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Category: Legal & Policy Work (page 1 of 5)

What’s the Deal with Transparency in Science? The Emmett Environmental Law & Policy Clinic filed multi-disciplinary comment letters challenging EPA’s scientific “transparency” rule

EPA logo

Source: Wikimedia Commons

By: Lynne Dzubow, Clinical Fellow

The Emmett Environmental Law & Policy Clinic (EL&PC) submitted two sets of comments in August 2018 challenging the Environmental Protection Agency’s (EPA) proposed rule on scientific “transparency” in its decision-making. While transparency is a laudable goal, EPA’s rule would wrongly limit—not clarify or expand—the pool of scientific and medical knowledge available to the agency when issuing regulations to protect human health and the environment.

The Trump Administration has a troubling, topsy turvy relationship with the concept of transparency. On the one hand, it uses “transparency” as a pretext for preventing federal agencies from using the best available science to inform policy decisions. On the other hand, it tries to restrict access to government records, for example, through recently proposed Freedom of Information Act (FOIA) regulations.

Indicative of this trend, EPA issued a proposed rule entitled “Strengthening Transparency in Regulatory Science” in April 2018. The proposal requires that certain data and models be made “publicly available in a manner sufficient for independent validation,” and indicates that information will only satisfy this standard when “it includes the information necessary for the public to understand, assess, and replicate findings.”

By conflating public disclosure with the peer review process available and necessary to validate research, this requirement would deprive EPA of the data necessary to inform environmental health standards. Indeed, the proposal could have severe deregulatory effects by preventing EPA from using studies which rely on confidential medical data, older information that is not readily available, or evidence that was obtained from one-time events that cannot be replicated for moral or ethical reasons. Using the false crisis of “secret science” as a red herring, this proposed rule would not only threaten EPA’s mantle as one of the world’s leading environmental and human health research organizations, but would also place the agency in untenable legal jeopardy for most future regulatory actions.

Confidentiality of Private Health Information

As written, the proposal requires that the raw data establishing the scientific foundation for EPA’s regulations be made publicly available. However, as the Clinic’s comment letter representing the medical and research community points out, studies conducted on human research subjects are generally held to strict confidentiality standards. Under federal laws such as the Health Insurance Portability and Accountability Act (HIPAA) health care providers and associated research components are required to protect research subjects’ private health information. The Federal Policy for the Protection of Human Subjects, also known as the Common Rule, further requires federally-funded researchers to obtain Institutional Review Board (IRB) approval and informed consent of research subjects, during which process the researcher will typically need to make promises regarding confidentiality. Many academic institutions adopt the Common Rule as best practice for their research, even when it is not federally-funded.

These laws, along with customary research contracts and the Hippocratic Oath, form the basis of trust between a physician/researcher and her patient/subject. Requiring health study data to be made publicly available would have a chilling effect on the types of research necessary to inform standards on multiple environmental issues, from particulate matter in air to lead in drinking water.

For example, EPA’s 1997, 2006, and 2012 National Ambient Air Quality Standards (NAAQS) for fine particulate matter all relied on studies using confidential data, such as the 1993 Harvard Six Cities Study. Under the proposed “transparency” rule, such studies (and dozens of others) would be excluded from EPA’s regulatory process, likely skewing cost-benefit analyses and scientific conclusions to favor dangerously lax standards.

Best Available Science

The proposal not only conflicts with privacy laws, but also undermines the mandate Congress has imposed on EPA to use the “best available science” in developing regulations and standards. As an illustration, the Safe Drinking Water Act requires that EPA use “[t]he best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices,” and the Toxic Substances Control Act states that EPA “shall use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science.” While the precise terminology varies across statutes, a common theme of these requirements is that EPA use scientific information that is considered “best,” regardless of whether the underlying raw data is publicly “available.”

By preventing EPA from considering peer-reviewed studies whose underlying data is not publicly available, the proposal unlawfully restricts and undermines EPA’s regulatory process.

Preparing for Litigation

The Clinic’s comment letters representing both the scientific and legal communities demonstrate the multi-disciplinary outreach of the EELPC and the important connection between science, law, and the environment.

EEPLC’s letter on behalf of the scientific and medical community was signed by nearly 100 people, including Harvard President Larry Bacow, the deans of Harvard Medical School (HMS) and the Harvard T.H. Chan School of Public Health, and the presidents of Massachusetts General Hospital (MGH), Brigham and Women’s Hospital, Beth Israel Deaconess Medical Center, and Massachusetts Eye and Ear.

The Clinic’s letter on behalf of itself and other environmental law clinics had 12 signatories, representing clinics from the Columbia University School of Law, University of Chicago Law School, and University of Colorado Law School, among others.

EPA has delayed the finalization of the “transparency” rule until 2020. The significant backlash against the proposal by public health, medical, academic, and scientific groups has seemingly given EPA pause. Should EPA, however, move forward with the rule, these comment letters will become an important part of the administrative record. By reaching out and forming a coalition between the medical and legal communities, EEPLC created a strong basis for challenging EPA’s justification for implementing the “transparency” rule in court.

A Win for Criminal Defendants at the U.S. Supreme Court

 

By: Dalia Deak J.D. ’19

On February 27, 2019, the U.S. Supreme Court restored the appeal rights of Mr. Gilberto Garza, Jr., and other criminal defendants like him. In a 6-3 opinion, the Court found that Mr. Garza’s defense attorney had improperly forfeited his appeal in violation of Mr. Garza’s constitutional rights — even though Mr. Garza had signed a plea agreement that contained an appeal waiver.

Background

In 2015, Mr. Garza signed two plea agreements, each with an appeal waiver. After Mr. Garza’s plea agreements were accepted by the court, and he was sentenced, he asked his attorney to file a notice of appeal. Mr. Garza’s defense attorney refused to file the notice of appeal before the deadline, despite Mr. Garza’s repeated requests that he do so. By refusing to file the notice of appeal, Mr. Garza’s attorney cost him his appeal altogether.

As a result, Mr. Garza sought post-conviction relief in Idaho state court, alleging that by refusing to file the notice of appeal, Mr. Garza’s attorney had rendered constitutionally deficient performance. The Idaho trial court denied relief, and the Idaho Court of Appeals and Idaho Supreme Court affirmed the trial court’s decision. The Idaho Supreme Court ruled that, in order to succeed on his claim, Mr. Garza had to show deficient performance and resulting prejudice from his attorney’s actions. It also ruled that Mr. Garza could not make that showing. By requiring Mr. Garza to show prejudice instead of presuming it, the Idaho Supreme Court acknowledged that it was aligning itself with a minority of courts on the issue. Indeed, eight out of ten federal courts of appeals disagreed with the Idaho Supreme Court on this issue. The Supreme Court granted certiorari to resolve the split.

The Opinion

The Court began its analysis by holding that the Roe v. Flores-Ortega presumption of prejudice that applies when an attorney forfeits a proceeding a defendant would have otherwise taken continues to apply even when the defendant has signed an appeal waiver. The Court then addressed the procedural devices at play in the case: appeal waivers and notices of appeal. The Court emphasized that appeal waivers do not serve as “an absolute bar to all appellate claims.” Indeed, it noted that “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts,” and, as with any contract, large variations in the language and scope of appeal waivers exist. As a result, directing counsel to file a notice of appeal does not mean that defendant or his counsel “undertake a quixotic or frivolous quest.” With respect to notices of appeal, the Court underscored its statements from Flores-Ortega that “[f]iling such a notice is a purely ministerial task that imposes no great burden on counsel.”

Turning to Garza’s ineffective assistance of counsel claim, first, the Court concluded that, consistent with Flores-Ortega, the decision of whether to appeal is ultimately the defendant’s to make, and, thus, Mr. Garza’s attorney had rendered constitutionally deficient performance. In doing so, the Court rejected Idaho’s argument that the risk of defendant’s breach of a plea agreement does not render counsel’s decision a strategic one. The Court emphasized that “simply filing a notice does not breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.”

Then, turning to the “crux” of the case, the Court held that the Roe v. Flores-Ortega presumption of prejudice applies with equal force when an appeal waiver is present. The Court made clear that, as in Flores-Ortega, “to succeed in an ineffective-assistance claim in this context, a defendant need only make one showing: ‘that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.’” The Court went on to explain that the presence of an appeal waiver does not “complicate this straightforward application.” This is because the Court’s precedents make clear that the presumption of prejudice applies whenever counsel’s deficiency forfeits the defendant’s appellate proceeding altogether. This reasoning applies with equal force to Garza because he had a right to a proceeding and retained some appealable issues, despite the presence of his appeal waiver.

By ruling in Garza’s favor, the Court rejected arguments by Idaho and the United States as amicus that Mr. Garza never had a right to an appellate proceeding, stating that Mr. Garza did have a right to an appellate proceeding, but could only raise fewer claims. Second, the Court also rejected the United States’ suggested rule, indicating that the Court has consistently refused “to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit.” Finally, the Court also refused to push this type of analysis to the post-conviction context, citing a study by Professor Nancy King that over 90% of noncapital habeas petitioners are unrepresented.

Working at MacArthur Justice Center

The win in Garza was an important challenge to a fundamentally unjust practice.  In that respect, it was a win, certainly for Mr. Garza, and, more broadly, for criminal defendants who sign appeal waivers. It was also a rewarding moment for the attorneys and staff that had worked on Mr. Garza’s case. I was lucky enough to play a small role in Mr. Garza’s case as an appellate intern at the MacArthur Justice Center (MJC). There, I spent the summer working with and supporting an extraordinary team: Amir Ali, the Supreme Court and Appellate Counsel at MJC, who argued the case and was counsel of record; Julius Mitchell, Caroline Li, and Ben Gunning, three talented co-interns from Harvard Law; and Earl Lin, Emily Clark, and Josh Frieman, brilliant attorneys and staff at MJC.

As an intern at MJC, my summer was focused on research and writing to support the development of the brief on behalf of Mr. Garza. Quickly, I was exposed to the fundamentals of appellate advocacy in an area of the law I had never taken a class in. This exposure came in the form of a diverse array of research and writing questions, which included combing through the record around Mr. Garza’s plea agreement, developing arguments based on the interpretation of plea agreements as contract, synthesizing Idaho criminal procedure, finding data in secondary sources, writing the first draft of a section, and researching court of appeals’ case law on what claims remain even when an appeal waiver is present. This incredible opportunity was only made better by the result. My co-interns and I eagerly e-mailed the day the decision came down. It was exhilarating to see small pieces of the work we did that summer in the Supreme Court’s words as it accepted Mr. Garza’s arguments and ruled in his favor.

 

 

The Trump Administration’s Wonderland View of Transparency: Is an Agency’s FOIA Process Still Transparent if an Information Request Goes Nowhere?

Stack of binders

Source: Pexels

By: Lynne Dzubow, Clinical Fellow

On January 29, 2019, the Emmett Environmental Law & Policy Clinic (EL&PC) submitted comments challenging the Department of the Interior’s (DOI) proposed changes to its Freedom of Information Act (FOIA) regulations.

Consistent with the Trump Administration’s upside-down view of transparency, DOI proposed on December 28, 2018, various changes to its FOIA regulations that would curb public access to the agency’s records.  DOI is one of the largest federal agencies responsible for, among other things, permitting offshore drilling and managing National Parks. Any effort to restrict public participation in and understanding of the agency’s activities would not only be contrary to the intent of FOIA but also undermine public confidence in DOI’s actions.

