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Category: Legal & Policy Work (page 2 of 7)

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.

Lethal Autonomous Weapons Systems: Recent Developments

Via Lawfare 

Source: Flickr

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

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

Background on LAWS

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

Global Developments

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

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

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

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

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

Highlights from the GGE’s August 2018 Meeting

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

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

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

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

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

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

Highlights from the High Contracting Parties’ November 2018 Meeting

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

Looking Ahead

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

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

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

Via Mississippi Today 

By: Anna Wolfe

Source: Pexels

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

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

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

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

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

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

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

Capital Emergency Physicians did not return calls to Mississippi Today.

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

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

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

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

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

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

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

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

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

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

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

 

Making it big behind the scenes

Via The Harvard Gazette

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

By: Liz Mineo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rechtszaid agreed.

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

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

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

Split High Court Upholds Post-Plea Appeal Rights

Via Law360 

By: Jody Gody

Source: Canva

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

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

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

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

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

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

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

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

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

“A defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest,” the court said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Veterans Legal Clinic students argue case before federal court of appeals

Via Harvard Law Today 

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

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

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

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

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

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

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

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

Listen to the oral argument here.

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

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

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

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

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

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

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

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

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

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

 

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

Source: Canva

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

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

Read more about students’ experiences:

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

Courtesy of Google Maps

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

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

                                                              Independent Clinical Placements

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