Clinical and Pro Bono Programs

Providing clinical and pro bono opportunities to Harvard Law School students

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CVLC Advances Veteran Law with Discharge Upgrade Practice Manual

Via Connecticut Veterans Legal Center

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

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

 

Learn more about the initiative.

My Student Loan Truth: Rick’s Wyotech Story

Via the Project on Predatory Student Lending 

Source: Flickr

In our Student Loan Truth blog series, our clients share what they really got from their for-profit college and how the debt affected them. Their experiences demand a public reckoning on student debt and an end to the predatory practices of for-profit colleges.

This month we interviewed Rick Dobashi, who attended Corinthian-owned WyoTech in San Jose, California from 2011-2013. Rick is part of our class action case Calvillo Manriquez v. DeVos, which represents students who were cheated by Corinthian Colleges (WyoTech, Heald, and Everest).  Even though a judge ordered the Department of Education to stop collecting on the fraudulent loans of certain Corinthian students in May, the Department continues to fight back with its latest appeal this month.

This is Rick’s #StudentLoanTruth

What made you decide to attend WyoTech?

I went to WyoTech because I saw all these great opportunities advertised – high pay, advanced training, how many jobs are out there, things like that. I wanted to work on something I’m passionate about, so I enrolled in a program for working on high performance cars.

What was the education like at WyoTech?

Once I really got into the program, I started to realize that they weren’t telling us the truth. The few times we actually got to work on cars, they weren’t even up to date, never mind high performance – all built in the 70s and 80s. They also cancelled a lot of the car classes and basically forced us into other, unrelated programs.

It was pretty clear WyoTech just wanted to just us in the door and get our money. They didn’t care about the students or our education.

How did WyoTech affect your employment prospects?

After I finished the program, I went to start looking for jobs and found that those high paying jobs they promised us didn’t exist. They sent us job listings for washing cars – that is if they even had anything to with cars at all.

What I’m doing right now has nothing to do with WyoTech or cars. I’m self-employed and own my own retail tobacco business. I managed to do that despite WyoTech, not because of them.

How has this experience affected your life?

I walked out of there with a $20,000 bill and nothing to show for it. It caused a lot of credit problems for me. Even back when the housing market was somewhat affordable, I couldn’t buy anything because my debt to income ratio was too high. It’s been a difficult rebuilding process for a long time, trying to make ends meet.

You had friends who went to WyoTech at the same time as you, yet they had their loans cancelled and you haven’t received anything. How does that feel?

I feel robbed. If you buy something and it’s defective, you’re supposed to be able to return it. Instead, I’m being punished for trying to get an education and expected to pay over $20,000 for something I never received. We all went to the same school, had the same experience of being lied to. I don’t understand how the government can cancel these loans for some people, but not for others who were in the exact same situation. They should be cancelling all of the loans for these schools.

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

This isn’t what education is supposed to be about. If you go to a school and are lied to and don’t get what you’re promised, you shouldn’t have to pay for it. Why should we be punished for trying to get an education, while these schools can just get away with lying and cheating?

Rick is one of many thousands of former Corinthian students who are still waiting for the debt cancellation they are owed, as the Department of Education continues to delay doing the right thing. The Project on Predatory Student Lending, along with advocates and elected officials across the country are urging the Department to Cancel Corinthian debts immediately.

 

Harvard Law Student Gets Landmark Win At Mass. Top Court

Via Law360 

By: Chris Villani

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Via Law360 

Source: Pexels

By: Chris Villani

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shutdown Inflicted ‘Real Harm’ on Taxpayers, IRS Watchdog Says

Via The Wall Street Journal

By: Richard Rubin

The recent government shutdown damaged the Internal Revenue Service, an agency already struggling with budget cuts and aging computer systems, according to the IRS’s in-house watchdog.

IRS employees are working through more than five million pieces of correspondence and tens of thousands of backlogged audit responses and amended returns, according to an annual report released Tuesday.

In the week after the shutdown ended, the wait time on the IRS accounts-management phone line was 17 minutes, up from four minutes last year. And only 48% reached a live person, down from 86% in the equivalent week last year. Wait times were even longer on other IRS hotlines.

“Make no mistake about it, these numbers translate into real harm to real taxpayers,” wrote Nina Olson, the national taxpayer advocate, in her report. Ms. Olson operates as an ombudsman within the IRS and oversees employees who assist the public in dealing with the tax agency.

The way the IRS operated during the shutdown also hurt vulnerable taxpayers, Ms. Olson wrote. Before and during the shutdown, the IRS continued sending notices that had “serious consequences” but made it difficult or impossible for taxpayers to get the information they needed to respond.

For example, taxpayers couldn’t get seizures of their property reversed even if they were facing severe economic hardship and banks may already have removed the money from their accounts. Ms. Olson’s employees often assist with that work, but they were largely furloughed and unable to do so.

In some cases, taxpayers’ Tax Court petitions were returned to sender during the shutdown, meaning that tax collection continued even in cases where the law would suspend it. Fixing that problem will cost money for the court and for the IRS, Ms. Olson wrote.

“It is unconscionable for the government to allow its employees to enforce collection of taxes without the concomitant taxpayer rights protections enacted by Congress,” she wrote, recommending that lawmakers change the rules for future shutdowns.

Low-income taxpayers, in particular, are at risk of getting discouraged when the government stops responding, which could lead to accumulating interest and penalties.

“No one’s there and so there’s a higher likelihood that they could disengage entirely,” said Jennifer Breen, a partner at Morgan, Lewis & Bockius LLP who represents low-income and corporate clients.

On the corporate side, the shutdown is having lingering effects as IRS employees pick up cases they set aside months ago while interest costs accrue and companies spend money on advisers. Ms. Breen said she spent time on calls with IRS employees on Tuesday preparing for how to handle cases if another shutdown happens.

“Any time you stop the train from moving, the act of starting it back up again takes so much more effort,” Ms. Breen said. “We’re still figuring out all of the delays and all of the impacts.”

Tony Reardon, the president of the National Treasury Employees Union, which represents IRS workers, said the public should be alarmed by the “damage that has been done to the agency’s workforce and the taxpayers they want to serve.”

“Today’s report brings into sharp relief just how difficult it is for an underfunded, understaffed agency to function at a high level when most of its workforce was locked out for a month before the start of the filing season,” Mr. Reardon said.

In a statement about Ms. Olson’s report, the IRS said it is committed to improving its technology, enforcement and service.

“The IRS successfully reopened operations following the shutdown, and the agency is seeing a good start to the 2019 filing season,” the statement said. “We are continuing to assess the impact of the shutdown on our various operations across the agency and remain proud of the many IRS employees who have risen to the resulting challenges.”

Ms. Olson’s calls for tax simplification, taxpayer rights and a customer-service approach at the IRS have at times translated into change. The IRS and Congress have adopted some of her suggestions, including requiring brokers to report on the cost basis of stocks and adjusting some filing deadlines.

The shutdown came as the IRS was implementing the first filing season under the 2017 tax law, which came with new forms, new rules and changes to withholding and deductions that are confusing some taxpayers.

The new Form 1040, which has a postcard-style front page and backup schedules, increases the potential for errors, Ms. Olson wrote.

Also, experts expect average refunds are likely to be larger this year, but fewer people are likely to get them, which presents its own challenge for the IRS. Keith Fogg, a clinical professor of law at Harvard Law School, said Tuesday that if 1% or 2% of taxpayers shift to owing money at filing time, that can create lots of extra work for the IRS as employees negotiate installment plans and respond to collections notices.

“Even people who owe only a small amount of money, if they don’t have that small amount of money, [they] are going to put a big burden on the system,” he said.

Those immediate issues come alongside a longer-term shift at the IRS from a model that offers taxpayers more assistance to one that relies more heavily on them to navigate the system, Mr. Fogg said.

“Every time they have to interact with the IRS in some way, we make it really hard for them now,” he said.

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.

Supreme Court’s execution decision animates critics on the left and right

Via The Washington Post

Source: Flickr

By: Robert Barnes

The Supreme Court’s late-night, two-paragraph order that sent a Muslim inmate in Alabama to his execution last week has become the court’s most controversial act of the term, drawing intense criticism from the political right and the left.

The court’s five conservatives agreed with Alabama officials that Domineque Ray could be put to death without an imam present in the execution chamber, even though a Christian chaplain who works for the prison system is in place for other executions.

The court’s short order did not deal with the religious issue, saying only that Ray made his request too late. His lawyers, and the court’s liberal members, disputed that.

The blowback was immediate.

“I can’t recall the last time that I was as shocked by a Supreme Court decision,” said Deepak Gupta, a Washington lawyer who argues before the justices. “This decision is indefensible on the merits, and the court doesn’t even bother to try.”

Added Amir H. Ali, Supreme Court and appellate counsel at the MacArthur Justice Center and a lecturer at Harvard Law School, said the court’s order was in contrast with recent decisions that have protected religious rights.

“Consider the opposite circumstance — a Christian person who is told that, during the final moments of his life, he can have only the services of an imam,” Ali wrote in an email. “It is hard to imagine the court reaching the same result as it did here. And that’s a real problem because the very purpose of the Establishment Clause is to prevent this sort of religious preference.”

Criticism from the right was strong, as well.

“The Supreme Court Upholds a Grave Violation of the First Amendment,” was the headline above conservative commentator David French’s article in the National Review.

“Any policy that by law or practice provided death-row inmates with access only to Christian chaplains would likely fail 9-0 if addressed on the merits,” French wrote. “In this case, however, the Supreme Court didn’t decide the merits. It determined that Ray’s request for an imam was made too late.”

The five justices who allowed the Alabama execution to proceed — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — lifted a stay imposed unanimously by a panel of the U.S. Court of Appeals for the 11th Circuit.

That court said Ray had raised a “powerful” argument that prison protocol favored one religion over another: “it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.”

It called for additional briefing in the case, but called for quick resolution to keep Ray’s execution on track.

Instead, Alabama filed an emergency request to the Supreme Court, saying it should be allowed to go ahead with the procedure it had put in place to conduct executions in an “orderly and secure fashion.” That meant having only correctional officials, which included the prison chaplain but not the imam who had been attending Ray, in the death chamber.

The Supreme Court majority did not address the religion issue, noting only that Ray — on death row since 1999 for the rape and murder of a 15-year-old girl — learned of his execution date in November, and waited until January to file a lawsuit challenging the exclusion of an imam.

In a dissent that called the majority’s decision “profoundly wrong,” Justice Elena Kagan said there was a reason for that.

The relevant Alabama statute, she wrote, provides that “both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at an execution.’ ” Ray learned only days before filing the suit that prison policy meant his imam was not allowed to be in the room at the time of his death.

Kagan said there was no reason for her colleagues not to allow the lower court to examine the issues surrounding Ray’s case.

“Ray has put forward a powerful claim that his religious rights will be violated at the moment the state puts him to death,” she wrote, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

“The Eleventh Circuit wanted to hear that claim in full. Instead, this court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the state can meet its preferred execution date.”

Because the court did not address the religious issues in the case, it creates no precedent for similar cases in the future.

The absence of such acknowledgment struck some as a sign the court is more alert to discrimination against Christians than other religions. The court’s conservatives, for instance, allowed Christian business owners with religious objections in a separate case to opt out of federal regulations requiring contraceptives be part of insurance coverage.

“Next time the court claims that religious liberty justifies casting aside some other important principle, like nondiscrimination on the basis of sexual orientation or women’s rights, we should remember what the court did here,” said Gupta.