Congress’s intent in enacting FOIA, the United States’ pre-eminent open government law, was “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Standards for information requests and exemptions to disclosure were clearly set by Congress, ensuring a balance between governmental transparency and agency efficiency. DOI’s proposed FOIA regulations would disturb this balance by imposing additional procedural burdens on the public and eliminating necessary safeguards for misdirected FOIA requests.

Discrete & Identifiable Agency Activities or Programs

The proposal introduces new specificity requirements for FOIA requests, requiring that they identify “the discrete, identifiable agency activity, operation, or program” regarding which the requester seeks information. This requirement is inconsistent with the statute, which requires only that the public “reasonably describe” the records sought. The statutory standard simply means that the information request must describe the records sought in enough detail to enable an agency official familiar with the matter to locate the records with a reasonable amount of effort. The proposed rule not only unlawfully exceeds this standard, but is also problematically vague.

Under this proposed provision, DOI could theoretically reject as overly broad a request for an agency official’s communications with special interest groups during a certain time period as long as the request did not also identify the discrete topics of those discussions. Considering that FOIA requests of this type were the impetus for investigations into apparent ethics violations by several top DOI officials, including Former Secretary Ryan Zinke, it is apparent why Congress did not want to impose excessive burdens on those requesting agency records.

Prohibition of Unreasonably Burdensome Searches

Another problematic aspect of DOI’s proposed regulations is their blanket prohibition against “unreasonably burdensome” searches or searches yielding large quantities of responsive records. As written, FOIA explicitly addresses how agencies should handle requests that result in large quantities of material. That is, agencies should attempt to narrow such requests by communicating with the requesters and are allowed to extend their processing time limits should such attempts prove unsuccessful. An agency is not, however, allowed to completely ignore a request because it is time-consuming or difficult to process. DOI’s proposed regulations do just this by allowing agency departments to “not honor” burdensome requests.

Refusal to Forward Misdirected FOIA Requests  

One of the more disingenuous aspects of the proposed regulations is DOI’s removal of statutorily required provisions guaranteeing that agency officials will forward misdirected requests to the appropriate DOI department. DOI’s justification for the proposal was a “surge” in FOIA requests and strain on administrative efficiency, but the proposed changes will do little to address this alleged problem. Requesters, who are often in the dark as to an agency’s structure and organization of records, may be reasonably uncertain as to the appropriate addressee for an information request. This is especially true with respect to DOI, which houses nine bureaus and eight offices. These components not only communicate internally, but also work together on projects. Accordingly, records regarding a specific topic might be retained by multiple DOI bureaus and offices. Without guaranteed help from knowledgeable DOI officials, the public is either left to guess, fail, and try again or required to preemptively contact the agency to formulate the request (although this may still not guarantee success).

Either way, a burden not envisioned by FOIA is placed on the public and administrative efficiency is reduced. In addition, the proposed removal is antagonistic to the goal of transparency, as information requests may never even meet their intended destination.

Clinics Have a Vested Interest in True Administrative Transparency

The Trump Administration has turned the concept of transparency on its head through its attempt to shield DOI from FOIA requests. Unfortunately, this troubling trend of obfuscation has no end in sight.

As law clinics, such as the EL&PC, depend on transparency from federal agencies to inform student projects and aid clients, EL&PC will continue to challenge attempts by this administration to undermine openness and accountability at the federal level.

Emmett Clinic Submits Comments Opposing Trump Administration’s Proposal to Weaken Clean Water Act Protections

Via the Emmett Environmental Law and Policy Clinic

Source: Pexels

The Emmett Environmental Law & Policy Clinic submitted comments in opposition to the Trump Administration’s proposal to revise the definition of “Waters of the United States” under the Clean Water Act.  This proposal, if finalized, will dramatically reduce the number of streams and wetlands that are protected under the Clean Water Act, with potentially catastrophic consequences for water quality across the country.

The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).  NPCA represents over 1.3 million supporters and members as “the voice of America’s National Parks.”  It has been a leading independent, nonpartisan voice on natural resource issues since 1919.  The rivers, streams, and lakes in many national parks across the country provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks’ unique character and value.  The preservation of water quality and fish and wildlife habitat in national parks depends on the protection of upstream wetlands and ephemeral streams that would lose protection under the proposal.

The precise scope of federal jurisdiction under the Clean Water Act has long been uncertain.  The Supreme Court has weighed in on this issue several times, most recently in fractured set of opinions in Rapanos v. United States, 547 U.S. 715 (2006).  To resolve this ambiguity, the Environmental Protection Agency and the U.S. Army Corps of Engineers during the Obama Administration issued the Clean Water Rule, which identified simple categories of water subject to federal jurisdiction based on extensive scientific and technical analyses, including a synthesis of over 1,200 peer-reviewed scientific publications.  The Trump Administration now proposes to replace that rule with a new one that will substantially reduce Clean Water Act protections and increase regulatory uncertainty.

In the comments, the Clinic explains that:

  • The proposal will significantly reduce the number of waters protected under the Clean Water Act by eliminating protections for ephemeral streams and for wetlands that do not have a continuous surface connection to covered waters.
  • As a result, the proposal will result in significant ecological and economic harm by, among other things, damaging recreation and fish and wildlife habitat in national parks.
  • The agencies ignore the scientific evidence underlying the Clean Water Rule.
  • The proposal will create uncertainty and increase the administrative burden for permitting agencies and regulated entities by introducing several new and poorly defined terms to delineate the scope of jurisdiction.
  • The proposal is inconsistent with Congress’s purpose in enacting the Clean Water Act, which was to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It also mischaracterizes Supreme Court authority and is based on a misunderstanding of the breadth of the agencies’ authority under the Commerce Clause.
  • The agencies are violating the Endangered Species Act and National Environmental Policy Act by not conducting the analyses required under those statutes.

Frank Sturges (JD ’20) wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho and Clinical Fellow Lynne Dzubow.

Innocent Spouse Relief in a Tax Case

By: Oladeji M. Tiamiyu J.D. ’20

Tim* never could imagine how complicated his taxes would become. A disabled veteran following physical injuries from military service, Tim found a steady job. He later discovered his former wife embezzled a large sum of money from her employer.

Embezzlement, though illegal, is subject to similar tax requirements as other forms of income. Since the late 1930s, individuals filing joint tax returns are jointly liable for omitted income or understatements on a tax return. The creation of innocent spouse relief revealed a clear Congressional intent to sever joint liability when one’s spouse accrues unlawful taxable income without the other’s knowledge. The relevant statutory recognition of innocent spouse relief is Section 6015 of the Internal Revenue Code, specifically sections 6015(c) and 6015(f). Section 6015(c) allows divorced or separated individuals to be responsible only for the portion of joint tax liabilities that is attributable to their activity. Section 6015(f) is an equitable vehicle that uses the totality of circumstances to consider whether innocent spouse relief should be granted.

The IRS was initially willing to grant Tim innocent spouse relief until his wife alleged during divorce proceedings that he had known of her embezzlement. As a result, the IRS assessed Tim a liability of over $100,000 in taxes, interest, and penalties.

Tim’s case has now reached the 7th Circuit Court of Appeals. Although granting innocent spouse relief for one year, the tax court denied relief following his former wife’s criminal conviction. In denying that relief, the tax court overlooked a host of important factors that weighed in his favor. The 7th Circuit will need to better balance the government’s interest in collecting taxes with the equitable principal of relief for individuals lacking knowledge of illegal income accrued by a spouse.

Tim’s background and his actions show that he did not have knowledge of the embezzlement.  His former wife handled their financial matters, while Tim had limited knowledge and experience in finance, accounting, and taxes. In addition, there is no evidence that he ever knew of her criminal conviction before the return in dispute was filed. He provided his financial information to her tax preparer.

Helping Tim receive the relief he deserves has been a great legal experience. Most of my work focused on writing the legal brief that will be submitted to the 7th Circuit, participating in mediation with the Tax Division of the Department of Justice, and communicating with our client to set procedural expectations. The government shutdown added complexities to our work because the mediation process was delayed. I am humbled by the procedural and substantive legal issues that my co-law student advocate—Rocky Li ‘20—and I have had exposure to. We have benefited from working with Keith Fogg and Carlton Smith, our clinical supervisors who are also among the nation’s leading tax experts. If Tim does not settle, our team is optimistic that the 7th Circuit will recognize the injustice he has been subjected to.

Oladeji M. Tiamiyu is a 2L at Harvard Law School

*Name and some identifying details have been changed to protect client confidentiality.

Restoring El Caño From Within

By: Alexis Farmer

A square block of tires serves as a fortress, protecting the browned soil. It is the only space in the immediate area that isn’t completely littered with plastic bottles, wrappers, napkins, and other garbage. The trash is a distraction from the colorful murals in the underpass and greenery. Melba, owner of the ecotourism company Excursiones ECO and 4th generation community member, tells us the youth of El Caño Martín Peña created the barrier and the mural to promote beautification in their community. They know they must do what they can to help themselves.

An underpass in El Cano Martin Pena. A mural of colorful birds and water adorns the wall. Tires border a large square of dirt, slightly littered with trash.

Standing under the underpass in El Caño Martín Peña. Credit: Alexis Farmer

10 Harvard Law School students traveled to Puerto Rico as a part of Harvard Law School’s Pro Bono Spring Break. 2019 was the second year Harvard Law School has partnered with organizations in Puerto Rico to help with hurricane relief efforts and other legal services needs in the community. As the Communications Coordinator for the office that organizes the trip, I joined the students mid-way through the break to document their experience and to highlight the community-initiatives active in Puerto Rico.

On Puerto Rico’s Emancipation Day, the students and I learned about the communities along El Caño. Half of the group spent the week working at an organization that provides social programming and legal advocacy for these communities. It was important to learn about the communities they were serving for the week and to see how communities were still crippled from the devastating hurricane.

A pile of trash - boards, papers, and other miscellaneous items sit next to a bush.

Credit: Alexis Farmer

The eight communities along El Caño Martín Peña, a 3.75-mile long tidal channel in San Juan, Puerto Rico are among the most impoverished communities in San Juan. U.S. Census Bureau data shows that in 2017, the average median income in Puerto Rico was roughly $19,800. A site historically polluted and neglected, the communities are facing critical public health and environmental challenges as a result of Hurricane María. El Caño was already in critical condition prior to the hurricane, but once the storm hit in September 2017, the need for environmental sustainability became even more urgent.

A turtle and fish swim in clouded water.

Credit: Alexis Farmer

Many of the pastel colored homes are without roofs. The lush greenery surrounding us feels refreshing, but Melba tells us murky water nourishes the roots. Power lines bend towards the street, weathered and weary from Mother Nature’s wrath. The channel is clogged with debris and sediment. In a written testimony to the U.S. House of Representatives, Lyvia Rodriguez, executive director of ENLACE said that the lack of a sewer system and storm water system has led to pollution in homes and flooding. If it rains hard enough, El Caño floods tread back into the community, exposing residents to polluted waters.

Electric poles bend in towards the street.

Credit: Alexis Farmer

Approximately 130,000 people, nearly 4 percent of the population, left Puerto Rico for the U.S. mainland after the hurricane, according to U.S. Census Bureau data. But for many with low-incomes, moving is not a possibility. “It’s not sensible,” said Estrella, the Environmental Affairs Manager of ENLACE. “It would cause mass displacement, [particularly] for low-income communities.” The Corporación del Proyecto ENLACE del Caño Martín Peña is organizing an ecosystem restoration project, which includes dredging the water. Estrella, a tall young woman, is passionate about making a change. She’s been supervising five HLS students over the week as they conduct legal research on whether ENLACE can access federal community block development grants to help rebuild homes and help residents access formal banking. She fervently remarks on how gentrification damages communities and that ENLACE’s goal is to improve the conditions of where people already are. Estrella asserts that the organization is committed to help residents avoid eviction and ensuring the community reaps the benefits of new investments.

