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Category: Legal & Policy Work (page 1 of 6)

Are Americans Getting Enough Fiber?

Via Harvard Law Today

By: Elaine McArdle

Susan Crawford, author of “Fiber: The Coming Tech Revolution-and Why America Might Miss It”
Credit: Dana Smith

Imagine an internet connection so fast and clear that all the musicians in an orchestra can play their instruments from their own homes in perfect time with colleagues scattered across the country. Imagine students in a tiny rural school taking high-level science classes taught by expert teachers 2,000 miles away, with such visual clarity that they can participate in real-time scientific experiments.

That level of internet connectivity is standard in South Korea, Hong Kong, Singapore, Sweden and China. But internet service in most parts of the U.S. continues to be slow, unreliable and expensive. Because of a series of telecom policy decisions, the U.S. is falling further and further behind other nations, with a host of serious implications that affect not only the economy, education, health, and well-being but also the fabric of democracy, says Susan Crawford, clinical professor at Harvard Law School.

On the national level, almost no one is paying attention, says Crawford. And she is out to change that.

Fiber optic technology, which results in dazzlingly fast and reliable internet connectivity, should be available at a low price to everyone in the U.S., just as it is in other countries, argues Crawford in her latest book, “Fiber: The Coming Tech Revolution—and Why America Might Miss It,” published this year by Yale University Press. The contemporary notion of a decent, thriving life “requires a persistent, cheap data network that reaches everyone”—and that means fiber optic technology for everyone, she says.

“Fiber optic plus advanced wireless is going to be the place where all the new industries for the next 100 years are born, where all the new jobs, all the new ways of making a living, come to being,” says Crawford, who served as special assistant for science, technology and innovation policy for President Barack Obama ’91. “We need it—now—to make sure we have a world-class health care system, the best education for our children and the ability to cope with climate change.”

In the near future, fiber access will be available in 68% of Asia. Meanwhile, due to the deregulation of the telecom industry, the U.S. lags far behind in this critical technology, says Crawford: In terms of average download speed, the U.S. ranks 25th out of 40 nations that are in the Organisation for Economic Co-operation and Development. Fiber connects American cities, but only about 13% of individual homes and businesses, mostly in very affluent places, have fiber optic connections—what’s called “last-mile fiber connectivity.” Most Americans get their internet from a single provider, typically one of five companies that control high-speed internet access. These companies have no incentive to upgrade to fiber.

“We are really not in the game,” says Crawford. Internet providers “have divided markets very successfully. They can charge whatever they want for the services they provide. We’ve got a really stagnant, noncompetitive market.”

But her book is not about technology but rather progressivism, and it tells a story of hope, she stresses. Electricity was once controlled by a few companies and available only to the wealthy. It took “enormous local courage” and the leadership of President Franklin D. Roosevelt, in the face of incredible opposition, to make sure that everyone, despite economic status, received it. Fiber is equally astonishing in what it offers for improving lives, Crawford says, and similarly should be regarded as a public good, a utility service to which every American is entitled.

Susan Crawford tells the stories of localities in the U.S. that have sidestepped powerful forces to bring fiber to their residents.
Credit: Melissa Beck

Crawford places her focus on human stories, including those drawn from the successes of 800 plucky localities in the U.S. that have sidestepped powerful forces to bring fiber to their residents: places like Chattanooga, Tennessee, and rural Minnesota, where 27 tiny townships created a fiber services cooperative to bring first-rate, affordable internet service to farms. It makes good sense at every level, Crawford argues. While costly to install, once laid in the ground, fiber is infinitely upgradeable, and because the lines can be shared by numerous operators, service prices are competitive.

“Localities are just sick of being bossed around. So that’s why they’re building their own networks,” she says. The big internet providers have successfully supported laws in 19 states that now prohibit local governments from supporting fiber optic build-out, arguing that internet service should be a private enterprise. But that’s misleading, Crawford insists—the utility lines themselves should not be controlled privately but instead should be shared by as many service providers as want to jump in, thus driving prices down. The issue of fiber optics “may be highly partisan at the federal level, but at the local level it’s just people wanting everybody to lead a decent life. This really is the seeds of what we’re seeing across the country, this sort of movement toward ensuring that people get their basic needs met at a reasonable cost.”

Crawford, who wrote “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age” in 2014, launched her current book project around the same time during a trip to South Korea, where she witnessed the enormous digital divide between that country, where fiber connectivity is pervasive, and the U.S. A visit to Stockholm shortly afterward drove the point home, during which the mayor asked Crawford how Sweden could help the U.S. get on board with fiber optics in order not to drift into irrelevance. She traveled to Tokyo, Oslo, Hong Kong, and Singapore, which all have 100% fiber adoption, to find out why connectivity was so available and so cheap, with typical prices of $25 to $40 a month.

By contrast, American telecom and cable companies, with no incentive to support fiber technology, are strongly opposing it, including by trying to confuse the issue, she says. For one thing, they are promoting 5G wireless service, the latest generation of cellular mobile connection, as an alternative to fiber. In fact, 5G depends on fiber lines in order to work, Crawford explains, and 5G won’t function in rural areas because it would require cell towers every 200 feet, which is extremely expensive. “It is in their interest not to have people fully understand this issue,” she says. And as the local communities have taken matters into their own hands, the industry has fought back hard.

Crawford got encouragement in her research from then-HLS Dean Martha Minow, who recognized the social justice implications of telecommunications policy. Another supporter, Professor Yochai Benkler ’94, faculty co-director of the Berkman Klein Center for Internet & Society, praises her book. “At this moment in American history, [as we are] facing a deep loss of trust in government and good governance, Crawford’s rich case studies of municipalities that have overcome destructive corporate lobbying to deliver for their citizens is a lesson we all need,” he says.

A key part of the story is that China is planning to connect 80% of their homes and businesses to fiber very soon. Moreover, China is loaning $68 billion to other countries for infrastructure and soon will be touching 65% of the world’s population and 40% of the world’s GDP, Crawford says. She’s hoping that awareness of China’s primacy in this arena “will be a Sputnik moment” for national attention in the U.S. “American companies will have no leverage to be part of that market, won’t be able to reach that global population, and we seem to have no response to that in this country,” she says.

But the U.S. won’t get a massive upgrade to fiber unless there is a concerted effort at the national level. The FCC, she says, should set fiber as the standard for all citizens, so they enjoy opportunities for education, jobs and health care.

“Human decency is at our core and should be attached to our policy,” says Crawford, whose next project is addressing the effect of rising sea levels in Charleston, South Carolina, which poses essentially the same question: What is the role of local government in solving major problems?

While the issue of fiber optic connectivity is urgent and the challenges significant, Crawford is optimistic. “America has saved the world from tyranny,” she says. “We built a transcontinental railroad system. We built the federal highway system. We built the Hoover Dam. Americans are capable of this,” she stresses. “And we can turn quickly to projects of national importance. It’s just that we’re a bit in the dark right now about this one.”

Collecting on Dreams

Via Harvard Law Today

By: Julia Hanna

Toby Merrill ’11 Credit: Leah Fasten

As a 2L, Toby Merrill ’11 was enrolled in a Harvard Law School consumer clinic litigating against predatory lenders of subprime mortgages. There she fought for the rights of individuals who had hoped to fulfill the American dream of home ownership. Now Merrill has a new mission, no less urgent: to bring a measure of fairness to people affected by the predatory lending practices of some for-profit colleges that are alleged to provide worthless degrees in exchange for thousands of dollars in government-backed loans. Frequently members of some of society’s most vulnerable populations, these clients often began their journey with the simple desire for upward mobility—namely, a better life through education.

In 2012, Merrill founded and became director of the HLS Project on Predatory Student Lending, focusing on for-profit schools that promised students a direct path to well-paying, middle-class jobs via programs focused on a specific role—medical assistant or paralegal, for example—but failed to deliver. Senate hearings and a two-year investigation into these schools led by then-Iowa Sen. Tom Harkin detailed the systematic use of inflated job placement data and aggressive recruitment tactics to target groups that included immigrants, people of color, veterans, and single mothers. In one case, noted by Harkin, a school claimed that it placed 70% to 90% of students in jobs, when the actual rate was 20% to 30%.

