Toby’s blog

For a fast-paced and constantly evolving line of work, look no further than health law. Or so say Stephen Bernstein and Wasserstein Fellow Richard Weishaupt ‘74, two attorneys who have dedicated their lives to reconciling health policies with practical applications on the state level. They came to HLS recently to speak about health care law in private and public interest practice settings.

“As a health care attorney, you’re dealing in real time to bring better care faster to those who need it,” Bernstein said. As a partner with McDermott Will & Emery, Bernstein specializes in e-health, deployment of electronic health record systems, health related matters impacted by the Internet, and HIPAA. One of his recent projects was working with biotech firms to move data for the purpose of engineering their information for research and healthcare improvements. “The thing about health law is that it keeps changing. It’s energizing in that it forces you to take all these moving parts and advise clients as best you can,” said Bernstein. “You have to be a generalist.”

Weishaupt, a senior attorney with Community Legal Services of Philadelphia, agreed and highlighted his experience working on behalf of lower income employees. “Medicaid, for instance, is a large part of any state’s budget and the growing problem of fewer employers in Pennsylvania providing coverage to their employees is putting a strain on state resources in the absence of universal healthcare.”

When asked to reflect on his career, Weishaupt stressed the advantages for younger attorneys. “Health law allows you to become an expert quickly early on with a subject because your ability to impart advice arises from your knowledge of new policies and legislation,” he said.

According to Bernstein, having operated as a general counsel and served as a healthcare consultant, the rewards can be elusive. “The healthcare environment is complicated and getting more so,” he said. “The solution of how to get people access to healthcare is changing,” he said continued, alluding to Weishaupt’s Medicaid example. “At the end of the day, there are tons of opportunities for young lawyers. It’s really a question of channeling your passion.”

Seems like an exciting challenge. Be sure to check out the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics here at HLS!

Here 2L Nilay Vora fills us in on a recent South Asian Law Students Association (SALSA) event on U.S. law firms doing business in India.

(L-R) Amit Saluja, Global Litigation Partner at Howrey LLP (DC), Tara Giunta, Corporate Partner at Paul Hastings (DC), Mohit Abraham, former Associate at Amarchand Mangaldas (Mumbai) and current LLM student at HLS.

“In a West Wing episode (back when Aaron Sorkin was doing TV), the President (Martin Sheen) asks Sam Seaborn (Rob Lowe) if he would rather invest in China or in India. The answer: India, English speaking and a great sense of humor.

“The current legal craze is certainly for China. But with India’s economy booming, SALSA, the South Asian Law Students Association at HLS, decided to host an event to examine how legal practice worked with large multinational corporations doing business in India.

“It turns out that there is in fact a lot of interest from international law firms. It also turns out that there is a lot of protectionist regulation in India in the legal sector. The consensus: it would be at least 5 years before the Indian legal market was fully liberalized.

“SALSA had two partners from large law firms: Tara Giunta from Paul Hastings and Amit Saluja from Howrey. Additionally, a current Harvard LLM student, Mohit Abraham, a former associate of Indian law firm Amarchand Mangaldas, provided the Indian lawyer perspective.

“The law firm partners pointed out that law firms were already working with Indian law firms on major transactional deals (and accompanying litigation issues) that might arise. For example, when Tata, India’s largest business conglomerate, buys Jaguar, the car company, tons of legal work is done on both sides of the deal. These opportunities are what law firms are interested in when discussing an India presence. The panelists advised students who are interested in this type of transnational, transactional work to develop a set of global skills that would be applicable in a global practice, not just in India.

“Other topics included how American law firms are, of course, outsourcing a variety of paralegal and business functions to India. The panelists seemed to agree that the future of the Indian legal market is up in the air, but it is certainly a growing interest for American (and British) law firms.

“In all, this is just one of many events that SALSA organizes to embrace the cultural and professional connection to South Asia shared by many Harvard Law students, JD and LLM alike.”

To anyone still hunting for a rewarding summer internship, Harvard Defenders may have your answer. As a student organization that provides free representation to low-income criminal defendants not entitled to state-provided counsel, Harvard Defenders is the only legal service organization in Massachusetts that represents these low-income defendants for free in criminal show-cause hearings. Every summer, from a pool of dozens of applicants, the organization chooses three students to intern for ten weeks and work on a docket of several cases.