HLS JD and LLM students pictured with Estrella (middle).

HLS JD and LLM students pictured with Estrella (middle). Credit: Alexis Farmer

To further complicate matters, many residents of El Caño cannot access FEMA assistance because they cannot prove they own their homes through titles of deeds. Last May, FEMA only approved 40% of applicants for disaster assistance to fix their homes. Michelle Sugden-Castillo, a housing nonprofit consultant in Puerto Rico, told NBC News that some homes were passed down through generations and didn’t get properly registered. According to the agency’s guidelines, those who cannot prove ownership can still meet FEMA requirements by providing alternate verification of home ownership, including mortgage payments, property tax bills or receipts, a bill of payment record, or some proof of occupancy (a credit card statement, utility bills, driver’s license, etc).

A large grass field. Three homes are pictured missing some sort of its structure: windows, a roof, etc.

Credit: Alexis Farmer

Community members are intent on staying. Ana is a community legend. A small, silvered hair woman, began a community garden in her neighborhood, but not without a fight. She used to see people dumping trash in the empty lot across from her house, until she began to chase them off. Other community members noticed her efforts and joined her – organizing a plan to begin a garden. The garden now covers nearly two New York City blocks. Students come to help tend to the garden. It is now a source of food and fellowship.

A community garden

Credit: Alexis Farmer

Outside of her tangerine flat, Ana shares limbers, a tropical twist on Italian ice, with her neighbors and those who pass by. The sweet treat is a nice relief in the sweltering heat and blissfully sunny day. Melba, a young activist herself, shares Ana’s story. Melba has been active in the community fighting for ecological and environmental justice since she was 17. She started off with the Sierra Club, but has since joined ENLACE and started her own ecotourism company. Melba is small, but mighty. She is committed to staying in her community and helping it improve. “We understand the value of the water way and we want to restore its value.”

10 HLS students traveled to Puerto Rico. Here, the group sits on Ana's porch. Ana pictured in the top right. Melba is the first on the right-hand side in the bottom row.

10 HLS students traveled to Puerto Rico. Here, the group sits on Ana’s porch. Ana pictured in the top, second to the far right. Melba is the first on the right-hand side in the bottom row. Credit: Alexis Farmer

Life along El Caño still exists. Turtles and fish swim in the water. Plantains and vegetables are among the shrubbery between homes. People sit outside on their porches, watching kids ride bikes and others walking the smooth pavement. The work to rebuild is already set in motion. It is clear that El Caño is a recreational, economic, and environmental asset of Puerto Rico. It is not only for the people, but will be reshaped and developed by the people.

The channel

Credit: Alexis Farmer

 

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Clinic Publishes Paper with Control Arms on “Interpreting the Arms Trade Treaty”

Via the International Human Rights Clinic

Radhika Kapoor LLM ’19 and Terry Flyte LLM ’19 at the Working Group Meetings of the 5th Conference of States Parties to the Arms Trade Treaty.

This week, the International Human Rights Clinic published “Interpreting The Arms Trade Treaty: International Human Rights Law and Gender-Based Violence in Article 7 Risk Assessments” with Clinic partner Control Arms. Clinical Instructor and Lecturer on Law Anna Crowe LLM ’12 presented the paper in Geneva today at a preliminary meeting of States Parties to the Arms Trade Treaty.

The paper takes a close look at the human rights risk assessment Article 7 of the Arms Trade Treaty requires States Parties to undertake whenever an arms export is proposed. Article 7 requires States Parties to assess the potential that any proposed exports could be used to commit or facilitate a serious violation of international human rights law, including serious acts of gender-based violence (GBV). Within that assessment, States Parties must also consider the potential that the weapons would contribute to or undermine peace and security. If there is an overriding risk of harm, the export must be denied.

The paper provides interpretive guidance on a number of key terms in the Arms Trade Treaty with a focus on considering gender and risks of GBV in each part of the Article 7 risk assessment, particularly with respect to serious violations of international human rights law.

Clinical students Radhika Kapoor LLM ’19 and Terry Flyte LLM ’19 joined Crowe in Geneva. Jillian Rafferty JD ’20, Natalie Gallon JD ’20, and Elise Baranouski JD ’20 are co-authors of the paper, along with Kapoor.

Clinic Paper Supports Use of Ratepayer Funds to Replace Lead Service Lines

Via the Emmett Environmental Law and Policy Clinic

The Clinic is releasing a paper analyzing the authority of water utilities in thirteen key states to use ratepayer funds to pay for full lead service line (LSL) replacement. The paper, “Rates Could Fund Lead Pipe Replacement in Critical States,” is the product of a partnership between the Clinic and the Environmental Defense Fund (EDF). Clinic Deputy Director Shaun Goho and Clinic student Marcello Saenz (JD ’19) researched and wrote the paper in collaboration with Tom Neltner, Chemicals Policy Director at EDF. Our analysis concludes that there are no explicit legal barriers to using ratepayer funds for LSL replacement in these states.

LSLs—the pipes that connect the water main under a street to the plumbing in a building—are the largest source of lead in drinking water in those homes that have them (see diagram).

Source: Lead Service Line Replacement Collaborative

Lead exposure can cause a variety of health problems and is particularly dangerous for young children. Drinking water can be a major source of exposure: an Environmental Protection Agency analysis concluded that formula-fed infants may receive 40% to 60% of their exposure to lead from drinking water. As a result, there is broad consensus that all six million LSLs in use around the country will eventually need to be replaced.

It can cost thousands of dollars to replace each LSL, so one major challenge is to figure out how to pay for these replacements. One logical approach is for water utilities to use rates paid by customers. However, because part of each LSL is on private property, some people have argued that ratepayer funds cannot be used because LSL replacement provides a private benefit to the homeowner.

We reviewed the laws of thirteen states, which collectively have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, we found no explicit barriers to using rate funds to replace the lines on private property. 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.

FLPC and Partner Launch the Global Food Donation Policy Atlas

Via the Center for Health Law and Policy 

The Harvard Law School Food Law and Policy Clinic (FLPC) is excited to announce the launch of our latest project, the Global Food Donation Policy Atlas. The Atlas is a two-year collaborative project that will chart the laws and policies affecting food donation in 15 different countries as well as provide best practices and guidance on how laws and policies can be improved to both increase food donations and decrease food waste.

According to the United Nations, more than enough food is produced to feed every person in the world, yet an estimated 821 million people globally suffer from hunger. While millions of people go without adequate food, one-third of all food produced for human consumption is lost or wasted. Because food is heavily regulated, and food safety laws can pose barriers to the creation of food donation programs in many countries, redirecting safe, surplus food can be difficult and complicated. Not knowing what safety rules apply to donations, or being forced to bear a tax burden for donated food, can pose insurmountable barriers to donation.

Around the world, communities are actively implementing and advocating for policy reforms to help move safe, surplus food into the hands of those who need it. The Atlas will contribute to these efforts by providing research to help make sense of laws relating to food donation, compare food-donation laws across countries and regions, analyze food donation barriers, and share best practices and recommendations for policy improvements.

To undertake this first-of-its-kind project, FLPC is partnering with the Global FoodBanking Network (GFN), with the support of the Walmart Foundation.  In building the Atlas, FLPC will rely heavily on GFN’s on-the-ground food-bank partners, as well as other key stakeholders in the 15 countries, such as food-rescue organizations and other non-profits, food donors, government agencies, and academics.  In addition to providing written legal guides to food donation and policy considerations for each country, the Atlas will outline its findings with a website and interactive map presenting countries’ food donation laws.

Both FLPC and GFN identified 15 countries where the Atlas could be especially useful.  In the first year, the Atlas will focus on Argentina, Canada, Chile, Mexico, and the United States.  The second year will bring in ten more countries.

“In the U.S., our work has uncovered unclear or confusing laws that lead to unnecessary food waste. Businesses throw food away because they do not know what safety rules apply to donations, or because they cannot access tax credits to cover the cost of transporting such food,” says Emily Broad Leib, FLPC’s director. “We are thrilled to collaborate with GFN and our in-country partners to examine these issues in a range of countries, aiming to reduce barriers, learn best practices and build more thoughtful policies to get food to those in need.”

Since the release of The Dating Game in 2013, which exposed how much food waste is related to misleading date labels, FLPC has been at the forefront of policy research on reducing food waste in the United States and is excited to expand our footprint to different countries.

Looking back at FLPC’s work on food waste reduction and recovery, we have worked actively in over a dozen states to provide technical assistance on state laws and policy changes, and our students have developed fact sheets on date labeling, tax incentives, and liability protections in a number of states. We also collaborate with advocates in a number of states to review and support legislation that reduces food waste and increases food recovery. For example, FLPC worked with advocates in California to support legislation to standardize date labels and expand liability protections. Both bills were signed into law in October 2017. FLPC’s work across the United States in this space will be highly beneficial as the Atlas seeks to understand national laws relating to food donation, compare laws across countries and regions, learn about food donation barriers, and share best practices and recommendations.

Ultimately, the Atlas will culminate in a website featuring an interactive map of food donation policies that allows users to compare food donation laws across countries; written legal guides summarizing food donation laws for each country; policy suggestions for each country based on local interviews and comparative research; and presentations of findings at public conferences and events.

Read the press release for the Global Food Donation Policy Atlas

View a one-pager on the Global Food Donation Policy Atlas

View FLPC publications related to food waste reduction and food recovery:

My Student Loan Truth: Kristina’s Virginia College Story

Via the Project on Predatory Student Lending

This is Kristina’s student loan truth.Virginia College Student

“I was focused. I had goals.”

When Kristina Jefferson enrolled in the cosmetology program at Virginia College last year, she thought she would have been proudly walking across the stage at her graduation with her cosmetology certificate this month, and prepared to take her cosmetology licensure examination, but the school failed her. Virginia College’s abrupt shutdown last year was just one of many instances where the school failed her and the rest of its students.

Thousands of students like Kristina have been left with no school, no education, and tens of thousands of dollars in debt by Virginia College and other schools owned by its parent company, Education Corporation of America.

If you were a student at Virginia College, Brightwood College, Brightwood Career Institute, Ecotech Institute, Golf Academy of America, or New England College of Business, click on this link to find out more information about the status of the schools and how you may be able to file a claim for a refund if the school has any assets left.

 

How did you hear about Virginia College?

Virginia College had a lot of commercials with people explaining their life struggles and how the school helped them. There was one commercial with a Black woman riding the bus that stuck out to me. She was homeless, and she had two children. She decided to go to school for Medical Assisting, and it bettered her life. After attending Virginia College, she got a job, her life improved, and she had more stability. She didn’t have to ride the bus anymore. I understood her struggle because I relied heavily on the bus for transportation, and I, too, wanted to better my life.

That was in 2014; I decided to go to Virginia College for Medical Assisting because I wanted to care for people. I know how it feels to be sick. I am a good listener. I wanted to help lift people’s spirits.

They never helped me get a job in the medical field. But I had taught myself how to do hair and had been doing it for years, so in 2018 I decided I wanted to hone my skills and get licensed. I had seen a lot of online advertisements on Facebook and I took it as a sign that I should do the cosmetology program, so I enrolled last year.