Some who disagreed with the decision say they do not believe anti-Muslim bias was the cause of the order, but the court did itself no favor by not addressing it.

Ilya Somin, a libertarian professor at the Antonin Scalia Law School at George Mason University, posted on the Volohk Conspiracy website that the decision was a “grave injustice” but was probably motivated by the justices’ impatience with last-minute death penalty appeals.

But “to say that this factor likely explains the ruling is not to say that it excuses it,” Somin wrote. “The fact that activist lawyers sometimes abuse the process does not relieve the justices of their obligation to carefully consider the facts of each case on their own merits.”

The court has ruled in favor of Muslims who have been discriminated against because of their clothing, and in favor of a Muslim prisoner who had to sue prison officials for the right to grow a beard for religious reasons.

But Ali said the court’s 5-to-4 approval last term of President Trump’s ban on travel for some from Muslim-majority countries stung Muslim lawyers. He pointed to language in Roberts’s majority opinion.

“The court went the extra step of saying that there was ‘persuasive evidence’ for banning people from several majority-Muslim countries,” Ali said.

“If that was a gut punch to the Muslim community, this will be seen as a follow-up kidney shot.”

Circuit Judge Wary of DeVos’ Student Loan Debt Formula

Via Courthouse News Service

Source: Pixabay

By: Nicholas Iovino

A Ninth Circuit judge suggested Friday that the Trump administration’s Education Department used a flawed formula to make defrauded students pay back at least some loan debt to the federal government.

“It certainly seems at least plausible to say what was being compared here were apples and oranges, and the number that was being used as the comparator was being taken out of context entirely,” U.S. Circuit Judge Marsha Berzon said during Friday’s hearing.

Berzon was responding to a Justice Department lawyer’s argument that the method used to determine how much defrauded students should pay back in loan debt was both fair and practical.

Education Secretary Betsy DeVos is appealing a May 2018 court order forcing her to stop collecting loan payments from students who were misled about post-graduation job prospects by the now-defunct, for-profit Corinthian Colleges.

In December 2017, the Education Department announced it would reverse an Obama-era rule that gave full debt forgiveness to students deceived by Corinthian Colleges, a private 100-campus institution that collapsed in April 2015 after multiple state and federal investigations exposed its fraudulent marketing practices.

On Friday, a lawyer representing a nationwide class of more than 100,000 student borrowers argued the department’s new “Average Earnings” rule used an unfair formula to rescind the government’s previous offer of full debt relief.

Attorney Joshua Rovenger, of the Legal Services Center of Harvard Law School, said the department only used earnings data from 2014, when some students were still in school, and compared it to average earnings of graduates from other colleges, including those who now work minimum-wage jobs with their degrees and certificates.

Additionally, Rovenger argued, the department failed to account for graduates who work in fields that have nothing to do with their areas of study.

Justice Department lawyer Joshua Salzman countered that the use of existing data to assign value to each program was the most practical way to ensure borrowers only get compensated for “actual harm suffered.” The department maintains that cancelling all of the students’ loan debt would divert resources from important educational programs.

“What the plaintiffs are asking for is an assumption that everyone got zero value,” Salzman told the circuit judges.

Despite the lawyers’ focus on the fairness of the formula, U.S. Magistrate Judge Sallie Kim blocked the “Average Earnings” rule for a different reason – because the Education Department obtained the earnings data by sharing borrowers’ personal information with the Social Security Administration in violation of the Privacy Act.

Challenging that finding, Salzman argued Friday that the “end product” of the data exchange is more important than how the data was obtained. Salzman insisted the result was “aggregate earnings data,” not individualized, personally identifiable information.

That argument didn’t go over well with Berzon, who pointed out that personally identifiable information was shared with the Social Security Administration in the first place.

When Salzman explained how “end-product” data was used “to determine how much relief individual borrowers should get based on the program,” Berzon interrupted.

“There you go! Individual borrowers! It ended up with individual borrowers,” Berzon exclaimed.

But Salzman insisted exemptions in the Privacy Act allow the government to use citizens’ private data for “routine uses” and “programmatic purposes.”

Rovenger countered that the Privacy Act also requires the government to notify people when it shares their private information, and the department’s “general disclosures” on loan applications and borrower defense claim applications were insufficient.

“We urge this court to continue protecting these students and affirm the injunction,” Rovenger said in his final pitch to the panel.

U.S. Circuit Judge Richard Paez and U.S. District Judge Gary Feinerman, sitting by designation from the Northern District of Illinois, joined Berzon on the panel.

The panel did not indicate when it would issue a ruling.

After granting the plaintiffs’ request for an injunction last year, Magistrate Judge Kim declined to revive the prior Obama administration policy that would completely wipe out the students’ loan debt. In October, Kim granted the borrowers’ motion for class certification, allowing a nationwide class of approximately 110,000 students to team up in their lawsuit against the Education Department.

HRP Welcomes New Spring Staff to the International Human Rights Clinic

Via the International Human Rights Clinic

With the semester already off to a great start, we’d like to extend the warmest welcome to our new spring staff! We have two new members of the International Human Rights Clinic. Read below to learn more about them and make sure to stop by and introduce yourself.

Nicolette Waldman, Senior Clinical Fellow

Nicolette Waldman is a Senior Clinical Fellow for the Spring 2019 term. Previously, she was a researcher on Iraq and Syria for Amnesty International; a researcher for the Center for Civilians in Conflict, covering Gaza, Somalia, Libya and Bosnia; a legal fellow at the Afghan Independent Human Rights Commission in Kabul; a program manager for Save the Children in the West Bank and Gaza; a Fulbright scholar in Jordan; and a senior associate in the legal and policy division at Human Rights Watch in New York. Waldman has a B.A. in International Affairs and English Literature from Lewis & Clark College, a J.D. from Harvard Law School, and is a member of the State Bar of New York.

 

Jim Wormington, Clinical Instructor

Jim Wormington is a Clinical Instructor for the Spring 2019 term. He is also a researcher at Human Rights Watch in the Africa Division, where he covers West Africa. He was previously an attorney at the American Bar Association Rule of Law Initiative, where he conducted research to inform rule of law and human rights development programs, and implemented programs in West and Central Africa. Wormington has also worked at the International Crisis Group and the War Crimes Chamber of the State Court of Bosnia and Herzegovina. He is an English-trained barrister, an associate member of QEB Hollis Whiteman Chambers, and was educated at Cambridge University (MA) and New York University School of Law (LLM). He is fluent in French.

 

Template License and Collaboration Agreements for AI Art

Via the Cyberlaw Clinic 

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

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

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

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

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

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

A ’60s Experiment with a Ripple Effect

Via Harvard Law Today

By: Emily Newburger

During an event at Harvard Law School last year celebrating its 40 clinics and student practice organizations, Van Lanckton ’67 was delighted to hear about so many opportunities for students to work in the public interest today. But he also felt a sense of pride and nostalgia as he recalled the legal services experiment he and hundreds of other students had been part of more than 50 years earlier—at a time when clinical education did not exist at the school and change was in the air.

Credit: Fay Photo/ Harvard Law School Historical & Special Collections
Outside the Community Legal Assistance Office, 235 Broadway, Cambridge, 1967: attorney Paul Garrity LL.M. ’71; John Ferren ’62, CLAO’s first director; and student volunteers James Hoyte ’68 and Neil Jokelson ’68 with a local resident

In 1966, with support from a grant from the Office of Economic Opportunity, HLS opened a neighborhood law office in East Cambridge directed by John Ferren ’62 and staffed by law student volunteers. The Community Legal Assistance Office, or CLAO, became a full-service law office helping low-income residents with whatever legal issues arose, criminal as well as civil, and providing real-world training for law students. Among them was Lanckton, who after graduation served as a staff attorney for the organization and then its director until 1971 when CLAO merged with another local legal services organization.

Lanckton, whose career has included lawyering in state government and private practice, and, in his seventh decade, becoming a rabbi, has always been good at bringing people together. Last spring, he decided it was time for a CLAO reunion. On an afternoon in May, the first floor of the house in Newton he shares with his wife, Alice, was full of others like him for whom this brief experiment had had an outsized effect.

Howard Cohen ’71 recalled that as a student, he loved the law but felt disconnected from some aspects of law school. His involvement in CLAO allowed him to express his social concerns and became the foundation of his career. After graduation, he worked at the Cambridge Housing Authority and eventually developed a practice in affordable housing “doing a lot of adversarial, opening-up-the- suburbs work,” he said, under Chapter 40B, the Massachusetts affordable housing law. He went on to found an affordable housing company, Beacon Communities. “CLAO jump-started it all,” he said.

Some students who participated came from other law schools. Barbara Buell, then a Northeastern student, described her first experience with CLAO in 1969 as very much “jump right in.” She remembered the terrible panic she felt the first day when a woman came in wanting a divorce. “Oh my god, what am I going to do?” Buell recalled thinking. But her supervisor conducted the interview and showed her. By the next week, Buell was in court representing the woman, filing the papers and going before the judge. By the end of her stints at CLAO, she had helped train other law students and worked on more than 200 criminal matters at the Third District Court in Cambridge, even handling two six-person jury trials. No one she represented went to jail, she said, a sign that she’d learned a thing or two. After Buell passed the bar, it was thanks to CLAO that she felt ready to practice law. Just as important, she stressed, “CLAO taught me how much fun it is.”

Credit: Courtesy of A. Van Lanckton
Van Lanckton ’67 (back row, left) on the steps of the neighborhood law office he then directed, with attorneys Frank Cleckley LL.M. ’69 (front row, holding rail) and John Cratsley (directly behind) as well as students and staff

Peter Lauriat, a retired Massachusetts Superior Court judge, agreed. “There was a great sense of camaraderie, a willingness to work together for the common good,” said Lauriat, who was a student attorney at CLAO in the late ’60s. He recalled vividly the ins and outs of the work—from criminal cases, to efforts to help conscientious objectors in the wake of the Vietnam War, to the peace of mind he brought to an elderly woman for whom he drafted a will.

At the center of many circles of conversation during the reunion was a Harvard lawyer and teacher who has perhaps the deepest knowledge of CLAO’s long-term impact: HLS Lecturer on Law Jeanne Charn ’70. Charn views CLAO as a precursor to the Legal Services Center, the school’s first clinic, which she started with Professor Gary Bellow ’60 in 1979 and which was the beginning of HLS’s clinical program.

Charn volunteered at CLAO as a 3L and then was hired as one of the supervising attorneys, helping Buell, Cohen, and numerous other CLAO students to get their start. CLAO not only helped her, recalled Charn. It changed her life. “It wasn’t just legal services,” she said. “It was the way we did it. It was being so close to the community.” When she and Bellow started the Legal Services Center, CLAO was absolutely the inspiration: “a neighborhood-based program that followed the community’s lead. No matter was too small.”

“We didn’t get it right all the time. We missed things,” said Charn. “But my whole life’s work started there.”

Cyberlaw Clinic Files Amicus Brief for Former Magistrate Judges re: Surveillance Orders

Via the Cyberlaw Clinic

Source: Pexels

The Cyberlaw Clinic filed an amicus brief (pdf) last week in the United States Court of Appeals for the D.C. Circuit on behalf of a group of former United States Magistrate Judges, supporting the unsealing of government surveillance orders and applications. The brief supports Jason Leopold, a BuzzFeed News journalist, and the Reporters Committee for Freedom of the Press (“RCFP”). The appeal arises out of a petition that Leopold filed in the D.C. District Court to unseal applications and orders for pen registers, trap and trace devices, tracking devices, stored email, and other types of surveillance, many of which remain sealed indefinitely in practice. He argued that, once the seal is no longer necessary, public access to these judicial records is required under the First Amendment and common law right of access to court records. Leopold was later joined by RCFP.

