d be sitting there and I’d be faced with all of the same problems when I get out.”

Sragow said that the Homeless Court is designed to help the individuals experiencing homelessness who come before it — not to punish them.

“We are looking to rehabilitate — get people back on their feet — rather than be punitive,” she said.

The Homeless Court’s various affiliates match defendants with social services in Cambridge and help them attain resources in an attempt to remedy the issues that brought them before the court in the first place.

To rehabilitate defendants, Hicks and the Law School students meet with the defendants individually to ascertain what services they need.

“Our perspective as students is to follow clients into whatever needs they might have,” Bova said. “We want to understand what goals they might have and help them work towards that while simultaneously working towards a positive resolution in the criminal case.”

Some rehabilitative pathways include alcohol and drug treatment, assistance in procuring government benefits, and finding employment. The students may also help their clients obtain a Massachusetts identification card, which is often a prerequisite to qualify for benefits or apply for jobs.

“I’ve been able to get my ID, social security, I’m looking for a job, I’m going to AA, I have a sponsor, I’m meeting new people and making new friends, staying sober,” Chute said. “All types of good stuff.”

The Homeless Court, however, faces challenges with recidivism as defendants cycle in and out of the system.

Cambridge Police officer Eric R. Helberg, who oversees CPD’s Homeless Outreach Program, said that recidivism is particularly high among those who struggle with addiction. Cambridge does not track recidivism rates in the Homeless Court.

Cheryl Tucker

Cheryl Tucker entered the Cambridge Homeless Court system in December 2018 charged with drinking in public. She stays at Cambridge and Somerville Programs for Addiction Recovery, a substance-abuse treatment center and shelter for people experiencing homelessness.  Photo: Ema R. Schumer

Tucker has faced this challenge throughout her years in the criminal justice system.

“I was working my ass off to stay clean and sober because it took me like 20 years to get out of the system or being on parole or probation or anything with the courts, and here we go all over again,” she said.

She said that for others, though, the Homeless Court can feel like “a slap on the wrist” and isn’t sufficient to deter some offenders.

Sragow, however, said that if a defendant returns to the Homeless Court enough times, she can return them to District Court.

“We don’t give them a pass,” she said.

Similarly to Tucker, Chute has relapsed before. His first appearance before the Homeless Court was resolved in August 2018. But after staying sober and finding a job at Otto’s Pizza, he had a drink and ultimately became unemployed. In February, he wound up back in the Homeless Court with his breaking and entering charges — the same charge he faced in August.

“I am fearful because I’ve tried to stay sober many times in my life and I’ve failed a bunch of times. So yeah I am nervous about it,” he said.

“I’m really grateful that I’m not in jail. I’m getting a chance to do this again and I don’t take it lightly,” he added.

At the March 4 hearing, both Tucker and Chute provided updates on their rehabilitation progress and received encouragement for their efforts.

Despite anecdotal trends, Helberg still said he does not believe high recidivism rates discredit the court’s work.

“We take our successes individually,” he said. “Rather than trying to say we’ve got 25 or 50 [percent] success rate, if we can get one homeless individual into long term rehab and get them housed, that’s a huge success.”

Sarah Rutherford ’21, David Shea ’20, and William “Billy” Wright ’21: Candidates for Director of Student Organizations and Journals

Via The Harvard Law Record

By: Merve Ciplak and Kate Thoreson

Sarah Rutherford ’21

Record: Why are you running for DoSO?

Sarah Rutherford: I never saw myself at HLS. Both my parents were immigrants who came to this country from Caribbean islands, and so I’m a first-generation college student. I’ll be the first person in my family to graduate from law school, so as soon as I got to Harvard, I said “I’m gonna be a part of everything that I can possibly be a part of. I’m so thankful that I’ve been in community in BLSA, I’m a student attorney for the Tenant Advocacy Project, and I’m also active in First Class, which supports first generation and low-income students. It’s been so nice to have group that are so focused on inclusion and diversity, and I really want to help to lift up the work that those organizations are doing. I’m so impressed at the student orgs’ ability to create community at this campus.

Record: You’ve just listed a number of other commitments. How would they affect your ability to do this job?

SR: Some [organizations] are not huge commitments. Some are just about creating spaces where people can go and feel comfortable. So I would say that my responsibilities for First Class or for BLSA are just being a great member of that community and being someone that younger students can reach out to if they need any help. But I don’t actually have leadership positions in those organizations; I would say I am part of coalitions and committees. I think the Tenant Advocacy Project is a significant commitment, but that’s what we came to law school for. So many people came to law school saying they wanted to do community service, and that’s the great part about SPOs.

Record: My understand is your campaign is tied in with Jake and Parisa’s campaign for co-presidency. What made you decide to ally yourself with them?

SR: I really believe in what they’re fighting for. I think a lot of our goals and values are aligned. So many organizations at HLS have been fighting to get Belinda Hall officially recognized. BLSA, La Alianza, so many organizations have been fighting for this. But what I really like about Jake and Parisa’s platform is that they are willing to work with those organizations and really want to help them get to the next frontier in the work that they’ve been doing. There’s a little gap between what these organizations are doing and just having more backing and support from the administration. Jake and Parisa will get it done; I just wish that more people would give them the chance or had the chance to meet them and hear their thoughts.

Record: If you were elected, what kinds of changes would you want to make in the next year?