 

What did they tell you about the programs and getting a job when you started?

Both times they said we were guaranteed to get a job after we finished the program. It was not true, and all they did was send links of jobs from Indeed. I was living with my mother and was not financially independent. I had to take the bus which required me to wake up at 4am to get to school on time; I even had to walk on the highway. The school promised me that they would help me get a job and help me get an easier commute, but they did nothing.

 

Describe the educational experience at Virginia College.

We had to teach ourselves. The instructors didn’t want to help us understand or answer questions. For the cosmetology program, they only taught by showing us videos. The instructors also didn’t teach us certain skills they said they would. We were supposed to learn how to do makeup, but instead, the instructor gave us a paper printout with a face and we used colored pencils, our own makeup, or the school’s outdated makeup to color in the face.

They promised we would get jobs, help with our resumes, they would teach us, and that our credits were transferable. They didn’t keep any of those promises. They didn’t even keep the school open!

 

How did you get your student loans?

When enrolling I met with the financial aid people, but they didn’t explain anything to me. I didn’t know the amount of loans the school was borrowing on my account. They told me everything would be covered by student loans, but toward the end of my time at Virginia College, I was told I had a balance and wouldn’t be able to receive my certificate if I didn’t pay the balance. That’s on top of the more than $30,000 in federal loans I have because of them.

 

What impact has Virginia College and this debt had on your life?

They really ruined my life, and it’s not right. I had goals. The school closing just made it harder for me. I have to start all over now. I was told that my credits were transferable, but it’s not true. Basically, my transcript is worthless. It’s just a bunch of words. It’s not right.

 

Some policy-makers doubt that for-profit colleges are a problem – what would you say to them?

It is a problem when they are just trying to make money and don’t care about the students. Virginia College closed down and people are suffering. It is not right. They took our money and then closed and left the students to try to fix what they caused.

 

The Department of Education has refused to cancel the loans of thousands of former students of for-profit colleges. What would you say to the Department about the need to cancel these loans?

They need to be more understanding of situations like this and protect the students. It’s not right.

 

Sound familiar? Do you have a similar story to Kristina’s at Virginia College, Brightwood College, Brightwood Career Institute, Ecotech Institute, Golf Academy of America, or New England College of Business? Click on this link to find out more information about the status of the schools and how you may be able to file a claim for a refund if the school has any assets left.

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

Despite Court Order in it’s Favor, the Project on Predatory Student Lending Continues to Wait for DOJ to Produce Documents

Via the Project on Predatory Student Lending

Source: Pexels

Nearly three years after submitting its original Freedom of Information Act (“FOIA”) request, the Project on Predatory Student Lending is still waiting for the Department of Justice (“DOJ”) to fulfill its legal obligations to produce documents that Education Management Corporation produced to it in a federal whistleblower lawsuit.

On July 9, 2018, the Court ordered DOJ to produce approximately 3,600 pages of documents to the Project—documents that the government had asserted that the public had no right to. Over seven months later, DOJ still has not fully complied with the Court’s order. DOJ initially produced approximately 1,800 pages to our office, refusing to produce the remaining pages. As requested by the Project, the Court again instructed DOJ to produce the remaining 1,800 pages. DOJ then produced the outstanding pages, but many of them were either heavily or completely redacted. After the Project questioned the appropriateness of the redactions, the government determined that it would remove some of the redactions and would reproduce the documents to the Project. Though DOJ has reproduced some of the documents in question, the Project is still waiting for all documents that it is lawfully entitled to.

Related Litigation
DOJ provided conflicting reasons for why it originally withheld documents from the Project. Initially, it cited four FOIA exemptions and protective orders in the whistleblower litigation as the basis for denying the Project’s FOIA request. Later, the government asserted that the requested documents were not agency records and indicated that it had not even searched for or reviewed potentially responsive documents. Consequently, in March 2018, the Project filed a separate FOIA request to DOJ for all records related to its original FOIA request and the administrative appeal of that original request. On December 7, 2018, the Project filed a second FOIA lawsuit against DOJ challenging its failure to respond to this second FOIA request. Despite its complete failure to respond to the Project’s second FOIA request and consistent with its previous recalcitrance to comply with legitimate FOIA requests, DOJ filed its answer in which it denies that the Project is entitled to any documents.

Related Documents
The Court’s Order of July 9, 2018
The Project’s Second FOIA Complaint

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.

FLPC Releases Advocacy and Lobbying Guide for Food Policy Councils

Via the Center for Health Law and Policy Innovation

The Harvard Law School Food Law and Policy Clinic and the Johns Hopkins Center for a Livable Future (CLF) released a new resource today for food policy councils and others working to change the food system. Advocacy & Lobbying 101 for Food Policy Councils was created to equip food policy councils in the US with legal information necessary to know how they are allowed to influence policy decisions by local, state, and federal government.

A recent survey found that the vast majority of food policy councils are actively engaged in advocacy work. Advocacy activities involving interactions with government policymakers to shape specific legislation may require adherence to specific laws and regulations known as “lobbying” laws.

“Creating change in the food system requires educating, organizing, and persuading others that change is necessary and feasible,” said Anne Palmer, program director at CLF. “This guide is intended to assist councils to understand how lobbying laws apply to their work, and how to proceed legally when attempting to influence government policymakers.”

The guide discusses what it means to lobby the government, explains how lobbying differs from general advocacy work, and addresses topics that every food policy council should consider before engaging in advocacy or lobbying. It also examines how the different organizational structures of councils affect what they may do to lobby and provides case studies to illustrate how councils have successfully and legally influenced government policy.

“A food policy council should not shy away from trying to influence government policy simply because these laws exist,” said Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic. “We hope this guide empowers councils to confidently navigate applicable state and federal lobbying laws — they will learn that much work on policy issues is not restricted because it is considered advocacy, not lobbying, and may even realize that their opportunities to lobby legally are far greater than previously thought.”

Read Advocacy & Lobbying 101 for Food Policy Councils.

Clinic Files Brief Supporting Cert Petition in Oracle v. Google

Via the Cyberlaw Clinic

Source: Pixabay

The Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Supreme Court in Oracle v. Google, No. 18-956, on behalf of a group of intellectual property law scholars. The brief supported Google’s petition for certiorari, asking the Supreme Court to review decisions of the United States Court of Appeals for the Federal Circuit. Google’s petition is the latest stage in a nearly decade-long litigation battle between Oracle and Google concerning Google’s use of Oracle’s application programming interface (“API”) in Google’s Android smartphone platform.  The case raises two major sets of copyright issues.  The first concerns the scope of copyright protection for APIs and the line between protectable expression and purely functional elements of computer code.  The second concerns whether, if an API is protected by copyright, use of that API may fall under fair use. The Clinic’s brief supports Google on the second of those points, urging the Court to take the case and resolve the fair use issue.

By way of background, in 2010, Oracle sued Google for copyright and patent infringement. A jury in the Northern District of California reached a verdict in favor of Google on May 31, 2012. Oracle appealed the case to the United States Court of Appeals for the Federal Circuit, which reversed the verdict and remanded for a retrial.  The Federal Circuit held that the “structure, sequence and organization” of software is copyrightable. Google petitioned for a writ of certiorari, which was denied.

A second trial began in 2016 and ended with another verdict for Google — this time on the grounds that Google’s use of the Oracle API constituted fair use within the meaning of Section 107 of the Copyright Act.  The Federal Circuit reversed again, this time holding that Google’s use of Oracle’s API code was not fair use.

Amici who joined the Clinic’s brief are intellectual property scholars who are concerned that the Federal Circuit’s decision below misapplied the fair use doctrine. In arguing that the Supreme Court should grant certiorari in this case, amici described at least three ways in which circuits have split in applying fair use standards.  First, while several other circuits have been applying the clear error standard, the Ninth Circuit interpreted the Supreme Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) to require de novo review of fair use determinations. Second, the Supreme Court first articulated the “transformative use” test for fair use in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), but lower courts have had trouble drawing clear lines in its application. Third, the Supreme Court never clarified the relationship between Campbell and Harper, resulting in some courts ruling that Campbell’s “transformativeness” test overruled Harper’s market-oriented test based on 17 U.S.C. § 107, while others held on to Harper’s holding, creating a circuit split in fair use applications. The brief concluded by asking the Court to grant Google’s petition for a writ of certiorariand hear the case on its merits.

Amici on the brief included:

  • Prof. Michael Kasdan is a partner at Wiggin and Dana LLP, and an Adjunct Professor of Law at New York University School of Law;
  • Prof. Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law;
  • Prof. Lydia Loren is the Henry J. Casey Professor of Law at Lewis & Clark Law School;
  • Prof. Mark McKenna is the John P. Murphy Foundation Professor of Law at Notre Dame Law School;
  • Prof. Lateef Mtima is a Professor of Law at Howard University School of Law;
  • Prof. Elizabeth L. Rosenblatt is an Associate Professor of Law at Whittier School of Law, and a Visiting Professor of Law at University of California, Davis, School of Law;
  • Christopher B. Seaman is an Associate Professor of Law at Washington and Lee University School of Law; and
  • Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School.

Many other amicus briefs supported Google’s petition for certiorari, including a brief (.pdf) filed by a separate copyright scholars coalition led by Pam Samuelson and Catherine Crump at UC Berkeley and a team from Berkeley’s Samuelson Law, Technology & Public Policy Clinic. That brief focused on questions of copyrightability and the scope of protection for APIs.

Fall 2018 Cyberlaw Clinic students Robert Joynt and Madeline Salinas and Spring 2019 Advanced Cyberlaw Clinic students LeHeng Li and Jaisel Patel contributed to the amicus brief, working with Clinical Professor Christopher Bavitz. The Clinic team collaborated closely with Professor Rebecca Tushnet to develop the arguments in this brief.

RFP: Approaches to Reducing Consumption of Sugar

Via the Center for Health Law and Policy Innovcation

Photo by rawpixel.com from Pexels

The Harvard Law School Food Law and Policy Clinic (FLPC), with support from the Laura and John Arnold Foundation, is working with community organizations and government entities to identify locally-supported policies that will reduce sugar consumption and build capacity for policy change. Excess consumption of sugar is linked to obesity, diabetes, and other diet-related chronic diseases that have tremendous social and economic costs. Reducing population-level consumption of sugar is one of the most promising strategies for addressing these pressing public health concerns.

FLPC is offering pro bono technical assistance (TA) to community organizations, food policy councils, and local, state, and tribal government entities across the United States interested in implementing innovative sugar-reduction policies.

A request for proposals (RFP) application will remain open until May 1, 2019. FLPC anticipates making two TA awards as a result of this RFP. TA grantees will be notified by May 31, 2019. Please contact flpc@law.harvard.edu with any questions.

Read the RFP.

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.

Mississippi health care providers breaking the law with large medical bills that patients don’t have to pay, report finds

Via Mississippi Today 

By: Anna Wolfe

Source: Pexels

Health care providers in Mississippi continue to break the law by sending patients large, out-of-pocket medical bills that they don’t have to pay, concludes a Harvard Law School report released Monday.

The Legislature passed a law in 2013 to prohibit what is known as “balance billing” – when a provider bills a patient for the difference between the initial charges and the amount paid after insurance benefits are assigned.

But the law contains few enforcement measures, so patients must know about the law and challenge balance bills in order to benefit from the legislation, which was enacted under the radar of many officials and health care providers. Feeble efforts to strengthen protections in the law during the 2019 legislative session were unsuccessful.