The parties originally worked with the United States Attorney’s Office for the District of Columbia to narrow the scope of the request, but although some information was turned over, the majority of the applications and orders remained sealed. On February 26, 2018, the district court denied petitioners access to any additional old surveillance matters and granted only very limited access to surveillance applications and orders going forward. The court based its decision largely on the administrative burden the full request would place on the government.

Leopold and RCFP have appealed the district court decision to the D.C. Circuit, asking for the court to grant access to the records under the First Amendment and the common law right of access to judicial records. Although the lower court decision is specific to the context of the D.C. district, Leopold’s case has the potential to shape how federal courts generally handle requests for information regarding government surveillance practices.

Amici are all former United States magistrate judges with a shared interest in unsealing federal surveillance orders and a diverse set of experiences on and off the bench:

  • Judge Mildred Methvin has served as judge in Louisiana, Maryland, and Pennsylvania and is a former AUSA. She is currently an attorney and mediator in Louisiana.
  • Judge Brian Owsley has served as a judge in Texas and is a former trial attorney for the U.S. Department of Justice.  He is currently an assistant professor of law at University of North Texas at Dallas College of Law.
  • Judge Viktor Pohorelsky served as a judge in New York. Prior to his judicial appointment, he had a fourteen-year career as a litigator in private practice and as an AUSA.
  • Judge Stephen Smith served as a judge in Texas and is the current director of the Fourth Amendment & Open Courts program at Stanford Law School’s Center for Internet and Society.
  • Judge David Waxse served as a judge in Kansas and is the former President of the Kansas Bar Association and former Chair of the Kansas Commission on Judicial Qualifications.

Based on their more than 90 years of collective experience on the bench, amici explain the practical consequences of unsealing surveillance matters. Amici outline the process of unsealing surveillance applications and orders in their courtrooms and discuss places where the administrative burden can be reduced, including the shift to e-filing of sealed surveillance applications and orders.

Amici further explain why the burdens of unsealing are not as dire as the district court predicted: surveillance filings can be easily redacted, the majority of unsealings of old surveillance matters proceed unopposed, and properly redacted surveillance documents present no real risk to law enforcement practices. Amici also explain the downsides of considering government inconvenience when determining whether the public should have access to surveillance orders. As administrative practices vary greatly across judges and across government offices, taking the administrative burden into account would effectively make the common law right depend on the size, efficiency, and workload of the government office who made the request or the judge who received it.

The Cyberlaw Clinic is honored to have represented such august amici and hopes the D.C. Circuit Court of Appeals will seriously consider their input. Fall 2018 Cyberlaw Clinic student Akua Abu helped develop arguments for the brief, and the brief was written by Winter 2019 student Alexandra Noonan with assistance from Clinical Fellow Kendra Albert and Clinical Instructor Mason Kortz.

Tough Choices Over a Pricey but Effective Drug for Hepatitis C

Via Star Tribune

By: Glenn Howatt

Hepatitis C is one of the most common infectious diseases, with the potential to cause serious liver damage, so patients were thrilled when a set of revolutionary new medications became available five years ago.

But at $90,000 per treatment course, the drugs were pricey, and many states, including Minnesota, balked at covering them under their taxpayer-funded Medicaid programs.

Since then, however, the treatment cost has fallen dramatically — in some cases to $24,000 — and is expected to fall further after generics are introduced this year. Now advocates are urging Minnesota to drop its restrictions, which they say prevent patients from getting medications that are highly effective and stop the spread of the virus. “I am frustrated seeing my patients walking around with infections that I could treat with a snap of my finger,” said Dr. Ryan Kelly, a primary care physician at the Community-University Health Care Center in Minneapolis.

Minnesota is one of only 12 states that require patients with an addiction history to maintain a six-month period of sobriety before they can start taking hepatitis C drugs, although some can get the medication with three months’ sobriety if they are in addiction treatment. By comparison, 32 states either have no sobriety restrictions or require basic screening and counseling to weed out patients who are not good candidates for treatment.

Kelly plans to meet soon with officials at the Minnesota Department of Human Services, which runs the Medicaid program, in an effort to change its policy.

Nearly 35,000 infected

The current restrictions, which also require that the drugs be prescribed only by or in consultation with a specialist, such as a gastroenterologist or hepatologist, were introduced when the new treatments came online in 2014.

Nearly 35,000 people in Minnesota are infected with hepatitis C, according to the Minnesota Department of Health. On average, 2,200 people in the state are diagnosed with the virus every year, but the state can’t say when they acquired the infection. Disease researchers say that many more are infected but have never been tested.

Hepatitis C, which can lead to liver cirrhosis and cancer, is spread mainly through blood. Many infections are caused when street drug users share needles.

“Hepatitis C is on the rise mostly because of the rise in injecting drug users,” said Kelly. “If we treated people who are spreading the infection, more costs would be saved down the road.”

A state official says the sobriety restrictions are necessary to prevent people from becoming reinfected should they relapse after getting hepatitis C treatment.

“We want them to be treated in a way that will be successful,” said Dr. Jeff Schiff, medical director for Medicaid and MinnesotaCare. “The cost has come down significantly, but it is still a very significant cost per treatment course.”

Kelly said the decision to prescribe hepatitis C treatment drugs should be left to the doctor who knows the patient best. As with other diseases, doctors weigh many factors before writing a prescription, including the patient’s likelihood to comply with the treatment.

“It is a moral restriction that has nothing to do with [patient] health and doesn’t need to be there,” he said.

Schiff said he’s open to a discussion about the future of the state policy.

“The landscape is evolving since these [drugs] came on the market,” he said. “Through our internal conversation we have decided that we will take another look at this policy.”

Sober for his daughter

Gabriel Bliss, 31, has been waiting since April to get the medications that will cure his hepatitis C. He had been a long-term heroin user but quit after his best friend died from a batch that contained fentanyl. He learned of his hepatitis infection while in detox.

“I have a 3-year-old daughter, and she is the main reason that I am still alive and the main reason that I am sober,” he said in a recent interview at his Richfield house.

Bliss gets his insurance through one of Minnesota’s Medicaid managed-care plans, which administer benefits to about 850,000 of the 1.1 million residents who are on the program. All of them have similar restrictions to the state policy.

After quitting heroin, Bliss saw a specialist but got turned down for hepatitis meds because he had smoked marijuana.

“I figured that if I wasn’t on other hard drugs it would be OK,” he said. “Had I known that, I wouldn’t have smoked, because it is a lot more important for me to get rid of hep C.”

Now, he has to wait until March before getting treated. In the meantime, he’s concerned that he might infect others, either through an open wound or even sexual contact, which presents a low risk.

“I don’t know why there are restrictions on it,” he said. “You would think that you want people to be healthy because it would cost less in the long run.”

Nationwide, state Medicaid programs are being urged — and sometimes sued — to drop treatment barriers. Led partly by the Center for Health Law and Policy Innovation at Harvard University, 21 states have dropped or reduced requirements that patients must suffer some liver damage before they are treated, a requirement that Minnesota never used.

Nine have relaxed sobriety restrictions, and six have loosened specialist requirements.

“What we are seeing here are measures that are deliberately put in place to stop people who need medically necessary care versus cost concerns,” said Phil Waters, an attorney with the Harvard center. He said the restrictions are “discriminatory and illegal.”

An ‘early win’

Phil Gyura, a certified nurse practitioner with Minneapolis-based Livio Health, used to practice in New York. He said access to treatment expanded significantly when that state dropped most of its restrictions in 2016.

“From a public health standpoint, the more people that we cure, the less likely it is to spread,” said Gyura, director of addiction care and behavioral health integration at Livio.

He said Minnesota has a unique opportunity to expand hepatitis C treatment because so many people get drug or alcohol treatment in centers. “They have the nursing staff and they have the structure,” he said. “It can be an early win in their sobriety.”

Both Gyura and Kelly said most of their patients want to get treatment directly from a primary care doctor rather than a specialist.

“I see many people at my clinic who view our clinic as their medical home,” Kelly said. “Being referred to a different clinic to see a specialist, especially to a confusing large hospital system, is a huge barrier.”

Schiff said state policy would allow patients to consult a specialist electronically, without visiting an unfamiliar clinic or hospital. “It would be relatively easy for that provider to get on a telemedicine platform … and do that consultation in real time,” he said.

Nonetheless, critics of the specialist requirement say it hearkens back to the days when the only treatment for hepatitis C involved toxic intravenous drugs, which also weren’t as effective as the newer pills.

“It has become much less complicated to treat,” Kelly said.

Correction: Previous versions of this article misspelled the surname of Phil Waters, a Harvard attorney who is working on hepatitis C treatment and related issues.

Chapter Three

Via The Semester in Washington Blog

Source: Pixabay

By: Johnathan Wroblewski, Lecturer on Law for the Semester in Washington Externship

For the presidency of Donald Trump, 2019 has ushered in a new and very different kind of chapter.  The first chapter began with Trump’s 2016 election.  A few days after the election, I travelled to Cambridge and met with three different groups of students, including the incoming Semester in Washington Class of 2017.  You may remember those days and what people on campus and around the country were feeling then.  For liberals and conservatives, there was anxiety, bred by an uncertainty of what the future would hold, and shock after an election result almost no one expected.  That uncertainty and shock held sway in D.C. too, with anxiety slowly morphing into questions and strategizing: How would the President govern?  What would the new Administration look like and who would join it?  How would the President impact the work of Congress and the bureaucracy?  What would be the policy agenda?  And how should each of us react?

Chapter Two of the Trump presidency was about governing in a time of unified, Republican control of U.S. government.  Not that the President was any more predictable or stable or graceful in his actions or his politics during this phase of his presidency.  But some things became much clearer.  For one, the President would continue to tweet and speak in the tone that sets him apart, with all of its ramifications.  For another, the White House’s lack of policy craft — or even a significant policy agenda — left a critical and consequential vacuum.  The vacuum was partially filled by establishment Republicans who controlled Congress and the levers of power in Washington — think the filling of the federal Judiciary and tax cuts.  Where the views of these leaders were shared across almost the entirety of the party, there was action.  The vacuum was also partially filled by strong agency leadership — think Attorney General Jeff Session’s undoing Obama-era actions at the Department of Justice, or deregulation in other agencies, or the end of net neutrality.  And finally, the vacuum was partially filled by inaction and chaos — think the budget, immigration and many other policies — where the Republican party itself has been fractured and thus there has been an inability to make policy deals.  Policy craft still matters.  And the lack of it in the White House has consequences.  The shutdown of January 2018 was one of them.

And now Chapter Three.  The President’s policy agenda, beyond stricter immigration controls, remains foggy at best.  Policy craft at the White House has not improved, with the exception of the passage of criminal justice reform legislation, led by presidential son-in-law Jared Kushner, just hours before this most recent shutdown.  And of course, most importantly, Paul Ryan has been replaced by Nancy Pelosi as Speaker of the House, and a new Democratic majority has taken control of the House of Representatives.  That really matters.  And the first manifestation of it was the capitulation by the President on Friday to end the longest shutdown in American history; at least temporarily.  Elections matter; and leadership matters.  And the new Democratic majority in the House will make for — has already made for — a completely new policy and political dynamic in Washington.  It will manifest itself in ways large and small over the semester and over the next two years.  We’ll talk about all this on Tuesday and Thursday and what it means for us and the country.