SR: This position is so unique because you get to meet with the Dean of Students office every week, so what I would love to have is biweekly, invite leaders from different student organizations to come to those meetings for a listening session between them and the administration. I would also love to address some issues with funding and make it more equitable, because right now, there’s one big opportunity in the spring to make a request for funding. There would be a great opportunity for collaboration if, throughout the year, organizations could crowdsource funding within the organizations. I think a lot of organizations really appreciate the town hall the administration tried to have after the Kavanaugh hearings, and I think that we shouldn’t just wait until a contentious moment to hear from the school’s administration. It should be something that’s on a regular basis, so I’d like to institute a State of the Law School every semester where we’re able to hear from the Dean and students are able to participate in a town hall. There are also small things we could work on, like having a spring semester orgs fair. Even the training for student org leaders can be addressed. Student organizations are the heartbeat of this school, so it’s exciting to have this opportunity.

Record: Let’s circle back to your work with First Class. What kinds of things would you do as Director of Student Orgs to support first generation and low-income students?

SR: It’s about asking student organizations with hierarchical power if they would collaborate with a newer organization that supports an affinity group. It would solve a lot of problems. First Class did a dinner with Harvard Law Review during first semester. It was very informal. Just hearing about it ahead of time was really helpful. I think that there could be a greater emphasis on academic support and how you can have mentors between different organizations. There’s also an opportunity socially. A lot of clubs get funding to make sure students are able to participate in things that the rest of the school is going to. DOS should provide additional funding for organizations that want to sponsor their members to do things. First Class got 25% off to go to Parody, and BLSA got $5 tickets. Things like that are integral to what it means to be an HLS student. If you aren’t able to go on the HL Central Boat Cruise, or you can’t go to Parody, you might feel like you missed out.

Record: Do you think there should be more dogs, fewer dogs, or about the same number of dogs on campus?

SR: We need way more dogs. How come Remy has a prime spot and goes in and out of buildings? We need an equivalent dog that’s just prancing around the law school. People love corgis.

Record: I love corgis! Anything else?

SR: I’d like to add that Jake, Parisa and I love this law school, and when you love something, it doesn’t mean that you can’t be critical of it. The school can grow, it can be more inclusive, and it can come up with a better way to build community, and that’s what we want to work towards.

David Shea ’20

Record: Why are you running for DoSO?

David Shea: I don’t want a campaign like this to come down to empty promises. I came as a transfer, so I was scared that HLS was gonna be a place that you could get lost in the woodwork. Harvard provided the newly formed Section 8 to help bring me on board, and I realized how incredible the school was at providing opportunities for transfers in the student body more generally. Seeing that, and seeing how much they gave me to make me feel comfortable with my classmates and the different student orgs on campus and how much outreach they did to make us feel at home made me realize I had to give back. First I was Transfer Rep, and then I got invited to be Events Chair, and I just had an amazing experience working with them and talking with a diverse set of student groups. It’s about giving back and trying to empower people to have the same opportunities that I did to get involved and to hear their voices.

Record: This is the second time I’ve personally interviewed a transfer student running for this particular job. Is there a reason that transfers are drawn to it?

DS: I think transfers come in as very high achievers, just because in their respective law schools they were not only top students, but usually highly involved. I think part of it is self-selection, but I also think there’s a natural opportunity to compare and contrast that gives a transfer an upper hand to look at things at HLS objectively. I had a very narrow aim coming in as transfer rep in changing the write-on process for law review for transfers because it was not geared towards transfers. You had to write on prior to being accepted to HLS on the hope that you would get into HLS, which for most people is not a realistic proposition. So we worked closely with the Law Review to change that process, which is a conversation that’s been ongoing for years, but I set out to actually change that process, and we have. They have now opened up a new summer write-on specifically for transfers to write on with 1Ls. That opened up my eyes to the fact that I could take experiences of being a transfer and help change the overall culture for everyone. I made a point of getting involved with the 1Ls’ effort to reform LRW here, because again, I had all these transfers saying “things are different at our other schools and we can tell there are things missing in [Harvard’s] 1L writing program.” So I was able to work with Micah and I compiled a cross-section of commentary from transfers on their experiences with LRW at their respective universities and gave it to Josh, who was leading the charge on LRW, and Josh gave it to Dean Manning, and it has led to the change that we’re now seeing today where they’re instituting a total overhaul of LRW next year. I’m not saying I was the lead by any means, it was a group effort, but I was involved.

Record: What could you do to increase inclusion for transfers in orgs across the law school?

DS: A lot of it is symbolic. Having me in the DSO position would show that you can have a place here, that you’re not an outsider. If you make an effort to make a place here at HLS, you can do that. This is the ultimate example that if we really want to show that HLS is a place that’s welcoming to transfers, I could be that figurehead that could help. But I don’t want to be typecast as a transfer, and that’s part of my hope in breaking out of the Transfer Rep role. You can build consensus broadly, and that’s what a DSO does. Your budget is always a fight, but that doesn’t mean you can’t carve out a space for everyone, and the more a DSO can be open and listen, the better. The outsider status does help in that, because it’s a visual sign that we are open to listening to other parties and bringing another perspective.

Record: What other commitments to student orgs do you have?