During a recent informational meeting, former Defender Phil Lee ‘00 recounted his summer experience. “I was defending a woman who had stolen diapers and a ham… I explained to the magistrate that the crime was not done out of greed, but out of true need,” said Lee. “You get to be a real advocate.”

While students handle all the case intake and the work is a team effort, the casework is supervised by attorney John Salsberg, who has served as Harvard Defenders Clinical Instructor for almost 30 years. The Defenders meet with Salsburg regularly for guidance and support in developing case strategy. “Overall,” said 2L Darnell Stanislaus, “the experience gives you great exposure to criminal law and litigation…and there’s no better feeling than having a truly appreciative client.” 2L Alex Davies agreed and emphasized that the skills developed through the Defenders are transferrable. “Because no one magistrate responds the same way to the facts of your case, you’re able to practice reading an audience and publicly making case-law arguments,” she said.

The Harvard Defenders are now taking resumes for their summer internship on a rolling basis. Anyone interested should contact Program Administrator Maria Hermann at mhermann@law.harvard.edu.

I just heard from a student, David Kessler, that an article he wrote under the supervision of Professors Warren and Stuntz was just accepted for publication by the Journal of Criminal Law and Criminology. Though students regularly publish “Notes” in law reviews and journals, it is more unusual for them to get articles published. It’s a credit to David and his advisers.

The article is titled “Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard.” Here is the abstract:

“Whether a person has been ’seized’ often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This paper presents the first empirical study of whether people actually would feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this paper concludes that people would not feel free to end their encounters with the police. By the Court’s standard, respondents would be seized in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.”

Keep an eye out in January 2009 for Mr. Kessler’s article!

I hesitate to suggest that it is common for our students to argue cases before the U.S. Courts of Appeals, but after I posted my blog the other day about Lena Konanova, I got an e-mail from a student saying that I need to talk to one of his classmates, Robin Horton ‘09, who also argued in front of the one of the circuit courts.

So I e-mailed Robin to find out more. Here is what she wrote:

“The opportunity arose from my internship at the U.S. Attorney’s Office in Vermont last summer. One of the Assistant U.S. Attorneys (AUSAs) let me draft the government’s brief (as appellee in a criminal case) and then insisted that I argue it too!

“We submitted the brief in late July and then followed up with a motion for me to argue as an eligible law student; the 2d Cir. local rule is that a student have completed 2 years of law school, but the court wound up bumping the argument up to 4/9 (on one week’s notice!).

“Because of its backlog, the court imposed a rule last fall that you now have to specifically request oral argument, that you won’t just get it automatically, but Judge Wesley (who was on the panel with Cabranes and Sotomayor) was kind enough to grant our motion and give each side a whopping 5 minutes. I met up with my (fantastic) supervising attorney, Greg Waples, in NYC and somehow managed to avoid having a heart attack at the podium. The court actually already issued a written opinion last week — I just pulled it from the 2d Cir. website (attached). We won!”

Maybe this is a typical Tuesday for what I’m guessing is Noah Feldman’s 1L Constitution and the International Order class, but when I came back from lunch (dry cleaning in hand) I had to step over students sitting on the steps outside Austin Hall. Professor Feldman was pacing in front of them and the students appeared to be paying attention–and tanning at the same time.

Ah — spring in Boston!

An admitted student recently asked me how supportive Harvard is of student initiatives that maybe don’t match up with existing opportunities here. I asked Lisa Dealy, who heads up our office of Clinical and Pro Bono Programs, to respond. She forwarded me her response so I would know what’s happening around here too and said I could post it here if I liked:

“We actually spend a lot of our time with students helping them design and implement clinical and pro bono projects (and sometimes even non clinical/pro bono things) and I like to think we are very supportive of student initiatives. Here are some examples:

“Students wanted to start a Spanish for Public Interest Lawyers course & came to us…we were able to do it quickly (by the next semester) and fairly cheaply by hiring LLM students who are native Spanish speakers; we run it out of the clinical office even though it is a non credit (and non clinical) course. It’s been very successful and now we offer two different levels of the course.