For the Semester in Washington Program, 2019 is shaping up to be a fascinating year (from day one).  The policy vacuums, opportunities, fights and chaos will be all around us.  So will varying tones of debate, and certainly some crudeness.  How will we deal with it?  What will we do in our placements?  We have a terrific group of very talented students who have arranged — and for some, rearranged — wonderful placements in and around Washington.  These placements began for some in the Winter Term (during the shutdown), and will begin for others this week.  Regardless, the placements will give us the opportunity to be part of government litigation, legal advice and policymaking.  In addition, our class will read and think and discuss policymaking by the government lawyer.  We will consider a framework for policymaking; discuss the ethics of government lawyering (who do we really work for); and practice some of the skills needed for the government lawyer engaged in policymaking and legal advising.  And we will have a front row seat to — and a role to play in — the history unfolding before our very eyes.  We will examine it all throughout the semester, beginning on Tuesday.

We will also meet some fascinating people who have made government lawyering and policymaking at least a part of their careers and get their take on the events of the day.  We will attend a Supreme Court argument.  We will discuss the policymaking process with those who have lived it.  We will find some folks who represent private companies and try to figure out what drives their interactions with the federal government and their policy work.  We will share a few meals together, and we will do some pro bono work that will take us away from the Washington of the monuments and majestic government buildings and to the Washington where many poor people live and work and need legal services.  I think it will be a terrific few months.

I will be blogging twice a week, a day or two before class, linking to policy issues in the news and trying to make connections to our study of policymaking and our experiences working every day in the federal government.  Please comment now and then and let us know what you’re thinking.

Here’s to a great semester!

CHLPI Welcomes New Team Member Kristin Sukys

Via the Center for Health Law and Policy Innovation

The Center for Health Law and Policy Innovation (CHLPI) and the Health Law and Policy Clinic welcome Kristin Sukys to the team as a Policy Analyst!

Kristin joined the Center for Health Law and Policy Innovation at Harvard Law School as Project Consultant in August 2018 leading the GIS analysis for the Massachusetts Food is Medicine State Plan and is currently a Policy Analyst working on HLPC’s whole-person care initiatives.

Kristin graduated in May 2018 with a Masters of Science degree in Agriculture, Food, and Environment from the Friedman School of Nutrition Science and Policy at Tufts University. Specializing in community food systems and public health, her work focused on the intersection of our health care and food systems. Prior to graduate school, she received a B.A. in International Relations specializing in Environmental Issues from Virginia Tech.

Family with Local Ties Seeking Asylum Still in Limbo

Via Sentiel Source

Source: Sentinel Source

Almost five months after a migrant mother and son with ties to Keene arrived in New England, their future in the United States is still up in the air.

Honduran citizens Jessica Baca Garcia and her teenage son, Mario Jafet Cerrito Baca, sought asylum in the United States after crossing the border in May. They had been detained in separate centers in Texas until July. The two were reunited at the end of that month and have since been living with family members in New Bedford, Mass.

Much has changed since then, said their relative Jessica Garcia, who works at The Sentinel. Mario, who goes by Jafet, is attending public school. His English has improved in leaps and bounds, Garcia said. In October, he celebrated his 13th birthday alongside his cousins.

Baca Garcia can’t legally work, so she stays at home, helping her sister cook and clean and watching her toddler niece, Tiaani. Baca Garcia’s new life in New Bedford is safer than her life in Honduras, she told her family members. Still, the anxiety of having been separated from her son lingers, Garcia said.

“Jessica has not left the house at all,” she said. “She’s very nervous all the time, not so much at home but she was afraid to leave the house.”

Baca Garcia sought asylum status for her and Jafet because of “horrific violence” in their native country, including abuse from her boyfriend, who has gang ties, Jessica Garcia said in July. She’s afraid she will be killed if returned to Honduras.

Jafet was one of an estimated 3,000 children who were separated from their parents at the U.S.-Mexico border under President Donald Trump’s “zero tolerance” policy.

During their separation in Texas, Baca Garcia went before an immigration judge and her asylum application was denied. For a while, it seemed as though mother and son were destined to get deported.

Around that time, lawyers Nancy Kelly and John Willshire of Boston-based Harvard Immigration and Refugee Clinic at Greater Boston Legal Services started representing mother and son for free. Willshire said Jafet’s case is proceeding through the immigration system, but that he and Kelly are waiting to hear if Baca Garcia’s case will be re-opened.

In recent months, he said, there have been some favorable developments in the immigration court system that would perhaps allow Baca Garcia’s case to be re-heard. A settlement agreement will allow some parents who were separated from their children at the border to have their cases re-heard.

“This family has gone through an awful lot and it was really an impossible situation for them to be detained,” Willshire said. “And after they got here, they were both really traumatized.”

Willshire said he does not know how long the proceedings will take, or their possible outcomes. But he said both Baca Garcia and her son will continue these proceedings at the immigration court in Boston.

The mother and son’s plight attracted much public attention: A Change.org petition attracted nearly 290,000 signatures, and U.S. Sen. Jeanne Shaheen, D-N.H., intervened on the pair’s behalf. Also, a crowdfunding campaign for Baca Garcia and her son raised about $2,200.

Jessica Garcia said mother and son are using the funds for their living expenses and to pay for trips to meet their lawyers.

In the meantime, the family vacillates between anxiety and hope. Garcia said the wait has put a strain on the family.

“If they have to pick them up and bring them home I would just be completely devastated,” Garcia said, adding that if Baca Garcia can’t stay in the United States, her son will go with her to Honduras.

At times, Jessica Garcia allows herself to cautiously dream about the future. Perhaps, down the line, the family will start a Honduran food restaurant in the Boston area, and Baca Garcia could work there. Maybe she and Jafet would have enough money to live in an apartment of their own.

But it all hinges on the asylum proceedings, Garcia knows.

Willshire, for his part, is optimistic about Baca Garcia and Jafet’s chances.

“This family is a very particularly special family in the sense that they really suffered incredibly and we’re trying to help them,” he said.

The Republican Proposal to Change the U.S. Asylum System, Explained

Via PolitiFact  

Source: Flickr, Credit: Leigh Ann Johnson

By: Miriam Valdere

A proposal from Senate Republicans to end the partial government shutdown includes not only the $5.7 billion President Donald Trump seeks for a border barrier with Mexico, but also landmark changes to the U.S. asylum system.

It’s uncertain if the proposal — in its current form — would pass the Senate or get approval from the U.S. House of Representatives. Democratic leaders in Congress have already come out against the proposal.

The changes are enumerated in an appropriations package released by Senate Appropriations Committee Chairman Richard Shelby, R-Ala. PolitiFact examinedthe overall provisions in the Republican proposal and in a Democratic measure, both scheduled for a Senate vote Jan. 24.

Here’s what the proposal entails and how it would impact future asylum seekers.

What are the major changes Republicans propose for the asylum system?

Under current law, immigrants cannot apply for asylum outside the United States. They must apply for the protection once they are in the United States and can do so whether they arrived here legally or illegally.

The proposal says that children under 18 years old from El Salvador, Guatemala, and Honduras who want to apply for asylum will have to apply outside of the United States at designated application processing centers in Central America.

Children seeking asylum must also meet other criteria, including having a qualified parent or guardian in the United States who can take them into their custody.

They can’t have an outstanding deportation order nor have been previously deported or denied asylum. They also can’t be a public safety or national security risk.

The bill also says that a child can be referred for asylum by the United Nations High Commissioner for Refugees or a nongovernmental organization designated by the Secretary of Homeland Security.

Does the proposal set quotas on asylum applications?

Yes. No more than 50,000 application referrals per fiscal year, and no more than 15,000 asylum grants per fiscal year.

Currently, there are no quotas on asylum applications or approvals per year.

(Separately, there are annual caps on refugee admissions. Refugees apply for admission from outside the United States; asylum seekers apply for the immigration protection once they are in the United States.)

Where would the designated application processing centers be located?

At least one center would be established in each of the following countries: Belize, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, and Panama. They would be established within 240 days of the proposal’s enactment.

If the Department of Homeland Security does not approve an asylum application, can it be reviewed by an immigration judge?

No. The proposal said no court or immigration judge shall have jurisdiction to review a DHS determination.

Under current procedures, immigrants apprehended at the border and found to have credible fear of torture or persecution in their home countries present their case in a defensive asylum process before an immigration judge.

Is this proposal likely to decrease the flow of migrants at the border, particularly unaccompanied minors and family units?

No, said most experts who responded to a PolitiFact query.

If the proposal became law, it would have little deterrence effect and there would likely be a court challenge, increasing confusion over it, said Louis DeSipio, a political science professor at the University of California-Irvine who studies immigration.

“More importantly, many of the migrants are fleeing dire and dangerous circumstances,” DeSipio said. “They are not able to wait in their countries of origin while their applications are being reviewed.”

On the other hand, the proposal could deter immigration because it would provide a process by which individuals apply for asylum without having to undertake the journey to the United States, said Andrew “Art” Arthur, a resident fellow in Law and Policy for the Center for Immigration Studies, a think tank favoring low immigration.

Would the proposal help reduce the immigration courts backlog?

There are around 800,000 cases pending in immigration courts (not all are asylum cases). That backlog is so extensive that it would take a long time to see the effects of the proposal, if it became law, DeSipio said.

“Over time, this proposal could reduce some of the backlog; if the review in the countries of origin and referrals are legitimate, some migrants will be able to be processed in this way,” DeSipio said.

Arthur also said the proposal would diminish the backlog in the long run because it would decrease the number of new cases. It would also deter fraudulent asylum claims, he said.

Would the proposal conflict with international law that allows migrants to apply for asylum at U.S. borders?

Most experts told us that if this proposal became law or was implemented through executive order, it likely would be challenged in court.

International law says that a signatory to the United Nations Refugee Convention/Protocol (Article 33) cannot return a refugee to a country where he or she faces persecution on account of race, religion, nationality, membership in a particular social group or political opinion, said Deborah Anker, a clinical professor of law, founder and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School.

“If the United States turns away people at the border, or from within the United States, it is violating the Convention/Protocol,” Anker said.

The Shutdown Threatens the Promise of Government Jobs — and A Way of Life

Via The Washington Post 

Source: Flickr

By: Todd C. Frankel , Taylor Telford and Danielle Paquette

Three weeks of no pay and lots of uncertainty has changed how aerospace engineer Robert Sprayberry thinks about his job. He joined the Federal Aviation Administration a decade ago because it promised him a stable career with steady hours. He might not earn as much money as he could in the private sector, but he could be home more to help raise three young children.

But that careful career calculation has been undercut by a partial federal government shutdown that on its 25th day is the longest in history, with 800,000 employees not getting paychecks because of a budget impasse over border wall funding. So Sprayberry’s wife picks up extra shifts as a nurse to make up for his lost income. And he has started looking around for a new job, this time with a private firm.

“If I’m going to put up with this level of stress,” Sprayberry, 38, said, “I might as well get paid for it.”

A job in the government has long been underwritten by the understanding that while you wouldn’t strike it rich on the federal pay scale, you also didn’t need to worry about the corporate world’s mercurial whims. The focus was on serving the public, rather than pursuing profits. The pace could be frustratingly inefficient, but it also was not maddeningly chaotic. And the trade-off came with solid health and retirement benefits.

