Clinical and Pro Bono Programs

Providing clinical and pro bono opportunities to Harvard Law School students

Category: Student Voices (page 1 of 4)

Compassion and Commitment in Child Advocacy

Florence Bryan ‘19

By: Florence Bryan, J.D. ’19

I was fortunate to work with the dedicated attorneys at the Children and Family Law Trial Division (CAFL) of the Committee for Public Counsel Services, the public defender agency for Massachusetts, during my 2L year. As a student in the Child Advocacy Clinic, I worked on-site at CAFL three days a week learning both the law and key lawyering skills under experienced supervising attorneys. There I realized how important it is to be a zealous advocate both in and out of the courtroom.

The attorneys at CAFL represent children and parents in both Care and Protection cases, which involve allegations of abuse or neglect, and Child Requiring Assistance cases, which involve children alleged to have challenges at school or home. As an intern at CAFL, I assisted attorneys with preparing for termination of parental rights trials, drafting motions, reviewing client files, and researching various issues for cases. After diving into this new area of law, I also had the opportunity to represent clients in court. It was a privilege to get to know children and parents, even as they faced some of the most difficult times in their lives, and to help them navigate the legal process alongside my supervising attorneys.

At CAFL I observed attorneys with a variety of advocacy styles. But despite having different approaches, everyone in the office shared a truly client-centered mentality. Their advocacy went far beyond the courthouse doors. The attorneys were continuously working to connect their clients with services, negotiate with other attorneys on cases, and reach out to family, friends, and community resources.

From watching the attorneys in action, it became clear to me that the foundation of their strong advocacy is effective communication with clients—especially when their clients are children. The attorneys spend a significant amount of their time with clients listening and asking questions to get a complete sense of who they are and what outcome they want. I tried to mirror this in my own interactions with clients, as I wanted to be sure that each client had a full understanding of what was happening and an opportunity to come to a decision about the case that was genuinely their own. I think this kind of advocacy not only leads to better outcomes for families, but also gives children, in particular, a sense of agency when so much feels out of their control.

With compassion and commitment, the attorneys at CAFL help children and parents through incredibly challenging situations, working just as hard for their clients behind the scenes as they do in the courtroom. I hope to carry what I learned from their example in work that I do in the future.

 

How Practicing Entertainment Law in TLC Made Me a Better Lawyer

Iain McCarvell, LL.M .‘19

By: Iain McCavill LL.M. ’19

The Transactional Law Clinic was one of the most useful, necessary, and enriching courses I took at Harvard Law School. I chose to focus my clinical work in entertainment law. My interest in entertainment law stemmed from my six-year journey as a musician and manager of a touring rock band. The Transactional Law Clinic represented my first opportunity to work in the entertainment industry since 2015 when I traded in practicing music for practicing law by applying to law school. I enrolled in the Transactional Law Clinic because I wanted to learn more about how the entertainment industry works, to understand the types of deals done, and to learn about the legal language used in showbiz agreements. While I learned a lot about those things, what I learned most was how to be a better lawyer.

I learned that my desire to understand the industry, the deals, and the applicable law was vital but myopic. The Transactional Law Clinic helped me discover that in my eagerness to master the legally salient aspects of my chosen profession, I had forgotten about the most important thing: the client – the human being whose legal issues I was being trained to resolve. From the initial client interview to eventual case resolution and beyond, I learned how important it is to be curious, to discover what makes the client tick, and to discover what the client cares about beyond the immediate legal issue at hand. I found out that the more I learned about the person I represented, the better I was able to advocate on their behalf.

Another thing I gained from the Transactional Law Clinic was the opportunity to bump into ethical issues in a controlled environment. As a law student, I did not have a full appreciation for the ubiquity and frequency with which ethical issues arise in everyday practice. Learning the theory behind the Rules of Professional Conduct is a different thing altogether from actually handling ethical issues as they arise. The Transactional Law Clinic gave me the opportunity to spot, consider, and address these issues in real time.

It would be remiss of me to not mention the humbling quality of my classmates in the Transactional Law Clinic. Whether through in-class discussions, attendance at the clinic each day, or trips to the Harvard Innovation Lab, I learned a lot from them and made some lasting bonds.

As a 2019 Harvard LL.M and a 2018 J.D. graduate of a small underfunded Canadian law school (go UNB!), the Transactional Law Clinic was my first opportunity to work in a practical setting under the guidance of experienced lawyers who were themselves not captives of the billable hour. This environment allowed the clinic’s supervising attorneys to provide helpful feedback and support throughout the semester. With this tremendous guidance, I developed important skills related to interviewing clients, case management, negotiating, and communicating better with clients and related third parties. And one more thing: if, like me, you ever thought it was absurd that many law students graduate from law school without ever actually seeing a contract, then you probably should have signed up for the Transactional Law Clinic.

Learning Key Litigation Skills in the Crimmigration Clinic

Lyla Wasz-Piper ’20 and Kaela Athay ’19

By: Lyla Wasz-Piper, J.D. ’20 and Kaela Athay, J.D. ’19

The law school environment can, at times, feel insular and abstract. But supporting a person’s right to stay in the country with his wife and children transforms the theoretical into the practical. Similarly, the law school’s call to act is a lofty goal, but through clinics—and particularly the Crimmigration Clinic—students like us have the ability to take the law out of the classroom and apply our learning to some of our nation’s most pressing issues.

This semester, the Crimmigration Clinic and the Immigrant Defense Project (“IDP”)—an immigrant rights organization focusing on the interplay between criminal and immigration law—co-counseled an amicus brief on behalf of other immigrant rights organizations in support of a petition for rehearing in the Ninth Circuit. The case involved a longtime lawful permanent resident who came to the United States when he was only ten days old, but is now facing deportation because of a minor criminal conviction that is more than ten years old.

As Crimmigration Clinic students we were charged with drafting the amicus brief. We both found drafting the brief an incredibly valuable experience. Although we plan to pursue different legal careers upon graduation, we both learned important litigation skills that we will take with us whether we’re practicing appellate advocacy or providing direct client services.

The legal arguments in the Crimmigration Clinic’s amicus brief were complex but largely focused on the fundamental unfairness of applying a new law to a guilty plea that was entered into while relying on the old law. In this case, at the time of the client’s plea, he had to make a decision: proceed to trial, or craft a plea agreement with the help of his defense and immigration counsel to preserve his legal immigration status in the United States. For many noncitizens, preserving the right to remain in the country is often a paramount concern. At the time of the plea the law seemed clear that the offense would not trigger his removal. Five years later, the immigration appellate court abruptly departed from well-established practice and found that the offense to which the petitioner had pleaded guilty was, in fact, a deportable offense. Applying that change in law retroactively, the petitioner was then placed in removal proceedings where he was ultimately ordered removed.

The petitioner then appealed the removal order up to the Ninth Circuit where a divided panel upheld the lower court’s removal order and reasoned that the retroactive application of the new law was permissible. One judge on the panel penned a strong dissent demonstrating that the panel’s decision misapplied the Ninth Circuit’s own retroactivity law. In support of the petitioner’s request to have the Ninth Circuit reconsider its decision, the Crimmigration Clinic and IDP submitted its amicus brief.

As Crimmigration Clinic students, we worked closely with our supervisor, Phil Torrey, and co-counsel at IDP to develop three main arguments advanced in our brief. First, we argued that it would be virtually impossible for criminal defense attorneys to advise their noncitizen clients about future immigration consequences of guilty pleas if immigration laws could be altered by immigration officials in the future and then applied retroactively. Second, we argued that the Ninth Circuit improperly applied its own retroactivity analysis. Finally, the brief explained that if the test was properly applied, it would weigh in favor of the petitioner and the new law would not retroactively apply to his prior guilty plea.

Researching and writing this amicus brief has been the most challenging and rewarding experience of our law school careers thus far. Participating in a clinic provides a unique opportunity for faculty engagement and independent work: the complexity of the legal work means that you’re constantly learning new skills while working closely with the supervising attorney. The Crimmigration Clinic has allowed us to develop strong mentor relationships, work with a community of students and faculty similarly dedicated to immigration reform, and gain real experience practicing law at such a critical time in our legal and political climate.

Visiting MCI Concord

By: Liz Archer, JD ’20

Students in the Spring 2019 Judicial Process in Trial Court Clinic. Credit: Jean Lee JD ’19

On April 22, students in the Judicial Process in the Trial Courts Clinic visited MCI Concord, a medium security prison for men. While in the clinic, some students observed sentencing hearings where individuals where sent to serve time at MCI Concord. Hon. Judge John C. Crastley (Ret.), the Lecturer on Law for the Clinic, organized a trip to the facility to help students understand the consequence of those sentences. On our tour of the facilities, we visited the segregation unit, a general population unit, and the prison’s religious spaces. In the final part of our tour, we were introduced to the NEADS Program through which inmates train service dogs. The participating inmates gave a presentation demonstrating the particular skills that they are developing with their dogs. For example, one inmate is training his dog to identify and respond to different sounds in order to serve a deaf client. This was the most interesting part of our visit to MCI Concord because of the powerful impact that the NEADS Program seems to have on participating inmates and the clients that they serve. Students also had the opportunity to meet and speak with the inmates following their presentation. During those subsequent conversations, the inmates shared some of their experiences and advice about how students could best serve their future clients.

I left our visit of MCI Concord feeling conflicted. On the one hand, I believe lawyers should have an informed understanding of the implications of their work, including the experience of incarceration. Visiting a prison is one way to get a better sense of what that experience is like and speaking with inmates or formerly incarcerated individuals is another, perhaps better, way to develop that understanding. On the other hand, I worry about the invasiveness of prison tours. There were moments where being on the outside looking in felt uncomfortable, and perhaps the inmates felt the same way. Ultimately, I believe our visit was a valuable experience, particularly because students had the opportunity to engage with the inmates about their experiences. But I also think that, when visiting these institutions, visitors should be aware of the privilege they carry and the weight of the activity they are engaging in.

Consulting in the Law

By: Julia Nitsche, J.D. ’19

Julia Nitsche J.D. '19

Julia Nitsche J.D. ’19

 

Over the course of my three semesters with the Food Law and Policy Clinic (FLPC), I have worked on numerous projects, from state technical assistance, to the Farm Bill, to international food waste regulations.  All of them presented their unique sets of interesting challenges, and I feel like I have learned a ton from the collective experience of working on them all. Perhaps the most formative experience I had, was the Pittsburgh Food Policy Council Project.

In my first semester with the FLPC, I was assigned to a project where we worked with the Pittsburgh Food Policy Council (PFPC) to help them craft policies that would be more favorable to small or cottage food vendors. PFPC told us that they felt small food vendors in the Pittsburgh area were having a hard time opening new businesses, and they needed both guidance on how to make the process easier, and ideas on how to incentivize healthy food vendors to come onto the market.

The project was broad, and frankly a little scary. I didn’t know the first thing about the cottage food industry, or Pittsburgh, or Food Policy Councils (of which, it turns out, there are many). But with the help of my peers on the project and our clinic supervisor, we designed a plan and got to work. We put ourselves in the mindsets of a new business owner, combed through local food safety and vending regulations, and identified pain points. Then, we did some research on how other cities regulated small food vendors, and what types of incentives people had proposed for healthy food vending, like discounted vending permits for fruit & veg vendors operating in underserved areas. With a little structure and a lot of research, we finally put together a memo on what we had found, and our recommendations for how Pittsburgh could make its regulations less onerous on small, healthy food vendors.

I was lucky enough to go to Pittsburgh in my second semester with FLPC to continue the project and present our findings to the PFPC members. Overall, it was a great experience – they were very receptive, thrilled to have our help, and it really felt like our recommendations might make a difference.