DS: The DoSO position would be an absolute priority for me, but I am an executive editor of online content for CRCL. They’re helping push for more professors of color. It’s great to have activism on the ground level, but if they don’t have support from Student Government, they’re dead in the water. So I want to empower things like that, but I also don’t want people to think that those are pet projects for me. I really want to have the door open for everyone. In terms of other things, I am invested in PLAP pretty heavily. I would love to get involved in [CJI] 3L, but at the moment, I’m in PLAP. I made an effort to pick up a disciplinary hearing. It’s been amazing to act as a student attorney. I wanted an opportunity to be on the ground helping people in need. I think that’s one of Daniel and PD’s mottos, leveling the playing field. And you have to level the playing field not just here at HLS, but in the world at large, and for me, PLAP is that opportunity to find the people in prison who are most in need of representation. I go to Talks. I love the Talks program. Daniel is instrumental in putting that out, and I think it’s amazing. That is the core of what I want to bring to Student Government, which is a space where people can be heard and listened to. There are so many times when people are shouting at each other and not listening, and I love the passion, but we have to create a space where people can talk about their experiences and share with each other. We have to change the campus culture in terms of how people communicate because whether you’re left, right, or otherwise, there’s no reason people should be shouted down. If we create a culture where people are really engaged and listening to each other, I think we can shift that tone.

Record: How would you help improve student organizations?

DS: I think input from the student body needs to be better. Student Government is very siloed. We do a lot of work behind the scenes, and there’s nothing wrong with that, but it leads to a perception that we’re inactive. I think we need to make students understand that we are truly open to listening. I can promise you that not everyone on Student Government fully internalized what the Prison Divestment Campaign said, let alone what they believe. I personally signed the petition. I believe there was a core of something that needed to happen there, but I also think the job of student government is to take that passionate, activist message and put it in a way that’s politically soluble. So we’re working on drafting a proposal that could pass muster with Student Government, but also take the administration to task, and it’s that kind of consensus-building that Student Government has to be cognizant of. That’s a strength of mine.

Record: How do you think the DoSO could make it easier for student orgs to do things?

DS: That gets down to the equity and transparency debate. I stress democracy, but that doesn’t mean the majority always rules. There is a time where we have to recognize that there are marginalized and vulnerable groups on campus that may need a microphone because they don’t have the larger support. FedSoc is not the darling of the left, but they have every right to organize, have money, do their events, and further what they believe in. They’re ironically a minority here whereas in the larger sense, they may not represent minority views. You look at the opposite of that, a group like Lambda, who is representing the LGBTQ+ community. That’s a marginalized group that you have to recognize probably doesn’t consist in the majority either and also needs someone fighting for them, so when they reached out to me and said, “do you support more gender inclusive bathrooms [or] an increased budget for Lambda in light of JAG being on campus,” I would be hard pressed to say no realizing that [every] dollar that goes to Lambda may in effect be taken away from a student org. That’s a reality that if a candidate doesn’t admit to, [they’re] lying. It’s easy to say I can fund every initiative, but I can’t. I have to make some executive judgment to figure out, where are the voices that need empowering, and where are some that just have a large consensus behind them? It’s a question of balancing.

Record: Do you think there should be more dogs, fewer dogs, or about the same number of dogs on campus?

DS: I really can’t say that this is an issue I’ve thought greatly about. There’s a fine number of dogs on campus. I would love to know who these people are who have strong concerns about dogs and tell them to please come speak to me.

(Ed. note: it’s me.)

DS: I’m a huge dog lover, but I do love cats, which has drawn the ire of some dog owners. I think cats are greatly misunderstood animals. They’re very smart, but they play coy. There’s people on campus that are a little bit more like cats than dogs. They’re very smart, but they can be siloed in their interests. The DoSO’s goal is to make us a little more doglike and a little less catlike. We’re all very smart, but we’ve gotta remember that friendship and loyalty are important things, and people of all different stripes can be friends. Ginsburg and Scalia were friends, so it’s not a pipe dream.

William “Billy” Wright ’21

Record: Why are you running for DoSO?

William “Billy” Wright: When I got to HLS and started my 1L year, I found a home in the section very quickly. I felt a real sense of community right off the bat. I didn’t want to just be a part of the community and exist in it, but I wanted to help shape it and make it something that worked more for everyone.

People complain all the time about problems at HLS, going back to Scott Turow, and there are all the tropes about it. I’m a big believer in the idea that if you’re at a place, you’re part of the place and you’re responsible for it. You can’t just complain, you have to find solutions. So I was 1L Rep, and was very thrilled and honored to be the representative for the section, and really did get to address a couple of problems I had identified at a low level with HLS in general. I’d like to start doing that at a higher level, and I think that Director of Student Organizations and Journals is a really powerful way to do that because they’re at the center of so much of student life. Student organizations are a real strength, and once you leave 1L year you’re not really in a section. Your main student organization is your real home at HLS, and it does contribute to community, but it can also hurt community by keeping people siloed. I think we stay siloed from sections, and we don’t really talk to a lot of other sections, and we see, just as an example, FedSoc and ACS people who aren’t talking. It’s bad for the community and for discourse in general. It’s a bad state of affairs in the profession if you’ve got two major camps going forward and not engaging with each other.

Can you expand on the things you worked on as a 1L Representative in Student Government this year?