That grand bargain — deployed for decades to lure talent into the government ranks — is threatened today by a bruising shutdown with no end in sight. And this is the third shutdown in one year. The other two shutdowns were brief — the longest ran two days. But they were tremors foreshadowing what was to come. The situation is exacerbated by a president who appears to view many government workers with contempt, deriding the federal bureaucracy as “the Deep State” and noting derisively via tweet that he thinks most government workers are Democrats.

So a government gig suddenly doesn’t look quite so secure. The mission is muddied. The bloom is off. And the potential for a federal brain drain — along with drags on recruitment and morale — looms large.

“The end of the shutdown is not the end of the harm,” said Max Stier, chief executive of the Partnership for Public Service, a nonpartisan group that has surveyed job satisfaction in government agencies for the last 15 years.

Morale at government agencies already was suffering under President Trump’s administration, according to the Partnership’s 2018 Best Places to Work in Government survey, which found marked declines in job satisfaction since the Obama administration at a range of agencies, including the State and Agriculture departments. Under Trump, the Federal Trade Commission and Department of Homeland Security were among the agencies that saw their poll numbers go up.

Trump’s administration imposed a federal hiring freeze and has seen high turnover among key political appointees.

Now, a lingering shutdown is raising tensions. Some federal workers have been forced to return to their jobs without pay. Unions representing Treasury employees and air traffic controllers sued the Trump administration to claim this was wrong. But a federal judge declined to issue an emergency intervention in the case Tuesday.

It’s difficult to measure the impact of a shutdown with an annual job satisfaction survey, Stier said. But government rankings took a slight hit during a 17-day government shutdown in 2013.

“It’s certainly true that there are real consequences to a shutdown,” Stier said.

It was one of the factors that made Aaron Johnson, 26, reconsider his career choice. He is a security guard at the Smithsonian’s National Museum of the American Indian. Protecting the artifacts, he said, gave him a sense of purpose and introduced him to people from around the world.

Lost wages have irked Johnson, but it was the president’s comments about the federal workforce in recent months that truly pushed him to look for a new job — perhaps in retail.

“As long as he’s in office, I need to try to get somewhere where I can feel secure,” Johnson said.

Anel Flores, a mission systems engineer at Goddard, the NASA facility in Greenbelt, Md., is also tired of Trump’s attacks on federal workers. So when he returns to work — whenever that is — he plans to file for retirement after 36 years at NASA.

“Why do I have to worry about the president throwing another tantrum?” Flores said.

Trump is not the first U.S. president to cast doubts on the federal workforce. President Ronald Reagan famously said that “government is not the solution to our problem; government is the problem.” President Bill Clinton received a report on government reform from his vice president that described federal workers as “good people trapped in a bad system.”

But Trump has gone further in suggesting — without proof — that federal workers are working to undermine his administration, said David Lewis, a political science professor at Vanderbilt University who studies the presidency and federal service branch.

The combination of a boss who is denigrating your work and a shutdown with an unknown ending might lead more federal workers to jump ship.

“They’ll ask themselves, ‘Why am I sacrificing? I could be working in the private sector,’ ” Lewis said.

Some workers already are testing the waters. An upcoming job fair for workers with security clearances has seen a 20 percent jump in registrations over last year’s, said Rob Riggins of Cleared Jobs, which is organizing the Jan. 31 event in Tysons, Va. He attributed the increase to the shutdown.

“People are getting nervous,” Riggins said. “They want to have a contingency plan.”

Others are avoiding the federal government from the start. Jim Tierney, who teaches at Harvard Law School, said he’s noticed a spike in interest in his state attorneys general law clinic under Trump. He attributed the change to Trump’s frequent attacks on the federal Justice Department and drastic curtailment at the Consumer Financial Protection Bureau.

These fledgling attorneys — some of the best in the country — are looking beyond the familiar hotshot attorney posts with the federal government, Tierney said.

“Traditionally, you’d never have Harvard Law grads going to a state AG’s office,” said Tierney, a former Maine attorney general. “But then they look at what’s happening in D.C.”

Not every federal agency will suffer equally if workers start looking around for new jobs, said Jeri Buchholz, NASA’s head of human resources until she retired three years ago. The FBI will always be the FBI, she said. Astronauts still want to work at NASA. But, she said, economists and attorneys might find plenty of opportunities in the private sector.

The shutdown will hurt recruiting for government jobs, Buchholz said. “If any private company was doing what the federal government is doing right now, they’d lose their reputation, and good people wouldn’t go to work there.”

The shutdown also has made it harder for the government to find new hires — a point of emphasis for agencies such as the Border Patrol. Trump signed an executive order shortly after he took office calling for the agency to hire 5,000 more agents.

Last week, the Border Patrol was supposed to host a recruiting booth at a Houston boat show. But the shutdown put an end to that. No staff could be spared. The Border Patrol was forced to cancel.

Shortchanged Workers Demand Attorneys’ Fees and a Fair Test for Determining Prevailing Party Status

By: Elizabeth Soltan ’19 and Patricio Rossi, Clinical Instructor of the Harvard Legal Aid Bureau

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

The average American worker earns $7,500 less than they should according to a 2017 analysis from Glassdoor. Low-wage immigrant workers, particularly immigrant women, are disproportionately susceptible to workplace violations such as underpayment. Litigation to combat illegal practices such as wage theft costs more than these workers can afford. The Harvard Legal Aid Bureau (HLAB), a student-led civil legal aid organization at Harvard Law School, provides free legal representation to low-income and disenfranchised communities in the Greater Boston area, advocating for rights that may not otherwise be enforced for marginalized populations. Under the supervision of Clinical Instructor Patricio Rossi, nearly 10 HLAB students have played a critical role in helping two immigrant women of color obtain relief for wage theft from their employer. Two current students have been fighting to ensure low-wage workers like the women in this case have access to attorney’s fees. The suit, Ferman, et. al. v. Sturgis Cleaners, Inc., was brought by two former employees of the South Boson dry cleaners who claimed they were underpaid for their labor, a violation of the Massachusetts Wage Act and Overtime Pay Act.

 

Kellie MacDonald ’15 originally filed the case in 2014 in Suffolk Superior Court on behalf of the two former employees of Sturgis Dry Cleaners and Tailors. The suit alleged that the employer failed to pay the workers for all of their hours worked, including overtime hours, totaling approximately $28,000 in unpaid wages. The case settled in 2016 for approximately $20,000. The parties could not, however, agree to terms on attorney’s fees, and agreed to let the court decide the issue.

 

Khyrstyn McGarry ’17 and Michele Hall ’17 filed a petition for attorney’s fees, arguing that, pursuant to the “Catalyst Theory”, the workers were the prevailing party. The catalyst theory involves a two-part test. For a plaintiff to prevail, his/her lawsuit must be “a necessary and important factor in achieving the [sought-after] relief” and cannot be “frivolous, unreasonable, or groundless.” The plaintiffs argued they met both of the requirements of the catalyst theory.  The employers argued that a party could not be a prevailing party without clear court intervention. In the spring of 2017, the Superior Court awarded HLAB approximately $16,000 in attorney’s fees. The employers appealed the decision and HLAB students Jag Singh ’18 and Lark Turner ’18 filed an application with the Supreme Judicial Court (“SJC”) for Direct Appellate Review, which was eventually granted.

Immediately after returning from summer break, Elizabeth Soltan ’19, Kenneth Parreno ’19, and Josephine Herman ’20 began work on the workers’ appeal brief. Under a tight timeline, they crafted a persuasive argument that the “Catalyst Theory” is the proper test in Massachusetts to determine prevailing party status. Nearly ten groups, including the American Civil Liberties Union of Massachusetts, the Massachusetts Law Reform Institute, and the Immigrant Worker Center Collaborative, filed amicus briefs in support of the plaintiff-appellees. On December 4, 2018, Soltan argued before the Massachusetts Supreme Judicial Court. She spent an intense few weeks preparing and mooting her argument. All of the practice paid off as Soltan delivered an incredibly poised argument to the SJC justices. The argument centered on how to determine “prevailing party” status, for the purpose of awarding attorney’s fees, under the Massachusetts Wage Act.

The decision could have a major impact on how Massachusetts courts determine prevailing party status. It is currently unclear how the courts determine the prevailing party status, and there are 66 fee shifting statues in Massachusetts. Should the SJC accept the catalyst theory, it will provide a liberal framework of fee-shifting provisions to help those without the means to pay lawyers out-of-pocket to obtain representation. Working-class people can be discouraged from accessing the courts because of their inability to pay a lawyer. However, a fair test for fee-shifting provisions can help close the gap between the civil legal needs of working-class people and the resources available to them.

A decision in the case is expected in late winter/early spring.

Access to Justice Issue of Dædalus Available Free Online

Via the Access to Justice Lab

If you’re looking for some good reading this week, we’ve got you covered.

The current issue of Dædalus, a publication of the American Academy of Arts and Sciences, is entirely focused on how the U.S. can address the access to justice gap. The first-ever open access issue of the journal, the publication includes twenty-four essays that cover a wide variety of A2J approaches.

The collection of essays as a whole represents a deep cross-section of ideas from leading experts in the field with three subsections: the meaning of access to justice, delivery models, and interests, constituencies, and stakeholders. A2J Lab Faculty Director Jim Greiner’s contribution, The New Legal Empiricism & Its Application to Access-to-Justice Inquiries, provides a great summary of the theory that drives the A2J Lab’s research.

All of the essays are freely available online at: https://www.amacad.org/daedalus/access-to-justice

Can America Really Have High Speed Internet for All?

Via WNYC Studios: The Takeaway

Source: Pixabay

If this country really has ambitions of having a 5G revolution like the one being talked about the Consumer Electronics Show this week, we need something else first.

Fiber optic connections that reach everyone.

“What it is is synthetic glass, in which the manufactured process is so carefully controlled that light can travel through that glass for many dozens of miles without using any of the signal that it’s carrying,” says Susan Crawford, a professor at Harvard Law School and the author of “Fiber: The Coming Tech Revolution – and Why America Might Miss it.”

And here’s what she means when she says we might miss it: Of the 119 million households in the United States, only about 10 million have access to fiber connections. China, on the other hand, has a goal of connecting 300 million of its 455 million households to cheap, high capacity fiber by 2020.

Susan Crawford says fiber technology is the biggest tech story the United States should be paying attention to in 2019.

Listen to this segment here.

Massachusetts Access to Justice Commission Announces New Members, Including HLAB Clinical Professor and Faculty Director Esme Caramello

Via Mass.gov 

The Supreme Judicial Court [appointed] eight new members to the Massachusetts Access to Justice Commission.

First established by the Supreme Judicial Court in 2005, the Commission seeks to improve access to justice for people who are unable to afford an attorney for essential civil legal needs, such as cases involving housing, consumer debt, and family law. Among other activities, the Commission coordinates with civil legal aid organizations to support their activities and develop new initiatives to address unmet needs. The Commission also works to increase the number of attorneys able to provide pro bono or limited assistance civil legal services and coordinates with the court system on initiatives that assist individuals to better understand and navigate civil legal proceedings.

Co-chaired by Supreme Judicial Court Chief Justice Ralph D. Gants and Susan M. Finegan, Esq., of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., the Commission includes representatives from the court system, legal aid organizations, social service organizations, bar associations, law schools, businesses, and other stakeholders in the access to justice community.

“The Commission welcomes our new members and appreciates their commitment to serve on the Commission in addition to the important positions they already hold, and their dedication to making our justice system work effectively for all of the Commonwealth’s residents,” Supreme Judicial Court Chief Justice Gants said.