While I am not going to practice law once I graduate, there are many things I take away from this project, and the rest of my experiences at FLPC, that I know will be useful to me in my career as a consultant at Boston Consulting Group. First, I know that I can tackle any project, no matter how large. Combing through all of Pittsburgh’s statutes relating to food safety and vending regulations seemed insurmountable at first. But taking a step back, coming up with a plan, and then assigning jobs amongst our team broke a massive project into manageable pieces. I know that in consulting, this type of approach is paramount (and in law too). Second, this project helped me develop my research skills. I doubt I will have the occasion to look up local regulations in consulting, but there is something to be said for learning how to find information – knowing where to look and knowing when to ask. Third, meeting and presenting to our client, PFPC, definitely prepared me for my future career. And finally, this project centered around teamwork. We so rarely have the opportunity to work with others in law school, but on work projects we are often a much smaller piece of a larger whole. This is true in consulting, in law, and in life. I know that it was really helpful to me to have at least one experience in law school where I worked with someone else and truly had to communicate with them and rely on them to render a good result.

I am so grateful to FLPC for the great projects they have exposed me to and recommend anyone interested in food law or getting practical experience to join!

 

 

15 and Monitored – Not Guilty on All Counts

By: Michaela Strout JD ’19 & Ethan Mendoza JD ’19

CJI Student Michaela Strout (right), JD'19, Clinical Instructor Aditi Goel (middle), and Ethan Mendoza JD'19 (left)

CJI Student Michaela Strout, JD’19, Clinical Instructor Aditi Goel, and Ethan Mendoza JD’19

There is one case and one client in particular – a client whom we represented through the Criminal Justice Institute (CJI) – that stands out. Jonathan is a fifteen-year-old Black boy from Mattapan who was wrongfully accused of and charged with possessing and firing a gun inside his own home. Despite the fact that he had no prior criminal record and despite the lack of any real evidence against Jonathan, Jonathan was anchored with a GPS monitor device by the court for the entire year and a half leading up to his jury trial. Jonathan once showed us how the monitor’s abrasive plastic strap–which he could never take off, not even at night to go to bed, to go to class at his high school, or to shower–had worn down the skin on his ankle, so much so that it was raw and peeling.

But because Jonathan was unwilling to admit to something he did not do, he suffered both the pain and indignity of the GPS monitor until his trial in March of 2019. We spent hours every week for months with our clinical instructor, Aditi Goel, preparing, practicing and reworking and rewriting our cross-examinations of experts and police officers, our opening and closing arguments, and our trial strategy. Before the trial had started, the ADA prosecuting the case had represented to the defense team that she would not ask for any jail time in a sentencing recommendation if our client was found guilty. Over the course of five days – from empaneling a jury to the jury verdict – the government called three expert witnesses, two police officers, and two experienced police sergeant detectives to testify against Jonathan. At the conclusion of the five-day trial, just minutes before the jury was set to come into the courtroom and read the verdict, the prosecutor changed her position—she decided she would be asking that our client be held in custody until he was 18 years old if he was convicted. The prosecutor told us “this isn’t personal.”

We never gave that sentencing argument in Jonathan’s trial—the jury acquitted him on all counts.  Seeing the relief on Jonathan’s face as the weight of this case was lifted from his shoulders and hearing his mother weep in the gallery behind us knowing that her son wouldn’t be taken off to jail are things that we will never forget. But even if we got the best outcome that we could, it is hard to call what happened “justice.” The fact remains that Jonathan had this case hanging over his head for a year and a half and had to comply with onerous conditions of release. Those are traumatic experiences that cannot be changed or erased. Even though the injustices that Jonathan faced will never go away, this is the system we have, and we were able to prevent further harm to Jonathan.

We are fairly confident that in fifteen, twenty, or thirty years, we will not remember what grades we got class. But we can say, without hesitation and without doubt, that for the rest of our lives, we will never forget what it felt like to have six perfect strangers––after five days of trial with seven witnesses––deliver a “not guilty” verdict on all counts. We will never forget what it felt like to have Jonathan squeeze our hands as the jurors read the verdict as if he would never let go. We will never forget what it felt like to have prevented some harm and done some good. To have helped. And we are thankful to CJI for this.

*This client’s name has been changed to protect client confidentiality.

 

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.

Facing unexpected realities in North Carolina

By: Merve Ciplak J.D. ’21

Photo of mobile homes

Credit: Lee Mestre

As an international student that had never been to the South, my understanding of North Carolina was limited to what I had heard about Charlotte, the universities, and the food. But from my experience in Pembroke, I learned about the extent of rural poverty and hardship in a community that I really did not have much understanding or awareness of, and a side of America that is probably unknown to many students coming from abroad like myself. My experience was incredibly invaluable as a result of this stark exposure.

Over spring break, I got to work with the Legal Aid of North Carolina in their Pembroke office. We were placed within the office’s disaster relief efforts and set out with the intention of supporting the Hurricane Florence relief efforts, but quickly found ourselves involved in a number of housing and gentrification issues and community organizing efforts.

Credit: Merve Ciplak

The Pembroke office oversees cases in some of the poorest and most rural counties in North Carolina: Hoke, Scotland, and Robeson. According to the information our supervisor gave us, over 30% of the residents of Robeson County live in mobile home parks. The counties are also incredibly racially and ethnically diverse and Pembroke is home to the Lumbee, a state-recognized tribe. On the surface, it seemed like North Carolina needed legal help with FEMA appeals in recovering from Hurricanes Matthew (2016) and Florence (2018). We quickly realized, however, that the hurricanes had brought more pervasive issues to the surface. We ended up working on a mobile home park gentrification issue. The research we conducted uncovered that more than 20 of the parks in Robeson County have been bought up by a single company since 2017, and residents are being forced out of their homes with rapidly increasing rents despite homes that remain in very bad shape after the hurricanes. A site visit we conducted at one of the parks really brought the whole thing and the conditions people are forced to live in to life for me.

 

Credit: Merve Ciplak

The most surprising thing, however, was probably the level of community engagement and organizing that we saw is taking place around gentrification. We attended a regularly-hosted community organizing event where tenants affected by this mobile home park company, community organizers and lawyers come up with solutions.  I’ve been exposed to a number of community organizing events in the Harvard community, but I realized how different these events are when the organizers are members of the impacted community themselves. The mix of frustration, urgency, motivation, and hope in the air was one I had never felt before, with the forty or so attendants sharing their frustrations to come together and lift each other up. The event also laid out the true extents and limits of legal intervention into issues like this; at some point, efforts need to go beyond what the law can provide and are cross-institutional and truly societal.

Working in a local office with people that had incredible ties to and passion for their community was a really great opportunity, especially given that our main supervisor was Lumbee himself. The people we worked with exposed us to so much Southern hospitality and a willingness to share the realities of the community they were a part of, and really made sure we understood the nuances of the environment we were working in. This exposure to the community from the inside is probably the part of my experience that I wouldn’t have been able to acquire any other way, and the most valuable part overall.

 

Against All Odds at the South Texas Detention Center

By: Krista Oehlke J.D. ‘20

Exit sign for Pearsall

Credit: Krista Oehlke

Most immigrants at the South Texas Detention Center (STDC) in Pearsall, Texas will bide their time, in limbo, for months: they will don prison uniforms, they will go outside and see the light of day only once a week if they are lucky (the detention center is windowless), and they will scour the law library so that they can represent themselves in Immigration Court. Residents at STDC do not have access to the internet; however, reports on current conditions in their home countries serve as vital corroboration for their claims that returning back to their country would be dangerous or fatal. When the residents are finally up for their merits hearing, the judge will call them by a nine-digit number, not by their name, and will scrutinize them from a three-foot-wide television screen. Most immigrants will not have a lawyer. Most will be turned away and returned to their home countries: one of the judges at STDC denies 85 percent of requests for immigration relief. The other, nearly 70 percent.

STDC is a jail. It is white concrete walls edged by razor-wire fences. For spring break, I traveled with seven other students from Boston to Pearsall, Texas to assist the pro se respondents inside. On the first day, we met the team of American Gateways, a nonprofit legal service provider, at 7:00am, and drove the 40 miles south of San Antonio to get to the detention center, the bread and butter of the desolate town of Pearsall and a source of income for Geo Group, the private company who runs it.

My task was to help three women complete their I-589 applications—a form that is used to apply for asylum, withholding of removal, and protection under the Convention Against Torture—and provide translation assistance for declarations that support their claims. To provide a contrast, as a student attorney at the Harvard Immigration and Refugee Clinic (HIRC), I represented one client during a school semester, with the help of a supervisor and another student attorney. At Pearsall, I spent a week providing legal services to three respondents.

One woman I met wrote a declaration that was a homage to her father. *Luisa outlines in clear detail her childhood and later teenage years, spending time with her father who campaigned for the United Socialist Party of Venezuela. It details the campaign events she attended with her father, and the events leading up to his speaking out against the government. Luisa’s father later dies at the hands of the government. Fearing for her own life, Luisa flees to Mexico. There, she becomes victim to domestic violence and ends up on the streets. As a migrant, she receives little to no state protection and has no choice but to turn herself in at the U.S. border.

Another woman, *Nory, is barely old enough to be inside an adult detention center. As a Garifuna young woman in Honduras, she has faced discrimination all her life. But, she tells me, she fled Honduras because the 18th Street gang was after her and her younger brother. I have to ask her why she thinks the gangs targeted her so that she can establish “nexus”—the legal term used to connect the persecution suffered or feared to any of the five grounds contained in the refugee definition. She cries. Her first hearing is next week. We try to fit her experiences into neat boxes that constitute the five protected grounds for asylum: race, nationality, religion, political opinion, or membership of a particular social group.

Back in Cambridge, the stories of the brave individuals inside the Pearsall detention center stay with me. The right to asylum has been a part of U.S. law for nearly 40 years, and yet STDC is evidence that our legal commitments are not meted out, especially for immigrants who cross our southern border. Moreover, last year, a decision issued by the former Attorney General Jeff Sessions made it even more difficult for asylum seekers to obtain relief based on domestic violence or persecution by gangs, causing confusion amongst immigration judges throughout the country and enabling conservative judges, like those in Pearsall, to take a much harder line against asylum seekers.

The result is not only a failure to comply with domestic and international law, but also the U.S. government’s complicity in creating policies that disparately impact Latinx immigrants. We should be ashamed of this period in history. Luisa and Nory should be given a chance. They are instead criminalized for seeking a life free from violence.

*Names anonymized to protect the identity of the individuals.

To Seek Refuge in Texas

By: Madeline Kane J.D. ‘21

Madeline Kane is the third from left in all black

It’s 4:50am, and I’m up before my alarm sounds. The time change may be to blame—Texas is one hour behind Cambridge—but more likely, I’m awake because I’m thinking about the detained immigrants and asylum-seekers I’ve met this week. Together with a small group of HLS students, I am spending spring break at a border detention center.

We are here to support American Gateways, one of the largest legal nonprofits working in the immigration detention centers of Texas.

We are here because we believe in the rule of law. Congress has granted refugees and many classes of immigrants the right to stay in America. But certain detention centers seem beyond the reach of these laws: while some immigration judges deny fewer than 10% of asylum claims, others deny over 90%.

We are here because only one in seven detained immigrants has access to counsel. Immigrants have no right to a court-appointed lawyer—so those who can’t afford one have to face ICE attorneys alone. This week we will help prepare immigrants and asylum-seekers to defend themselves pro se.

We are here because the merits, not money, should control this process. Yet poverty dictates outcomes: asylum-seekers with no lawyer are five times less likely to be granted refuge, according to a 2016 study by Syracuse University. Those odds are sobering, considering that a person who is denied asylum stands to lose her freedom—or even her life.

***

It’s 8:30am, and I park our rental car outside the South Texas Detention Complex (STDC) after an hour’s drive toward the border. STDC is managed by a private corporation and houses nearly 2000 men and women from around the world.

We proceed through double interlocking doors to find dozens of immigrants in prison uniforms, sitting quietly on benches, waiting to ask us about their cases. They could be mistaken for patient passengers at a train station. But this place is a way station for people with nowhere to go.

The guards bring in Gloria*, a woman from central Africa who has escaped horrific violence. We speak in French—mine rusty, hers breaking into sobs as she explains she was separated from her kids along the journey. We work together to prepare for her final hearing before an immigration judge in two days. Gloria is terrified because she made a mistake on one of the forms she must present. If the ICE trial attorney uses the mistake to discredit her, it is likely she will be deported.