Michelle Mills received a balance bill in 2018 when her son experienced a sports injury and went to a hospital in her insurance carrier’s network, River Oaks hospital in Flowood, but was treated by an out-of-network emergency physician.

Across the country, 65 percent of hospitals contract with outside agencies for emergency room doctors who are not necessarily included in the same insurance network as the hospital, according to a 2017 report by Yale University.

The independent physician staffing group called Capital Emergency Physicians, which used River Oaks’ address when it incorporated as a business in 2013, charged Mills $1,853, all but $38 it asked her to pay out-of-pocket. Though it was an illegal bill, she challenged it with her insurance carrier, which reversed the first assignment and paid most of the bill.

Mills was successful in disputing the charges, but she said it’s “infuriating” to think about all the people who don’t know they can challenge these bills, who end up paying, or worse, whose debt turns over to collections.

Capital Emergency Physicians did not return calls to Mississippi Today.

“Unfortunately, our collective trust of the provider community is being abused to the detriment of our bank accounts,” Roy Mitchell, director of Mississippi Health Advocacy Program, said in a release announcing the Harvard report. “It is time our policymakers even the playing field for Mississippi’s health consumers.”

In its report, the Center for Health Law and Policy Innovation of Harvard Law School found that Mississippi’s anti-balance billing law, which was one of the first and strongest enacted in the country, needs revising.

“Despite the state’s leadership on this issue, Mississippians like Michelle Mills report that they are still receiving balance bills — in violation of state law. In fact, a January 2019 poll reported that 4 in 10 Mississippians have received or have a family member who received a surprise medical bill,” the report reads.

House Insurance Chairman Rep. Gary Chism, R-Columbus, authored a bill to require the attorney general’s office to enforce the law and establish binding arbitration to resolve any balance billing disputes between providers and patients.

He never brought the bill to a vote in his committee, telling Mississippi Today that several lawmakers who are also medical professionals — nurses and nurse practitioners — voiced opposition to his bill.

“They want to be able to get their money,” Chism said at the time.

According to a Mississippi Today analysis of legislative members, there is one nurse, Rep. Becky Currie, R-Brookhaven, and one nurse practitioner, Rep. Donnie Scoggin, R-Ellisville, in the House. Currie declined to comment on the legislation and Scoggins said he did not discuss the bill with Chism.

Scoggins said he has not been presented with concerns over illegal balance billing from his constituents, but said if it is still happening, he would be in favor of strengthening the enforcement measures.

The lack of knowledge surrounding the law and what exactly constitutes “balance billing” complicates the issue. What might be viewed as a loophole for a few patients who understand the law could receive pushback from the medical community if lawmakers bring it to light and force providers to comply.

Georgia’s state senate passed anti-balance billing legislation last week that would require insurers to pay these surprise, out-of-network bills at an amount determined by a database of paid bills, as opposed to simply prohibiting providers from sending these bills to patients. Mississippi’s law greatly favors insurers in this way.

The Harvard report also suggests large, surprise balance bills could be contributing to Mississippi’s high rate of people with past due medical debt — the highest in the country at 37.4 percent.

 

Making it big behind the scenes

Via The Harvard Gazette

HLS Lecturer Linda Cole, (from left) and HLS Clinical Professor of Law, Brian Price and HLS Student Gaia Mattiace talk during a student meeting of the Recording Artist Project and Entertainment Law Clinic at HLS. Kris Snibbe/Harvard Staff Photographer

By: Liz Mineo

Growing up in South Florida, Rebecca Rechtszaid dreamed of becoming a professional singer, but after a case of pneumonia wrecked her vocal range in college, she settled for the next-best thing.

She couldn’t be an artist, but she could become a lawyer for artists.

“I figured I’d go to law school and I’d try to help musicians because even if I didn’t have my own voice, I could help them find theirs,” said Rechtszaid, J.D. ’19. “There hasn’t been a day when I’ve questioned my choice.”

That seems to be the case with hundreds of students who have signed up for entertainment law courses and clinics at Harvard Law School (HLS) over the past 20 years. The phenomenon underscores a trend among law students to veer from the conventional paths of corporate law or litigation and look to work in creative industries. The trend, also noticeable at other law schools around the country, has spurred growth in the niche field of entertainment law.

These students are driven by a passion for music, the arts, and showbiz, said HLS Clinical Professor of Law Brian Price, who supervises the Entertainment Law Clinic.

“It’s an exciting career for a music lover,” said Price at his office, where a wall is covered by a corkboard neatly filled with business cards from agents, managers, artists, and alumni.

Although entertainment attorneys work behind the scenes, they can have a bigger influence on artists’ careers than agents or managers, said Price. They review artists’ agreements, publishing deals, endorsements, and licensing and merchandising contracts, making sure their clients’ interests are protected. In the end, beneath the glitz, it’s all about business.

“Artists are becoming savvier and want to be involved in the business aspects of their careers,” said Price. “When they ask for legal advice, they want to know their legal rights, and how to make good deals and find ways to make more money.”

In 1998, Price founded the Recording Artists Project (RAP), a student-run group that provides legal assistance to budding artists, prompted by two students who told him of their longing to work in the music industry. Price is faculty adviser for the group.

Most HLS graduates end up working in business or corporate law, though some alumni have had successful careers in the entertainment industry. Among them are Bruce Ramer ’58, who represents clients like George Clooney and Clint Eastwood; Bert Fields ’52, who represented Michael Jackson; and legendary music lawyer Clive Davis ’56, who signed many luminaries like Whitney Houston, and boasts his own star on the Hollywood Walk of Fame. Donald Passman, J.D. ’70, has represented celebrities like Janet Jackson, Stevie Wonder, and Pink and wrote the bestseller “All You Need to Know About the Music Business”; and Aaron Rosenberg, J.D. ’02, counts John Legend, Jennifer Lopez, and Justin Bieber among his clients.

For future entertainment lawyers, the goal is often to find a job in Hollywood and experience the glamour and thrill of working with artists, but streaming and other technological changes have added new career options in entertainment law.

Take Kike Aluko, J.D. ’19, who will move to Atlanta to join the national law firm Greenberg Traurig, LLP, and work on music licensing deals, trademark protection, and artist representation. Aluko, who interned at a record label in the mid-2000s, is struck by the recent changes in the industry.

“It has grown a lot and is more diverse than a decade ago when there was no streaming or Spotify,” she said. “There are so many different avenues for people to pursue their passion rather than going to a record label.”

Kirkland Alexander Lynch, J.D. ’14, works as a business affairs strategist for the Stevie Wonder’s organization, including Stevland Morris Productions, LLC, Wonder Productions, Inc., among others. He oversees the legal aspects of anything related to shows and business deals, and travels around the world with the organization.

It is a dream job for Lynch, who abandoned his plans to work in finance after being inspired by a classmate who wanted to become a sports lawyer. “He made me think that I should pursue my true passion, which was music,” said Lynch from Los Angeles. “And I saw a path for me when I interned at Sony Music Entertainment in New York during my second year at the Law School.”

But it was while taking the Entertainment Law Clinic with Price that Lynch started learning the ropes of entertainment law. He helped a rapper from Dorchester and an indie group based in Union Square with partnerships and band agreements. Last year, Lynch launched his own media management and consulting company, Kirkland Alexander Enterprises Inc.

As members of RAP, students draft, review, and negotiate recording contracts and artists’ and managers’ agreements for musicians and other entertainers. One of the group’s most famous clients is renowned jazz bassist and singer Esperanza Spalding, now a professor of the practice in Harvard’s Music Department, who was counseled on the negotiation of her first record deal.

Breaking into the music and entertainment worlds is hard, but HLS’s strong alumni network helps young attorneys build connections that pay off. That happened to Ethan Schiffres, J.D. ’10, who reached out to Passman, whose firm is Gang, Tyre, Ramer, Brown & Passman Inc., and kept in touch with him. When Schiffres graduated, he was offered a job as a music associate. Today he’s a partner at the firm, where he reviews legal contracts for endorsements, touring, publishing deals, and trademark litigation.

Schiffres credits the Entertainment Law Clinic with providing hands-on experience and contacts with alumni willing to help the younger generation of lawyers. His biggest piece of advice is to network.

“Entertainment law is sexier than corporate law,” he said, “but it also involves hard work, passion for music and entertainment, but it really is about networking.”

Rechtszaid agreed.

“Connections are everything,” she said. “It takes a lot to muster the courage to reach [out] to somebody you don’t know, but it’s worth it.”

As the president of RAP, Rechtszaid wrote emails to the manager of Chance the Rapper and Passman last year asking them to visit Harvard to talk to HLS students. They both came.

Rechtszaid’s dream clients are Lady Gaga, the indie rock band Dorothy, and the Bronx hip-hop artist and Instagram personality Cardi B. “Cardi B is so talented and funny,” Rechtszaid said. “I want to be her best friend.”

Split High Court Upholds Post-Plea Appeal Rights

Via Law360 

By: Jody Gody

Source: Canva

A defendant whose lawyer’s poor performance scuttled his chances at an appeal should be presumed to have been harmed by the lawyer’s actions, even if the defendant has waived his appeal rights through a plea deal, the U.S. Supreme Court held in a split opinion on Wednesday.

The ruling came in Gilberto Garza Jr.’s challenge to an Idaho high court ruling that ended his appeal. Garza pled guilty to drug possession and assault in 2015 and entered plea agreements in which he waived his right to appeal his conviction and sentence.

Nonetheless, the judge said at Garza’s sentencing that he had the right to appeal, and Garza went on to repeatedly ask his attorney to do so. The attorney did not, and Idaho courts did not see that as a problem. In his Supreme Court petition, Garza had argued his counsel provided ineffective assistance by not filing the appeal.

Supreme Court precedent had previously said such claims require defendants to show their cases were harmed or prejudiced by the lawyer’s ineffectiveness. The high court refined that concept in a 2000 case called Roe v. Flores-Ortega, recognizing that defendants who are denied a lawyer at a crucial stage in a criminal proceeding, such as the filing of an appeal, should get a “presumption of prejudice.”

On Wednesday, six justices ruled that the presumption of prejudice applies “regardless of whether the defendant has signed an appeal waiver.”

Justice Sonia Sotomayor wrote for the majority. Justice Clarence Thomas penned a dissent joined by Justice Neil Gorsuch and in part by Justice Samuel Alito.

The split was in part forecast by the justices’ positions at oral arguments in the case last October.

The case saw the court evaluate the nature of plea waivers, which defendants often agree to in plea deals, and notices of appeal, which are the first step in any appeal.

The high court began by saying that the so-called waivers are not as airtight as they may appear, since even the most restrictive waiver cannot erase the defendant’s right to dispute whether or not the waiver was voluntary.

“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,” the court said.

Notices of appeal merely tell a court that an appeal is to be filed, and filing one is not a matter of legal strategy that is up to a defendant’s lawyer but rather a “simple, nonsubstantive act that is within the defendant’s prerogative,” the court held.

Even if a defendant like Garza has given up most rights to appeal in order to get the benefit of a plea bargain, no defendant waives every right. Because of that, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope,” the court said.

A lawyer’s failure to file a notice of appeal at a defendant’s behest should therefore entitle the defendant to a new chance at appeal, the court concluded.

Justice Thomas and two of his peers disagreed, writing that a defendant like Garza who has given up the right to appeal most of the issues in his case should not automatically be able to say his lawyer failed for not initiating an appeal.