BW: Last semester, Veteran’s Day was coming up. It was the 100th anniversary of Armistice Day, which is the day most other countries call the end of the war. There were a few events across campus that recognized it, but they were mostly Harvard or organization events. It was usually veterans’ programs, and there really wasn’t anything at HLS about it. Being a veteran and being passionate about that part of history, I noticed this. It’s really not just a veterans’ thing, and it’s such a seminal event for human history that touches on law and shaped the world so much. I thought we should do something to recognize this in some way, and it should be a more sober event than a dinner or a happy hour. So I put together an Armistice Day Run the Friday before at sunrise. I wanted to make it a Student Government thing and not an Armed Forces Association thing, because it’s not just veterans. I wanted to open it up to the university at large, because it shouldn’t just be a law school event. I like doing things beyond HLS if at all possible. We got a handful of people out from the law school, which is a small miracle at sunrise in November. We got some people from the College, the Kennedy School, and the Business School. We were 30-40 people out there in total, and it was a really cool thing to see a diverse group of people come together around this event. Not many people who fought in it are alive to remind us that it’s important and of the pitfalls of a failure to have a respect of the downside of failing to keep international peace. I think it’s really important that we recognize that, and I was glad and excited that we did and to have been able to be driving something that wouldn’t have otherwise happened.

After that wrapped up, I started digging into the Pete Davis public service report. It’s a huge report, and it’s got all sorts of components to it. I was struck by the discussion of how all these little, subtle cues around us sway us towards the corporate side of things. There’s nothing with the corporate side of things, it’s absolutely essential for the economy to work as it does, but people are going to go there regardless because the money’s always pulling people there, and it makes sense. So you need some sort of counterbalancing push to help people get excited about public service and attach prestige to it. You look around at other schools, and West Point, for example, has a lot recognizing the achievements of its graduates. The new building here has not really been used as well as it could be to honor graduates who have actually impacted society. If you go into the lobby, you look and there are two portraits: one is Wasserstein, and one is Caspersen. Both of them give a lot of money, but they’re not really going to inspire anyone in terms of public service. The Obamas, who I respect profoundly, and most people do as well now, aren’t recognized at all. We’re two years from the Presidency now, and it’s not politicized to honor them. So many activists who were instrumental in the civil rights movements aren’t honored. Say whatever you want for his recent political influence, but Ralph Nader, as the one-man wrecking ball that he was in his heyday and the young HLS grads that he got on board to really change the consumer rights scene, should be recognized. There are just so many people who were trailblazers in women’s rights, civil rights, consumer rights, people outside of the US who were political leaders and came through HLS…none of it is recognized, and it’s a real shame. I think the building doesn’t really do anything to inspire, and for 1Ls especially, we spend most of our time in this building and it’s a mission that the school should be taking seriously. So I’ve been looking at ways we can try to change the physical space in a way that honors those who have had worthy impacts on society. We’re starting to try to move forward with it, and funding’s a big issue right now, but we’ve got a couple things we’re going to try to do. A great example to give something concrete: in Langdell North, they have black-and-white prints of social activists at work, and they are very poignant scenes. It’s very aesthetic as well. But it’s hidden away. The most prominent space is just kind of blank. We should be able to commit to at least the people who change society; that’s not really that controversial.

Record: Is there anything you know you want to accomplish as a part of Student Government next year if you get elected?

BW: Like I said, things can get kind of siloed. Student organizations play a role in that. We can bring about a state of affairs where student organizations have more cross-talk, engage each other and aren’t afraid, where people don’t just leave the classroom and go their separate ways and not ever see anyone except the certain people similar to them. It doesn’t have to be confrontational. One good example is the trans ban. After that happened, LAMBDA and the Armed Forces Association hosted a joint discussion on litigating against the trans ban, and I thought that was great because that kind of event has the potential to create a lot of hostility towards veterans and it was the opposite, where we communicated that we were going to confront this together, and that we were going to figure this out as a cohesive and as a community. I thought that was way more powerful. Director of Student Organizations plays a role in allocating funding, and if there was a way of equitably providing certain incentives for organizations that do this more often, bearing in mind that some organizations can do it more readily than others, I think that could be an interesting incentive. Similarly, spreading it across the university-wide community through organizations.

Another area is pushing for a sleeker, more up-to-date digital presence by a lot of organizations online. We’ve got the WordPress suite that student organizations have to use. It’s okay; they all look serviceable, but not great. If you survey the Harvard student organizations, you’re going to get the same kind of thing and it’s fairly uniform. There is something for every organization, which is good. If you survey other schools’ organizations, they’re much more variable. Some are better, and some are far worse or don’t exist. That is a benefit of the uniform system, but WordPress is far more powerful than that, and I think a lot of student organizations would run with it if the system were looked at and changes were enabled. A stronger web presence helps prospective students find things they’re interested in and gets them excited about the school, and provides information about them. It provides more transparency to the rest of the school about what all these other organizations are doing, so that helps cut through the siloed nature as well. It’s good for the organization itself, it makes it more functional. A good counter-example is if you look at some of the big journals on campus, their websites are excellent: JOLT, ILJ, JLPP, and I’m sure a bunch of the other ones have incredibly well-done websites. At least one of them are run off WordPress platforms, so I’m sure there’s a way to fix that. That would be a big initiative of mine.

Another is creating a nimbler constellation of student organizations. There are two issues: it’s intimidating and hard to start the process to start an organization, and that goes into all the administrative requirements for it, getting people on board with it, developing the idea to the point where it’s ready to go and be presented, and then having an idea that’s not already addressed by some other organization. I think Director of Student Organizations, and Student Government or DoS largely, could provide a better pathway. This could maybe consist of a pitch event to have student organizations that are only ideas at this point, or things they want to address and they want to run by someone. We could tell them “hey, this is a good idea for a student organization and it’s not addressed already on campus, this is what you need to do to get it done”, or not by saying “this should be done through another organization”. Post-pitch event, a separate event could help people prepare for the actual pitch to DoS. I think that could be powerful to creating organizations that respond to things that are more current. You’ve got the Mississippi Delta Project, and that organization is very nimble. They address specific problems. I don’t see any reason why you couldn’t have an “Opioid Crisis in Massachusetts” organization, or a “Wind Energy Project”. But it is very intimidating to try to go start something like that.