I switch to Spanish and meet with Fernando*, a father who has been working the fields in the United States for more than two decades. He may be eligible to stay, but only if his deportation would create “extreme hardship” for his two young children, both US citizens. Fernando is terribly shy, and I worry he will be too intimidated to make his case. I help him fill out an official form. “How tall are you?” He shakes his head. “Approx. 5 feet,” I write. “Weekly earnings?” $350 per week. “Assets in the United States?” He shakes his head, laughing softly. Zero dollars, he has zero dollars.

Another woman tells me she received death threats when she fought for poor farmers’ land rights. But her asylum claim was denied for insufficient detail. “I thought if I spoke the names of the bad men in court, they would find out and torture my family,” she says. “They killed my nephew.” She hands me a final deportation order and asks what it means. Tears stream down her face as I translate. Apparently, no one has explained to her that the court ordered her to be sent back. We will do everything we can to get her another hearing, I promise.

***

We will meet countless people whose strong claims may be doomed simply because they didn’t get legal help in time. A few have been imprisoned here for years. They have done nothing wrong but to seek refuge in Texas.

The injustice is striking, but the situation is not hopeless. Early legal orientation from nonprofits like American Gateways can help detained immigrants forced to confront our broken system pro se. What’s more, lawyers who take on pro bono cases can make a tremendous difference: in fact, our American Gateways supervising attorney will win relief for a Haitian man before our trip is over.

As for our HLS group: our work is just beginning. We will be headed back to Cambridge too soon, but we plan to follow up on our cases and continue this work in our legal careers. This week we’ve entered a dark corner of our justice system that few Americans have the opportunity to witness. Now our job is to keep shining a light into it.

 

*Names changed for clients’ confidentiality 

 

The Value of Outrage in Holistic Defense

Source: Pexels

By: Samantha Miller, J.D. ’19

David’s* meeting with the housing coordinator was supposed to be formality. David’s longtime girlfriend, June, was seeking to add his name to her public housing voucher so the two of them could live together. The meeting was scheduled for December 21 and David was excited. He had been homeless for two weeks as he and June waded through the Section 8 bureaucracy, but they were hopeful that they’d both have something permanent before the holidays.

The meeting was an unexpected disaster. Immediately afterwards, David called me in a panic. “They’re saying I can’t stay with June because of my criminal history. They showed me a piece of paper saying I was arrested for drug distribution in 2014. I am so confused—I don’t know what to do.”

David’s confusion was warranted: he and I both knew he had never been arrested for drug distribution.

By the time David called me that Friday in December, I had been representing him on a criminal case for several months through the Harvard Criminal Justice Institute (CJI). I am a third-year law student, which means that in Massachusetts, I can represent indigent clients under the supervision of a barred attorney. CJI’s model of public defense is holistic; I do not represent David directly on his housing needs, but we know that a client’s most serious issues often extend beyond the courtroom. And of course, there is often no neat dividing line that separates a person’s legal matters from the rest of his or her life. This was obviously true for David—he was being denied housing because of a criminal matter from his past.

But what made David’s case so maddening was that the criminal matter keeping him homeless never actually happened. As his attorney, I had access to David’s entire criminal file; he had never been arrested for drug distribution, neither in 2014 nor at any other time in his life. As David panicked on the phone, I knew my job was to reassure him. “This is obviously a mistake,” I told him. “We are going to fix this.”

Within an hour, I was able to confirm with the court clerk that the arrest record sent to June’s housing coordinator was indeed mistaken. The clerk was apologetic and vowed to correct David’s record as soon as she could. But we quickly realized we wouldn’t be able to get the updated record to June’s housing coordinator before the end of the day. This meant that David would remain homeless not just over the weekend, but for at least the whole next week—Monday was Christmas Eve, and the housing coordinator would be out of the office until after the New Year. David was the victim of a clerical error and had done nothing wrong, yet he was the only one suffering.

There are countless clear injustices in the criminal legal system, but perhaps one of its most insidious effects is the process by which these injustices are treated as “business as usual.” The folks I spoke to at the clerk’s and housing offices were polite, apologetic, and competent, but they shared none of my sense of urgency. I was outraged that David was being denied housing, and my outrage was compounded by others’ lack of outrage. No one from the state offered to stay late, come in on a Saturday, or otherwise lift a finger to rectify their own mistake in a timely fashion. David’s homelessness was unfortunate, but seemingly nobody’s actual problem.

My work at CJI has prepared me for a career in public defense in countless ways; I have filed motions, argued in court, and negotiated with prosecutors on behalf of my clients. But the most important lesson I’ll take from this experience is to never lose my sense of outrage. Outrage drove me to advocate for David outside the courtroom—outside of my “area of expertise”—because homelessness (especially due to a clerical error) is unacceptable. My outrage also reminded David that I’m on his side, I’m working hard, and no—I don’t think what’s happening to him is okay.

David and June are now in stable housing, but it took longer than it should have. David’s period of homelessness reminded me that the criminal legal system can harm our clients in unexpected ways. In order to be effective public defenders, we must advocate for our clients creatively, expansively, and with an ever-burning sense of outrage.

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

The Sports Law Clinic at Harvard Law School

By Kendall Howell J.D. ’19

Kendall Howell ’19

Among the many reasons why I chose to attend HLS, what excited me most was the opportunity to participate in the Sports Law Clinic. I never knew (and am still figuring it out, if we’re honest) what exactly I wanted to be when I grew up. But the one constant was that I wanted to eventually work in sports.

I didn’t always start that way. I graduated from the University of Texas at Austin in 2009. And after graduation, I worked for a healthcare IT company for two years as a project manager and then joined the US Army, where I served for close to four years as a Field Artillery Officer.

Once at HLS, I prioritized taking both of Professor Carfagna’s sports law courses during 2L fall. Both classes are prerequisites for the Sports Law Clinic. Not only were the classes incredibly interesting, Professor Carfagna was (and continues to be) an amazing mentor who dedicates so much of his personal time to putting those who want to work in sports in a position to succeed.

During the spring of 2018, I worked with the Boston Celtics. While at the Boston Celtics, I learned firsthand what it’s like to be an in-house counsel for a sports franchise. As one could imagine, most of my work was transactional. As with any sports franchise, revenue is generated through sponsorships and advertising, and it’s incumbent upon in-house counsel to ensure all contracts are drafted properly, intellectual property is protected, and all deals comply with league requirements. Fortunately, my work with the Celtics wasn’t just contracts – I was also assigned compelling research projects dealing with data privacy and sports gambling, and learned a lot about the major policy issues affecting sports teams today.

This spring, I’m working with the Concussion Legacy Foundation. At the Concussion Legacy Foundation, my work is a bit broader, as the needs of a non-profit organization are much different. My role is to provide general legal assistance – research, writing, and contract drafting – when needed, and most importantly, to contribute on business related projects if an extra hand is needed. While law firms provide a lot of pro bono legal assistance to nonprofits, I’m learning how critical it is to have legal help within these organizations. Whether it’s improving systems and processes, or giving an extra set of eyes on a contract, it’s important that nonprofits are provided timely legal services.

Of all the learning experiences in law school, the Sports Law Clinic has by far been the most rewarding. The lessons I’ve learned at each placement will be incredibly formative for my career moving forward. While I’ll be working for a law firm immediately after graduation, I hope to continue working with sports-focused nonprofits in the immediate future and eventually finding my way to a sports franchise.

Kendall is a 3L at Harvard Law School. He graduated from the University of Texas at Austin in 2009. And after graduation, he worked for a healthcare IT company for two years as a project manager and then joined the US Army, where he served for close to four years as a Field Artillery Officer. Upon graduating from HLS, Howell will join the Financial Institutions practice group at Davis Polk & Wardwell LLP.

First Impressions: Judicial Process in Trial Courts Clinic

Source: iStock

By: Judge John C. Cratsley (Ret.)

The 2019 Spring Term Judicial Process in Trial Courts Clinic involves twenty students in placements with federal and state trial court judges. Three judges from Japan and one from Korea attend our weekly classes, adding their international perspectives.  The clinic provides students the unique opportunity to discuss judicial reasoning with the judges. Students shared the lessons they are beginning to learn in their first-day-in-court papers.  Among these are their first impressions of the necessary qualities of a good judge:

“…throughout the day, I found myself thinking about how patient my judge was and how well he matched the ideals of judicial temperament that we discussed in class. . . I was very impressed by his calm demeanor and strong focus on procedural fairness. There were moments that would have tried my patience …”

“…for a judge like mine who is handling many high-profile cases at the center of public controversy and media attention, courage would be a particularly important virtue. It would be challenging to stay strong and unaffected amidst public criticisms or unfair characterizations of her reasoning or ruling in news reports.”

“Sentencing must be one of the most challenging responsibilities that a judge undertakes and having compassion during that process, as my judge exemplified on Tuesday, is critical to criminal justice.”

Another student expressed surprise at the teamwork exhibited by her judge and clerks, “The judge eats lunch with the clerks (and now, the intern) every day. While we sometimes talk over our cases, more often, we’ll discuss current events and our thoughts on the criminal justice system. There is an emphasis on valuing interpersonal relationships and spending time together as a team.”

Other students stressed the value of the opportunity the clinic presents for improving their writing skills:

 “I feel assured that my time this semester will be highly productive, filled with substantive work and real opportunities to think deeply about the legal issues presented at the trial court.”

“First, with respect to the work, I could not be more thrilled. It is clear from my conversations with clerks and an outgoing intern that I will get to work on many of the same assignments as clerks. Indeed, after my trip to HR, I hit the ground running in reviewing a habeas petition. In digging into the material, I could see complex legal issues, remnants of a complex legal battle for the petitioner thus far, and a man’s life hanging in the balance.”

Finally, watching attorneys at work in the courtroom, understanding court practices and procedures, and then evaluating what succeeds, fills out law school experiences such as the Trial Advocacy Workshop (TAW):

“. . .I had the opportunity to observe some outstanding lawyers at work. . .Having recently completed TAW, I was very impressed by the closing arguments given by both sides.”

“I had an extremely rewarding experience. . . I had exposure to opening and closing statement, direct and cross examination from the Trial Advocacy Workshop, but had never seen a jury selection before. I was struck by the judge’s patience and professionalism, but surprised by the repetitive, and even slow nature of the process.”

“My first day in court was incredible. . .  On a single Friday in a community court, I probably saw as many different kinds of cases as I did in the whole semester working in the federal courthouse in Boston.”

All of these first impressions papers contain one truth about experiential education – when students leave the classroom and enter the courtroom, they gain significant new insights about our judicial branch of government.

Reflections on Participation in HIRC

Via adMISSION: HLS

As I look back on my three years, my involvement with the Harvard Immigration and Refugee Clinic (HIRC) has without a doubt been one of the most rewarding parts of my law school career. As a first generation Mexican-American who was raised on both sides of the Tijuana-San Diego border, being an advocate for the immigrant community is something I have always been passionate about. Fortunately, at HLS there are many ways you can become involved in immigration advocacy.

I first became involved in this space my 1L year as an interpreter for HIRC and the Harvard Immigration Project (HIP), a related student practice organization (SPO). First-year students cannot enroll in a clinic, but they can become active in SPOs to develop client advocacy skills. I regrettably did not apply to HIP because I was too worried about the demands of 1L year. However, serving as an interpreter for asylum hearing prep sessions still allowed me to make an impact without straining my schedule. I was overjoyed when the client I served as an interpreter for was ultimately granted asylum!

My 2L year I continued interpreting for HIRC and HIP. Enrollment in HIRC is lottery-based, not by application, so due to the large volume of interest I did not get a fall semester spot my 2L year. Nevertheless, I was still able to get involved in the clinic beyond serving as an interpreter. I asked the Assistant Director of HIRC, Sabi Ardalan ’02, if I could enroll in the clinic as an Independent Clinical student for our January Term (known as J-Term). To my delight, she was willing to accommodate me and I was able to have a very fulfilling three weeks. I prepared and submitted applications for asylum and other forms of immigration protection for three clients. I was also fortunate to be introduced to one client who I actually ended up working with towards almost the end of her asylum case.