Instead, the defendant should have to show either that the waiver was involuntary, that his appeal deals with an issue outside the waiver or that the government breached the plea deal, the dissenting justices said.

Justices Thomas and Gorsuch went further, warning the court against further broadening defendants’ right to counsel, saying it is “not an assurance of an error-free trial or even a reliable result.”

“In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments,” the two justices wrote.

Garza’s attorney Amir Ali, who directs the criminal justice appellate clinic at Harvard Law School, told Law360 on Wednesday that the petitioner’s side is “very pleased with the court’s resolution of this case, which reflects a clear vindication of Mr. Garza’s constitutional right to an effective attorney.”

Idaho Attorney General Lawrence Wasden issued a statement thanking the justices for their “thorough review of the case” and saying the state respects the high court’s decision.

A spokeswoman for the U.S. Department of Justice declined to comment on the ruling.

Garza is represented by Amir H. Ali of the Roderick & Solange MacArthur Justice Center and Eric D. Fredericksen and Maya P. Waldron of the Boise Public Defender’s Office.

Idaho is represented by Kenneth K. Jorgensen and Paul R. Panther of the Idaho Attorney General’s Office.

The government is represented by Allon Kedem and Eric J. Feigin of the Solicitor General’s Office and Sangita K. Rao of the U.S. Department of Justice’s Criminal Division.

The case is Gilberto Garza Jr. v. State of Idaho, case number 17-1026, in the U.S. Supreme Court.

Veterans Legal Clinic students argue case before federal court of appeals

Via Harvard Law Today 

The legal team litigating the proposed class action before the U.S. Court of Appeals for Veterans Claims included (from left): Emma Peterson and Zachary Stolz of Chisholm Chisholm & Kilpatrick; Harvard Law students Casey Connolly ’19 and Laurel Fresquez ’19; and supervisors in the Veterans Legal Clinic Betsy Gwin and Daniel Nagin.

Earlier this month, Casey Connolly ’19 and Laurel Fresquez ’19, both students in Harvard Law School’s Veterans Legal Clinic, presented oral argument before the U.S. Court of Appeals for Veterans Claims on behalf of a proposed class of veterans with multiple disabilities. The clinic and its partners commenced the litigation in 2017 to challenge a Department of Veterans Affairs’ policy used in adjudicating claims for service-connected injuries.

Specifically, the representatives are seeking to stop VA’s policy of imposing an unlawfully high evidentiary standard for veterans to prove that one disability has been worsened by a second disability connected to their military service.

The Court of Appeals, which sits in Washington, D.C., heard the argument in appeals involving two cases—Ward v. Wilkie, Case No. 16-2157, and Neal v. Wilkie, Case No. 17-1204. The cases were consolidated for joint disposition.

In both cases, the Veterans Legal Clinic contended, VA had used an unlawful evidentiary standard to deny these veterans’ claims for disability compensation. The VA’s regulations allow veterans to make claims for disabilities that result from an already service-connected condition. However, VA required these veterans and similarly situated veterans to show that one disability had “permanently worsened” the other disability—even though there is no such requirement in the governing statutes or regulations.

Credit: Courtesy of the Veterans Legal Clinic
Casey Connolly ‘19 and Laurel Fresquez ‘19, students in Harvard Law School’s Veterans Legal Clinic, presented oral argument in the lawsuit before the U.S. Court of Appeals for Veterans Claims on February 1, 2019.

Connolly and Fresquez argued that the court should declare that VA’s evidentiary standard is unlawful, certify a class of veterans who have been harmed by VA’s policy, and issue an injunction requiring VA to amend its policies and take corrective action in the pending cases of all similarly situated veterans. An estimated six thousand plus veterans are in the proposed class.

Connolly, who argued first, and Fresquez, who presented rebuttal argument, fielded questions from the three-judge appellate panel on both the merits of the case and the motion for class certification. The entire argument lasted nearly 90 minutes. A decision in the case is expected this year.

Listen to the oral argument here.

“Working on the case was the most terrifying and rewarding thing I’ve done while at Harvard,” said Fresquez. “I am so grateful to the Veterans Legal Clinic for giving me this opportunity and for providing me the training I needed to feel confident in federal court. It was truly an honor to represent the proposed class of disabled veterans, and it’s an experience I will never forget.”

The Veterans Legal Clinic co-counseled the case with Chisholm Chisholm & Kilpatrick(CCK), a law firm based in Providence, Rhode Island, and a national leader in the field of veterans law. The Clinic and CCK have partnered with Disabled American Veterans (DAV) to provide pro bono representation to disabled veterans before the U.S. Court of Appeals for Veterans Claims. The two veterans who are proposed class representatives in the case were referred by DAV.

“This case will provide valuable guidance for VA and for our nation’s veterans,” said CCK Partner Zachary Stolz. “It will help in understanding class action issues and will hopefully help veterans in proving some of their claims before VA. Connolly and Fresquez provided the veterans’ point of view with exceptional knowledge and exceeding clarity.”

Both Connolly and Fresquez have participated in the Veterans Legal Clinic over the course of multiple semesters, representing disabled veterans in appeals for VA and state benefits, and in discharge upgrade cases. Fresquez was also part of a team that recently argued and won a case in Massachusetts Superior Court on behalf of local veterans who were denied a state veterans bonus because of their less-than-honorable discharges. Upon graduation in May, Fresquez plans to join the law firm Simpson Thacher and Connolly will commission into the U.S. Navy JAG Corps.

“It was an honor to represent these veterans, who have earned the right to have their claims adjudicated under the correct standard—and who might not otherwise see that right fully vindicated without the class action mechanism,” Connolly said.

“We are proud of our Clinic students and their contributions to this important case,” said Betsy Gwin, associate director of the Veterans Legal Clinic. “We are hopeful that this class of veterans, all of whom suffer from multiple disabilities stemming from injuries incurred during military service, will finally be able to obtain justice at the Veterans Court.”

According to Clinical Professor Daniel Nagin, director of the Veterans Legal Clinic and the Legal Services Center: “Connolly and Fresquez worked long hours to prepare for the argument. Throughout, they demonstrated an unwavering commitment to their clients, a sophisticated understanding of the vital questions before the court, and incredible teamwork.”

In addition to Connolly and Fresquez, other Clinic students worked on the case at various stages of the litigation, including: Alyssa Bernstein ’19, Joshua Mathew ’19, Branton Nestor ’19, and Nathan Swire ’19.

Founded in 2012, the Veterans Legal Clinic provides pro bono legal assistance to disabled veterans and their family members across a number of areas of critical importance, including appeals regarding access to federal VA benefits and Massachusetts Veterans’ Services Benefits (Chapter 115 benefits), in discharge upgrade and correction of military records matters, in Social Security Disability appeals, and in estate planning matters. In addition to representing individual clients, the Clinic also pursues broader initiatives to improve the systems that serve the veterans community.

The Veterans Legal Clinic is one of five clinics operating out of the WilmerHale Legal Services Center of Harvard Law School in the Jamaica Plain neighborhood of Boston. Founded in 1979, the Legal Services Center will host a celebration of its 40th anniversary this year, on Friday, April 5. The 40th anniversary event will bring together faculty, graduates, current students, and current and former staff and feature a keynote address by Massachusetts Attorney General Maura Healey. For more information about the event, please visit the Legal Services Center 40th Anniversary Website.

 

Rapid Impact: Harvard Law Students Travel the Globe Over Winter Term for Clinical Work

Source: Canva

During the 2019 Winter Term, over 200 Harvard Law School (HLS) students traveled off campus for three weeks, gaining hands-on experience addressing the legal needs in communities across the globe. Through the Independent Clinical Program and Externship Clinics, HLS students gain a practical experience in their field of study building their expertise on an issue and develop critical lawyering skills.

87 students participated in HLS’s Independent Clinical Program, traveling to 18 countries, 13 states, and 21 cities to build their legal skills by working with government agencies, legal services and non-profit organizations, and the judiciary. The program gives students an opportunity to design a project related to their specialized area of interest in the law or field of practice. Students are able to then gain hands-on experience in their potential career fields. This past winter, students worked with attorney advisors in the Office of Clinical and Pro Bono Programs (OCP) to design projects addressing issues that transcend national borders, including anti-displacement protections after devastating hurricanes, voting rights litigation, humanitarian asylum and refugee protections.

Read more about students’ experiences:

The map below displays where students travelled outside the continental U.S. to work on pertinent legal issues.

Courtesy of Google Maps

Through the Externship Clinics, January Term students participated in on-site clinical work at hundreds of organizations across the United States. The externship clinics range in focus from sports teams to U.S. government agencies, to employment and labor rights work. Over the winter term, students worked at the Macarthur Justice Center, the Women’s Tennis Association, Attorney General Offices in California, Nebraska, Kentucky, New York, and Texas; organizations such as the Office of the Federal Public Defender (Kansas City, Missouri), Southern Center for Human Rights (Atlanta, GA), American Civil Liberties Union (Durham, NC); and private entities such as the Wasserman Media Group (Los Angeles, CA), Nashville Predators (Nashville, TN), Major League Baseball (New York, NY), and the Detroit Pistons (Detroit, MI). Students reviewed and helped draft contracts and sponsorships agreements, represented clients with capital sentences, and conducted legal research on wage and discrimination disputes. Students’ work experiences enhanced their confidence in their skillset and provided meaningful assistance to the clients they served.

Even in the short three week term in January, students were able to make an impact in the communities and organizations they worked in internationally and domestically. The independent clinical program and externships are unique experiences for students to learn from and develop into the lawyers they wish to be in the world.

                                                              Independent Clinical Placements

United States
Countries Worldwide
Boston, MA Los Angeles, CA Accra, Ghana Lesvos, Greece
Brownsville, TX Montpelier, VT Anhui, China London, England, UK
Cambridge, MA New York, NY The Adelphi, SIngapore Manila, Philippines
Carrboro, NC Oakland, CA Basel, Switzerland Melbourne, Australia
Central Islip, NY Philadelphia, PA Banjul, Gambia Mexico City, Mexico
Chicago, IL Raleigh, NC Berlin, Germany Myanmar
Dilley, TX Sacramento, CA Edinburg, Scotland, UK Quezon City, Philippines
Flagstaff, AZ San Francisco, CA Fitzroy, Australia Rio de Janeiro, Brazil
Honolulu, HI Seattle, WA The Hauge, Netherlands Tel Aviv, Israel
Indianapolis, IN Washington, DC
Lincoln, NE Window Rock, AZ
U.S. Territories
Hagatna, Guam San Juan, Puerto Rico

Maryland Seeks to Expand Complete Streets Program to Prioritize Food Access

Via the Center for Health Law and Policy Innovation

By: Alex Harding J.D. ’19

On February 7, FLPC provided written testimony to the Maryland Environment & Transportation Committee in support of a bill that would expand the state’s “Complete Streets” grant program to cover projects which improve access to nutritious food to residents living in food deserts.

Throughout 2017, FLPC had the opportunity to work with stakeholders in Maryland who were involved in creating the Maryland Food Charter to develop a complementary policy scan of state policies related to the food system as well as opportunities for change. Following a series of interviews, community meetings, and legal and policy research, FLPC published its findings in “A Review of Food System Policies in Maryland.” This report outlined possible initiatives for the state of Maryland to enhance its food production, safety, and waste prevention policies in order to make the state’s food system stronger and better able to serve the people of Maryland.