The other side of that is the dormant organizations policy. We’ve got organizations that aren’t started, and those that are hanging on and still getting funding but don’t do anything. There’s got to be a policy put in place that balances that where you phase out organizations that aren’t doing anything, which Student Government is trying to do right now. Some students have actually used organizations to get funding and then just used it to go out to dinner. But then you also have to not hurt organizations that actually do something. That’s directly a Director of Student Organizations role.

Record: Is there anything you think is beyond your, or Student Government’s, control that you would like to change?

BW: The clerkship hiring pilot is coming down the pipe, and it’s something that I believe in and is really important for us to do because it’s obviously a problem at Harvard. It leads to inequitable outcomes at large and it induces a lot of stress. If you hear about people trying to go out and do stuff for clerkships as a 1L in your first semester, that just makes you sweat a little bit more. You should have a bit of a buffer where you don’t have to think about these things yet. It’s an important thing at Harvard and in the legal profession at large, and if it’s not done at Harvard, I don’t see it getting done for a long time. We should be leading the way on this. Student organizations are a vehicle for this and for the letter that Radhe Patel put together. A lot of student organizations on campus signed on to the letter, and student organizations have also been a way that people have found information about clerkships and have gotten on the right path, if not outright help. I think that’s a powerful way to address it, but 90% of organizations isn’t good enough. If anyone’s circumventing it, then the whole thing falls apart. I don’t think you can impose this on people who don’t want it and fight them on it. It’s got to be a collective buy-in type process. There’s a faculty working group who’s looking at it, and it would take a whole-school approach and the right judges signing on as well. This is certainly happening, and I think Director of Student Organizations and Student Government play roles in generating buy-in and seeing what the issue is for those who oppose it and how to work with them on it so we can get the right people who are leading the clerkships on board with this. But it’s definitely a huge thing that goes way beyond Student Government. But just the fact that we’re working on it is a powerful signal to the legal community.

Record: Beyond Student Government, what other commitments do you have on campus that are important to you personally?

BW: I’m currently involved in the Armed Forces Association and HLEP, and I’m a strong participant in Section 6 and Student Government, of course. I’ll probably also be subciting for the National Security Journal and maybe try to take on a roll with them going forward as well.

Record: What do you think distinguishes you as a candidate?

BW: Immediately upon getting here 1L year, I got involved with Student Government and have been as active as any 1L representative. I’ve had one small project that was just initiated and completed. I’ve had another project that I’ve started that’s in the works. I think I’ve been a fairly active voice generally in the discussions. I don’t think you see a lot of people as involved from the get-go and as constantly committed to taking some sort of initiative. I think that distinguishes me. I’m trying to find things, I have been from the get-go and I’ll continue to do that. It’s hard to do that if you haven’t been involved in the process. It’s easy to say “I’ve got this issue I’ve identified and I’ve thought of a solution”. But then once you start talking to DoS and you’re in a couple of meetings with them, you realize they have constraints as well and there are a lot of big things going on at this school. Solutions are very hard to actually stitch together. If there’s a problem that hasn’t been solved it’s often because it’s a tough problem with competing interests. Having seen that and having navigated it a little bit is a powerful platform to actually go address things at a higher level.

The other part of it is that if I’m involved next year in this capacity, then the year after that would be two years of involvement in Student Government at a high level. One of the biggest problems with Student Government is that the turnover is so high that even if you’re involved for three years, three years is a blink of the eye. You’re gone, the administration is generally the same, the school sails on as it does, and the same problems keep rotating back. It does help to have people who are consistently involved all three years, even though even that’s not enough. That’s something that I would be able to offer: a consistent, long involvement.

My background also helps a lot. I was in the Army in Europe. For most of my time in the Army, I dealt with a lot of different interest groups: foreign militaries, a lot of varying components with the US military and US government. I think there’s something to be said for learning how to deal with all of these different stakeholders, and to take initiative and leadership in that kind of environment. There are things in the Army that don’t translate to being successful, but that’s definitely something that would not only benefit a leader anywhere, but particularly Director of Student Organizations. When you’ve got this very different constituency of people with different and sometimes competing interests, and you have to find a way to be representative of all of them and help them find the best possible and broad solution, I think that’s something I’ve been trained to see.

Record: Is there anything else you’d like to add?

BW: Being involved in Student Government has been the best part of my 1L experience (except for Section 6!), and it’d be really cool to be able to continue to do that.

Lethal Autonomous Weapons Systems: Recent Developments

Via Lawfare 

Source: Flickr

By: Hayley Evans, J.D. ’19 and Natalie Salmanowitz, J.D. ’19

On March 25-29, the U.N.’s Group of Governmental Experts (GGE) will meet for the third consecutive year to discuss developments and strategies in the field of lethal autonomous weapons systems (LAWS). As a subsidiary body of the Convention on Certain Conventional Weapons (CCW), the GGE brings together High Contracting Parties, state signatories, international organizations, nongovernmental organizations and academic bodies in an effort to define LAWS, debate best practices, and recommend steps to address the potential development and use of LAWS in the future. It’s been six months since the GGE last met, and this will be the first of two GGE meetings taking place in 2019 (for more information on the GGE’s prior meetings, see here and here). This post will cover all you need to know about where relevant stakeholders stand leading up to the March meeting.