The financial fallout of that widespread fraud, when combined with the poor quality of instruction found in many programs, was catastrophic: Statistics show that individuals enrolled in for-profit colleges typically account for 13% of the student population but 47% of all federal loan defaults, often because of the inability of the borrowers to secure well-paying jobs; and more than $30 billion in federal tax funding goes to for-profit institutions every year, in the form of those student loans.

Eileen Connor, director of litigation at the project
Credit: Leah Fasten

In her work with victims of predatory subprime mortgage lending, Merrill had been a firsthand witness to the power of affirmative litigation on behalf of individuals harmed by unscrupulous lending practices. She saw how that work could not only help individuals get restitution but also, in the best-case scenario, lead to improved policy. When she learned more about the tactics used to lure students into shoddy degree programs with little value on the job market—students who were trying to improve their lives by getting an education and who, at that point, had virtually no options for legal action—the issue had a visceral pull.

“Predatory student lending sits right at the intersection of racial and economic justice,” says Merrill, whose interest in fighting injustice and race discrimination in America led her to spend the summer after her second year in law school working on the NAACP’s voting rights project and in its death penalty practice.

Located in HLS’s Wilmer­Hale Legal Services Center in Jamaica Plain, the project and its staff of 12 are engaged in class-action lawsuits on behalf of tens of thousands of students at now-defunct institutions such as Corinthian Colleges (with a class of 110,000 plaintiffs) and ITT Technical Institute (750,000). But they also take on individual cases which they feel will effect change in industry or government practices. Director of Litigation Eileen Connor has met hundreds of people whose lives have been upended by predatory student lending, but she still finds herself thinking about Crystal, a young single mother who was recruited away from Roxbury Community College by a Corinthian school subsidiary.

Attorney Josh Rovenger (at desk) joined the project last year, inspired by the passion of Toby Merrill and her team.
Credit: Leah Fasten

“They told her, ‘You can do what you’re doing here, but twice as fast—so you’ll be able to work that much sooner and support your young child.’ Of course, that was appealing to her,” Connor says. The report issued by the Harkin Senate committee found that recruiters at some for-profit colleges are frequently instructed to exploit just such a “pain point” in order to convince a prospective student to enroll. But the quality of education Crystal received didn’t provide her with the skills she needed to compete in the job market. The Senate report also found that, on average, only 25% of the money paid to for-profit colleges is rolled into needed teaching materials, equipment, and instructor pay; the remaining 75% is used for marketing, executive compensation, and profit. Unable to find employment in her chosen field of medical assistant, Crystal was forced to default on her loan and ended up living in a homeless shelter; the default had disqualified her from applying for subsidized housing. In addition, the government garnished her wages and took her earned income tax credit, which she had been planning to use as the first and last months’ deposit to rent an apartment. There is no time limit on the collection of student loan debt, so these penalties can continue for decades.

“This all happened because a predatory company took advantage of someone with the earnest desire to learn and to work,” Connor says. “It’s a perversion of the ideal of higher education when the reason we have a federal student loan program at all is to create opportunity.”

Josh Rovenger ’13 joined the project last year. While he had always been drawn to public interest law, he hadn’t been following the legal cases involving for-profit colleges before interviewing for an attorney position with Merrill and Connor. Then he got excited: “It wasn’t really an exact moment or case, but more the passion they showed. Toby said that once you learn about the work, you can’t help but get angry and worked-up about what’s going on.”

Every semester the HLS Project on Predatory Lending trains six to eight students, including this spring, Levi Barry ’19 and Sejal Singh ’20.
Credit: Leah Fasten

And if he ever feels distanced from that moment, a clinical student’s reaction brings it all back: “It’s a reminder to everyone here of how absurd some of the actions are that we’re challenging,” Rovenger says. Each semester, the project hosts six to eight clinical students, providing exposure to the class-action cases underway while also enabling students to act on behalf of individuals. “My clients are people who have been taken advantage of,” says Sejal Singh ’20. “But they are not victims—they’re very smart, resilient actors who are committed to moving forward with their lives. Working with them has been inspiring, and in the process, I really feel as though I’ve been able to build a range of skills that are going to prepare me to move forward in my career as an attorney.”

Creating positive change in an area as complex and far-reaching as predatory student lending can have a frustratingly long timeline. But in its relatively brief seven-year existence, the project has earned substantial wins, bringing clients that much closer to justice. Among its recent victories was a ruling last fall in the case Bauer v. DeVos that—in conjunction with a similar suit brought by 19 states and the District of Columbia—prevented the Department of Education from illegally delaying the enforcement of established borrower defense regulations that offer protections for students. Such protections include the cancellation of debt when an institution breaks the law and a ban on forced arbitration.

“Forced arbitration has been a longstanding issue in the context of consumer protection,” says Merrill. “The transparency that occurs with private litigation has been shown by study after study to be an important driver of public enforcement; forced arbitration cuts off an entire stream of information that’s key to functional oversight. Now, for the first time in a long, long time, we have the opportunity to bring people’s claims in court.”

Students in the project, including Zoe Kemmerling ’20, provide direct services to clients. They also get exposure to complex litigation.
Credit: Leah Fasten

Included in the project’s active impact litigation docket is the class-action lawsuit Calvillo Manriquez v. DeVos, a case brought jointly with Megumi Tsutsui ’14, a former student of the project now practicing law at the Oakland, California-based Housing and Economic Rights Advocates. The suit charges that the U.S. Department of Education required tens of thousands of former Corinthian Colleges students to repay their loans, despite earlier findings by the Obama administration Department of Education that they were not liable to do so. Rather than discharge the loans, the department reversed course, calculating a repayment rate based on private income data obtained from the Social Security Administration.

“The thrust of the case is that the Department of Education is engaged in retroactive rulemaking using illegally obtained information,” says Rovenger. For now, the team has won a preliminary injunction to freeze loan collection for thousands of students, with the eventual goal being to fully discharge them.

“Our work here has always involved fighting against a Department of Education that isn’t doing what it should be,” says Merrill. “So while we have sued the department of the current administration a number of times, we also sued the one under the previous administration.”

Credit: Leah Fasten

Merrill cites relatively recent successes, including the ruling reversing the freeze on the mandatory arbitration ban, as evidence that the legal landscape is shifting and coalescing around a new perspective on student lending. “Three years ago, [students] couldn’t sue a for-profit school. It was hard to get the government … to decide to do anything,” she says. “We were able to change both of those things.” Even so, she acknowledges that hundreds of thousands of students represented in federal courts around the country are still waiting for relief. It’s part of what keeps her and the rest of the team motivated. And they’re not alone. Merrill notes that the Project on Predatory Student Lending works with a range of advocacy organizations across the country, supplying needed information and insight to help advance policy change. And the network of clinic alumni, Megumi Tsutsui and others, has only extended its reach. “It’s been so gratifying to see former students take up the fight as part of their professional endeavors,” says Merrill. “We’re all focusing our energy on cases that we think can make a difference, moving the ball forward to make a more fair and just society.”

All in a Day’s Work

By: Alexis Farmer

The numerous clinics at Harvard Law School (HLS) are frequently successful in their pursuit of advancing justice. We often read of victories in court cases, positive reactions to dynamic presentations, and the formation of powerhouse partnerships, but how do the clinics get there? On any given day, HLS students, clinical instructors and clinical faculty are actively working on issues – preparing a brief, arguing a motion in court, giving a presentation to community leaders or clinical professionals, or collaborating with community partners on launching a policy initiative. On one particular day in early May, three clinics were in three different courts while others were fortifying partnerships on each of the coasts. The Office of Clinical Programs (OCP) got an inside scoop on what a day in a few of the clinics might look like, and they were just as busy as we suspected.