Improving access to nutritious food was one of the main concerns raised by the many Maryland community members and experts with whom we engaged. As one of our suggestions to increase food access, we recommended using urban transportation resources to move residents in food deserts—areas of low healthy food availability—to local food markets. Maryland’s House Bill 82 uses the novel approach of incorporating food access into the state’s definition of a Complete Streets program—a grant program that allows local governments to receive funding for infrastructure projects which improve quality of life. This approach allows Maryland to get its food access resources to local governments, who are best suited to understand their local food access barriers and needs and to tailor their solutions efficiently to those specific needs

As a student in FLPC, this was the point where I was invited to write legislative testimony on behalf of FLPC supporting Maryland’s Bill. This project gave me the opportunity on to work on the one hand with the staff of Maryland legislators, and on the other with expert FLPC fellows and advocates who had worked with Maryland and knew its specific legal and political landscape. This has been a rare learning opportunity in policy-making that I would be hard pressed to find elsewhere—it turns out that Harvard Law School does not, in fact, offer as many law-making classes as it does law-abiding ones (judicial activism schemes aside).

Maryland’s House Bill 82, attached below, addresses food access issues in three key ways. First, the bill would give the term “food deserts” its first official state law definition as “[a] community that does not have easy access to healthy food, including fresh fruits and vegetables, typically in the form of a supermarket, grocery store, or farmer’s market.”

Second, the text of the bill expands the definition of Complete Streets to include food access so as to expand the types of local transportation projects the policy can fund. Third, the bill creates a ranking system for such projects which improve food access specifically for areas already designated as food deserts. The approach of moving infrastructure funding towards food access—especially through a Complete Streets program, is an innovative one. We look forward to seeing more creative solutions like this at the state level from Maryland and across the country.

FLPC’s full testimony to the Maryland Environment & Transportation Committee can be found here.

Maryland’s House Bill 82 can be found here.

Students’ Legal Skills Help Prevent Homelessness

Via the Legal Services Center 

Source: Flickr

William* was feeling hopeless. Elderly, disabled, and receiving treatment for a recent kidney transplant, he was stunned when his landlord unexpectedly served him with a no-fault notice of eviction. With his health failing in the dead of a frigid Boston winter, he suddenly faced the alarming prospect of living on the streets.

Yet when it looked like all was lost, William experienced a spectacular reversal of fortune. He walked into Edward D. Brooke Courthouse in Boston and obtained free legal assistance from a student of the WilmerHale Legal Services Center of Harvard Law School (LSC), who was participating in the clinic’s ‘Attorney for the Day’ program.

Moments after William approached the Attorney for the Day booth that March day, LSC Housing Court student Nicolette Roger ‘19 went right to work; she reviewed the facts of his case and counseled him on how to advocate for himself in court.

A roll of the dice

It was not an easy task. According to Roger, his case “was a roll of the dice.” William was scheduled to be evicted from his home that same day; he had exceeded a deadline that a judge had given him to find new housing.

William had been struggling to manage the situation not only because of his extensive hospital stay after the transplant, but also due to the fact that, like 95 percent of low-income tenants who find themselves in Housing Court, he had no attorney to represent him.

He is precisely the type of Bostonian that Attorney for the Day aims to reach. Organized by the Boston Bar Association (BBA), the program draws attorneys from local legal services organizations as well as volunteers from the area’s leading firms.

The BBA advertises that these services are available at Boston Housing Court every Thursday morning, though many community members find out about the program by word of mouth or simply happen upon the sign and table on the day of their hearing.

The guidance that tenants receive can make a huge difference. Roger explains that for someone like William who has no familiarity with the legal system, “even just navigating the courthouse can be difficult,” much less winning a case as a pro se tenant.

While the Attorney for the Day program is a transformative learning opportunity for students, it is life-changing for clients like William, who receive last-minute, ‘game-day’ counsel.

“One of my favorite experiences at Harvard”

Tom Snyder ‘18, who was participating in Attorney for the Day with the LSC for the first time last spring before graduation, attests that it is an incredibly challenging and demanding experience, but also one so rewarding that “it’s been one of my favorite experiences at Harvard.”

The program is overseen by the Director of the Housing Law Clinic, Maureen McDonagh. Students’ responsibilities at Attorney for the Day typically begin with ensuring that clients are in the courtroom at the proper time to respond when the judge does roll call. This is crucial because if the client is not present, the judge will issue a default judgment – an outcome that will likely lead to eviction.

“You’re definitely thrown right in,” explains Tyra Walker ‘18.

While the student attorney is often needed inside the courtroom to help a client file a motion or address a judge, frequently the work takes place in the adjacent hallway or in the mediation room, where negotiations between tenant and the landlord’s attorney occur.

In these cases, students must quickly learn about the client’s situation, assess whether defenses or counterclaims exist, and, where appropriate, determine how to reach an agreement with the landlord.

Righting a power imbalance

The students’ presence is crucial because often, a striking power imbalance is at play. Over 95 percent of landlords enter the courtroom with an attorney, while only 5 percent of low-income renters have that same protection.

When tenants lack representation, it is typically the case that “the landlord’s attorneys have more negotiating power, and clients end up agreeing to terms they can’t adhere to,” according to Kelsey Annu-Essuman ‘19.

Clients like William could easily slip through the cracks without the help from students. There were 127 cases on trial that day, and just two judges and five mediators present.

For many HLS students, this high-stakes environment is the first in which they will be responsible for representing a client in a dispute with real-world consequences. The situation is distinctly challenging because they have just a fraction of the time that Housing Court students typically would to secure a favorable outcome for the client.

Last-minute intervention of the sort that Attorney for the Day provides can be a lifeline for a tenant in a tough situation and can play a vital role in preventing homelessness. Still, the majority of cases handled by Housing Clinic students involve full representation of low-income tenants in complex and ongoing litigation, rather than emergency advice.

Indeed, for the students, Attorney for the Day is a highly educative and memorable experience precisely because it is so different from the in-depth, long-term work that students normally do in the Clinic – instead, just an hour in the courthouse can save a client from homelessness.

“You don’t get a lot of these experiences in law school,” affirms Walker, a three-time veteran of Attorney for the Day.

Using legal training in high-stakes courtroom experience

During Attorney for the Day, students work toward the same outcomes as they do during the semester – preventing eviction, improving housing conditions, halting utilities shutdown — but in this case, they have the opportunity to effect change behind the scenes, and very quickly.

Roger seized this opportunity when she prepped William to stand in front of the judge and request an extension on his timeline to pursue alternatives.

She explained to him what was about to happen and provided William with talking points. He listened intently, and when the time came he explained to the judge that because of his kidney transplant and severe medical problems, he had not yet found a new place. Moreover, he explained, in his condition homelessness would equate to a certain health catastrophe. In setting forth all this, William – again, relying on the advice Roger had shared – successfully documented the efforts he had made to date to obtain housing.

The appeal was successful. The judge offered William a one-month stay of eviction, given that he provided ample evidence of his ongoing housing search.

Roger, McDonagh, and other members of the Housing Clinic team made sure to follow up and help William with the search. Shortly thereafter, he took the first steps through the doorway of his affordable new housing unit, with time to spare.

*Name and some identifying details have been changed to protect client confidentiality.

A Look at Refugee Legal Advocacy in Germany

Isabel Schayani and Niku Jafarina JD ’19 at WDR in Germany

By: Niku Jafarnia JD/MPP ’20

This J-term, I did an independent clinical in Germany, exploring the issues refugees are facing in the country, particularly with respect to legal advocacy and representation. More specifically, I wanted to explore the viability of an organization that would allow refugees to play a greater role in legal processes relevant to the refugee community.

From my work in the refugee legal advocacy space, I have been struck by the lack of initiatives that include and train members of the refugee community to work as legal advocates for themselves. I felt that Germany would be a good place to start building an organization that would work towards this goal. Since an influx of refugees arrived in Germany in 2015, the policies put in place by the German government, while far from perfect, have generally given Germany the image of being a “pro-refugee” society, particularly when compared to many of its neighbors. I wanted to test this claim, and learn more about what organizations in Germany were doing to support and empower refugees.

I had the opportunity to meet with people working across a vast spectrum of organizations, from small start-ups, to much larger government-supported NGOs, to German government and UN employees. I also had the opportunity to spend a day with Isabel Schayani (pictured), a former Harvard John F. Kennedy Memorial Fellow who started a program within WDR (a German public-broadcasting news station) that provides refugees with critical programming and information about their legal rights in Farsi and Arabic. Most importantly, I was able to meet with people who had come to Germany seeking asylum, and to hear their perspectives on the ever-changing asylum and refugee system in Germany.

During my research, I was particularly struck by the divergences between the German and U.S. asylum and refugee systems. Though the German system has significant room for improvement—particularly as their efforts to deport and exclude refugees have increased—there was a certain humanity that I recognized in the system of services and in the government-provided provisions, educational opportunities, and shelters provided to refugees. This image presented a stark contrast with the U.S.’s increasingly militarized southern border and systematic imprisonment of migrants. Hopefully, countries will look to Germany’s inclusionary policies as an example, rather than replicating the U.S.’s administration’s efforts to demonize and dehumanize those who have come to the U.S. seeking refuge.

While I still have many unanswered questions, my time in Germany has made clear that in spite of Germany’s more progressive policies toward refugees and migrants, there remains a lack of support for members of these communities to advocate for themselves, particularly in the legal sphere. On a more positive note, my research also revealed that there is a general willingness among many refugee-focused NGOs and government agencies to support an initiative that would empower refugees, and that would allow them to meaningfully participate in their own communities’ legal representation. I look forward to returning to Germany this summer to further explore my organizational idea.

Survey: Misunderstanding Food Date Labels Linked With Higher Food Discards

Via the Center for Health Law and Policy Innovation 

A new survey examining U.S. consumer attitudes and behaviors related to food date labels found widespread confusion, leading to unnecessary discards, increased waste and food safety risks. The survey analysis was led by researchers at the Johns Hopkins Center for a Livable Future (CLF), which is based at the Johns Hopkins Bloomberg School of Public Health.

The study, published online February 13 in the journal Waste Management, comes at a time of heightened awareness of food waste and food safety among both consumers and policymakers. The U.S. Department of Agriculture estimates that 31 percent of food may be wasted at the retail and consumer levels. This study calls attention to the issue that much food may be discarded unnecessarily based on food safety concerns, though relatively few food items are likely to become unsafe before becoming unpalatable. Clear and consistent date label information is designed to help consumers understand when they should and should not worry.

Among survey participants, the research found that 84 percent discarded food near the package date “at least occasionally” and 37 percent reported that they “always” or “usually” discard food near the package date. Notably, participants between the ages of 18 to 34 were particularly likely to rely on label dates to discard food. More than half of participants incorrectly thought that date labeling was federally regulated or reported being unsure. In addition, the study found that those perceiving labels as reflecting safety and those who thought labels were federally regulated were more willing to discard food.

New voluntary industry standards for date labeling were recently adopted. Under this system, “Best if used by” labels denote dates after which quality may decline but the products may still be consumed, while “Use by” labels are restricted to the relatively few foods where safety is a concern and the food should be discarded after the date. Previously, all labels reflected quality and there was no safety label. Neff and colleagues found that among labels assessed, “Best if used by” was most frequently perceived as communicating quality, while “use by” was one of the top two perceived as communicating safety. But many had different interpretations.

“The voluntary standard is an important step forward. Given the diverse interpretations, our study underlines the need for a concerted effort to communicate the meanings of the new labels,” says lead author, Roni Neff, PhD, who directs the Food System Sustainability Program with the CLF and is an assistant professor with the Bloomberg School’s Department of Environmental Health and Engineering. “We are doing further work to understand how best to message about the terms.”