My 3L year I secured a fall semester spot in the clinic and it ended up being the most rewarding learning experience in all of my three years. I worked on a few cases, but predominantly worked on the asylum case for the client I had met during J-Term. We met at least three times a week during the semester and as a result grew very close. I worked on submitting her filing in November and crafting her affidavit (her personal declaration). Because I grew very invested in her case and wanted to extend, Sabi once again allowed me to work in the clinic during J-Term so that I could represent her at the hearing. I was excited to see the case through every step of the way.

To our chagrin, the government shutdown prevented our client’s hearing from happening. It will probably be rescheduled after I graduate, given the backlog that currently exists in immigration court. Throughout the semester, we were repeatedly reminded that this is a realm of the law that is continuously challenged. At least once a week a new proclamation would come out from the Executive Branch that threatened the chances and well being of our clients. However, the lawyers at HIRC are up for the challenge and their relentless advocacy inspired and taught us the same. We learned how to be creative in our arguments in order to fight despite working in a field where the law is not in our favor.

I learned so much during my time at HIRC and was able to immediately apply that knowledge when I volunteered in Tijuana with Al Otro Lado during Christmas break. It felt rewarding to go back to my home—now at the heart of our current immigration debate—and advocate for the asylum seekers.

As I finally step into the world of an actual lawyer this summer, I will forever carry with me the lessons I learned at HIRC.

 

Asseret Frausto is a 3L from the Tijuana-San Diego border. She graduated from UCLA in 2015. Prior to law school, she worked at a tech company (Oracle) in Silicon Valley. She spent her 1L summer as a 1L Diversity Fellow at White & Case in Los Angeles and at Facebook’s HQ in Menlo Park. She spent her 2L summer at O’Melveny in Los Angeles and in D.C. At HLS, she is the Co-President of La Alianza, a student attorney with the Prison Legal Assistance Project (PLAP), a board member of HL Central, and a member of the Women’s Law Association (WLA). In her spare time she likes listening to podcasts, watching Friends reruns, and eating delicious Latin food. 

A Lawyer’s Limits

By: Solange Etessami, J.D. ’20

Solange Etessami, a 2L at Harvard Law School

In the middle of January, the town of Mytilene on the island of Lesvos is stuck in holiday mode. Christmas songs are still streaming, decorations are still up, and the bakeries still have “Happy 2019!” cakes in the windows. Just a few miles away from this idyllic little Greek town is Moria. Moria is an entirely different world—just the name itself evokes some Lord of the Rings like-nightmare. The infamous camp houses refugees hailing primarily from Afghanistan, Yemen, the DRC, and Iran. 8,000 men, women, and children—all living in freezing, flimsy tents in a shanty town on a hillside.

Most of these refugees are stuck in Moria for months at a time, waiting for the date of their important asylum interviews. This interview will determine whether or not they are granted asylum in Greece, or whether the European Asylum Office (EASO) or Greek Asylum Service has determined that their country of origin or port of last entry (usually Turkey) is safe enough for them to be deported back there. Upon arrival, many of these asylum seekers are asked which European country they would like to go to upon their arrival, and most are not aware that they will not be allowed to remain anywhere besides Greece, if allowed to remain at all.

As the daughter of Iranian immigrants, I was extremely fortunate to have the Farsi language skills to be able communicate with many of the refugees. In 1978, both sides of my family led happy, middle class lives in Iran. My maternal grandfather grew up extremely poor, but managed to put himself through engineering school and had finally reached the stage where he was able to provide for his family. My paternal grandfather was third in command of the Central Bank of Iran, the highest position he could obtain in the government as a Jew. But with the stirrings of revolution and the subsequent overthrow of the Shah in 1979, everything changed. My mother’s father was warned by a friend that the Jews would be thrown into ghettos, and my father’s father was sentenced to death in absentia, owing to his close ties with the newly deposed Shah. Both sides were forced to flee the country they had called home for generations.

Like most children of immigrants, growing up with stories of my family and how they had to start a new life in a foreign land has played a huge role in who I am and the way I see the world. I have always been acutely aware of the true fortune my family had in being able to come to the United States when they could no longer able remain in Iran. Though it took many years and a lot of struggling, my family eventually rebuilt a life in the States. And I’m not sure, given the climate of today, if they would be so lucky…

Because of my family history and with the knowledge that Farsi language skills are desperately needed on the ground in Moria, I jumped at the opportunity to spend my Winter Term in Lesvos. It was the first time I witnessed firsthand the power I could have as a lawyer and advocate. I helped clients prepare and practice for their asylum interviews, and made sure they knew their rights during the process. I accompanied clients to the EASO office to explain their questions and help them get the papers they need. I assisted our lawyers with filing family reunification papers to unite family members with relatives in other countries. I helped a severely mentally disabled man to get guardianship from his cousin, and got him registered with EASO so he could get his papers, a doctor’s appointment, and soon, an open identity card that would allow him to travel to Athens.

My time in Greece was also the first time I had to confront the limits to what I could do. I simply did not have the power to fix the food in Moria, which is so unpalatable that one woman told me she eats just enough to keep herself alive. I did not have the power to compel the man in the Greek post office to surrender a letter to a minor containing the identity card he needed to prove his age. I could not change the interview dates of a mother and father who had to wait in Moria for another 6 months. I could not bring back electricity when it got cut during the freezing cold night. And I simply did not have the power to erase the pain of the man who had witnessed his family members die in front of him.

Although I faced these significant limitations on my ability to change the desperate situation of the people of Moria, I also witnessed firsthand the incredible power I could have as an attorney in helping others attain their legal rights, and in serving as an advocate and confidante for those that are not in the position to advocate for themselves. My experience in Lesvos was the first time I felt truly rewarded in my decision to pursue the path of the law.

Transformative Constitutions: How One African Nation is Writing A New Constitution for National Healing and To Learn from The Past

By: Oladeji M. Tiamiyu, J.D. ’20

The Constitutional Review Commission in The Gambia, located in the Greater Banjul Region

When democracies endure prolonged crises, a complete constitutional review can be valuable to legitimize the nation’s constitution and to create an outlet for national healing. The Gambia launched the Constitutional Review Commission (CRC) to conduct a full-scale review of the current constitution after enduring the 22-year rule of Yahya Jammeh, whose administration was characterized with the flouting of constitutional norms and violations of clear constitutional provisions. The Gambia is a small West African nation that is—with the exception of a 50-mile coast on the Atlantic Ocean—surrounded entirely by Senegal and is seven times smaller than Niger State, the largest state in Nigeria. Despite the country’s small size, what happens here has important implications for youthful constitutional democracies around the globe.

The CRC is considering a broad range of issues for the new constitution ranging from granular issues, such as what the qualifications for a judge should be, to broader issues like whether a right to health care and housing should be enshrined within the constitution. This is the second time a committee has been organized to review a pre-existing constitution. When Jammeh came to power as leader of the 1994 military junta, he organized a CRC to create the nation’s current constitution. Important considerations for the current CRC include: 1) how a culture of judicial independence can be constitutionally promoted and protected when, at best, the judiciary has been silent in the midst of unconstitutional conduct or co-opted to serve the interests of the President; and 2) how the constitution’s language can be given substantive effect to protect, among other things, a free press and rights of marginalized groups.

Paradoxically, perhaps the greatest effect of the CRC’s presence will not come with changes to the constitution, but instead through empowering civil society to share political opinions without the fear of repercussions. The CRC has traveled across the country to receive input from members of civil society and this has fostered a sense of political and civic activism that would have been unthinkable under the prior administration. From speaking with local taxi drivers during my morning commute to discussions with senior members of the Gambian Bar Association and lawyers at the Ministry of Justice, everyone is deeply engaged with the complex issues facing the new constitution. Despite diverging opinions, the unifying theme is for greater oversight on the president.

Adama Barrow, The Gambia’s current president, has little in common with former President and military junta leader Yahya Jammeh. For one, President Barrow came into power at 51 and ran for president as an independent while his predecessor came into power as the leader of a military coup at the ripe age of 29. Moreover, Barrow has freed journalists and members of opposition parties while his predecessor imprisoned and, as described in hearings at the Truth Reconciliation and Reparations Commission (TRRC), tortured government dissenters in the infamous Mile Two prison and executed 50 Ghanaian nationals. Barrow has also sought to rekindle economic and diplomatic ties with Senegal and the Economic Community of West African States (ECOWAS) sub-region while his predecessor created extensive diplomatic schisms within the region. Yet despite these differences, the experience with Jammeh has left the nation skeptical of the presidency as an institution. There are high expectations that the new constitution will be more durable and effective than the current constitution.

The current constitution came into effect in 1997 and provides for, among many important provisions, “freedom and independence of the press and other information media,” §207(3), prohibitions against torture and inhumane treatment, §21, and that the judiciary “shall be independent and…shall not be subject to the control or direction of any person or authority” §120(3). However, Jammeh successfully introduced amendments that undermined these provisions. For example, President Jammeh amended §52 of the Criminal Code Act to make written or oral statements considered critical of the government a legal cause of action. To prevent the erosion of constitutional checks and balances “by the parochial interests of one man,” the CRC is just one facet of the transformative justice process that operates in tandem with the Truth Reconciliation and Reparations Commission (TRRC) to raise greater awareness of Jammeh’s actions. The TRRC has heard testimony from those who participated in the military coup with Jammeh and claims of torture during his administration.

Dr. Baba Jallow, the Executive Secretary of the TRRC, described the purpose of the transformative justice process as creating ‘nation-schools’ that inform citizens, especially the youth, on the language and purpose of the constitution so that no future government can violate or trivialize their rights as the previous administration did. A constitution, regardless of how well written, can only have substantive effect if a nation’s citizens understand their rights and oppose those forces that conflict with the constitution. The outcome of this process will serve as an important template for similarly situated constitutional democracies seeking to promote civic engagement and prevent the re-occurrence of harmful government actions.

Oladeji M. Tiamiyu is a 2L at Harvard Law School who spent the January semester as a legal intern at The Gambian Ministry of Justice.

Ensuring Veterans Aren’t Left Behind

Via the American Bar Association for Law Students 

Steven Kerns, 2L at Harvard Law School

Excerpt from “Law Students Speak: Why I Do Public Interest Work”

By: Steve Kerns, J.D. ’20

As a veteran, I came to Harvard Law School’s Safety Net Project within the Veteran’s Legal Clinic to help bridge the civilian- military divide. SNP offered me a chance to help civilians and veterans realize some part of
the American dream.

The veterans’ clinic serves civilians and veterans alike, and the SNP provides civilians and veterans with guidance through the Social Security, SNAP, Medicaid, and poverty prevention processes. We serve a strong legal need: Nearly 70 percent of Social Security applicants have no legal representation.

As a student, the clinic offered me a pathway to maintain the momentum I’d built up establishing my litigation skills in my summer at the California Attorney General’s office. The SNP gives me full responsibility for my cases: preparing an evidentiary record, interviewing clients, writing a legal brief, delivering oral argument, direct questioning of clients, cross-examining experts, and if a case is denied, preparing for the appellate argument.

A veteran recently told me that our team had changed his life. He was fond of saying that if it weren’t for bad luck, he’d have no luck at all. He was falsely imprisoned, sexually assaulted as a child, and tragically self-aware of all of it.

Most painful was his nobility, his gentle demeanor, and his broken strength. He blamed no one. He accepted responsibility for more than just his actions—he accepted responsibility for the world. The military has a way of conditioning many of us not to seek help until it’s too late, to shoulder the blame for circumstances beyond our control— to grin and bear it. It’s our strength in war and, often, our undoing at home.