Tuesday, May 7th

Credit: Emmanuel Huybrechts
Source: Flickr

9:00am The Massachusetts Supreme Judicial Court (SJC) heard oral argument in Boston Globe Media Partners, LLC v. Chief Justice of the Trial Court, a case about whether the public has a right of access to records from show-cause hearings in which the clerk magistrate, who presides over the hearing, finds probable cause, but decides not to issue a criminal complaint. The Boston Globe sued the heads of the trial courts last fall, arguing that public access to the records allows for transparency and accountability and is useful in determining whether there is an uneven application of justice in this part of the court system. The action came after The Globe reported that Massachusetts was the only state to have these proceedings out of the public eye and keep many of the documents confidential.

In amicus briefs, the ACLU of Massachusetts, Greater Boston Legal Services (GBLS) and Harvard Legal Aid Bureau (HLAB) argued that the hearings provide privacy for subjects of criminal complaints prior to arraignment. The amici also expressed concern that opening records where no criminal complaint is issued could harm individuals’ ability to obtain housing or jobs. HLAB’s brief was written on behalf of Harvard Defenders, the only legal services organization in the state dedicated to pro bono representation of indigent defendants in criminal show cause hearings, and City Life/Vida Urbana, a grassroots community organization dedicated to fighting for racial, economic, social justice and gender equality. Executive Director of Harvard Defenders Dara Jackson-Garrett, who co-authored the brief, told Massachusetts Lawyers Weekly, “Those who take out applications for criminal complaints often do not want to see the accused go to jail. Instead, they may just want to have the person apologize or get treatment for substance abuse.” A decision in the case is expected sometime late summer/early fall.

9:30am The Harvard Immigration and Refugee Clinic (HIRC) at GBLS co-managing directors and HLS lecturers on law Nancy Kelly and John Willshire Carrera, HIRC assistant director and clinical professor Sabi Ardalan, and HIRC teaching fellow Zack Albun attended oral arguments in De Pena-Paniagua v. Barr, currently pending at the United States Court of Appeals for the First Circuit. The court held the hearing at the John Joseph Moakley United States Courthouse in Boston. Ms. De Pena-Paniagua is challenging a Board of Immigration Appeals’ decision that denied her asylum application by construing Matter of A-B-, a 2018 decision by Attorney General Jeff Sessions to categorically foreclose asylum to applicants who argue they have a well-founded fear of persecution in the form of domestic violence perpetrated on account of their membership in a “particular social group.” Along with co-counsel at Akin Gump Strauss Hauer & Feld and HIRC director Prof. Deborah Anker, the HIRC attorneys submitted an amicus brief arguing Ms. De Pena-Paniagua qualified for asylum as a victim of persecution on account of her membership in a particular social group defined by female gender. HIRC alumnus Eunice Lee (Albert M. Sacks Clinical Teaching & Advocacy Fellow 2009–11) appeared on behalf of fellow amicus the Center for Gender & Refugee Studies, arguing that Matter of A-B- itself conflicts with the applicable federal statutes and international treaties and should be overturned.

The three-judge panel expressed significant interest in the position advanced in HIRC’s briefing, asking attorneys for both Ms. De Pena-Paniagua and the Department of Justice several questions about her eligibility for relief on the basis advocated. The First Circuit has yet to issue an opinion squarely addressing the legal sufficiency of defining a particular social group by gender.

10:00am Clinical Professor of Law Dehlia Umunna of the Criminal Justice Institute (CJI) and CJI student Jillian Tancil J.D. ’19 spent the morning at Roxbury District Court representing a woman that allegedly violated a protection order. The case was scheduled for a jury trial, but was resolved with pre-trial probation.

10:30am HIRC Clinical Instructor Cindy Zapata spoke on a panel about family detention at the AALS Clinical Conference in San Francisco, CA. The panel, entitled “Learning in Baby Jail: Lessons from Law Student Engagement in Immigration Detention Centers,” was a forum for reflection and learning best practices for preparing students to engage in work within family detention centers. The other panelists included Lindsay Harris, University of the District of Columbia, David A. Clarke School of Law; Erica B. Schommer, St. Mary’s University School of Law; Sara Sherman-Stokes, Boston University School of Law.

11:20am The Emmett Environmental Law and Policy Clinic (EL&PC) submitted comments on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury. Methylmercury is a common pollutant of air and water and highly toxic. The EL&PC’s comments provided recommendations, guidance, and support for the EPA’s reassessments and proposed studies.

Source: iStock

1:15pm The Center for Health Law and Policy Innovation’s (CHLPI) Health Law & Policy Clinic held a strategic planning call with the Transgender Law Center, as part of an initiative against the rollback of anti-discrimination protections for transgender and gender non-conforming people. The partnership, formalized in the summer of 2018, has led to conversations among legal experts about how to address and challenge reinterpretations of the Affordable Care Act and other civil rights protections. On May 24th, the Trump Administration released proposed changes to gender identity protections in health programs and activities. You can find CHLPI’s on-going analysis of the law here.

2:30pm The Legal Services Center’s Safety Net Project (LSC) and HLAB are representing a client as she appeals the Social Security Administration’s (“SSA”) decision to deny her disability benefits – the first joint representation between the programs. Despite extensive evidence of her inability to continue working due to symptoms of PTSD, anxiety, and depression stemming from abuse both in childhood and during her marriage, the client’s claims have been denied at each stage of the appeals process and are now before the United States District Court for the District of Massachusetts. On May 7th, the LSC-HLAB team filed the client’s response memorandum and asked that the case be set for oral argument. The arguments center around the Administrative Law Judge’s (ALJ) decision, without explanation, to give lesser weight to important evidence from the doctors treating the client, his mischaracterization of the record, various conclusory determinations that render judicial review impossible, and a series of findings that should have been entrusted to experts. HLAB/LSC clinical instructors Stephanie Goldenhersh and Julie McCormack and students Jeremy Ravinsky, JD ’20 and Bryan Sohn, JD ’20 are working on the case. The team is looking forward to their day in court in the fall, when Jeremy and Bryan will present the client’s argument before Judge Casper.

The John Joseph Moakley US Courthouse in Boston, MA.  Source: iStock

All day Sarah Downer and Katie Garfield, from the Center for Health Law and Policy Innovation, attended the Root Cause Coalition’s Annual Hill Day in Washington, DC. They used the event as an opportunity to educate legislators from both parties about the implications of laws like the Anti-Kickback Statute – a criminal statute that prohibits transactions to induce or reward services or items reimbursed by federal health care programs. Downer and Garfield were also invited to meet with staff from several legislative offices to discuss pathways to integrating critical food and nutrition services into the Medicaid and Medicare programs. Securing coverage of these new benefits within our public insurance programs would expand access to life-saving nutrition for vulnerable individuals living with chronic illness.

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

Via the Legal Services Center

Source: flickr

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

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

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

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

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

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

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

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

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

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

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

* Boston Housing Authority v. Y.A

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

Project on Predatory Student Lending Director Toby Merrill Honored by the American Constitution Society

Via the Project on Predatory Student Lending

Toby Merrill Credit: Martha Stewart

At the American Constitution Society’s National Convention in Washington, D.C. this week, Project on Predatory Student Lending director and founder Toby Merrill was honored as a finalist for the prestigious David Carliner Public Interest Award. The American Constitution Society(ACS) is the nation’s leading progressive legal organization.

David Carliner, whom the award honors, was a champion of justice throughout his career, devoted to protecting civil and human rights and combating injustice on a systemic basis. The award recognizes outstanding public interest lawyers whose work best exemplifies Carliner’s legacy.

Toby has been a fierce advocate for students cheated by for-profit colleges since she founded the Project on Predatory Student Lending in 2012, and has since led the Project’s team of attorneys in winning groundbreaking court victories in landmark cases protecting and advancing the rights of defrauded students. The Project is part of Harvard Law School’s clinical program, and a number of its clinical students have gone on to pursue careers to attacking the big, systemic issues that have allowed such a predatory industry to thrive for so long.