Using an online survey tool, Neff and colleagues from Harvard Law School Food Law and Policy Clinic (FLPC) and the National Consumers League assessed the frequency of discards based on date labels by food type, interpretation of label language and knowledge of whether date labels are regulated by the federal government. The survey was conducted with a national sample of 1,029 adults ages 18 to 65 and older in April of 2016. Recognizing that labels are perceived differently on different foods, the questions covered nine food types including bagged spinach, deli meats and canned foods.

When consumers perceived a date label as an indication of food safety, they were more likely to discard the food by the provided date. In addition, participants were more likely to discard perishable foods based on labels than nonperishables.

Raw chicken was most frequently discarded based on labels, with 69 percent of participants reporting they “always” or “most of the time” discard by the listed date. When it came to prepared foods, 62 percent reported discards by the date label and 61 percent reported discards of deli meats. Soft cheeses were near the bottom of the list with only 49 percent reporting discards by the date label, followed by 47 percent reporting discards of canned goods and breakfast cereals.

Among foods included in the survey, prepared foods, deli meats and soft cheeses are particularly at risk of contamination with listeria which can proliferate in refrigerated conditions. Despite concerns of listeria, soft cheeses were rarely discarded by the labeled date. On the other hand, raw chicken was frequently discarded even though it will be cooked prior to consuming and is not considered as big of a risk. Unopened canned goods and breakfast cereal pose the least concern based on time since packaging, but were still discarded by just under half of respondents.

“Foodborne illness is misery–or worse,” says Neff. “As date labeling becomes standardized, this research underlines the need for a strong communications campaign and highlights a particular need for education among those ages 18 to 34.”

The research was supported by the National Consumers League and the Johns Hopkins Center for a Livable Future.

Misunderstood food date labels and reported food discards: A survey of U.S. consumer attitudes and behaviors” was written by Roni Neff, Marie Spiker, Christina Rice, Ali Schklair, Sally Greenberg and Harvard FLPC’s Emily Broad Leib.

CVLC Advances Veteran Law with Discharge Upgrade Practice Manual

Via Connecticut Veterans Legal Center

CVLC Discharge Upgrade Director Margaret Kuzma with LSC staff Betsy Gwin, Dana Montalto, and Dan Nagin.

Connecticut Veterans Legal Center (CVLC) is pleased to announce a new partnership with the Veterans Legal Clinic of the Legal Services Center of Harvard Law School (LSC) to significantly expand the field of veteran law by creating a comprehensive Discharge Upgrade Practice Manual for veteran advocates and an online, searchable Department of Defense decision interface. This national initiative is funded by the Bob Woodruff Foundation.

 

Learn more about the initiative.

Harvard Law Student Gets Landmark Win At Mass. Top Court

Via Law360 

By: Chris Villani

HLAB students Kenneth Parreno ’19 and Elizabeth Soltan ’19 with Clinical Instructor Patricio Rossi after oral argument at the Massachusetts Superior Court on December 4, 2018.

While many attorneys go their entire careers without arguing a case before a top state appellate court, Liz Soltan managed the feat before even graduating from Harvard Law School, and without missing a single class.

The Massachusetts Supreme Judicial Court’s Rule 3:03 allows senior law students to appear before the court on behalf of an indigent plaintiff. Soltan, a third-year law student working for the Harvard Legal Aid Bureau, a student-run legal service, handled the oral argument on behalf of a pair of Boston dry cleaner employees who said they were cheated out of $28,000 in wages and overtime pay and sought attorneys’ fees stemming from the litigation.

“It was a great experience. A lot of prep went into it,” Soltan told Law360. “I was so nervous that a lot of it is a blur. But I felt that it went well and I was optimistic. It was kind of fun to be up there, having a conversation with the justices.”

Soltan is not the first law student to argue before the SJC, but it is rare to have a student present a case to the top court. Soltan said students from the Harvard Legal Aid Bureau may appear before the court every few years, trying to use their resources on cases that could have a far-reaching impact.

Soltan argued the case in December for roughly 17 minutes. She cited numerous SJC and federal cases to back her argument that using the “catalyst test” — whether a lawsuit is the primary factor leading to a settlement — when assessing whether to shift attorneys’ fees to an employer will promote access to justice for low-income plaintiffs and encourage private attorneys to take cases.

Midway through her presentation, the questions she started getting from the justices gave her the impression the case could be turning in her clients’ favor.

“There was a certain point where I sensed they were trying to flush out how it would work and how settled the body of precedent was,” Soltan said. “That was a moment where I felt like, ‘OK, maybe they are figuring out how to write a favorable opinion.’ I was cautiously optimistic and really excited.”

Her optimism proved well-founded when the SJC released a unanimous opinion in her clients’ favor on Tuesday. The SJC established the catalyst test as the governing rule guiding judges in assigning attorneys’ fees, a ruling has been seen as a potential path to get more private lawyers to take on Wage Act cases for low-income defendants and a means to speedier settlements of wage-related litigation.

To get an employer to pick up the tab, a worker has to show the lawsuit led to a favorable settlement. The employees in Soltan’s case settled for more than 70 percent of the $28,000 they sought before the court battle ensued over the attorneys’ fees.

Preparing for the oral argument was an extensive process, Soltan said. Her clinical instructor Patricio Rossi, and fellow law students Kenneth Parreno and Joey Herman were instrumental in the process.

Founded in 1913, the Harvard Legal Aid Bureau says it handles more than 300 cases annually, representing low-income people in the Greater Boston area. The bureau has about 50 second- and third-year law students who make a two-year commitment and are expected to devote at least 20 hours per week to their clinical practice.

“It is a lot, but I think a large way we get through it is working closely with our clinical instructor. They are great role models for us,” Soltan said. “We support each other and work together.”

Oral arguments in the dry cleaner case took place in early December during Harvard’s reading week before exams, Soltan said, so she did not have to miss class to appear in the downtown Boston courthouse. Chuckling, she agreed it would have been a rock-solid excuse if arguing before the top court in the state pulled her out of a class.

Soltan is set to graduate this spring and plans to continue pursuing civil legal services work.

“I just hope I continue to get good outcomes for my clients,” she said, “whatever court it happens to be in.”

Listen to oral argument in the case Ferman v. Sturgis Cleaners Inc., docket number SJC-12602, can be found here under “Recent Arguments, Dec. 2018.”

Mass. Top Court Sets Standard For Atty Fees In Wage Suits

Via Law360 

Source: Pexels

By: Chris Villani

An employee suing an employer for unpaid wages can recover attorneys’ fees when winning a “favorable settlement,” even when a court does not sign off on the deal, according to a Massachusetts Supreme Judicial Court ruling Tuesday with potentially wide-ranging implications.

The appeals court affirmed a lower court ruling and sided with a pair of former employees of a Boston dry cleaner who claimed they were denied about $28,000 owed to them in wages and overtime and ultimately settled for more than 70 percent of that figure. The top court said the so-called catalyst test should apply when assessing whether to tack on attorneys’ fees.

Under this standard, fee-shifting can occur if a lawsuit is a “necessary and important factor” in causing a defendant to fork over a “material portion” of relief requested by a plaintiff through a settlement agreement, even if there is no judicial involvement in the accord. The bar, which is lower than federal fee-shifting standard, is necessary to avoid needlessly long and costly litigation, the top court said.

“The catalyst test best promotes the purposes of fee-shifting statutes by encouraging attorneys to take cases under such statutes to correct unlawful conduct and rewarding them accordingly when they do so,” Associate Justice Scott L. Kafker wrote in the unanimous opinion. “The catalyst test also promotes the prompt settlement of meritorious cases, avoiding the need for protracted litigation, superfluous process, or unnecessary court involvement solely to ‘prevail’ in a formalistic sense to ensure an award of attorney’s fees and costs.”

The dry cleaner, Sturgis Cleaners Inc., had sought to enforce the federal standard set in 2001 by the U.S. Supreme Court in Buckhannon Board and Care Home v. West Virginia Department of Health & Human Resources, which said a party is required to win an enforceable judgment or a consent decree before being eligible to be the “prevailing party” and having the chance to collect attorneys’ fees.

But the Massachusetts high court disagreed, seeing the catalyst test as a better method because it provides two crucial incentives related to all wage litigation: giving attorneys a reason to take cases where individual employees claim to have been denied wages, and adding, the opinion said, “a powerful disincentive for employers to withhold the wages in the first place.”

“If such settlements did not result in the obligation to pay attorney’s fees, there would be a disincentive to bring such cases in the first place, thereby leaving other unlawful conduct unaddressed and uncorrected,” Justice Kafker wrote.

The former employees, Belky Ferman and Veronica Guillen, filed suit in 2014. After two years of litigation, including the entry and lifting of a default judgment against the dry cleaner, the case settled through mediation for $20,500. The attorney fee issue was left to the court, and a Suffolk County Superior Court judge, applying the catalyst test, ruled in favor of the employees.

“The catalyst test thus recognizes that successful litigation may be reflected in settlements as well as court rulings,” Justice Kafker wrote, “as settlements are often ‘the products of pressure exerted by [a] lawsuit.'”

The employees’ case was presented to the high court by Liz Soltan, a Harvard Law School student arguing as a student practitioner with the Harvard Legal Aid Bureau. She told Law360 Tuesday the court’s decision might help combat wage theft, which studies have suggested may be problem costing workers in the Commonwealth $700 million annually.

“Wage theft is such an epidemic in Massachusetts, especially among low income and immigrant workers, this is the kind of ruling we needed for access to justice,” Soltan said. “I am hoping it’ll mean more lawyers are going to feel secure in taking these cases.”

Counsel for the dry cleaner did not immediately respond to a request for comment Tuesday.

The employees are represented by Liz Soltan and Patricio Rossi of the Harvard Legal Aid Bureau.

The dry cleaner is represented by John J. McGlone III and David T. Norton of Giarrusso Norton Cooley & McGlone PC.

The case is Belky Ferman & another vs. Sturgis Cleaners Inc. & another, case number 12602, in the Supreme Judicial Court of Massachusetts.

Template License and Collaboration Agreements for AI Art

Via the Cyberlaw Clinic 

As the Cyberlaw Clinic has continued to deepen its practice in AI-generated art (and as AI art has increasingly cropped up in the news), it’s become clear that developers and artists are looking for guidance on how to handle rights in these new works. Clinical Instructors Jessica Fjeld and Mason Kortz have previously written about how to conceptualize the anatomy of AI art for rights purposes; translating that theory into practice was an obvious next step, and today marks the release of a new set of templates created with input from Sarah Schwettmann and SJ Klein of MIT.

We’ve launched the template project with agreements for the two most common situations:

  • license template, for when someone undertaking an AI art project wants to use existing works of art (music, visual art, writing, etc.) as inputs for their system, for example as training data
  • collaboration agreement template, for when two or more people are working together to build, train, and run an AI art system

The templates are accompanied by a how-to guide, which explains the choices that the template authors made in drafting the agreements, and what additional information users will need to provide.

While AI art projects often produce cutting-edge, boundary-blurring results, the community that produces them is collaborative and interdependent. For this reason, the templates encourage (but do not require) parties participating in the creation of these works to open-source their outputs, under Creative Commons or comparable licenses.

The licenses are themselves released under a CC0 public domain dedication, and we hope users will iterate on them and share useful changes back with the community through Github.

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