Background on LAWS

As a general matter, LAWS are weapons that can select, detect and engage targets with little to no human intervention. Though there is no singularly accepted definition of LAWS, the term typically covers a broad array of potential weapons systems, ranging from fully autonomous weapons that can launch attacks without any human involvement to semi-autonomous weapons that require affirmative human action to execute a mission. Critics of LAWS focus primarily on fully autonomous weapons, dubbing LAWS “killer robots” and questioning their ability to respect human life and comply with international humanitarian law (IHL). Others, like the U.S. government, foresee potential advantages of the technology, arguing that LAWS’s automated targeting features might actually augment states’ abilities to meet IHL requirements through increased accuracy and efficiency. While it’s too soon to tell whether LAWS’s capabilities are a feature or a bug, the GGE’s ultimate decisions may have profound consequences for the development and use of LAWS.

Global Developments

Before reviewing the GGE’s and High Contracting Parties’ most recent meetings, it’s worth surveying the global pulse on attitudes toward LAWS and highlighting key developments in the public and private spheres.

To start, Human Rights Watch (HRW) and the Campaign to Stop Killer Robots (CSKR)—two of the chief proponents of a preemptive LAWS ban—have kept busy on the advocacy front. In August 2018, HRW published a report in conjunction with Harvard Law School’s International Human Rights Clinic (IHRC) entitled, “Heed the Call: A Moral and Legal Imperative to Ban Killer Robots.” As in its earlier reports—see hereand here—HRW called for a preemptive ban on the development, production and use of LAWS. But this new report went one step further, arguing that fully autonomous weapons would contravene the Martens Clause, which was introduced into the preamble to the 1899 Hague Convention (II) on the Laws and Customs of War on Land, and effectively guarantees a base level of protection under IHL even in the absence of specifically applicable treaties. According to HRW and the IHRC, fully autonomous weapons would be unable to comply with “principles of humanity” and “dicates of public conscience”—the Martens Clause’s two fundamental pillars.

A few months later, HRW and CSKR probed this idea of public conscience further, releasing results from a market research study on the strategic, legal and moral implications of LAWS. The study found that 61 percent of adults surveyed across 26 countries oppose LAWS—a 5  percent increase from survey results in 2017. Moreover, a majority of survey respondents in 20 of these countries expressed disapproval of LAWS, including those in countries whose governments have opposed a preemptive ban. Accordingly, CSKR concluded that “public opinion is in line with [CSKR’s] call for action to prevent the development of killer robots.” Although these surveys do not directly inform analyses under international law (unless, as HRW and the IHRC suggest, they contribute to an understanding of the “dictates of public conscience”), they do provide an interesting proxy for how opinio juris—a state’s belief that something is legally obligatory—is developing with respect to LAWS.

Apart from HSW and CSKR’s efforts, at the Paris Peace Forum marking the 100th anniversary of the end of World War I, U.N. Secretary-General Antonio Guterres explicitly called for a ban on LAWS, stating, “Imagine the consequences of an autonomous system that could, by itself, target and attack human beings. I call upon States to ban these weapons, which are politically unacceptable and morally repugnant.” And in mid-February, at the American Association for the Advancement of Science’s annual meeting, participants expressed dissatisfaction with the GGE’s overall progress. In particular, CSKR declared its intention to refocus its advocacy efforts domestically given the relative inaction and “diploma[tic] … fail[ures]” at the international level.

Meanwhile, in the private sector, LAWS have garnered significant attention as well. In June 2018, Google came under fire as thousands of its employees signed a petition urging the company to cease involvement in Project Maven—a contract with the Department of Defense to develop artificial intelligence for analyzing drone footage (which Google employees feared could one day facilitate the development or use of LAWS). Facing pressure from employees and technology experts across the globe, Google subsequently announced its decision not to renew its contract for Project Maven and vowed not to “design or deploy AI … [for] technologies that cause or are likely to cause overall harm.” In July 2018, over 200 organizations and 3,000 individuals (including Elon Musk, Google DeepMind’s founders and CEOs of various robotics companies) followed suit, pledging to “neither participate in nor support the development, manufacture, trade, or use of lethal autonomous weapons.” In light of these highly publicized events, the Defense Department recently tasked the Defense Innovation Board (comprising high-profile Silicon Valley tech leaders) with developing ethical principles to guide the department’s use of AI in military weapons and operations. The board has already concluded its first meeting and plans to publicly release its recommendations this June.

Highlights from the GGE’s August 2018 Meeting

While members of the private and public sectors have started to take concrete actions against LAWS, the same cannot be said of the GGE, despite increasing opposition to such weapons.

By the time the GGE met last August, 26 states supported a ban on fully autonomous weapons systems—four more than at the April 2018 meeting. However, 12 states—including Russia, the U.S. and the U.K.—opposed even negotiating a treaty on LAWS.