“David Carliner was a true civil rights champion, and I’m honored to to be associated with this award named for him,” Toby said. “The Project’s clients have been treated so unfairly—first by a predatory industry and then by a government that refuses to recognize their rights. This recognition is a testament to their willingness to stand up and fight for their own rights and the rights of the millions of students across this country who were seeking a better life through higher education, and instead were lied to and ripped off by for-profit colleges. The billions of dollars of debt that the government tries to collect from them every day is illegitimate.

“In addition to our clients’ bravery and perseverance, the Project’s work is driven by its dedicated staff and clinical students,” Toby added. “They inspire me every day, and I’m lucky to stand up for our clients with such an amazing team.”

The Project represents thousands of former for-profit college students across the country. The Project has cases against for-profit college companies, and against the Department of Education for enabling and supporting this predatory industry. Many of the Project’s clients are people of color, veterans, and immigrants. Most are the first in their family to attend college. The Project’s work supports its broader goals of economic justice and racial equality.

The Project is part of the Legal Services Center of Harvard Law School (LSC), a community law office and clinical teaching site of the law school. Clinical students join the Project’s staff to litigate cases on behalf of clients, in partnership with community-based and advocacy organizations.

 

FLPC Releases Issue Brief Calling for Federal Legislation to Standardize Date Labels

Via the Center for Health Law and Policy Innovation

The Harvard Law School Food Law and Policy Clinic (FLPC) released an issue brief that outlines the need for federal legislation to standardize date labels on food products. Date Labels: The Case for Federal Action describes existing government and industry efforts to standardize date labels and presents the case for why federal action is needed.

40% of the food in the United States goes uneaten. This wasted food has significant impacts on the economy, food insecurity, and the environment. The majority of food waste happens in consumer homes and consumer-facing businesses, and confusion over date labels is a significant cause of food waste.

Federal law does not regulate the use of date labels on food products, with the exception of infant formula. In the absence of federal regulation, states have developed their own date labeling laws. 41 states require date labels on at least some food products, and 20 states prohibit or restrict the sale or donation of food past the labeled date. Even in states that require date labels, manufacturers have broad discretion over how the dates on foods are selected. Most date labels are indicators of quality; however, many consumers and businesses mistakenly believe they are indicators of food safety. According to a surveyconducted by FLPC, the Johns Hopkins Center for a Livable Future, and the National Consumers League, 84 percent of consumers at least occasionally discard food close to or past the date on its package, and one-third of consumers report they always do so.

Recognizing that confusion over date labels leads to unnecessary food waste, government and industry actors have made significant efforts in recent years to standardize date labeling language on food products. At the state level, eleven states introduced bills in the 2017-2018 legislation session that seek to standardize date labels or eliminate unnecessary date labeling requirements. On the industry side, the most significant industry action was the voluntary Product Code Dating Initiative, launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA). This initiative encourages manufacturers and retailers to use standard date labeling phrases on consumer-facing food packages to indicate quality and safety (read FLPC’s blog post about the initiative here). Most recently, FDA released a letter encouraging the food industry to use the phrase “Best if Used by” on food products to indicate quality. This is the same standard quality date phrase used by the Product Code Dating initiative.

These initiatives represent significant progress, but as the issue brief demonstrates, they are not sufficient to achieve standardization of date labels nationally. Due to the continuing patchwork of state date labeling laws, voluntary initiatives cannot fully cure inconsistent date labeling language. FLPC’s analysis found that the Product Code Dating Initiative conflicts with state laws in 27 states for at least one food product, meaning that manufacturers cannot use the voluntary standard in those states.

Moreover, state and industry initiatives cannot provide consistent education to consumers across the country. Because manufacturers cannot use the same date labeling language everywhere due to state laws, it remains difficult to educate consumers about what date labeling language means.

This issue brief demonstrates that federal legislation is necessary to achieve true standardization of date labels nationally. Federal legislation should require that manufacturers or retailers who choose to use date labels on foods use one of two prescribed labeling phrases: “BEST If Used By” to indicate quality, and “USE By” to indicate safety. These terms are consistent with the voluntary Product Code Dating Initiative. Federal legislation should also preempt state laws that ban the sale or donation of food past the quality date, and create a national consumer education campaign to inform the public about the meaning of these labeling terms.

FLPC has been advocating for the standardization of date labels since the release of its 2013 report, The Dating Game. We are pleased to see so much progress towards standardizing date labels at the state and industry level, but these efforts have limitations. As this issue brief demonstrates, it is time for a federally standardized date labeling system, and we look forward to working with federal and industry partners to develop such a system.

Read Date Labels: The Case for Federal Action.

Take Care of Soldiers, and Things Fall Into Place

By: Joshua Mathew, J.D. ’19

Josh Mathew, J.D. ’19

My involvement with the Veterans Legal Clinic (VLC) has been, by far, my most rewarding experience at Harvard Law School. Through the VLC, I supported diverse cases, developed a broad range of legal skills, found my passion for advocating for others as a litigator, and made some of my closest friends at Harvard.

A Broad Range of Cases and Skills

As a student advocate with the VLC, I worked on a variety of matters, including an Army veteran’s appeal of the VA’s denial of his G.I. Bill benefits, a former Marine’s application for VA healthcare and an honorable characterization of his service, and oral arguments on behalf of Massachusetts veterans who were wrongfully denied the Welcome Home Bonus. In addition, my work with the VLC and conversations with instructors at Harvard’s Predatory Lending and Consumer Protection Clinic motivated me to pursue independent research, under Professor Dan Nagin’s supervision, on California’s regulations aimed at guarding veterans against exploitation by for-profit colleges.

My diverse caseload at the VLC allowed me to build a set of skills that I know will make me a more effective advocate for others. Drafting the appeal for my client’s G.I. Bill benefits enabled me to develop my legal writing and research skills. Presenting oral arguments in the Welcome Home Bonus case with my classmate Laurel Fresquez ’19 substantially improved our oral appellate advocacy skills. We learned how to organize a concise outline of arguments and incorporate feedback from numerous moots. And throughout all of my cases, I developed my ability to interact with clients, solicit their intent, and ensure that our case strategy reflected their long-term goals and interests.

From left to right, Jack Regan, Dana Montalto, Josh Mathew, Laurel Fresquez ’19, a client in the case, and Dan Nagin.

Helping Ensure That All Are Welcomed Home

Presenting oral arguments with Laurel in the Welcome Home Bonus case at Suffolk Superior Court was certainly my favorite experience at the VLC. You can read more about the case and the favorable ruling here and here. Preparing for the hearing served as a reminder that no one gets there alone: Laurel and I spent countless hours brainstorming and debating how to craft the most effective opening and closing arguments. We rehearsed those arguments over and over again in front of our supervisors, others VLC students, and WilmerHale attorneys. These moots and the VLC’s supportive community of instructors, students, and friends provided the feedback that we needed to identify our most powerful arguments and address our blind spots.

Engaging with our clients was also a treat. When we received a positive decision from the judge in late December, it was a pleasure for me and Laurel to call our clients with the good news. Those phone calls, full of gratitude and warmth, are some of my fondest memories at Harvard Law.

Finding Purpose and Friends

Lastly, the VLC has had tremendous personal benefits for me. When I left the Army, I saw law school as a reset switch, and I did not have a clear vision of what I wanted to do as a lawyer. I enrolled in the VLC, in part, to find that purpose. A wise platoon sergeant had once advised me, “Take care of soldiers, and everything else falls into place.” As a platoon leader, I found deep satisfaction in supporting my soldiers, and through the VLC, I have found similar fulfillment in supporting veterans’ claims for education, healthcare, and disability benefits. In addition, through challenging and meaningful casework, I have discovered my passion for litigation as a means of advocating for others.

In the process, I have made some of my closest friends at Harvard Law. It might be that the Legal Services Center attracts exceptionally kind students, or that its instructors do a great job of fostering a supportive environment. In any case, I am grateful to have gained that community, and I look forward to staying in touch.