“We are pleased to have the opportunity to work with these new members, whose wide-ranging experience and knowledge will further strengthen our efforts to carry out the Commission’s mission,” said Attorney Finegan.

The eight newly appointed commissioners are:

  • Esme Caramello, Clinical Professor and Faculty Director at the Harvard Legal Aid Bureau, Harvard Law School;
  • Hon. Fairlie Dalton, First Justice of the Northeast Housing Court;
  • Sandra Gant, Trial Attorney, Norfolk Superior Court Trial Unit, Committee for Public Counsel Services;
  • Richard Johnston, Chief Legal Counsel, Office of the Attorney General, and former WilmerHale partner;
  • Jennifer Grace Miller, Counsel to the Massachusetts Senate, and former chief of the Government Bureau at the Office of the Attorney General;
  • Susan Nagl, Executive Director of South Coastal Counties Legal Services;
  • Anthony Owens, Clerk-Magistrate of the Dorchester Division of the Boston Municipal Court; and
  • Mary Ryan, Partner, Nutter McClennen & Fish, and former president of the Boston Bar Association, former chair of the Supreme Judicial Court’s Standing Committee on Pro Bono Legal Services, and former chair of the American Bar Association’s Standing Committee on Pro Bono and Public Service.

Over the past 13 years, the Commission has undertaken a broad number of initiatives to support and expand assistance for people in need of civil legal aid in the areas of consumer protection and debt, housing, employment, family law, immigration and asylum cases, among many others. Recent initiatives include the following:

  • The Access to Justice Fellows program enlists senior attorneys and retired judges to volunteer their time for pro bono projects that support non-profit organizations or work with legal services to help people with civil cases such as indigent asylum-seekers or individuals facing eviction proceedings or bankruptcy. To date, more than 100 retired lawyers and judges have provided over 80,000 hours of pro bono service to 60 nonprofit entities through this program, which is managed by the Lawyers Clearinghouse.
  • The Civil Appeals Clinic provides a weekly clinic for eligible litigants who are representing themselves at the Appeals Court in civil appellate court matters on a number of issues, ranging from housing to family law (and full representation for selected qualifying persons), in collaboration with the Volunteer Lawyers Project, participating law firms and legal services organizations, and the Clerk’s Offices of the Appeals Court and the Supreme Judicial Court.
  • In 2016, the Justice for All project awarded the Commission a $100,000 grant to develop a strategic action plan for improving access to justice throughout the Commonwealth. In December of 2017 the Commission published a comprehensive Strategic Action Plan in collaboration with a wide range of representatives from the access to justice community. The grant was funded by the Public Welfare Foundation and administered by the National Center for State Courts.
  • The Commission partnered with legal services organizations and Massachusetts Legal Assistance Corporation, the largest funding source for civil legal aid programs in the state, to win a second Justice for All grant to fund two new pilot projects to test innovative strategies for improving access to justice in the areas of consumer debt and housing.
  • The Commission worked with the Massachusetts Office for Victim Assistance, along with the Massachusetts Legal Assistance Corporation and other stakeholders, to allocate $8.3 million in funding to support civil legal aid for victims of crime under the Federal Victims of Crime Act.

More information about these projects and the Commission’s other activities is available in its Annual Report for 2017-2018 and on the Access to Justice Commission’s website.

People in Puerto Rico Can’t Get the Same Hepatitis C Meds as Other American Citizens Do

Via Tonic

Source: Flickr

By: Carmen Heredia Rodriguez

Drugs that can cure hepatitis C revolutionized care for millions of Americans living with the deadly liver infection. The drugs came with a steep price tag—one that prompted state Medicaid programs to initially limit access to the medications to only the sickest patients. That eased, however, in many states as new drugs were introduced and the prices declined.

But not in Puerto Rico: Medicaid patients in the American territory get no coverage for these drugs.

The joint federal-territory healthcare program for the poor—which covers about half the island’s population—does not pay for hepatitis C medications. They also do not cover liver transplants, a procedure patients need if the virus causes the organ to fail.

The Puerto Rico Department of Health created a separate pilot project in 2015 to provide hepatitis C medications to those sickened by the liver infection who also have HIV, but expanded the program later to those with only hepatitis C. However, according to the Office of Patient Legal Services, an official territorial agency that advocates for consumers, the program ran out of funding and is no longer accepting patients only with hepatitis C.

The Puerto Rico Health Insurance Administration (ASES), which oversees Medicaid, says it is working with a pharmaceutical company to create a cost-effective system to provide these medications.

“Definitely, they need to be given coverage,” ASES director Angela Ávila Marrero says. “They need to be given care.”

The Department of Health did not comment.

Hepatitis C, a bloodborne infection, increases the risk of cirrhosis, liver cancer, and death. Poor screening led many to contract the disease through tainted blood and organ transplants through the early 1990s. Today, intravenous drug use drives most of the new cases in the United States.

William Ramirez, executive director of the American Civil Liberties Union of Puerto Rico, says he is considering filing suit against Puerto Rico for failing to cover the cost of these medications for people enrolled in Medicaid.

You’re holding back medication and thereby allowing certain people to die,” Ramirez says.

That reality is clear for Hector Marcano, 62, who stopped working roughly six years ago because of the illness. After recovering from a drug addiction, he was a case manager who worked to connect drug users to health resources.

His liver disease is leading to overall deterioration. He struggles with walking. A bout of pneumonia that left him hospitalized lingers in his racking coughs. He spends his days reading, listening to the radio, and praying for the strength to keep searching for the cure.

He doesn’t understand why the government does not provide hepatitis C medications, he says, especially as there are so many people in need of them.

“So what are we waiting for?” asked Marcano. “For a pandemic to happen?”

Medicaid costs drive island’s debt crisis

Approximately 3.5 million people in the United States have hepatitis C. The virus can silently corrode the liver for years without causing symptoms.

Because of the condition’s stealthy nature and the absence of recent data, the number of people in Puerto Rico living with the virus is uncertain. Researchers on the island in 2010 estimated that 2.3 percent of 21- to 64-year-old residents had the virus.

Documents provided by the Center for Health Law and Policy Innovation of Harvard Law School show medical providers reported more than 11,000 hepatitis C cases to the Puerto Rico Department of Health from 2010 to September 2016.

Cynthia Pérez Cardona, an epidemiology professor at the University of Puerto Rico and an author of multiple studies involving hepatitis C in Puerto Rico, says she is uncertain of how widespread the virus is on the island. But other statistics present a worrisome sign: A report from the island’s cancer registry found the number of new liver cancer cases increased an average of 2.1 percent annually among men and 0.7 percent among women from 1987 to 2014. Hepatitis C can cause such cancers.

Despite these warnings, Puerto Rico has fewer resources than most of the nation to care for its impoverished.

Unlike states, Puerto Rico’s federal funding for Medicaid is capped. Historically, these federal dollars have fallen far short of covering the program’s costs on the island. The territory’s crushing Medicaid expenses helped drive the island into its $70 billion debt crisis.

Under these financial constraints, says Matt Salo, executive director of the National Association of Medicaid Directors, Puerto Rico’s officials are left with a difficult choice when considering covering hepatitis C drugs.

“Rather than blowing through their cap in six months,” Salo says, “they’d blow through their cap in one month.”

Pilot project falls short

In the health department’s pilot project, patients with certain conditions like uncontrolled diabetes or an active mental health condition or those who could not prove they had been sober for six months were barred.

Such restrictions rankle patients and their advocates. “You know, we do not deny lung cancer treatment for a person who smokes or diabetes treatment to a person that doesn’t eat well,” says Robert Greenwald, a professor at Harvard Law School and faculty director of the Center for Health Law and Policy Innovation.

José Vargas Vidot, a member of Puerto Rico’s Senate and a physician, submitted a petition in 2017 to various territorial agencies questioning Medicaid’s coverage of hepatitis C medications.

The Office of Patient Legal Services responded to Vargas Vidot in a letter this year confirming that the island’s Medicaid program did not cover these drugs. It also noted the health department pilot project closed its wait list after reaching 100 patients because of a lack of funding. In November, Vargas Vidot submitted legislation to require that hepatitis C medication and treatment be part of basic coverage for insurance plans and Medicaid.

Ávila Marrero says ASES is in talks with a drugmaker to create a network separate from the Medicaid program to provide medications to the patients. She is hoping the arrangement would allow the government to get lower prices for the drugs. But no agreements have yet been reached for such a program.

Despite its success in states, suing to get coverage may not be the best option for Puerto Rico because the debt rescue package passed by Congress in 2016 includes a provision that bars creditors from taking legal action to collect from the territory.

That could apply to a lawsuit filed against the territory for not covering hepatitis C treatment in its Medicaid program, says Phillip Escoriaza, a health and federal grants law attorney in Washington, D.C., who practiced in Puerto Rico.

And even if the case can go forward, it would enter the docket for a special bankruptcy court with more than 165,000 other claims, as of January 2. It may be in the Puerto Rican government’s interest for things to take a long time, Escoriaza says. Once there, it could stall for years—time hepatitis C patients such as Marcano might not have.

Recent Case Victories From HIRC at GBLS

Via the Harvard Immigration and Refugee Clinical Program

Since the beginning, HIRC has partnered with Greater Boston Legal Services (GBLS), the largest provider of free legal services in Massachusetts. GBLS is also the site of the HIRC at GBLS side of the Clinic. Here are just a few of the many victories won by HIRC at GBLS over the past year:

HIRC at GBLS won asylum grants for:

  • An indigenous woman and mother of six from Guatemala who suffered severe domestic violence for 25 years at the hands of her husband. Supervisor: Maggie Morgan. Clinical students: Katrina Black ’19 and Brooke Adams ’20.
  • A Salvadoran mother and daughter who suffered severe domestic violence and gang based threats. Supervisor: John Willshire Carrera. Clinical students: Evelyn Zheng ’18, Brianna Rennix ’18 and other clinical students.
  • A young Haitian political activist who was targeted for violence by political opponents for her attempts to expose electoral corruption and advocate for women’s rights. Supervisor: Maggie Morgan. Clinical student: Elisabeth Mabus ’19.
  • A detained indigenous client from Ecuador who suffered past persecution on account of his race and for being a member of an evangelical family. Supervisor: John Willshire Carrera.
  • Two teenage sisters from El Salvador who were targeted by gangs and persecuted because of their religious beliefs. Supervisor: Nancy Kelly. Clinical students: Mathew Scarvie ’18 and Natalie Ritchie ’19.

HIRC at GBLS won grants of withholding of removal for:

  • A detained Honduran man who was a semi-professional soccer player of Garifuna (Afro-Caribbean) ethnicity who suffered racial persecution in Honduras. Supervisors: Maggie Morgan and Nancy Kelly. Clinical student: Abhinaya Swaminathan ’18.
  • A detained indigenous client from Guatemala who suffered past persecution during the Guatemalan Civil war. Supervisor: John Willshire Carrera. Clinical students: Kolja Ortmann ’19 and Maya Ragsdale ’18.
  • A detained Guatemalan whose family was targeted for their work with a human rights group. Supervisor: Nancy Kelly. Clinical student: Alex McGriff ’20.

Thank you to the attorneys and students for all their hard work on behalf of our clients!