After combing through more than 500 pages of medical records and recruiting mental health experts to evaluate the long history of impairments and treatment, I put together a written argument that led the administrative law judge to make a decision on the record—telling us on the day of the hearing that he was approving the case for more than eight years of retroactive benefits. This highly unusual move happens only when the ALJ determines the case is clearly in the applicant’s favor and a hearing is no longer necessary.

Our client was spared having to dive deep into his trauma for the record. Realizing this, he was overcome with relief. And while we all shared a brief moment of joy, that veteran’s need is no less important than helping the civilians who walk through our doors. Our communities thrive together.

As President Eisenhower noted in his seminal Cross of Iron speech, “Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone.”

I may not be able to change the status quo, but the SNP empowers me to help Americans left behind by perpetual war. Here, they’re not forgotten. Here, my mission is no different than it was in the Army: to serve the American people.

Independent Clinical Experience with the Surfrider Foundation

By: Alex Gazikas J.D. ’17

I spent my January term interning at the Surfrider Foundation, a nonprofit organization in San Clemente seeking to preserve and protect the world’s ocean, waves, and beaches. Founded in 1984, Surfrider is a grassroots activist organization that seeks to advance environmental protection, ensure and expand public beach access, and manage local beach cleanup efforts. This advocacy is effectuated through lobbying, local volunteer projects, and litigation. Notably, Surfrider is currently involved in a beach access dispute in California in which the landowner purchased a public beach and has attempted to close it to the public. Surfrider prevailed in the California appellate courts, and the United States Supreme Court recently denied certiorari.

During my time with Surfrider, my primary work was to research a potential new legal theory to address the problem of outdated beach access laws in Massachusetts and Maine. In most states, the public has a right to access all land below the average high tide line for recreational purpose. In Massachusetts and Maine, the public literally does not have the right to walk along the beach because this land can only be used for fishing, hunting, and navigation. This limited right of access is rooted in a colonial ordinance from Massachusetts, but this ordinance has come to predominate beach access rights in both states. The legislatures of both Maine and Massachusetts have attempted to pass legislation expanding the public’s rights, but the supreme courts of both states have struck down the legislation as an unconstitutional taking.

As an intern, my role was to assess a potential new legal theory that could allow the Commonwealth of Massachusetts to expand public beach access. The research encompassed constitutional takings jurisprudence and the history of the public trust doctrine in Massachusetts. The goal of my research was to ultimately assist in changing the beach access laws, either through proposed legislation enacted through lobbying efforts or litigation by local counsel. Surfrider litigation is generally handled by local pro bono counsel, with the in-house legal team serving an advisory role. This opens up the interesting possibility for previous interns to actually represent the organization later in their careers in a pro bono capacity.

In addition to my work on beach access, I was also able to assist the legal team in operational tasks. This aspect of the internship was unique because it allowed me to get a sense of the normal daily operations of a nonprofit organization. In one such task, I was given sole responsibility to conduct due diligence about a Surfrider Foundation sponsor. Surfrider regularly conducts diligence about its sponsors and partners to ensure that the companies are not involved in “green washing” or otherwise attempting to use their Surfrider affiliation to conceal environmentally irresponsible business practices. It is essential that Surfrider regularly conduct diligence on these companies because any negative publicity about its partners would make it less effective as an advocacy organization. My work product was reviewed and then sent directly to the Surfrider executive staff to help them decide whether to continue the partnership with the company in question.

In addition to the due diligence project, I assisted in licensing agreements and other daily tasks typical of a nonprofit environmental organization. I was also able to participate in the annual Surfrider meeting, led by C.E.O. Chad Nelson, which is conducted at the start of each year and involves representatives from Surfrider chapters around the country.

I also had the opportunity to enjoy the remarkable culture at Surfrider Foundation and explore San Clemente and the surrounding areas. Because the organization is based in San Clemente, I had access to a variety of beaches and state parks. San Clemente is a great little town, but I also took time on the weekends to go into L.A. and San Diego. I cannot imagine a better way to have spent my final January term at HLS.

CHLPI and Health Leaders Gather to Improve Lung Cancer Policies in West Virginia

Via Center for Health Law and Policy Innovation

By: Stephanie Kwan

CHLPI and Health Leaders Gather to Improve Lung Cancer Policies in West Virginia

Lung cancer kills more West Virginians than breast, prostate, and colorectal cancers combined. On November 1st-2nd, 2018, CHLPI joined hundreds of health and policy leaders at the Second Annual Lung Cancer Conference: Catalyzing Change to Address Lung Cancer. Hosted by West Virginia University Cancer Institute, the Mountains of Hope Cancer Coalition, and the Patient Advocate Foundation, the conference saw more than 200 health and policy leaders gather at the WVU Erickson Alumni Center in Morgantown, WV to address lung cancer policy changes.

The conference was designed to raise awareness about the impact of lung cancer across West Virginia and to identify avenues to improve lung cancer screening, early detection, treatment, and survivorship. The two-day program engaged healthcare providers, community-based health workers, public health educators, advocates, and policy makers in implementing changes both in their local communities and on a statewide level.

Current policies and lung cancer in West Virginia

Sarah Downer, CHLPI’s Associate Director for Whole Person Care and Clinical Instructor on Law in the Health Care and Policy Clinic, along with second-year clinic student Stephanie Kwan, welcomed conference attendees with an overview of healthcare policy-making. The overview discussed policy formation and how advocates could work with various entities to effect change. “Even though systemic changes take a long time, keep your eyes on the long term prize and don’t stop telling local policy makers your stories, because your work in West Virginia matters and is shaping national healthcare conversations”, said Sarah.

Graphic documentation of CHILPI’s presentation on “Overview of Healthcare Policy-making”, illustrated by Nora Herting.

West Virginia Delegate Amy Summers, Vice-Chairman of Health and Human Resources Committee of WV House, who not only is a nurse but also has a long family history of cancer, reminded attendees to get to know their legislators. Doing so will allow advocates to understand the expertise, priorities, and passions of their representatives, which will help advocates tailor their policy goals and approaches.

Attendees also heard from West Virginian experts; Dr. Christopher Plein, Professor at the Department of Public Administration at West Virginia University, highlighted the historical roots of many contemporary healthcare issues, while Dr. John Deskins, Director at the Bureau of Business & Economic Research at WVU College of Business and Economics, discussed the economic costs of lung cancer in West Virginia.

Graphic documentation of the expert policy panel that comprised of CHILPI’s Sarah Downer, Christopher Plein, and John Deskins, illustrated by Nora Herting.

Dr. Camara Jones, Senior Fellow at Morehouse School of Medicine and a Past President of the American Public Health Association, addressed the crowd on social determinants of health, including poverty, racism, and institutional disparities that are often ignored by today’s healthcare system.

Healthcare practitioners driving change in the lung cancer space

Following the presentations, conference attendees participated in an interactive policy planning session, identifying local advocacy goals such as rescinding no-smoking ban, establishing primary care partnerships, and engaging insurers to pay for screening. Attendees also examined specific programs that effect lung cancer in West Virginia, including Medicare and Medicaid, lung cancer treatment case studies, opioid Rx regulations, as well as immunotherapy and the use of robotics in surgeries.

Another highlight of the conference was the Shine A Light on Lung Cancer evening reception, where speakers and attendees came together to honor lung cancer survivors, family members, caregivers, and those who have passed.

The two-day event was a highly successful initiative that brought together policy leaders and healthcare practitioners to learn, plan, and act. The conference equipped attendees to be advocates in their respective professions and communities. It was an eye-opening experience for clinic student Stephanie to speak to experienced practitioners and to witness how practitioners could work on policy goals that make a difference in the lives of people they serve.

Graphic documentation of “policy-planning in motion”; produced collaboratively by conference attendees and illustrated by Nora Herting.

The conference’s presenters included:

  • Sarah Downer, JD
  • Camara Jones, MD, MPH, PhD
  • Honorable Amy Summers, MSN
  • Ghulam Abbas, MD, MHCM, FACS
  • Mohammed Almubarak, MD
  • John Deskin, PhD
  • Monika Holbein, MD
  • Malcol Mattes, MD
  • Christopher Plein, PhD
  • Anne Swisher PT, PhD

Sarah Downer and Stephanie Kwan at the WVU Erickson Alumni Center in Morgantown, WV, speaking at the Second Annual Lung Cancer Conference.

Local Education on Campus: Education Law Week 2018

By: Advocates for Education Board

Boston City Council President Andrea Campbell, speaking to the HLS community during Education Law Week

Boston and Cambridge are home to to some of the top colleges and universities in the country. For those of us lucky enough to attend Harvard Law School (HLS), we see every day the power of a top-notch education. But within miles of our campus, students in the Boston Public School (BPS) system face immense challenges that too often preclude them from having the option of attending a school like HLS. For this year’s Education Law Week, we aimed to deepen our law school’s understanding of a few of the most pressing issues within the Boston Public Schools. Through this, our hope was to strengthen law students’ connection to, and investment in, the greater community that we are lucky enough to be a part of for at least three years.

 

Day One: Civil Rights Attorney Matt Cregor on Racial Disparities in BPS’s Exam Schools

In recent years, Boston’s exam schools (Boston Latin Academy, Boston Latin School, and O’Bryant School of Math and Science) have drawn increased scrutiny for the racial disparities in their admissions numbers. Most alarmingly, while Black and Latino students make up 75% of BPS students, only 20% of students at Boston Latin School identify as Black or Latino. In response to these alarming numbers, the Lawyers’ Committee for Civil Rights Under Law produced a report titled “A Broken Mirror,” which lays out the immense disparities in BPS exam school admissions, and calls for BPS to “immediately intensify its review of exam school admissions.” Matt Cregor, who led the production of the report and is currently an attorney with the Mental Health Legal Advisors Committee, led a conversation about the findings of the report and the solutions that have been proposed through community dialogues.

 

Day Two: Immigration Attorney Elizabeth Badger on the BPS to ICE Pipeline

Students who are immigrants face unique challenges, which BPS may exacerbate through its school incident reporting practices. Boston School Police officers sometimes report school incidents to the Boston Regional Intelligence Center (BRIC), a network of local, state, and federal law enforcement agencies that includes U.S. Immigration and Customs Enforcement (ICE). While BRIC is designed to be a tool to identify “major players” in crime and pinpoint areas of crime, Boston School Police have input seemingly minor school offenses into the database. As illustration, Badger explained that a lunchroom disagreement among two students, resolved without resort to fighting, could make its way into BRIC. In one case, advocates say that an unsupported gang allegation against a BPS student was input into BRIC and was later used to support ICE deportation proceedings against the student. Badger discussed how local advocates are working to gain additional information about BPS policies and procedures for School Police Officers’ use of BRIC.

 

Day Three: National Women’s Law Center’s Manager of Campaign and Strategies Nia Evans on the Impact of School Dress Codes on Girls of Color

This spring, the National Women’s Law Center released “DRESS CODED: Black Girls, Bodies, and Bias in D.C. Schools,” a groundbreaking report on the impact that student dress codes have on Black girls and their educational experiences. This report, co-authored with 21 Black girls who attend D.C. schools, sheds light on the ways in which dress codes contribute to the disparities in discipline rates between white students and students of color, and sparked a critical national dialogue about the reforms that are needed in school and district policies. Nia Evans, who led the project for NWLC, presented the findings of the research, and discussed the process and effects that the report’s creation had on the students themselves. The conversation raised a number of questions about the use of dress codes in Boston Public Schools, and laid the groundwork for future research and advocacy efforts.

 

Day Four: Boston City Council President Andrea Campbell on the Role of Cities in Education

To conclude Education Law Week, Boston City Council President Andrea Campbell joined students for a conversation on the City’s role in the education of its students. She began by sharing her personal motivation for doing this work, providing us an urgent reminder that laws and policies are more than abstract concepts or interesting topics of conversation: they have real consequences for real people. A graduate of Boston Latin School, Councilor Campbell helped bring Education Law Week full circle by engaging in dialogue about inequities in educational opportunity. While the City Council is able to exert direct influence over education in some ways, Councilor Campbell also discussed the comprehensive progress that is needed in order for the City to truly serve all students within BPS. From housing to safety to access to health services, so much of what students bring into the classroom is dictated by the community that surrounds them. Councilor Campbell discussed the efforts Boston is currently undertaking to strengthen both support and outcomes for students across the City.