HIRC wins case for Guatemalan family

Via the Harvard Immigration and Refugee Clinical Program

Nate MacKenzie and Nora Picasso Uvalle, LLM ’19 (far right) pictured with their clients

On May 9th, Temporary Clinical Instructor Nate MacKenzie and clinical students Nora Picasso Uvalle LLM ’19 and Carolina Perez Feuerstein arrived at the Boston Immigration Court with their client and her family. They had submitted a massive, 650 page file that detailed how Isabel* and her children had faced severe persecution at the hands of corrupt government officials in their home country of Guatemala, and they we were ready to defend their case in court. However, just as they were beginning the trial, the judge did something unusual.

“The judge basically told the trial attorney that it was an incredibly well-documented case and pushed her to concede,” MacKenzie explained.

It was a joyful moment not only for Isabel and her family, but also Picasso and Perez Feuerstein, who had spent the entire semester helping build Isabel’s case, from preparing affidavits to researching country conditions to locating expert witnesses. MacKenzie noted that this is a true example of how, as he put it, “the real work is in the paper.”

Still, the students faced challenges in the case. As part of their preparation for trial, Picasso and Perez Feuerstein had to interview each of the clients numerous times. Tiny details, such as whether to translate a word as “village” or “town,” can affect the trajectory of a case so Isabel’s legal team had to ensure that they knew every aspect of her story. However, in the beginning, Isabel and her children felt frustrated when the students and attorneys asked them repeatedly about the same stories and events. Sensing this tension, Isabel’s attorneys and students decided to try to describe their legal strategy in a new way.

Picasso explained, “We just sat down and told them ‘We need to ask you these questions over and over again because we need to write a book about your lives and, for that matter, we need every single detail.’” With this new concept in mind, Isabel began to open up to the students and, ultimately, this helped Isabel’s legal team win her case in court. Picasso smiled as she recalled that, as they were leaving the courthouse, Isabel’s son said that now he wanted to write a story about his family and their lives.

Every day, clients like Isabel are required to share intimate details of their lives in order to seek refuge in the United States. Those seeking asylum and Withholding of Removal must provide proof of future harm, which often means recounting some of the most traumatic moments they have ever experienced. Both attorneys and students alike were inspired by Isabel’s courage to speak her truth in order to provide a better life for herself and her family here in the U.S.

“I think that I will never forget how much Isabel and her kids have taught me. Especially their strength and resilience in facing difficulties. It is an example that I will always have in mind when going through hard times,” Perez Feuerstein said.

*Client’s name has been changed to respect her privacy

A Guide to Fourth Estate v. Wall-Street.com

Via Cyberlaw Clinic 

Source: Pixabay

By: Sylvia Zhang, J.D. ’19

Section 411(a) of the Copyright Act states that “no civil action for [copyright] infringement…shall be instituted until preregistration or registration of the copyright claim has been made.”[1] In other words, copyright owners must “register” their copyrights before suing for copyright infringement. In Fourth Estate v. Wall-Street.com, decided in March 2019, the Supreme Court clarified that “registration” for the purposes of Section 411(a) occurs only when the Copyright Office registers a copyright and provides a certificate of registration and not when an applicant files for copyright registration.[2] Under this decision, copyright owners must wait for the Copyright Office to decide on their registrations before they are allowed to sue others for infringement. This decision could potentially create a substantial time lag during which copyright owners, especially those with limited budgets, are able to enforce their copyrights. This blog post summarizes the Fourth Estate case and its reasoning, the implications of the new rule, and some ways for copyright owners to respond, including how to register for copyright.

Summary of the Case

Fourth Estate is a news organization that licensed journalistic works to Wall-Street.com, a news website. Wall-Street eventually canceled the licenses but continued to display Fourth Estate’s works on its website without Fourth Estate’s consent. Fourth Estate then submitted copyright registration applications for these works and immediately sued Wall-Street for infringement. Wall-Street moved to dismiss the suit because the Copyright Office had not yet acted on Fourth Estate’s applications. The key dispute of this case is whether the Section 411(a) requirement of “registration” was met when Fourth Estate submitted a completed registration application or would only be met when the Copyright Office actually acted on the application. The Supreme Court sided with Wall-Street, holding that registration only occurs when the Copyright Office acts.

Circuit Split

Before the Fourth Estate decision, there existed a circuit split on this question. Some courts in the Fifth, Eighth, and Ninth Circuits followed the “application approach,” where the submission of a completed application to the Copyright Office was sufficient to meet the Section 411(a) requirement that “registration…has been made.”[3] Fourth Estate was a proponent of the “application approach.”

On the other hand, the Tenth and Eleventh Circuits followed the “registration approach,” which required the Copyright Office to make a decision on the application to meet the Section 411(a) requirement.[4] Wall-Street was a proponent of the “registration approach.” Because the Fourth Estatecase was originally brought in the Eleventh Circuit, the trial court and court of appeals both followed the “registration approach” and ruled in favor of Wall-Street.[5]

Supreme Court’s Reasoning

In Fourth Estate, the Supreme Court resolved the circuit split in favor of the “registration approach.” In a unanimous opinion authored by Justice Ginsburg,[6] the Court’s reasoning focused primarily on the statutory interpretation of Section 411(a) and the legislative history of the Copyright Act.

First, the Court focused on the basic statutory interpretation principle of keeping definitions consistent within a single statutory provision. The first sentence of Section 411(a) prohibits the initiation of an infringement suit until “registration…has been made.” The second sentence of Section 411(a) allows for the copyright applicant to initiate an infringement suit even if “registration has been refused” as long as the applicant serves notice to the Copyright Office.[7] In the second sentence, registration can only be refused if the word “registration” refers to a decision by the Copyright Office. Therefore, consistent with the principle that words within a single statutory provision should retain the same meaning, the Court reasoned that “registration” in the first sentence of Section 411(a) mustrequire a registration decision by the Copyright Office, and cannot refer to the mere submission of a registration application.[8] The Court also looked to other Copyright Act provisions that use the term “registration” to support its interpretation and applied the principle of avoiding statutory interpretations that create superfluous language.[9]

Second, the Court looked to legislative history. It found that, when Congress revised the Copyright Act in 1976, it endorsed the rule that an action by the Copyright Office is required to trigger a copyright applicant’s entitlement to sue.[10] Specifically, the addition of the second sentence of Section 411(a) in the 1976 revisions would be unnecessary if Congress meant to allow copyright owners to sue upon submitting an application. In addition, in 1993, Congress considered but declined to adopt a change that would allow a copyright applicant to sue immediately after submitting a registration application.[11] These pieces of legislative history supported the Court’s decision in favor of Wall-Street.com

The Court also dismissed Fourth Estate’s policy arguments. It found that waiting for registration from the Copyright Office would not deprive copyright owners of their rights, because once the Copyright Office decided on the application the applicant could still win damages for past infringements that occurred before registration.[12] The Court also pointed to preregistration (discussed in more detail below) as a way for time-sensitive works to acquire more protection.[13] Lastly, the Court noted that the long registration processing times at the Copyright Office cannot be a reason to interpret §411(a) differently. It said that the backlog is due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”[14]

In sum, the Supreme Court adopted the “registration approach,” which means that copyright owners do not automatically have the right to sue once they submit a completed registration application but, rather, must wait until the Copyright Office actually provides a certificate of registration (or denial thereof).[15]

Implications

The Fourth Estate decision is likely to have at least five major sets of implications:

  • Impact on Copyright Owners. One crucial implication of the Fourth Estate decision is that it reduces the leverage of copyright owners by taking away their ability to threaten and initiate immediate legal action if they have not yet obtained registration decisions from the Copyright Office. Currently, it takes between one and seven months, with an average of five months, for the Copyright Office to process an application.[16] Copyright owners may be unable to seek preliminary injunctions that prohibit alleged infringers from using their work during that time. However, as the Supreme Court noted, the decision does not change the ability of copyright owners to eventually recover damages from infringement that occurred before registration and from the infringer’s profits.[17]

 

  • Inequitable Impact on Small Copyright Owners. Although the Fourth Estate rule applies to all copyright owners, the impact of the rule may disproportionately harm small copyright owners. As explained below, the Copyright Office offers an “expedited process” that costs $800 per registration and provides a registration decision much more quickly than the regular process. When faced with infringement, deep-pocketed corporate copyright owners are much more likely to be able to afford the expedited process than small and individual copyright owners. Moreover, the Fourth Estate registration rule favors copyright owners that have the resources to consistently register their works for copyright over those who would be hard-pressed to register each of their works.