“A few years ago, students approached us about sponsoring trips during fly-out week. We now have established programs during fly out week and spring break and winter intersession—this year about 40 students did pro bono work over spring break and we arranged the placements through various HLS alumni and Lee Branson went as far as arranging housing and group activities for the students. We invited clinical instructors to go and provide extra on-site supervision. So, not only did we respond to the initial student idea, but we’ve continued to refine the idea and make it better each year.

“We also recently assisted a student who was trying to set up a program for local kids coming out of foster care—she was not seeking credit for this, but she wanted replicate a model she had learned about during her independent clinical work last winter. We gave her contacts with people both within HLS and outside of HLS and gave her advice on how to proceed and what she could do within HLS to ensure this program kept going after she had graduated. I met with her several times and last week she was in to report that a Cambridge non-profit had picked up the program and she has 1L students interested in keeping the program going.

“We work really hard to make sure students aren’t duplicating efforts (either within HLS or trying to start an organization that already exists in the community)…but even when we find students trying to reinvent the wheel we don’t turn them away, we talk to them to see if they can do something that hasn’t been done yet!”

I just got an e-mail from Professor Martha Minow telling me that one of her students, 3L Lena Konanova, would be arguing a case before the First Circuit as part of her work at the WilmerHale Legal Services Center Employment Civil Rights clinic.

I followed up with Lena to ask how this came about:

“The opportunity came up as a purely fortuitous coincidence of circumstances—it wasn’t something that I had sought out or worked towards accomplishing or ever even envisioned. I have been working at the WilmerHale Legal Services Center, in the Employment Civil Rights Project. My clinical instructor had the appellate argument in this case coming up in May and he asked me a few weeks ago whether I would be interested in arguing the case. A few of us had worked on the briefing, but I think he picked me because of my moot court experience—I was on the winning team in the Ames competition. I also took Tom Goldstein’s and Professor Larry Tribe’s Supreme Court Litigation workshop this winter and helped prepare Tom for his Supreme Court argument—I think that fact helped the First Circuit and the client agree to this unusual situation.

“In any case, I am quite excited about it and just trying to focus on preparing for the big day.”

Q: Why has HLS created its new 3L tuition Public Service Initiative, as opposed to simply increasing funds to LIPP?

A: The new 3L tuition initiative is something I’ve been dreaming about for many years but never thought would see happen because it is so revolutionary. In the beginning of my time at HLS, I thought we should put all of our back-end resources into our loan repayment program (which was the first in the country and remains one of the very best).

But after a while I began to realize that the specter of debt hanging over their heads deterred many students from going into public service, no matter how great our loan repayment program is. We knew they could afford to do it with our support, but the psychological debt aversion was real and we wanted to help with that. At the same time, we didn’t want to do an up-front, selective fellowship.

I’ve learned over the years that you can’t take out a crystal ball and figure out who will go into public service work. Some of the people most committed to post-law school public service work are the ones who worked in the private sector before law school and needed to use all of our wonderful resources to build a public interest track record while here.

We also didn’t want to use this as a recruiting tool and just select people on criteria like LSAT or GPA. We thought all of our students should get the extra help to boost them into public interest work. That’s why we’ve made it non-selective and that students can make the decision to participate as late as their 3L year. That’s what makes this unique (and we don’t even have any idea of how expensive it will be because it is an entitlement program). Students can still take advantage of our fabulous LIPP program for the rest of their debt, they’ll just enter it with one-third less tuition debt.

We are not naïve enough to think that the extra $41,000 is going to pull people who really want to go to a firm for a while from going there – but we do hope and think it will help more people take the plunge if they want to do public interest work but were just afraid of having too much debt hanging over their heads. We genuinely hope and expect that this new initiative, along with our other generous programs, will help a critical mass get into and stay in public interest work. I’m really grateful to Dean Kagan for her willingness to create what is potentially a very expensive program.

It appears we had room for a few more folks before going to the waitlist. I’m making some calls to admit today and maybe Monday. Everyone else should receive a waitlist or deny notice soon.