Thank you to all who attended the events and supported Education Law Week; a special thank you to all of our speakers!

The events for Education Law Week were co-sponsored by the Advocates for Education, Child and Youth Advocates, and Urbanists, and funded by the Dean of Students’ Grant Fund.

Getting to Know You: Kelly Ganon

Via  adMISSIONS: HLS

Kelly Ganon is a current 3L and one of our Admissions Fellows. We recently sat down to hear her reflections on her HLS experience. Read on to learn about how she navigated the opportunities at Harvard, and her advice for prospective students!

Tell us about your path to Harvard Law.

When I was a high school freshman, I joined my high school’s mock trial team. I know how corny this sounds, but it’s true: the first time I stood up in a courtroom and gave a (fake) opening statement, I knew I had found what I wanted to do with my life. As I headed to college, my primary goal was to see the law from as many angles as possible. I attended Northeastern University, in part because the school has a robust internship program built into its undergraduate curriculum. Through that program, I spent half of my third year working for federal prosecutors at the U.S. Attorney’s Office in Boston, and half of my fourth year in Switzerland helping to train public defenders in developing countries with a Geneva-based NGO. When I returned stateside, I finished up my classes and returned to the U.S. Attorney’s Office in Boston full-time as a paralegal. I provided litigation support in the Economic Crimes Unit there for two years before shipping off across the Charles River to start at HLS.

Why did you pick HLS?

Like many prospective HLS students, at the end of my admissions cycle, I was faced with a choice between a Harvard education and some sizable scholarships elsewhere. As fortunate as I felt to be in a position where I couldn’t make a bad choice, for a period of time I was paralyzed with fear that I wouldn’t make the best choice. I reached out to every HLS alum in my personal and professional networks (and even some folks I’d never met before) and asked them for their thoughts. They were at various stages of their careers, but each and every one of them talked about the many doors that this institution had opened for them. They talked about the career flexibility they felt they had as a result of the enormous Harvard network and the top-notch educations they received. In one conversation I’ll never forget, a prominent alumnus I was lucky enough to get on the phone said, “Kelly, let’s get real. If you go anywhere else, you’re going to be sitting in your 1L classes and day dreaming about being at Harvard.” In my heart of hearts, I knew he was right. I’ve never looked back.

Have you been able to work closely with professors? How are those relationships established?

My best working relationship with an instructor came through my 2L fall semester at the Consumer Protection Clinic at Harvard’s Legal Services Center (LSC). Like all of the clinical instructors at LSC, Roger Bertling is both a teacher and a practitioner, so he is able to bring theory and practice together in a way that I found to be incredibly exciting. In my view, the two best things about forging a good relationship with a clinical instructor are first, that they are able to provide immediate and constant feedback on your work in a way that academic professors who give one assessment at the end of a semester cannot, and second, that as they see you growing as an advocate, they are able to give you increasing responsibility in real time. But there are a lot of different ways that students can form close academic and/or professional bonds with professors outside of the clinical setting. For example, I have a friend who hit it off with a professor when she was a student in his 1L reading group. She worked as his Teaching Assistant during the fall of her 2L year, and he later agreed to supervise her independent writing project — so they’ve now worked together in three different capacities. Office hours are always an option, too. Every professor who is teaching in a given semester has office hours weekly, and many do not require students to sign up in advance. So if there is a professor whose work you find particularly interesting, you can often easily seek them out regardless of whether you are taking a class with them.

What do you pursue outside of the classroom? How do you balance activities with coursework?

In addition to giving tours and leading info sessions as an Admissions Fellow, I am an Executive Editor for the Harvard Law & Policy Review and serve as a committee chair for the Women’s Law Association. Off campus, I spend most of my time at the dog park with my 2 year-old Black Lab, Luna, and distance running. Of course, it can be hard to balance law school and extracurriculars. But even during the busiest times of the school year, I have found that I’ve been able to make time for the activities and people I love as long as I am disciplined about it. I block out time in my schedule every week to do non-law school things, and I hold myself to it — no matter if that means staying up a little later or waking up a little earlier to read that one last case before class. And for my fellow runners reading this blog, my best advice is to sign up for a couple of races for weekends during the school year! Having a race entry on the books will keep you motivated to hit the road even when the coursework starts to feel overwhelming.

What is one piece of advice you would give someone who is considering applying to HLS?

Make sure that the person you present through your application materials actually sounds like you! Given the kinds of accomplishments people tend to have if they are competitive candidates for admission at top-tier law schools, putting yourself in the running against them for a spot in the incoming class can feel immensely intimidating. You might be tempted to massage your application materials until you look like a “typical” candidate. But typicality is not a virtue for a school that is focused on being exceptional. Additionally, don’t be too hard on yourself if you feel like you’re not giving off the “I can be a successful law student!” vibe at all times. I was positive I’d blown my chances at Harvard because I made a VERY lame joke in my admissions interview. But here I am, a rising 3L, still making terrible jokes.

Community Enterprise Project Participates in Boston Ujima Project’s Citywide Assembly

Boston Ujima Project citywide assembly, October 6th – October 7th 2018

By: Samy Rais

Over Indigenous Peoples’ Day weekend, more than a hundred community members, business owners and activists assembled to celebrate and participate in the Boston Ujima Project’s second official citywide assembly. The Ujima Project was founded in 2017 with the mission to create a new community-controlled economy in Greater Boston, initially focusing on[1]:

  1. Good Business Certification and Alliance: establishing community standards (and supporting businesses) that consider business practices like living wages, Criminal Offender Record Information (CORI)-friendly hiring, local purchasing, environmental impact and affordability.

 

  1. Community Capital Fund: pooling savings and investments to engage in participatory budgeting to meet the enterprise, housing and consumer needs of the community. The fund will be democratically governed by historically divested communities, giving every member an equal vote on the fund’s investment priorities, loans and equity transactions.

 

  1. Worker Services Network: growing employee satisfaction and security by organizing human resource programs.

 

  1. Alternative Local Currencies: establishing alternative local currencies (like time banking) that would allow members to trade their skills and labor and incentivize circulation of resources within the community.

 

  1. Anchor Institution Advocacy: building community power and advancing campaigns for the City, State and large nonprofits to direct investment, subsidy and procurement dollars to Ujima’s network of certified good businesses and developers.

 

Since early 2016, the Community Enterprise Project (CEP) of Harvard’s Transactional Law Clinics has been supporting the Ujima Project’s inception and community-driven mission. CEP students have provided the Ujima Project with legal analysis on various transactional matters, namely corporate and nonprofit law, corporate governance structures, 1940 Investment Company Act and securities laws implications, consumer protection laws, and secured transactions. These areas of law are customarily associated with the law firm-world, but are a critical need in the public interest space. Currently, CEP students are building on work completed last semester by helping to finalize the initial documents for the Ujima Project’s Community Capital Fund to begin making investments in community-supported businesses.

As part of CEP’s support of the Ujima Project, I attended the citywide assembly with CEP director and clinical instructor, Carlos Teuscher. CEP’s attendance at the citywide assembly had two purposes: first, in following the community and movement lawyering approach, CEP believes in supporting organizations that are working to dismantle and radically restructure current systems of law and power, and it is essential to be present in order to be in solidarity with such movements; and second, it was critical to hear the voices of the community that the Ujima Project was supporting and are the most impacted, in order to effectively prepare the Ujima Project’s Community Capital Fund loan documents.

As mentioned above, the Ujima Project is creating the first-of-its-kind investment fund that is controlled by the community. While my involvement in transactional cases generally consists of undertaking legal research, drafting contracts, or forming a legal entity, it was obvious from the start that working with the Ujima Project was going to be different. Because of its community-driven approach, as its legal counsel, we need to ensure that the Ujima Project’s legal documents are able to adapt to its members’ ideas, struggles and demands, no matter how unconventional.

In that sense, the Ujima Project is both a unique project and a large-scale illustration of recurrent challenges in our work at CEP. This semester, student advocates in CEP have been advising several groups looking to form worker cooperatives in Greater Boston, which, like the Ujima Project, require democratic voting. By giving workers collective ownership in their business, worker cooperatives enable collaborative entrepreneurship and help tackle many of the issues poverty lawyers interact with on a day-to-day basis – wage-and-hour violations, health and environmental issues, immigration, criminal justice, and many others. As with the case in the Ujima Project, we need to ensure that the voices of all the members in the cooperative (undocumented/documented, low-wage workers/management, reentering citizens, etc.) are heard and reflected. At the same time, it is challenging to balance the need for urgency in the day-to-day operations and democratic management.

As we pass the mid-point of the semester, I am excited to have been able to interact with communities experimenting with and implementing alternative economic models. As an aspiring lawyer, I have appreciated the need to better understand the community you work for and their needs. Further, as a foreign student at Harvard Law School for the semester, I discovered communities in the United States, who, although being disadvantaged, gather and spare no effort or ingenuity to fight and overcome the systemic struggles they face.

[1]Ujima Concept Paper available at https://docs.wixstatic.com/ugd/40c717_f16102d86a644584af4c47c72ea2794b.pdf.

Lessons Learned: Facilitating a Conversation about Remembrance

Via the Harvard Negotiation & Mediation Clinical Program 

Source: Pexels

By: Neha Singh ’19

When Zikaron BaSalon first asked me to facilitate a discussion about Holocaust Remembrance on Holocaust Memorial Day, the task seemed easy even though the subject matter was weighty. After all, many people who were similarly inexperienced in leading group discussions had successfully hosted similar events with Zikaron BaSalon in the past. Moreover, I was working with a great team of fellow students and mentors in the Harvard alternative dispute resolution (ADR) community who would help me make the discussion a success. And I had learned about facilitating conversations in my classes taught by expert facilitators.  With so much going for me, how could I not be an amazing facilitator?

Well, pride goes before the fall.

The more I prepared for the event, the more nervous I became. Despite receiving support from Zikaron BaSalon, despite the help of my team, and despite all my coursework in this area, I felt out of my depth. I had two major concerns with whether I could facilitate the upcoming discussion well.

My first concern was that maybe I was just the wrong person to be facilitating this discussion. How could I, a non-Jewish person with no family connections to the Holocaust possibly do justice to such an important topic? What could I, a second-year law student with nothing but book knowledge about ADR principles, have to offer to people with rich and deep connections to the Holocaust? Who was I to tell them how to share their feelings with each other? I seriously considered the idea that my most useful contribution to this event could be just remaining silent for an hour while others talked.  Unfortunately, remaining silent, while tempting, would not solve my second concern.

My second concern was that I would be unable to stop the discussion from becoming heated in a manner that would be counterproductive to our goal of encouraging Holocaust Remembrance. It was all too easy to imagine the conversation transforming into an angry yelling match. What would I do if people began to discuss and have intense political disagreements about Israel-Palestine relations? Or about the political climate in the US? Or about the refugee crisis in Germany? All of these are topics worth discussing in detail, but I was unconvinced that heated discussions on these topics would further our goal of Holocaust Remembrance.

Eventually, I was able to address both my concerns and facilitate a discussion that I thought was honest, welcoming, and respectful. While I will not pretend I did everything perfectly, it was a rewarding experience that taught me a lot. If I were to host an event like this again, I would make some changes that I think would make the discussion even better.

To address my first concern of not having the right background to facilitate this discussion, I asked for help from a colleague who had a different background that complemented mine. Specifically, one of my former Teaching Assistant colleagues, Max, was available to help facilitate the event with me. Max brought with him his lived experience as a Jewish person and his history of facilitating conversations about the Holocaust in other contexts; this made him an invaluable addition to the team, as he was able to suggest facilitation strategies that created an environment that was conducive to a rewarding discussion. In addition, the two of us as facilitators made a good team because we could model for the rest of the group how Jewish and non-Jewish people could talk together about the Holocaust. During the event itself, no one questioned or seemed offended by the fact that I was co-facilitating the discussion, which I took as a sign that I had addressed my first concern well enough.