 

  • DMCA Takedowns. It may also be more difficult for copyright owners to sustain a DMCA takedown request. After a copyright owner files a DMCA takedown to remove allegedly infringing work from the Internet,[18] an alleged infringer can file a counter-notice and have the work reinstated.[19] After a counter-notice has been filed, platforms or Internet service providers may refuse to respond to a second DMCA takedown notice unless the copyright owner presents proof that it has initiated a court proceeding. If a copyright owner cannot initiate court proceedings absent a copyright registration, the intermediary may put content back up before a lawsuit can be commenced.

 

  • More Registrations. Now that merely filing a registration application is not enough to bring suit, copyright owners are more incentivized to apply for registration as soon as possible. Before Fourth Estate, some copyright owners filed for registration only when they were planning to sue for infringement. Now, the Fourth Estate rule may cause an influx of registrations (both regular and expedited) at the Copyright Office, which could cause processing times to increase beyond the current average of five months. On the other hand, Fourth Estate has brought the issue of administrative lag at the Copyright Office to the attention of some senators, and could potentially lead to Congress’s provision of more resources to the Office and relieving some of the backlog.[20]

 

  • Less Forum Shopping and Fewer Frivolous Claims. Under Fourth Estate, the registration rule is now consistent throughout the country, which means that plaintiffs will no longer have an incentive to bring infringement cases in circuits where the rule was favorable to them. Moreover, the higher barrier to bringing copyright infringement suits may stop plaintiffs from bringing frivolous or peripheral copyright claims in order to threaten high statutory damages.

All in all, Fourth Estate does not change the copyright landscape drastically, because copyright owners have always had to register their works before suing for infringement and they can still recover all monetary damages, even those incurred before registration. The primary difference now is that there may be a substantial delay between application for registration and filing an infringement suit.

How Should Copyright Owners React? Register for Copyright.

Under Fourth Estate, a copyright owner must have a registration decision from the Copyright Office before it can sue someone for infringing its copyrightable work. If a copyright owner applies for registration only after it finds out about the infringement, the copyright owner could be waiting five or more months before the Copyright Office registers your work.

There are three ways for copyright owners to avoid the wait.

First, a copyright owner can apply for registration as soon as its works are published, so that it will have a registration decision from the Copyright Office at the ready. Early submission of registration applications may turn out to be the best and simplest approach for copyright owners in the wake of the Fourth Estate. Although this will not necessarily decrease the copyright owner’s total wait time, it could mean that the copyright owner will have a certificate of registration ready if its work is ever infringed, and it will not feel pressured to expedite the registration process. Moreover, registration also provides other benefits. For example:

    • Registration is prima facie evidence of the validity of copyright, which means that courts will presume that that the copyright owner’s work is protected by copyright.
    • When registration is made within the first three months of publication, the copyright owner will be eligible to win statutory damages and attorneys’ fees in an infringement suit, potentially making the threat of a lawsuit more alarming for the infringer.
    • Registration creates a public notice of the fact that a work is protected and of the identity of the copyright owner. This could help people who want to license the work to find the copyright owner.[21]

Registrations can be done online through the Electronic Copyright Office Registration System (called eCO) as well as through mail-in paper applications. Electronic applications are, however, cheaper and are reviewed faster than paper applications. Currently, the most basic application, which is for a single work owned by a single claimant who is also the author of that work, costs $35. Other online filings cost $55, while paper applications cost $85 or more. Photographers may be able to register up to 750 published photographs in one application under the Group Registration for Published Photographs procedure, as long as they were created by the same author in the same calendar year. For more information on how to register copyrights, see the two following guidance documents published by the Copyright Office: “Registering a Copyright with the U.S. Copyright Office” and “Copyright Office Fees (Circular 4).”

Second, for certain types of time-sensitive works, a copyright owner can apply for preregistration, which allows one to sue for infringement even before the works are published. Like registration, preregistration allows a copyright owner to initiate an infringement suit.[22] But, preregistration is limited to only a few types of works that tend to be infringed prior to authorized commercial distribution—specifically motion pictures, sound recordings, musical compositions, books, computer programs, and advertising or marketing photographs.[23] Other types of works are not available for preregistration. Moreover, preregistration is not a replacement for normal registration, so a copyright owner must still complete a registration application after publication. Preregistration is only available online and currently costs $140 per application.[24] For more information on preregistration, see the Copyright Office’s webpage.

Lastly, if necessary, a copyright owner can utilize the expedited application process and obtain a decision from the Copyright Office with much less delay. Expedited registration — which the Copyright Office calls “special handling” — is available for all types of works but is only granted in some specific circumstances. One such circumstance is where there is pending or prospective litigation.[25] For a registration with a special handling request, the Copyright Office “will make every effort to complete its examination of the claim…within five working days” of the request being made. But, it cannot guarantee that every claim will be registered within that time frame.[26] A copyright owner can request special handling when it first submits an application, as well as for an application that is already submitted.[27] Special handling for registration currently costs a hefty $800 per claim in addition to the regular application fee.[28] For more information on special handling, see the guidance document “Special Handling (Circular 10)” published by the Copyright Office.

Sylvia Zhang (HLS JD 2019) was an advanced clinical student in the Cyberlaw Clinic during the spring semester 2019. Note:  This post is informational and does not constitute legal advice; if you have questions about the applicability of the Fourth Estate decision to your own copyright registration activities, please consult a lawyer.

[1] 17 U.S.C. § 411(a) (2017).

[2] 139 S. Ct. 881, 892.

[3] See, e.g., Apple Barrel Prods. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006); Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir. 2010).

[4] See, e.g., LaResolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200-01 (10th Cir. 2005); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 note 4 (11th Cir. 1986).

[5] See Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, No. 16-60597, 2016 U.S. Dist. LEXIS 187499, at *3 (S.D. Fla. Mar. 23, 2016); Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1341 (11th Cir 2017).

[6] Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).

[7] 17 U.S.C. § 411(a).

[8] See Fourth Estate, 139 S. Ct.at 889.

[9] See id.

[10] See id. at 890-91.

[11] Id. at 891.

[12] See id. at 891.

[13] See id. at 892.

[14] Id. at 892.

[15] If the Copyright Office refuses registration, the applicant is allowed to sue for infringement as long as it serves a copy of the complaint to the Register of Copyrights (i.e. the director of the Copyright Office). In such a suit, the presiding court will also decide on the issue of registrability. See17 U.S.C. § 411(a) (2017).

[16] Registration Processing Times, U.S. Copyright Office (2019), https://www.copyright.gov/registration/d…See also FAQs, Copyright Office, https://www.copyright.gov/help/faq/faq-w… (last visited May 19, 2019).

[17] See Fourth Estate, 139 S. Ct. at 891; 17 U.S.C. § 504 (2017).

[18] See 17 U.S.C. § 512(c)(3) (2017).

[19] See id. at § 512(g)(3).

[20] See Steve Brachmann, Senators Tillis and Coons Express Concerns with Fourth Estate in Letter to Copyright Office, IP Watchdog (Mar. 26, 2019), https://www.ipwatchdog.com/2019/03/26/senators-tillis-coons-express-concerns-fourth-estate-letter-copyright-office/id=107697/See also Letter from Sen. Thom Tillis and Sen. Christopher Coons to Karyn Temple, Acting Register of Copyright (Mar. 14, 2019), [21] See U.S. Copyright Office, Circular 1: Copyright Basics 5 (2017), https://www.copyright.gov/circs/circ01.pdf.

[22] 17 U.S.C. § 411(a).

[23] Preregistration, U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-prereg.html (last visited May 19, 2019).