Paving the Way for Self-Driving Cars

Via The Harvard Gazette

By: Juan Siliezar

Susan Crawford at HLS recently taught a class of students from several different schools, with the city of Boston as a client, to help it think through policy implications for the coming of autonomous vehicles. Jon Chase/Harvard Staff Photographer

The day will come, if it hasn’t already, when you’ll be riding down the road, glance to the side, and see a car motoring along with no driver. Autonomous vehicles are on the way, and two Harvard initiatives are helping to prepare Boston, and beyond, for their smooth arrival.

A few years ago, when tech companies like Uber and Airbnb spread across the nation and beyond, they introduced rapid and irreversible changes in how people travel. As the firms’ simple apps rocketed their platforms to popularity, the local policymakers responsible for ensuring that corporations contribute to the public good were left far behind, playing catch-up.

Policymakers around the globe grappled unevenly with these sudden technological shifts. In Hungary, lawmakers blocked Uber, and in Boston lawmakers passed tough laws on short-term housing rentals. Last summer, Cambridge officials ordered Bird, a dockless electric scooter rental company overseen by an app, to remove its scooters after it arrived without an agreement to operate. Now, as autonomous vehicles (AVs) are increasingly rolling through some American cities, policymakers are looking to avoid the past mistakes of reacting after the arrival of disruptive technology, and instead they’re planning for it.

They hope that, with thoughtful policies in place, self-driving cars will debut in a way that provides real public value. Their potential to improve civic life is great, including by reducing road deaths, increasing mobility for the elderly and disabled, and boosting transit in areas with little current access. At the same time, policymakers are wary of potential problems, such as increased road congestion, inequitable pricing and availability, and the loss of public revenue in a future with less need for metered parking and fewer traffic violations.

Current Harvard efforts are helping government officials to frame their early policies around AVs and provide recommendations for useful future laws. The efforts range from marathon discussion sessions in four locations, including Boston, to Harvard students tackling similar issues with Boston officials.

Here’s a look at these futuristic yet pragmatic Harvard efforts:

From craziness to preparing for a coming reality

Like many people, when Harvard lecturer in public Mark Fagan first heard the buzz around autonomous vehicles, he wrote it off as wishful thinking. That line of thinking, however, didn’t last long. “I just became convinced from talking to people that it wasn’t crazy, and it was really going to happen, and we ought to be ahead of it,” Fagan said.

As head of the new Autonomous Vehicle Policy Initiative at the Harvard Kennedy School’s (HKS) Taubman Center for State and Local Government, Fagan is working to do just that, help officials craft policies while the technology is still emerging.

“What cities and towns are trying to do with AVs is plan in advance so that they bring them logically to the market in a way that supports public value as opposed to just private value,” Fagan said.

As part of their early effort, Fagan and Rafael Carbonell, executive director of the Taubman Center, reached out to the city of Boston, which has been a test bed for self-driving cars and was looking to dive deeper into the policy side. The pair worked with the city to convene more than 40 representatives from the business, technology, community, and transit sectors to conduct an exercise developed by Fagan called a policy scrum, an intensive session in the mold of a design sprint or hackathon. Completed over two days, the exercise helps officials fast-track their thinking on issues. The hope is they’ll leave a session with strategy options to shape policy.

For Boston, the priority was looking at how to encourage shared rides and vehicles within autonomous vehicle technology. In its Go Boston 2030 transportation plan, the city has endorsed using shared fleets of self-driving vehicles to reduce congestion.

Mark Fagan is leading the Autonomous Vehicle Policy Initiative at Harvard Kennedy School’s Taubman Center for State and Local Government. AVPI people have worked with Boston, Tornonto, Kansas City and the state of Rhode Island to help officials there prepare for the vehicles. Jon Chase/Harvard Staff Photographer

“Largely what we came away with was a focus on curb management as the next piece that we should tackle to get at this sort of sharing component,” said Kristopher Carter, co-chair of the mayor’s Office of New Urban Mechanics, which oversees the city’s vehicle program. “We can use that as a tool to incentivize certain behaviors, as well as to incentivize certain types of vehicles or businesses.”

After the initial foray with Boston, Fagan and Carbonell expanded the initiative’s reach to Toronto, Kansas City, and the state of Rhode Island. Each policy scrum in those places produced insights for possible implementation.

In Kansas City, for example, the participants changed a conversation on data ownership and access — which is among the most controversial issues involving both driverless car programs and ride-hail companies — to focus instead on what policymakers need the data to answer. That question proved more fundamental than debating with tech companies over who should have access to the data. This switch, Fagan said, should prompt tech companies to be more open to sharing data since they know its intended use.

The Autonomous Vehicle Policy Initiative is also sharing information among the scrum hosts so they can learn from one another. The initiative hopes to publish that information on its website as well. It is focused on involving students in its work, by having them help with the policy scrums or bringing learning from the sessions into the classroom.

In the spring, the initiative will work with three more cities. More partnerships are likely. Increasingly, the initiative is hearing from officials struggling to develop policies around disruptive technologies.

“AV is very much at the forefront,” Carbonell said.

“We’ve done some marketing, but now we’re starting to see a little bit of a tipping point and people starting now to come to us and say, ‘Hey, we hear you do this thing on AV policy. Tell me more about it,’” Fagan said.

The autonomous vehicle revolution that was once dismissed is happening. The real craziness, officials say, would be not being prepared for it.

Providing a 21st-century education for 21st-century issues

There is broad understanding that many pivotal issues facing the world — such as climate change, immigration, and labor shortages — are intertwined, and changes in one can affect another. The shifts don’t develop in isolation.

Harvard Law School Professor Susan Crawford understands that the rise of autonomous vehicles will be no different. To properly prepare the students who will not only have to adapt to these technologies but someday help shape them, their education cannot happen in isolation either.

So when Crawford, the John A. Reilly Clinical Professor of Law, designed her class “Autonomous Vehicles and Local Government Lab,” she made sure that its 80 students would be exposed to an interdisciplinary effort from a range of Schools, ensuring students would learn from each other.

She designed the course with Boston officials so that her lab — made up of students from Harvard College, the Graduate School of Design, the Kennedy School, the Law School, and the T.H. Chan School of Public Health — could take on the city as a client.

“It’s a wonderful mesh,” Crawford said. “This class is not only an argument for cross-training but also for serving in local government, or government in general. It’s an argument that all urban planners need to know something about the law and that all techies need to know something about design and urban planning. It’s thoroughly meshing students from different Schools to take on concrete questions posed by Boston as it considers the introduction of AVs.”

The course served in part as an introduction to the issues surrounding driverless vehicles. Each week Crawford brought in experts with different perspectives, such as that of the private sector (which students learned, in part, from a representative from nuTonomy, one of the driverless vehicle companies testing cars in Boston) or the labor side (which they learned from the assistant commissioner for data and technology at the New York City Taxi & Limousine Commission).

[This class is] an argument that all urban planners need to know something about the law and that all techies need to know something about design and urban planning.
— Susan Crawford, Harvard Law School

At its core, though, the course was a laboratory where students in group projects could apply their learning to real-world scenarios. The questions and prompts posed by Boston officials targeted issues they’re confronting as they expand the AV testing, now happening in the Seaport area, to the rest of the city. Questions ranged from concerns about the city’s authority over curbsides to data-access needs.

“The class really exposed us to a variety of angles and discourse currently surrounding AV literature and discussion,” said Evan Shieh, a master’s student from the Design School. “Having a client drove us to ground the group work into recommendations that were actionable, but also allowed us to ground the scope of examination with respect to specific contextual issues facing Boston today.”

For the project, Shieh’s group, which also had students from the Law School, looked into whether the city should invest in smart infrastructure, who should pay for it, and how and when to implement it. In a future of autonomous vehicles, smart infrastructure, such as high-tech street signs or infrared lane markers, would provide driverless cars with data on traffic conditions and on lane safety during bad weather. The data could also help officials design better roads or establish policies to reduce congestion.

That team studied smart infrastructure used in other cities in the U.S., such as Detroit, and around the world, such as in Israel or Singapore, speaking to a member of the nuTonomy team there.

At the end of the course, students presented their recommendations to the city and other stakeholders. They included strategies to maximize the use of data collected from autonomous vehicles, options for the city on smart infrastructure, and establishing rules around AV pickup and drop-off zones.

Carter, who also has worked with HKS’s Autonomous Vehicle Policy Initiative, was impressed with the recommendations. “There was a balance of ‘Is this legally possible?’ and ‘What does it actually mean in the physical environment?’ and then ‘How does a policy with it manifest itself?’” he said.

For Crawford, the way the students interacted validated the way she structured the course.

“I want the students to be able to imagine themselves working in government,” she said. “I want them to appreciate the range of the kinds of thinking that are involved in policy planning [and put something together] that’s useful for the city.”

The students are submitting a consolidated briefing on their recommendations.

Can District Courts Hear Innocent Spouse Refund Suits?

Via Procedurally Taxing

Source: Flickr

By: Carl Smith

This is an update on two cases discussed by Keith Fogg in a recent post. The post primarily discussed the case of Chandler v. United States, 2018 U.S. Dist. LEXIS 174482 (N.D. Tex. Sept. 17, 2018) (magistrate opinion), adopted by judge at 2018 U.S. Dist. LEXIS 173880 (N.D. Tex. Oct. 9, 2018). Chandler was a district court suit in which an individual sought a refund for overpaying her equitable share of taxes on a joint return, taking into account innocent spouse relief under section 6015(f). In Chandler, the district court granted a DOJ motion to dismiss for lack of jurisdiction, holding that only the Tax Court could hear suits involving innocent spouse relief. Keith wondered whether there would be an appeal of this ruling of first impression with respect to innocent spouse refund suit jurisdiction.

In his post, Keith also mentioned the existence of a similar innocent spouse refund suit under section 6015(f) pending in the district court for the District of Oregon, Hockin v. United States, Docket No. 3:17-CV-1926. In that case, a similar DOJ motion to dismiss for lack of jurisdiction was pending, arguing that district courts cannot hear refund suits involving innocent spouse relief.

The update, in a nutshell, is that Chandler was not appealed, but Hockin has been set up as a test case, where nearly all the filings are in and linked to below.

Both under the original innocent spouse provision (section 6013(e), which existed from 1971 to 1998) and the current innocent spouse provision (section 6015, enacted in 1998), the district courts and the Court of Federal Claims had occasionally, and without objection from the DOJ, entertained suits for refund filed solely on the grounds that a taxpayer paid more than was required after the application of the innocent provisions.

Although the DOJ had apparently never done so before in any innocent spouse refund suit going back all the way to the 1970s and 1980s, in the summer of 2018, DOJ trial division lawyers in both Chandler and Hockin submitted motions to dismiss for lack of jurisdiction, arguing that, because Congress in 1998 enacted a stand-alone innocent spouse Tax Court action at section 6015(e) in which the Tax Court can find an overpayment under section 6015(b) or (f), the Tax Court is the sole court in which innocent spouse refund suits can now be filed (i.e., via section 6015(e)), and so neither the district courts nor the Court of Federal Claims has jurisdiction to entertain innocent spouse refund suits. The DOJ motions acknowledged only one rare exception to this position: Where there was a pending refund suit in a district court or the Court of Federal Claims (presumably on other issues) at a time when a taxpayer also filed a suit in the Tax Court under section 6015(e), the statute provides that the Tax Court innocent spouse suit should be transferred over to the court hearing the refund suit. Section 6015(e)(3).