To address my second concern of not wanting the discussion to turn into a heated argument, Max and I worked together to prepare a plan for how we would stop off-topic heated arguments, if those occurred. A big part of this process was deciding what counted as “off-topic” in the first place. After all, people have different thoughts about the subject of the Holocaust, and we did not want to stifle any expression that was respectful and sincere. We ended up creating a list of topics that we thought were off-topic and would lead to arguments, and decided that if the discussion veered into these topics, we would re-direct the conversation by asking a new question or prompting a different participant to speak. I was the major driving force behind this strategy, because I felt uncomfortable with allowing conflict in a discussion that I was facilitating. I was uncomfortable because I would hold myself responsible if a participant in my discussion felt disrespected or offended; thus, I wanted to eliminate the chance that any participant would have to participate in a conflict that could lead to disrespect or offense. In retrospect, I think I could have handled this concern better. We were lucky that no heated arguments came up during our discussion, but if one had, I do not think our proposed approach would have been the best way to deal with it. If such an argument had come up, we would have changed the topic, which may have led to resentment at being cut off, confusion about why we were not allowing the discussion to continue organically, and unwillingness to participate further. I think a better approach would have been to be more open about my discomfort and thought process. For example, I could have told the participants that I felt conversations about X, Y and Z topics would lead to heated arguments that I wanted to avoid, and then allowed them to respond regarding whether they agreed with me or not. This way, the discussion would be more democratic, instead of being restricted to topics that I thought would not generate conflict that made me uncomfortable. This more open process would take the burden of guiding the conversation off my shoulders, and allow all participants to feel responsible for the direction of the conversation.

I still treasure the discussion we had that night. Many attendees offered constructive feedback about changes we could have made, but all attendees appreciated the chance to have had such a meaningful discussion. However, looking back on the experience with the benefit of hindsight, my biggest takeaway from hosting the Zikaron BaSalon event is not that I managed to pull it off. My most powerful learning comes from all the questions I still think about. How do I best connect with people who have different histories than me, and help them talk freely with me? How do I handle heated, but important, discussions? I found a way to address my concerns for the duration of the Zikaron BaSalon event, and I am grateful to have had the chance to see how wonderful conversations can be when these questions are considered and engaged.

The Art of Listening: A Mediator’s Experience

HMP students Quent Fox, Laura Bloomer, Pratik Mehta, and Margaret Huang with Clinical Instructor Cathy Modell at Harvard Law School’s Bicentennial Celebration event showcasing clinical programs and student practice organizations.
Credit: Martha Stewart

By: Laura Bloomer, J.D. /MPP ’19

Two years ago, I would not have listed “great listening skills” as one of my top attributes. Yet at its core, being a good mediator requires you to be an active, engaged listener. We listen to what the parties are telling us and use that information to move the conversation forward. We help the two people sitting across from us create their own resolution to whatever issue brought them into court that day. The model we use at Harvard Mediation Program (HMP) discourages offering solutions and taking sides. Instead, we empower parties to develop and agree upon solutions themselves.

We’re not always successful, in which case the parties can return to the court and have their case heard by the clerk magistrate. But when we are successful, parties sign an agreement of their own making and can walk out of court a few minutes later after getting approval from the clerk. As opposed to a blunt solution imposed by the court, the mediated agreement can be flexible and tailored to the parties themselves. We add efficiency to the court system, sure, but we also strive to add a space for people to talk and to better understand each other. We believe that when parties create their own solution to a problem, they are more likely to feel that the result is equitable and will be more likely to abide by the requirements in the future.

I joined HMP for two reasons. On a personal level, I wanted to improve my listening and facilitation skills. On a professional level, I believe in alternative dispute resolution and wanted to get hands-on experience in the field. Over the past couple years, I keep returning to HMP for those same reasons, as well as a third: some of the most caring, thoughtful, and fun students at the law school are also members of HMP. After all, many of the best listeners find their way to mediation, meaning HMP has an incredible support system. It’s also a place of engaging conversation, where discussions range from how to build stronger relationships to improvements to the legal system that would lead to a more inclusive, fairer process.

Since I began training with HMP, I’m confident that not only have my listening skills improved, but also, I now have a greater understanding of the legal system and its effect on people’s lives. I’ve mediated a variety of different disputes: landlord-tenant, small claims, and harassment prevention orders. Some cases are as simple as the parties seeking a payment plan to ensure the money owed gets paid in a reasonable time period. Some are incredibly difficult and involve decades of fraught relationships coming to a head. Many are in between the two extremes.

As mediators, we have to be comfortable with whatever level of emotions parties bring to the table. We strive to acknowledge their feelings and allow the parties to be heard. One of the greatest privileges of HMP is the chance to serve as a trusted neutral through which parties will share their experiences and put genuine effort into trying to reach a resolution that feels fair to both sides.

For many people, this day in their local court will be the only time they directly interact with the legal system. Mediation can redefine this day for them. It brings parties away from the hierarchy of the court room, where the judge sits behind a bench higher than the parties, Latin and antiquated words are intermixed with English, and only the lawyers may freely step in front of the bar. Mediation brings folks to a table to sit together and engage in a productive discussion. Being a small part of making the legal system more accessible by all members of society has been one of the most rewarding aspects of my time at HLS. I hope to continue this type of work in the future and to keep practicing my listening skills, whether through mediation directly or other activities.

Humanizing Individuals in the Criminal Justice System

PLAP students representing a client in a parole hearing

By: Regina Powers, J.D. ’19

I joined the Prison Legal Assistance Project (PLAP) the fall of my 1L year at a time when I knew very little about the criminal justice system. I knew, however, that PLAP provided important services to prisoners in Massachusetts. These services include representing prisoners in disciplinary hearings and in their bids for parole before the Massachusetts Parole Board.

In January of my 1L year, I took my first case. When I visited my client, he was only able to speak to me behind a glass wall and in handcuffs. I learned he was in “segregation,” which is a term the Department of Corrections (DOC) uses to describe the Massachusetts system of solitary confinement. Those in solitary usually receive one hour of recreation a day, while spending the remaining 23 hours in a small cell. I could not witness a client handcuffed behind a glass wall while speaking with his student attorney without becoming enraged and devoting my time in law school to this work. Our criminal justice system is used as a tool of racial oppression and the horrors of solitary confinement and other terrible conditions in prisons are inflicted disproportionately on men and women of color.

I continued in PLAP throughout the rest of my 1L and 2L year, and I was fortunate enough to represent a client before the Massachusetts Parole Board. PLAP represents “lifers,” or clients with life sentences who are eligible for parole. Many of these men have been imprisoned for decades, and they often committed a crime as teenagers or young adults––a time before the brain is fully developed. My representation included developing a detailed memorandum asking for parole, gathering letters from friends and family members, extensively preparing my client for opening and closing statements, and preparing a closing statement myself. Through this, I developed skills in client interviewing, which can be a particularly difficult skill to gain during law school because of limited opportunities to interact with clients. Additionally, I developed the type of skills relevant to trial work, as I prepared arguments and presented them before a panel.

I describe this as a fortunate experience for me because of the opportunity to meet and spend time with my client, and the honor bestowed upon me in advocating for him. Although society marginalizes and demonizes prisoners, and especially prisoners serving life sentences, many of our students, including myself, view our clients as genuine, wonderful people. Most importantly, we view our clients as humans deserving of fundamental rights. It is horrifying and demoralizing that the rest of society does not view them as such. Students should join PLAP for the privilege it is to advocate for prisoners. You will learn not only about the criminal justice system, but also the wisdom of those who have spent countless years in prison.

My experience in PLAP has been the single most important experience during my time in law school. It has led me to fully realize the level of injustice present in our criminal justice system as a whole, as well as the inhumane conditions in our prison system. I plan to pursue criminal justice work and hopefully prisoners’ rights work more specifically. Many other PLAPers attribute their passion for this work to our organization, and I encourage students to consider joining. Several students staff each office hour under the direction of student mentors, who offer mentorship about the work and law school advice in general. PLAP also hosts happy hours, speaker series, and other bonding events, which fosters a unique community for those who want to work in criminal justice and more specifically on prisoners’ rights.

 

Hipper Than HIP: Harvard Law School’s Immigration SPO

HIP students participating in Citizenship Day in Boston on September 23, 2018

By: Austin Davis, J.D. ’19

The Harvard Law School Immigration Project (HIP) has been the best part of my law school experience. Nothing but respect for the other SPOs – HIP just can’t compete with calling a social event “PLAPpy Hour” – but I’ve found the most engaged, dependable, and passionate students anywhere at HIP.

I joined HIP because immigrants are the cornerstone of my family and my country, and immigrant rights are under siege. But I also joined because spending all my time in the classroom was giving me hives. I wanted to work with an actual person, dive into their story, and help bring some humanity to law.

HIP’s work provides the perfect outlet for that energy. Some members assist families with byzantine green card applications or work authorization forms. Others represent indigent clients at bond hearings, or provide Know Your Rights presentations to groups of non– United States citizens at local community centers.

Personally, I’ve spent most of my time working with HIP’s chapter of the International Refugee Assistance Project (IRAP). It’s an international organization with chapters at 28 law schools that works with refugees abroad and former war-zone translators for the United States. And during my 1L year, I had the chance to work on a case with a fellow 1L partner and lawyers from the New York City firm Cleary Gottlieb.

The stakes were high. Our clients were a same-sex couple tortured by their government and abused by their families in their country of origin. They had fled to a second country, where the revelation of their sexual orientation had led to further physical and sexual assaults. They were broke, they didn’t speak the language, and suffered ongoing harassment and violence.

As lawyers in touch via Skype and living an ocean away, our role was soberingly limited. But we could help them push through the refugee system, to get out of their situation and receive resettlement clearance for Europe or the United States. And to that end, we did successfully petition the United Nations for our clients to receive an expedited refugee determination. That was the first step they needed in order to activate the international resettlement mechanisms, and we cut their resettlement wait time down by well over a year – a year which, by our clients’ account, would have proved very dangerous.

But this case makes up just one part of my HIP involvement. I’ve also had the opportunity to attend “advice and counsel” sessions organized by HIP’s Community Outreach Initiative (COI). On one occasion, we students and our legal supervisors spent a couple hours in a Chelsea church basement talking with a gathered group of Haitian noncitizens. We helped provide honest, on-the-fly assessments of whatever concerns they had: their immigration status, the visa risks of leaving the country, or the president’s mood.

In addition, I’ve participated in Boston’s Citizenship Day with HIP’s Immigration Services Project (ISP), where we worked through the fine details of certain US citizenship forms with people preparing their applications. All in all, everything I’ve done through HIP has been client-centered, challenging, and immensely rewarding.

Plus, back at school, it’s been a delight to be surrounded by so many law students looking to do real work in the world. It was an essential community for me as a 1L, trying to navigate this gigantic law school. And over my three years with HIP, I’ve really valued how our members bring so many different perspectives, experiences, and motivations. It’s rarer than it should be to have people with a professional focus on the Central American humanitarian crises engaging with people focused on the Syrian civil war. In HIP, they come together, and we learn so much from each other.

HIP has provided the most meaningful experiences for me at law school, through the legal service work or making great friends. It doesn’t matter what year in law school you are or your background in immigration law: I’d highly recommend that all HLS students consider joining HIP.

 

Why TAP Defined My Law School Experience

Elizabeth Gyori J.D. ’19

By: Elizabeth Gyori, J.D. ’19

The notice came in a white envelope, hand-delivered by a staffer at the project-based Section 8 development that my elderly grandparents lived in. From the outside, it looked like it could be a notice that they received on a weekly basis. However, this was a “Notice to Cease.” From what my immigrant Chinese family could tell, it meant eviction. Then about to enter my first year of law school at Harvard Law School (HLS), I took charge of the situation. I knew nothing about subsidized housing and the rights afforded to my grandparents who spoke no English. Fumbling my way through preserving affordable housing for my grandparents and noticing the lack of culturally-competent legal services afforded to low-income tenants pushed me to join the Tenant Advocacy Project (TAP) as a 1L. My transformative time in TAP has not only led me to serve as the organization’s Co-President, but I hope to continue the fight for housing justice after graduation.