[24] U.S. Copyright Office, Circular 4: Copyright Office Fees 3 (2018), https://www.copyright.gov/circs/circ04.pdf.

[25] U.S. Copyright Office, Circular 10: Special Handling 1 (2017), https://www.copyright.gov/circs/circ10.pdf.

[26] Id. at 2.

[27] Id. at 5.

[28] Id. at 2.

Clinic Submits Comments on EPA’s Proposed IRIS Assessment Plan for Methylmercury

Via the Emmett Environmental Law and Policy Clinic

The Clinic submitted comments  [earlier this month] on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury.

The Clinic submitted the comments on behalf of Philippe Grandjean, Elsie M. Sunderland, David C. Bellinger, Joel D. Blum, Esben Budtz-Jørgensen, Laurie H.M. Chan, Celia Y. Chen, Charles T. Driscoll. Jr., David C. Evers, Kathy Fallon Lambert, Irva Hertz-Picciotto, Margaret Karagas, Sally Ann Lederman, Gina Muckle, Frederica Perera, and Ellen K. Silbergeld.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho as well as Professors Grandjean and Sunderland.

The IRIS Program allows staff in EPA’s Office of Research and Development to assess the toxicity of chemicals independently of any specific regulatory program.  The results of IRIS Assessments then serve as a key source of toxicity information for EPA as well as state and local health agencies and other federal agencies.  At the conclusion of an assessment, EPA may establish a Reference Dose (RfD)—an estimate of the “daily oral exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime.”

Methylmercury is a highly toxic and bioaccumulative contaminant.  People are exposed to methylmercury primarily through consuming seafood and freshwater fish.  EPA last completed an IRIS Assessment for methylmercury in 2001.

Our comments:

  • Commend EPA for deciding to reassess the methylmercury RfD. We agree with EPA that a reassessment of the developmental neurotoxicity reference dose is “justified by recent epidemiological studies that analyzed effects at lower methylmercury exposure levels than those in studies used to derive the existing RfD.”
  • Urge EPA to acknowledge the imprecisions in exposure measurements that have deflated the RfD level, and account for such biomarker imprecisions in the reassessment.
  • Recommend that EPA account for genetic differences in susceptibility to methylmercury toxicity both in setting the RfD and in deriving the dose response relationship for developmental neurotoxicity outcomes.
  • Support EPA’s proposal to study a variety of DNT outcomes, including cognitive function and behavioral, structural, and electrophysiological effects, when setting the RfD. Specifically, IQ is not the optimal neurobehavioral outcome measurement for DNT effects of methylmercury.
  • Argue that EPA should include cardiovascular impacts in the IRIS assessment.
  • Advise EPA to be mindful of the possible complexities created by the confounding effects when interpreting studies of methylmercury exposure from fish consumption.

The Clinic’s comments are available here.

Clinic Reports Show Benefits of Joining the Nuclear Weapon Ban Treaty Outweigh Concerns

Via the International Human Rights Clinic

Source: Pixabay

By: Bonnie Docherty

As countries engage in national debates about joining the 2017 treaty banning nuclear weapons, they should focus on the treaty’s humanitarian and disarmament benefits.

To inform these discussions, the International Human Rights Clinic has released a new briefing paper and two government submissions that highlight the advantages of ratifying the Treaty on the Prohibition of Nuclear Weapons (TPNW) and seek to alleviate concerns some states may have.

Countries affected by nuclear weapon use and testing have much to gain from the TPNW’s provisions on victim assistance and environmental remediation. In a 9-page paper, the Clinic presents 10 myths and realities regarding the TPNW’s so-called “positive obligations.” It aims to raise awareness of these provisions and correct misconceptions and misrepresentations about their content.

The briefing paper explains how the TPNW spreads responsibility for assisting victims and remediating contaminated areas across states parties. While affected states should take the lead for practical and legal reasons, other states parties should support their efforts with technical, material, or financial assistance.

The paper also shows how the positive obligations can be effectively implemented and make a tangible difference, despite the devastating effects of nuclear weapons.

In recent government submissions, the Clinic has addressed the situation of countries that are members of or partners with NATO. It has called on Iceland and Sweden in particular to join the TPNW, but the arguments apply to any states in a comparable position.

Ratifying the TPNW would further these countries’ long-standing support of nuclear disarmament and promote compliance with the Nuclear Non-Proliferation Treaty. At the same time, members or partners of NATO or a similar alliance should not face legal obstacles to joining the TPNW. While a state party to the TPNW would have to renounce its nuclear umbrella status, it could continue to participate in joint military operations with nuclear-armed states.

The Clinic released related reports focusing on the Marshall Islands and Australia in 2018.

As of April 30, 2019, the TPNW had 70 signatories and 23 states parties. It will enter into force when 50 states have become party.

Clinical students Molly Brown JD ’19, Maria Manghi JD ’20, and Ben Montgomery JD ’20 worked on these publications under the supervision of Bonnie Docherty, associate director of armed conflict and civilian protection.

Emmett Clinic Files Comments Opposing EPA’s Proposal to Undermine Mercury Standards for Coal-fired Power Plants

Via the Emmett Environmental Law & Policy Clinic

Source: Pixabay

The Emmett Environmental Law & Policy Clinic submitted comments today on behalf of a group of leading scientists in opposition to the Environmental Protection Agency’s (EPA) proposal to rescind the finding underlying its regulation of mercury and other toxic air pollutant emissions from coal-fired power plants.  This proposal, if finalized, could lead to the repeal of regulations for the largest source of mercury emissions in the United States.

The Clinic filed the comments on its own behalf as well as on behalf of Elsie Sunderland, Charles Driscoll, Kathy Fallon Lambert, Joel Blum, Celia Chen, David Evers, Philippe Grandjean, Robert Mason, and Noelle Eckley Selin—leading experts in the fields of atmospheric transport, ecosystem fate and effects, bioaccumulation, human exposures, and health outcomes associated with environmental mercury contamination.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho.

EPA regulates emissions of toxic air pollutants such as mercury under section 112 of the Clean Air Act.  When Congress amended the Clean Air Act in 1990, it directed EPA to set emissions standards for all major sources of 189 toxic air pollutants under a strict timeline.  The one exception was emissions from coal-fired power plants.  Congress in those same 1990 amendments had created the acid rain cap-and-trade program—which applied only to coal-fired power plants—and it was thought that the controls that power plants installed to reduce sulfur dioxide emissions might also reduce emissions of mercury and other air toxics.  Therefore, Congress instructed EPA to determine whether it was “appropriate and necessary” to regulate power plant emissions under section 112 after taking into account the effect of the acid rain program.

In the end, power plants largely complied with the acid rain program by switching to low-sulfur coal, and coal-fired power plants remained the leading source of mercury emissions in the United States.  EPA therefore determined in 2000 that it was appropriate and necessary to regulate toxic air pollutant emissions from power plants.  It confirmed this finding in 2012 and imposed emissions standards at that time.  All coal-fired power plants are now in compliance with those standards.

Nevertheless, EPA has now proposed to reverse its prior findings and conclude that it is not “appropriate” to regulate these emissions.  As our comments explain:

  • EPA’s proposal is based on an eight-year-old analysis which even at that time was incomplete and which underestimated the benefits of regulating power plant mercury emissions.
  • The scientific literature includes significant new evidence of the benefits of regulating power plant mercury emissions, including estimates of those benefits that are orders of magnitude larger than EPA’s.
  • It is now clear that reductions in mercury emissions from power plants result in localized and regional reductions in atmospheric mercury deposition, which amplifies the benefits of decreasing domestic emissions.
  • The entire industry has by now come into compliance with the mercury and air toxics standards. It is therefore no longer necessary to rely on predictions of the compliance costs.  Multiple analyses have estimated that the actual costs of compliance are less than a billion dollars per year compared to the $9.6 billion per year EPA predicted in 2011.
  • Regardless of whether EPA can reverse the appropriate and necessary finding, it does not have the authority to delist power plants or repeal their emissions standards without going through the section 112(c)(9) delisting process

The Clinic’s comments are available here.