In advance of the August meeting, eight states submitted working papers. Though the papers discussed a wide variety of issues—ranging from the proper terminology and characterizations of LAWS to suggested approaches for regulating their development and use—the most commonly discussed issue concerned the concept of meaningful human control. While multiple papers reiterated the importance of holding humans accountable for their decisions to develop and deploy LAWS, some states expressed differing views on the proper way to conceptualize human control. For instance, whereas Brazil viewed human control as inextricably tied to the weapon’s level of autonomy, the U.S. sought to refocus the debate on human “judgment,” arguing that the key question is not the extent of control a human retains over the weapon, but whether “machines [can] effectuate the intention of commanders” and “enable personnel to exercise appropriate levels of judgment over the use of force.” According to the U.S., fewer opportunities for human control (and higher degrees of automation) can lead to greater alignment between human intentions and actual outcomes. Meanwhile, France appeared to express a middle-ground view, acknowledging that autonomy can improve the decision-making process, but expressing concern with operators’ ability to take charge of LAWS given their potentially inexplicable and unpredictable nature. States expressed a similar variety of positions during the meeting itself, and the GGE ultimately decided to continue these discussions at the next meeting. (Ljupčo Jivan Gjorgjinski, the chairman for the 2019 meeting, has specifically included discussions on human control and human-machine interactions in the March agenda.)

In an effort to convert their discussions into action items, states and organizations also proposed three main avenues to address the future development and use of LAWS. On one end of the spectrum, Austria, Brazil and Chile urged the GGE to “negotiate a legally-binding instrument” to address LAWS. The majority of delegations favored this option, with some states and organizations renewing their support for a ban, while others advocated for some degree of regulation (albeit in an unspecified form). Notwithstanding this widespread support, five states—the U.S., Russia, Australia, South Korea and Israel—effectively quashed further conversations on the matter. (As CSKR noted in its discussion of the survey mentioned above, these countries’ opposition to negotiating a legally binding instrument is particularly interesting given that—with the exception of Israel—a majority of survey respondents in each of these countries oppose “the use of [LAWS] in war.”) On the other end of the spectrum, a number of states—including Australia, the U.K. and Argentina—proposed continuing discussions “of existing obligations under international law” and elucidating best practices under IHL, specifically under Article 36 of the First Additional Protocol to the Geneva Conventions.

As a third, intermediate approach, Germany and France suggested a political declaration to formally express areas of consensus and elaborate guiding principles regarding human control and accountability. At least 10 states’ delegations voiced support for this option, with some (such as Spain and Sri Lanka) viewing it as a stepping stone toward restrictions on LAWS, and others (such as Ireland and Poland) expressing general interest in the idea. By the end of the August meeting, the GGE voted to include a fourth and final option in its report—namely, a recognition that “no further legal measures were needed” since “IHL is fully applicable to potential [LAWS].” However, the GGE ultimately kicked the can down the road, recommending that it meet in 2019 under the current mandate, declining to formally adopt any of the proposed measures.

The August meeting was notable for two final reasons. First, according to commentary on the meeting by Reaching Critical Will (the disarmament division of the Women’s International League for Peace and Freedom and a frequent commentator on CCW meetings), the U.S. and Russia shocked other members of the GGE by doubting the relevance of international human rights law to autonomous weapons systems—even though prior GGE meetings appeared to take the applicability of such law as a given. In response, multiple states—such as Costa Rica, Panama, China and Cuba—pushed back, proposing a variety of solutions ranging from maintaining an explicit reference to international human rights law to mentioning the U.N. Charter. The GGE’s report—per the recommendation of China—“affirmed that international law, in particular the United Nations Charter and [IHL] as well as relevant ethical perspectives, should guide the continued work of the Group.” Second, much of the GGE’s debate centered on broader messaging concerns. Whereas some states, like the U.S., urged the GGE to discuss the benefits of LAWS (such as the capacity for greater targeting precision and less collateral damage), others fervently opposed any mention of such benefits absent an accompanying explanation of the associated risks. Similarly, a handful of states stressed the importance of “avoid[ing] the image that states believe” LAWS “are already in operation”—or “that these systems will be in operation one day.”

Highlights from the High Contracting Parties’ November 2018 Meeting

Following the GGE’s August 2018 meeting, “all CCW States parties” convened for the Meeting of the High Contracting Parties to the CCW Nov. 21–23, 2018. Since the Convention and its Protocols cover all sorts of weapons and weapons systems, only a fraction of the November meeting dealt specifically with LAWS. But there were two developments of note. First, the International Committee of the Red Cross submitted a working paper prior to the meeting, which recommended that states develop an understanding of human control—a focus dictated by law and ethics—and provided questions to help inform the development of a practical understanding of the concept. Second—and perhaps most importantly—El Salvador and Morocco each called for a LAWS ban during the meeting, raising the number of states officially in support of a ban from 26 to 28.

Looking Ahead

So what to expect this March? According to Chairman Gjorgjinski, the “IHL prism” is the name of the game: IHL principles will “permeate all areas of [the GGE]’s focus. While the tentative agenda does not include general debate, it does provide for discussions on the impact of LAWS on IHL with a premium on “precis[ion] and specific[ity].” But building consensus may prove especially difficult this time around—unlike previous meetings, which lasted for 10 days, the GGE will meet for just seven days this year, only five of which will involve substantive debate. And as CSKR pointsout, all it takes is “one state [to] block agreement sought by the rest,” an outcome that may be all the more likely given the highly condensed opportunities for meaningful discussion.

On March 8, stakeholders will submit working papers to the CCW (which can be found here). If past is prologue, these working papers will set the tone for the March meeting as states and organizations stake out their positions on various topics and identify likely pressure points in the upcoming debate.