TAP is a student practice organization that provides representation and advice to tenants of subsidized housing who are facing eviction, subsidy termination, application denial or transfer denial. Every year, approximately 40 law students conduct a wide array of legal advocacy before local housing authorities. This ranges from reasonable accommodation requests for tenants with disabilities to representing clients at administrative hearings—a more informal, court-like proceeding—about eviction or termination of a rent subsidy. The ultimate goal of TAP’s practice is not only to ensure that tenants remain housed, but also that they are able to thrive in their affordable housing. Thus, student advocates work closely with social service providers in the Greater Boston area and conduct advocacy on policy issues that affect TAP’s client population. TAP’s intake process, run by a nine-student Intake Review Committee, allows advocates to shape the priorities and caseload of the organization. At the end of their time in TAP, students will have amassed a wealth of knowledge about many areas of the law and developed their trial advocacy, negotiation, legal research and writing, and client interviewing skills.

This skill acquisition is not the only reason why students join or return to TAP year after year. Students are also interested in housing justice and how it intersects with other pressing social issues. For example, one of my clients, who is elderly and disabled, was facing voucher termination because her son became addicted to opioids after a surgery and was arrested for possession of drugs. The arrest was not near her apartment and her son was actually away at college at the time. She had no idea about her son’s addiction, and in the years since, her son had turned his life around. Even still, the overlapping web of the criminal justice system, the nation’s opioid crisis, and other public health issues threatened my client’s stable housing. My colleagues and I worked with the son’s public defender, filed reasonable accommodation requests for my client’s disabilities, represented her at several hearings about her termination, and referred her to social services. Like every advocate, I grew immensely by getting to know and working closely with my client. I developed my legal research and writing skills, my understanding of how the administrative process is related to later court practice (i.e., preserving the record), and my ability to work effectively with clients with disabilities, especially translating complex legal concepts into everyday language. Personally, I was moved by the trusting relationships that organically formed between my client, her son, and me. Their resilience re-energized me. Further, I was grateful to have the opportunity to see and trace first-hand how housing justice is deeply linked to many other areas of law and policy, including disability law, criminal law, economic justice and public health. This front-row seat allows TAPpers to become passionate and effective legal aid and community lawyers, policymakers, and impact litigators, among many other career paths after graduation.

Moreover, TAP’s vibrant community, which gives students a space to engage with the Greater Boston community, discuss various social issues and reflect on law school, is where many TAPpers make life-long friends. Key to this community has been TAP’s long-time Clinical Instructors, Lynn Weissberg and Marcia Peters, who have supervised students for over 30 years. Lynn, who founded TAP in 1981, has been a strong advocate for housing justice in the Greater Boston area, from the days of rent control until today. Marcia, who joined TAP a few years after TAP’s founding, has similarly fiercely fought for the rights of low-income tenants. On each case that they supervised, Marcia and Lynn not only brought wisdom and legal insight, but they have taught, by example, generations of TAPpers what it means to zealously advocate for your client. Though Marcia retired this past April and Lynn retired in October, TAP’s community is only expanding. We are excited to welcome Shelley Barron to the TAP family as our new Clinical Instructor. Since her start this past June, we have seen how her background in housing law, family law and working with survivors of domestic violence has strengthened our advocacy for clients.

In the summer before law school, I was able to help my grandparents remain in their affordable housing. But as I have explored housing justice more and more throughout law school, I have realized that lack of culturally-competent representation is not the only barrier to affordable housing. Rather, sheer lack of enough affordable housing, housing policies and laws that clash with communities’ differing conceptions of family and dignified living, and the effect of intersecting issues like economic injustice prevent the fulfillment of housing as a human right in the United States. I hope to bring my skills, experiences, personal background and understanding of the Asian American community to my future work in housing justice. As I look towards graduation and practicing law in the “real world,” I only hope that I can be as brave and resilient and my TAP clients, as fierce and compassionate as Lynn, Marcia and Shelley, and as dedicated to housing and social justice as my fellow TAPpers.

SPO Student Reflection: Answering the Call – In Community for Justice

By: Felipe Hernandez, JD ’20

Source: Pixabay

As a first-generation college student, my parents and I, who worked nightshifts as janitors, never dreamed that one day I would attend Harvard Law. As undocumented immigrants living in Los Angeles, our family faced periodic evictions, interactions with the criminal legal system, labor violations, and discrimination without access to legal aid. Throughout my life, and increasingly during 1L, I regularly received frantic phone calls from family members or friends undergoing life altering challenges including incarceration, deportation, eviction, child custody issues, domestic violence, and police violence. While these experiences were my primary motivation for changing my career from the non-profit world to attend law school, they continue to fuel my involvement in student practice organizations (SPOs) and clinics to develop the necessary legal skills to answer these calls.

To better understand the criminal legal system afflicting folx back home, I joined Harvard Defenders, where we provide representation to people facing criminal show-cause hearings. The Defenders’ community immediately became a home of diverse, radical, and loving people working to counter the weight of the criminal legal system and exploitative social order on low-income, mostly people of color, in Boston. Practically, I learned how to respond to criminal complaints, interview people we serve through an anti-oppressive method, develop case strategy in team meetings, gather evidence, cross-exam police officers, and advocate zealously for our people in court. The stories of the folx we represented – from domestic violence to struggling with drug addiction and mental health to petty larceny – resonated deeply with the people I was trying to help back home. Understanding the limitations of direct representation in addressing systemic violence, I am most excited when our community discusses strategies to address structural oppression afflicting the people we serve, including engaging in community movement lawyering and cultivating an abolitionist politic and practice within and outside of Defenders.

I also joined the HLS Immigration Project (HIP) to develop the capabilities to help people facing ICE persecution, imprisonment, and deportation. I transferred the skills I learned from preparing asylum applications and for bond hearings in immigration detention and removal proceedings to help family and community members fighting deportation. In HIP, I met students and staff devoted to addressing the consequences of global inequality and imperialism that displaces millions of people, and pushes them to migrate through violent borders. I spent my 2018 Spring Break with American Gateways in San Antonio helping people imprisoned in the South Texas Detention Center prepare asylum applications. Our team included some of the most inspiring, critical, and incredible law students at HLS. This experience was life changing because we witnessed the psychological, physical, and emotional abuse that the U.S. immigration system inflicts onto people fleeing violence. For example, as I worked with one of my clients, Melissa, on her asylum application, she shared her frustrations with the U.S immigration system: “I came here because I thought it would be better, I thought they [the immigration judge] would believe me and help. Instead, I am in prison.” On our final day, as we said goodbye and talked about her next steps, we both exchanged tears of pain, power, and hope. She had been fighting tirelessly for decades for herself and daughter to escape abuse. She won many battles but the structural imbalance of power was overwhelming. As I left, she told me that she felt more energized to kept fighting. That night, I wrote in my journal:

“I came to HLS because I thought I could fix it all as easily as I had helped family members in the past. How naïve. Our immigration system is built to undermine and reject basic notions of humanity. People with the audacity to seek a better life, after decades of abuse, are told ‘We don’t believe you’ by administrative judges sitting back in their cushy chairs and folx are sent back where they are certain to undergo similar, if not worse, traumatic experiences. I wonder if what we did was enough. I wonder how we can dream of and actively work toward building a better world.” – March 16, 2018

The impact of my time at HLS has already had ripple effects on those I promised I’d serve because of the skills I gained through SPOs. For example, I helped a family member fight a criminal charge she did not commit after being overcharged and pressured by a district attorney to take a plea. I helped another family member fight an eviction proceeding initiated because of her partner’s undocumented status. While these skills have improved my ability to respond to some of the ongoing calls for help I receive, I remain frustrated at my inability to substantively dismantle systemic causes of these calls. This is why I decided to serve as a student-attorney with the Harvard Legal Aid Bureau (HLAB); to improve my capabilities in providing direct legal aid and to be in community with an inspiring group of brilliant people who are consciously cultivating spaces and practices to address systemic injustices in coalition with the Boston community.

Being involved in SPOs and clinics has not been easy. Those of us involved constantly struggle to grapple with our evolving critical views of social and reparative justice, realities within and outside the criminal and civil legal systems, and strategic visions of how to engage in long-term movement building yet deal with the urgent needs of people we serve and advocate with. Nevertheless, we persist to answer the calls for justice because of our shared prophetic love for the communities we serve.

SPO Student Reflection: “IHRC Has Been at the Heart of My Growth as a Human Rights Practitioner and Social Justice Advocate”

By: Daniel Levine-Spound, JD ’19

It is no exaggeration to say that my experience in the Human Rights Program has been the highlight of my time in law school. Since arriving at HLS in the Fall of 2016, I have served as Director of Programming and as a project participant in HLS Advocates for Human Rights, spent two semesters in the International Human Rights Clinic (IHRC), conducted independent research with IHRC professors, and taken as many international human rights-related courses as possible. Now, as I begin my third consecutive semester in the International Human Rights Clinic, and begin my work as Co-President of HLS Advocates, my 3L schedule largely revolves around the Human Rights Program – and I wouldn’t have it any other way.

The breadth of clinical offerings, SPO projects, and coursework in the Human Rights Program allows students to explore a broad range of pressing human rights issue-areas, and to identify and focus on the subjects about which they are most passionate. Most recently, as a 2L clinical student, I spent two semesters working on a lengthy investigation of refugee rights in the Kakuma refugee camp in North-Eastern Kenya, with a specific focus on freedom of movement. Working in a team of students under the supervision of Clinical Instructor Anna Crowe, I conducted months of research on movement restrictions in Kakuma, analyzing the functioning and effects of a complex and often opaque governance regime in light of domestic, regional, and international law. In November 2017, I traveled to Nairobi and Kakuma with Anna and one other student, conducting dozens of interviews with refugees, NGO workers, government employees and experts. Our research, reflected in a lengthy internal report and recently published briefing paper, provides a clear analysis of the significant consequences of movement restrictions on refugees in Kakuma, demonstrates the incongruence of said restrictions with Kenyan and international law, and offers a number of necessary recommendations. Now, as I enter into my third semester in the IHRC as a 3L, I am thrilled to be working on a project centered on assisting victims of environmental damage in armed conflict with Bonnie Docherty, Associate Director of Armed Conflict and Civilian Protection.

Outside of my clinical work, I have had the opportunity to take courses, and conduct independent research, on a number of subjects related to international human rights. Over the course of my time at HLS, I have explored questions of international humanitarian law, public international law, corporate accountability, human rights litigation in US Courts, disarmament, the UN human rights system, regional human rights courts, and emerging international law around LGBTQ rights and protections.

Undoubtedly, the most meaningful part of my experience in IHRC and Advocates has been the opportunity to work closely with clinicians. As project supervisors, classroom instructors, SPO advisors, and mentors, IHRC clinicians are the reason why Harvard Law School is an exceptional place to learn and grow as a human rights practitioner and lawyer. Supportive and affirming, inspiring and encouraging, and committed to the values of human rights and social justice, IHRC clinicians are dedicated to developing the next crop of human rights lawyers and activists. And at an extremely precarious moment for human rights, both in the United States and across the world, their work could not be more vital.

At a large and often intimidating institution like HLS, IHRC is a home for students on campus committed to fighting for a more just, humane, and democratic world. Even when I don’t have anything scheduled in the IHRC, I often find myself walking around the clinic, chatting with clinicians and other social justice-oriented students, and feeling re-charged and rejuvenated, ready to get back to the human rights work for which I came to HLS in the first place. As I enter into my final year of law school, it is clear that IHRC has been at the heart of my growth as a human rights practitioner and social justice advocate, providing me with the tools and inspiration I need to begin a career as a human rights lawyer.

I will miss it deeply when I am gone.

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

Via Take Care Blog

By: Daniel Levine-Spound

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

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

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

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

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

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

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

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

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

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

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

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