New Federal Interagency Strategy Provides Opportunity to Advance Food Waste Reduction Efforts

Via the Center for Health Law and Policy

Source: Pixabay

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste. As FLPC wrote in an earlier blog post, this strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. This post outlines several actions that the federal agencies can take within these priority areas to maximize food waste reduction.

Priority Area 1: Enhance Interagency Coordination

The strategy’s first priority area calls for improved coordination between EPA, FDA, and USDA in order to maximize resources and avoid redundant efforts. FLPC has long advocated for improved interagency coordination on the issue of food waste. Food waste is often left out of the calculation when policies are developed simply because it is not on the radar of decision makers. Better coordination among agencies can ensure that measures to address food waste are included in relevant federal programs, such as conservation programs and food assistance programs.

FLPC has also been an advocate for enhanced coordination across the food system more broadly. In February 2017, FLPC and the Center for Agriculture and Food Systems at Vermont Law School published a report proposing a national food strategy that would require a coordinated approach to policymaking and regulation of the food system. We are pleased to see the federal agencies recognize the need for improved coordination and hope that their efforts around food waste can serve as a template for other areas of the food system.

Priority Area 2: Increase Consumer Education and Outreach Efforts

Recognizing that many consumers do not know about the issue of food waste, the second priority area proposes the development of a consumer education campaign by the federal agencies in partnership with public and private sector entities. According to ReFED, consumer education campaigns are one of the top two most cost-effective food waste solutions and have the greatest overall diversion potential at 584,000 tons. In the United Kingdom, a similar national education campaign led to a 21% reduction in consumer food waste over five years and had a 250 to 1 benefit-cost ratio.

Several national consumer education campaigns, such as the Save the Food campaign created by NRDC and the Ad Council, already exist in the U.S., as do various local, state, and regional campaigns. Federal government support can build on existing campaigns like Save the Food and utilize their research and materials to help ensure that the information is disseminated more widely and better incorporated into other relevant federal programs and materials.

Priority Area 3: Improve Coordination and Guidance on Food Loss and Waste Measurement

Priority Area 3 proposes enhanced coordination and guidance on food waste measurement in order to help refine food waste reduction goals and better report on progress. Data on food waste trends can help government entities, businesses, and other stakeholders identify the most effective solutions and track progress over time.

States and localities have been at the forefront of efforts to measure food loss and waste. For example, the Oregon Department of Environmental Quality, in partnership with Portland State University’s Community Environmental Services, is conducting a five-part Wasted Food Measurement Study that will look at the amount of food waste generated in the state and seek to identify drivers of food waste. In addition to coordinating among federal agencies and developing voluntary guidance on best practices, the federal government can advance food waste measurement efforts by providing funding to support state studies and initiatives to measure food waste.

Priority Area 4: Clarify and Communicate Information on Food Safety, Food Date Labels, and Food Donations

The fourth priority area seeks to reduce confusion by providing guidance on food date labels, food safety, and liability protections for food donation. Federal action to streamline and provide clarity on each of these topics is consistent with longstanding FLPC recommendations.

Date Labels

Confusing date labels result in unnecessary food waste among consumers and in the retail sector. Because of a lack of federal law standardizing date labels, date labeling language varies from state to state and across food products, and date labels generally have no relation to a food’s safety. Yet 84 percent of consumers report discarding food close to or past the date on its package. Federally-standardized date labels are the most cost-effective solution to food waste according to ReFED and have the potential to divert an estimated 398 thousand tons of food waste.

Important steps have been taken in recent years to reduce consumer confusion by encouraging the use of standard date labeling terms to indicate quality and safety. In particular, FLPC applauds USDA’s industry guidance, which encourages manufacturers to use the standard term “Best if Used by” to indicate product quality. We have also been excited to see industry action to standardize date labels, most notably the voluntary Product Code Dating Initiative. Launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA), this initiative encourages businesses to use only one of two standard phrases on any food product: “BEST if used by” for products where it is an indicator of quality, and “USE by” on products that may have a safety risk over time. However, due to conflicting state laws and the voluntary nature of this initiative, universal adoption of these voluntary standards cannot happen without federal action. Therefore, the federal agencies should work with Congress to support federal legislation to standardize date labels; alternatively, FDA and USDA can require the use of standard date labeling language on products within their jurisdiction through regulations. Once labels are standardized, the three agencies can work to educate consumers to make better decisions and waste less.

Liability Protections

The Bill Emerson Good Samaritan Food Donation Act provides strong liability protection to food donors and nonprofit organizations that distribute donated food. Yet many food retailers, restaurants, and manufacturers still cite liability as a barrier to food donation. The federal agencies can promote food donation by raising awareness of the liability protections available under the Emerson Act. Additionally, USDA can provide clarity on ambiguous terms in the Act by developing guidance on the scope of the available protections. These actions are consistent with provisions in the 2018 Farm Bill instructing USDA to create guidance on elements of the Emerson Act and to raise awareness of the liability protections provided by the Act. With the focus on this topic as part of the interagency food waste strategy, FLPC hopes to see agency action to clarify and raise awareness about this important protection so that donors are encouraged to donate safe, surplus food. We also hope that the agencies will support efforts to enhance Emerson Act protections to better align with the modern food recovery landscape, such as the Food Donation Act of 2017 or similar efforts.

Food Safety

Another key barrier to food donation is confusion about what safety procedures are required for food donation. A fifty-state survey of state food safety officials, conducted by FLPC and the Food Safety for Donations Working Group, found that one reason for this confusion is that most states and localities do not have regulations or guidance on this topic. Most states and localities use the FDA Food Code, a model code developed by the Conference of Food Protection, as the basis for their food safety regulations for restaurants and retailers. Because the FDA Food Code does not include information about food donations, very few state or local regulations address this topic. The agencies, particularly FDA, can support safe food donation by creating guidance for restaurants and retailers on food safety practices for food donation; this guidance could be part of the FDA Food Code or separate. FDA can also create similar guidance for food facilities.

Priority Area 5: Collaborate with Private Industry to Reduce Food Loss and Waste Across the Supply Chain

The fifth priority area calls for collaboration between the federal government and the private sector. Food businesses have been leaders in food waste reduction efforts, with many adopting food waste reduction goals and implementing practices to reduce food waste in their operations. Yet limited data exists on the scope of these goals and the impact they have made. The federal agencies can help advance private sector initiatives by working with food businesses to collect, analyze, and report information about their efforts and their progress towards their goals.

Priority Area 6: Encourage Food Waste Reduction by Federal Agencies in their Respective Facilities

The final priority area seeks to position federal agencies as leaders by example, by encouraging federal agencies to reduce food waste in their own cafeterias and events. The Federal Food Donation Act of 2008 represented an important first step in this direction; the Act encourages executive agencies entering into food service contracts above $25,000 to donate excess food. Agencies must include clauses in their contracts encouraging the contractor to donate surplus food to the extent possible. However, the Act does not actually require the agencies or their contractors to donate, or even to report on the amount of food that is donated. FLPC has made recommendations to strengthen this Act by requiring federal agencies to report on the amount of food they donate and requiring contracts to include language mandating that contractors take steps to donate surplus food.

EPA, FDA, and USDA can model the federal government’s commitment to food waste reduction by including provisions in their own food service contracts that require the contractors to enter into agreements with food recovery organizations to donate excess food. The agencies can also commit to taking steps to reduce the amount of food waste generated in their cafeterias, and to sending excess food that is not edible to organics recycling facilities to the extent possible. Finally, the agencies can commit to collecting and publicizing data on the amount of food that they donate and recycle.

FLPC is thrilled to see the agencies begin to take coordinated action on food waste, and we hope to work with the agencies and other stakeholders to implement some of these next steps.

Mayor Pete Answers My Question About Predatory For-Profit Colleges

Via the Project on Predatory Student Lending 

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

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

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

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

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

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

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

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

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

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

 

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 EL&PC and the important connection between science, law, and the environment.

EL&PC’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, EL&PC 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

 

Learn more:  

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.

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