Redressing Harm through Restorative Justice

Via Harvard Law Today   

Harvard Negotiation Law Review 2019 Symposium, “Redressing Harm through Restorative Justice”. This panel focused on different uses of restorative justice in addressing communal harms. Moderator: Andrew Mamo; Speakers: Ronan Feehily, Thalia Gonzalez, and Libby Hoffman. Credit: Lorin Granger

By: Victoriya Levina and Basil Williams

Sydnee Robinson, a 2L at Harvard Law School and chair of the 2019 Harvard Negotiation Law Review symposium, and Shannon Schmidt, a Harvard Divinity School student, first came together to discuss their shared interest in restorative justice in summer of 2018. They were drawn to the topic because of the ways in which it represents a paradigm shift in how to view and respond to harmful behavior. An evolving concept and growing field of practices, restorative justice focuses on responding to harm through facilitated dialogue. By the fall, Robinson and Schmidt had teamed up to help organize HNLR’s three-day event.

The 2019 Harvard Negotiation Law Review (HNLR) symposium, “Redressing Harm Through Restorative Justice,” held February 5-7 at Harvard Law School, brought together students, faculty, staff, ADR practitioners, attorneys, and members of the greater Boston community to explore various applications of restorative justice within the criminal justice system in the United States and in post-conflict systems around the world. The symposium, which focused on the challenges of addressing power imbalances and trauma through implementation of restorative practices within communities, featured remarks, panel discussions, an interactive workshop, and a film screening.

As a journal, the Harvard Negotiation Law Review (HNLR) has long been interested in exploring creative methods of addressing harm, particularly those that go beyond punitive justice and attempt to restore relationships and communities. In 2015, HNLR hosted a symposium on the theory and practice of restorative justice.

“The HNLR Symposium felt like a special opportunity to bridge the gap between experts and community members,” said Schmidt. “While our speakers taught us about the powerful work they are doing in fields related to restorative justice, members of the audience actively engaged in these topics on the level of their own experiences in their own communities.”

The symposium opened with remarks from Dr. Carl Stauffer, whose transitional justice work has taken him to 20 African countries and 15 other countries in the Caribbean, Middle East, Europe, Asia, Central America, and the Balkans. Stauffer recalled his experience working with refugees who fled the civil war in Sierra Leone. “Stories of trauma were heavy and hard to carry,” he said while discussing how a formal justice process was driving a wedge in the civilian population instead of facilitating healing and reconciliation. He described the power of a ground-up restorative process that, since 2008, has created a meaningful change in Sierra Leone by harnessing the social, cultural, and spiritual power of the affected communities. Restorative justice “is evolving into a social movement,” he said. It has inspired participants to work toward a “cultural shift of how restorative justice can be used in the future,” he added.

Continue reading.

Coastal Resilience Partnership unites 10 municipalities in effort to combat effects of climate change

Via the South Florida Sun Sentinel 

Source: Pixabay

By: Austen Erbalt

A new partnership between Palm Beach County and 10 of its coastal municipalities is hoping to combat the effects of climate change with a particular focus on sea level rise.

The Coastal Resilience Partnership consists of Palm Beach County, Boca RatonBoynton BeachBriny BreezesDelray BeachGulf StreamHighland BeachHypoluxoLake WorthLantana and Ocean Ridge. It was formally created with a grant from the Florida Resilient Coastlines Program, an initiative by the Florida Department of Environmental Protection to provide assistance and funding to coastal communities dealing with flooding, erosion and other changes.

Over 30 local representatives from the municipalities met at the Swinton Operational Complex in Delray Beach Feb. 28 to discuss and craft official principles within the partnership.

“It is truly inspiring to have so many of our local leaders ready to take action on climate change,” said Rebecca Harvey, Boynton Beach’s sustainability coordinator. She is also managing the grant-funded portion of the project.

“With the Florida Department of Environmental Protection’s support, we are able to face this challenge as a united force,” she said. “Approaching climate adaptation as a regional partnership will enable our communities to avoid costs while creating a more robust and consistent approach to climate adaptation.”

Last November, Boynton Beach joined the American Flood Coalition as part of its efforts to combat and prepare for rising sea levels, an effort led by Harvey.

Representatives from each municipality and the county have met informally over the past year to discuss sustainability planning and preparedness.

Carollo Engineers, Inc., an environmental engineering firm with offices in Coral Springs, Miami, Sarasota, Tampa and West Palm Beach, is providing consulting to synthesize data and help develop a vulnerability assessment.

“Our team is sincerely humbled and proud to be part of the CRP in uniting the region and paving the way for a cohesive climate adaptation strategy,” said Juan Oquendo, vice president and senior project manager of Carollo Engineers.

“As a local resident, I have experienced firsthand effects of climate change and rising sea levels and I am excited to take action,” Oquendo said. “Our team will create the framework of a climate vulnerability assessment considering the unique challenges to preserve our coastal communities.”

Harvard University Law School’s Emmett Environmental Law and Policy Clinic is providing pro bono assistance to formalize the collaboration, develop terms for a joint request for proposals and contribute information on climate vulnerability assessment best practices.

During the Feb. 28 meeting, Coastal Resilience Partnership members discussed future planning efforts, such as infrastructure, social and economic issues and protecting vital natural resources.

The coalition has future meetings planned for the spring and summer, but exact dates are not yet available.

 

Via NPR

NPR’s Audie Cornish and Clinical Professor of Law Susan Crawford discuss why the Chinese telecom giant, Huawei, is leading in the race to 5G networks, and why its advantage poses a national security threat.

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