In July, Keith and I were alerted to the existence of the motion in Hockin – but not the one in Chandler – by pro bono counsel for Ms. Hockin, J. Scott Moede, the Chief Deputy City Attorney of the Portland, Oregon Office of the City Attorney. Mr. Moede had taken on the Hockin case in his role as a regular voluteer with the Lewis & Clark Low-Income Taxpayer Clinic in Portland. That clinic suggested that Mr. Moede contact the Harvard Federal Tax Clinic because of the Harvard clinic’s interest in innocent spouse cases.

Working with summer students, in August, Keith and I put together a draft of a proposed amicus memorandum for Hockin arguing that the DOJ position was both ahistorical and contrary to the 1998 and 2000 legislative history of section 6015(e) that seemed to make clear that Congress enacted section 6015(e) to be added on top of all existing avenues for judicial review of innocent spouse issues, not to repeal or replace any prior avenues for judicial review.

Further, in the draft memorandum, we pointed out that the Trial Section’s motion in Hockin took a position directly contrary to the position that the DOJ Appellate Section had taken in three cases that the Harvard clinic had recently litigated. In those three cases, the DOJ Appellate Section urged the appellate courts not to worry about holding that a person who filed a late Tax Court suit under section 6015(e) must have her suit dismissed for lack of jurisdiction. The DOJ Appellate Section said that such a taxpayer could always still get judicial review of the IRS’ decision to deny innocent spouse relief by paying the tax in full, filing a refund claim, and suing for a refund in the district court or the Court of Federal Claims.

In both Hockin and Chandler, the taxpayers received a notice of determination denying innocent spouse relief, but did not try to petition the Tax Court within the 90 days provided under section 6015(e). Rather, after later making either partial (Chandler) or full (Hockin) payment, the taxpayers filed refund claims and brought refund suits in district court that were timely under the rules of sections 6511(a) and 6532(a) (though, for Hockin, the lookback rules of section 6511(b) limit the amount of the refund to only a portion of what Ms. Hockin paid). Thus, except for the full payment (Flora) rule problem in Chandler, the taxpayers had done exactly what the Appellate Section said they should do to get judicial review of innocent spouse relief rulings other than through section 6015(e).

In August, we sent a draft copy of the memorandum to the DOJ attorney in Hockin and asked whether the DOJ would object to a motion by the Harvard clinic to file it. This draft memorandum apparently triggered the DOJ’s desire to explore mediation in the case. So, the case was assigned to a magistrate for mediation, and further filings on the motion (including the amicus motion) were postponed.

Then, in September and October, the magistrate and district court judge, respectively, issued rulings in Chandler granting the DOJ’s motion to dismiss for lack of jurisdiction. That is how Keith, Mr. Moede, and I learned of the existence of the Chandler case presenting the identical jurisdictional issue. Although Ms. Chandler was represented by counsel, that counsel had filed no papers in response to the DOJ motion to dismiss in her case. Naturally, this led to the magistrate and judge in Chandler relying entirely on the DOJ’s arguments and citations in ruling for the DOJ.

In his recent post on Chandler, Keith raised the question whether the Chandler district judge ruling would be appealed to the Fifth Circuit. The first piece of news in this update is that Ms. Chandler decided not to appeal. Frankly, give the Flora full payment problem in the case, I think an appeal on the issue of whether the district court otherwise would have had jurisdiction would have been pointless.

But, the second piece of news is that, in November, mediation failed in the Hockin case. So, Hockin is now set up as a possible appellate test case, depending on the district court’s ruling.

The DOJ has now not objected to the Harvard clinic’s filing of an amicus memorandum in Hockin. That memorandum was filed on November 26.

On December, 21, Ms. Hockin (through Mr. Moede) filed her response to the DOJ motion. In her response, Ms. Hockin argued not only that the district court had jurisdiction over section 6015 innocent spouse relief refund suits, but also that she had raised in her refund claim two additional arguments: that she had never filed a joint return for the year and that the IRS should be bound to give her innocent spouse relief for the year because it had given her such relief for the immediately-following taxable year. As noted in the Harvard memorandum, the “no joint return” argument has been considered in district court refund lawsuits even predating the enactment of the first innocent spouse provision in 1971.

The DOJ will be allowed to file a reply by January 11.

On February 5, oral argument on the motion will be heard before a magistrate who was not involved in the mediation. Ms. Hockin has agreed to have this magistrate decide the jurisdictional motion without the involvement of a district court judge, but the DOJ has not yet similarly consented. If the DOJ does the same, and the magistrate dismisses the case, this would allow a direct appeal from the magistrate to the Ninth Circuit. If the DOJ does not consent, the magistrate’s ruling will have to be reviewed by a district court judge before a party could appeal any adverse ruling to the Ninth Circuit.

You can find here for Hockin, the DOJ’s motion, the Harvard clinic’s amicus memorandum, and Ms. Hockin’s response.

Finally, you may be aware of the recent amendment of 28 U.S.C. section 1631that allows district courts and the Court of Federal Claims to transfer to the Tax Court suits improperly filed in the former courts. That amendment would not help Ms. Hockin, since her district courts suit was filed long after the 90-day period to file a Tax Court suit under section 6015(e) expired. So, her case, if transferred, would have to be dismissed by the Tax Court for lack of jurisdiction because the suit was untimely filed in the district court for purposes of the Tax Court’s stand-alone innocent spouse case jurisdictional grant. For Ms. Hockin, her only chance now for getting a refund attributable to the innocent spouse provisions is for the courts to agree that district courts have jurisdiction to consider innocent spouse refund suits.

In Suing Boston, Airbnb Argues It’s Not Responsible For Illegal Listings

Via WGBH 

Source: Flickr

By: Isaiah Thompson

Last summer, Boston’s City Council and Mayor Marty Walsh passed Boston’s first ordinance regulating short-term rentals in the city, aimed at allowing homeowners to make extra money while stopping investor owners from buying up real estate to establish de facto Airbnb hotels.

The ordinance allows homeowners to rent extra rooms, or one entire apartment, as long as they register with the city and pay a small fee; and it prohibits short-term rentals by absentee, or so-called “investor” owners.

Airbnb lobbied hard against the measure; when it passed, the company threw the book at the City of Boston: Airbnb sued the city in federal court, arguing the ordinance is illegal.

The lawsuit here could have national implications.

That’s because central to the company’s case is a federal law called the Communications Decency Act – or CDA – specifically, one part of that act known as Section 230.

It says that internet companies can’t be held responsible for what users post on it.

“So basically what that means is I cannot be held responsible as the publisher of information that a user puts up there,” says Mason Kortz. Kortz is a clinical instructional fellow at Harvard Law School Cyber Law Clinic.

“If I post something defamatory about you on Facebook – I can be held liable, Facebook cannot be held liable,” Kortz explains. “Because they didn’t post the defamatory material, they just provided a service.”

In this case, Airbnb is taking aim at parts of Boston’s ordinance that penalize any quote ” booking agent” for listing rentals that violate the city’s new rules.

Airbnb argues it’s just publishing those ads — if people want to post illegal rentals — according to the Communications Decency Act – hey, that’s not Airbnb’s problem.

Airbnb did not respond to a request for comment.

Of course, Airbnb doesn’t just publish other people’s ads – the platform helps users register and post listings, it connects hosts and prospective renters, it provides feedback and ratings – and of course, it takes a cut of the rental proceeds.

“The argument I think Boston is likely to bring here is that they’re not holding Airbnb liable for publishing the advertisements that are put up by third-party hosts,” says Kortz.

“They’re holding them liable for facilitating third-party booking.”

It’s not the first time that argument’s been raised. The City of San Francisco raised the same argument, after Airbnb sued over a similar ordinance there – and a federal district judge sided with San Francisco.

“The district court said publishing the listings was not a problem,” says Eric Goldman, a professor of law at the University of Santa Clara and a co-director of the school’s High Tech Law Institute.

“However the moment that Airbnb took money on behalf of the listing vendor, then the city could regulate its activity and impose basically unrestricted sanctions..”

Airbnb appealed that decision, but the lawsuit was settled before the higher courts could rule one way or another.

That’s why Airbnb’s lawsuit against the City of Boston could set the stage for how and whether local communities across the country can regulate Airbnb and other and other Internet giants.

Goldman, who helped write an amicus brief supporting Airbnb in its motion for an injunction, says he understands cities’ concerns with preserving rental housing. But he disagrees with the district court’s ruling.

“Imagine if we were talking about a business like Ebay … the logic seems to be saying anybody could impose restrictions on Ebay … now Ebay has to be in the business of policing millions of small vendors that it doesn’t have the ability of policing,” Goldman argues. .

“Now we start to say any online market place can be turned into a police state.”

But other legal scholars disagree.

Abbey Stemler is a professor of Business Law and Ethics at Indiana University; Stemler also wrote an amicus brief, in a similar lawsuit brought by Airbnb against the City of Santa Monica – but on behalf of the city, not Airbnb.

“Section 230 has been grossly misinterpreted,” argues Stemler. The act, she says, “has been invoked to say, ‘We cannot be regulated we cannot be deputized to regulate ourselves.”

Stemler agrees that the CDA’s protections in many ways helped foster a better, freer internet – but says that the Act was never meant to immunize deep-pocketed companies like Airbnb from cities’ and towns’ traditional right to govern and regulate their own communities.

“Local communities have to be able to have a say on how these two thing interact, the physical and the digital,” Stemler says.

“Section 230 was never meant to to prohibit all forms of regulation for technologies that use the internet – it simply wasn’t.”

But Stemler says there could be trouble ahead for Boston – especially because of another part of the city’s ordinance, that requires Airbnb to submit regular reports to the city detailing where, when and for how many days its users are engaging in short-term rentals.

Another federal law – also cited in Airbnb’s lawsuit – protects online platforms from sharing user information. And because Airbnb doesn’t make host addresses public, the city will have an uphill battle enforcing its own ordinance without that information.

Stemler says the city might have to settle for spot enforcement – or relying on complaints.

Meanwhile, Airbnb and the city have called a temporary cease-fire: the city agreed to hold off enforcing the parts of its ordinance that could punish Airbnb, while the federal judge overseeing the cases decides whether or not to grant Airbnb a temporary injunction.

The ordinance remains in full effect for prospective hosts.

Harvard Law School sues U.S. Department of Justice over document access

Via PennRecord 

Source: Wikimedia Commons

By: Jenie Mallari-Torres

A Harvard law project is suing the United States Department of Justice, citing alleged breach of duty.

The Project on Predatory Student Lending of the Legal Services Center of Harvard Law School filed a complaint on Dec. 7 in the U.S. District Court for the Western District of Pennsylvania against the United States Department of Justice for alleged violation of the Freedom of Information Act.

According to the complaint, in June 2016 the Project on Predatory Student Lending of the Legal Services Center of Harvard Law School submitted a request under the Freedom of Information Act to defendant seeking documents produced for the government in discovery in its lawsuit against Education Management.

However, plaintiff claims months have passed — long after its statutory deadline for responding to its request had expired — and defendant has refused to produce any documents, offering a series of conflicting reasons as to why it was withholding the documents.

The plaintiff holds the United States Department of Justice responsible because the defendant allegedly failed to make a determination with respect to the FOIA request within the applicable time limit and failed to release responsible, non-exempt records.

The plaintiff requests a trial by jury and seeks an order to conduct a reasonable search for records and promptly produce records; grant of full fee waiver to the Project, award of costs, attorneys’ fees and such other and further relief as the Court may deem just and proper. They are represented by Eileen Connor, Toby Merrill and Stephen Emedi of the Legal Services Center of Harvard Law School in Jamaica Plain, Massachusetts.

The U.S. District Court for the Western District of Pennsylvania Case No. is 18-1642.

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