Toby\’s blog

For the last year, Congress has been considering the implementation of the Employee Free Choice Act, a bill that seeks to alter the National Labor Relations Act of 1935 to support and facilitate employee efforts to form or join labor a labor union. Though the bill has bipartisan support, it has provoked hot debate across party lines. Supporters generally feel that workers rightly demand heightened protection from anti-union coercion by employers; opponents conversely fear union-side coercion of employees and claim that the bill fails to protect employee privacy. Such was the atmosphere in which the American Constitution Society recently invited professionals on both sides of the issue to present their perspectives.

“We’ve gone almost six decades without a change in labor relations policy,” said labor relations expert, James Brudney, a visiting professor at HLS. “In that time, labor laws have become broken… and there is too much room for unlawful employer activity such as the termination of union supporters.” In making his case, Brudney pointed to the steady decline of the number of new union members nationwide. 7% of the labor force is unionized today, compared with seven times that number 45 years ago.

Still, as Joseph Ambash, a labor attorney with Greenberg Traurig argued, the plight of unions cannot be ascribed to employers alone. “It’s not that the laws are broken, it’s that the union business is broken,” he said. “Employees can’t be persuaded it’s worth it to join a union.” He furthered his point by positing that it is blatantly undemocratic for unions to require signature cards, which are used in a union organizing campaign to show support and justify a representation election. Employees who sign cards are stating they want a union election. “This act would deprive employees of their right to hear both sides of the story.”

Mac D’Alessandro of the Service Employees International Union commented: “Joe’s right; we can’t convince workers that unions are good for them because we can’t get access to them.” D’Alessandro framed his point in the larger context of workers under siege by reminding the panel that in addition to job security concerns, many workers continue to struggle while the salaries of employers have grown exponentially over time. “The Employee Free Choice Act levels the playing field for employees in a non-coercive environment.”

Yet for labor attorney Robert Morsilli of Jackson Lewis LLP, the devil is in the details in the Act. “One of the damning features of the Employee Free Choice Act is that after 120 days, the parties in an employment contract lose control of the bargaining when the decision goes to binding arbitration, which rarely works out well.” Given the posturing of negotiators, he suggested, there is hardly ever an appropriate one-size-fits-all contract. “When you get down to it, what’s this law really about? It’s about circumventing an employer’s ability to communicate with his or her employees about union matters.”

Greta Gao, 3L and Program Chair of the American Constitution Society, wrote to us on a panel she recently helped organize entitled “The Shifting Borders of Immigration Regulation.”

“Recently, three of Harvard’s immigration law experts, including Professors Ayelet Shachar, Gerald Neuman, and Debbie Anker, gathered on a panel to discuss the shifting borders in immigration regulation based on a recent paper by Visiting Professor Shachar. In her paper, she argued that governments of high-volume immigration countries have often redefined the point at which ‘entry’ into the country is recognized by law, in order to make inspection and possible removal of the new visitors easier. Essentially, these governments are redrawing the ‘legal border’ of the country.

“Professor Shachar spoke about the traditional significance of border-crossing for non-citizens. Within the border, she said, noncitizens are entitled to more processes and rights than people who were never admitted into the country. Therefore, by redefining the legal ‘border’ not at the territorial border but sometimes far outside or far within, governments are able to restrict the set of rights traditionally available for noncitizens within the boundaries of a country. In the United States, for example, noncitizens are traditionally subjected to expedited removal without judicial review before they entered the country. New legislation, however, has extended the zone of expedited removal to within 100 miles of the border, effectively shrinking the border to 100 miles within the United States.

“While Professor Neuman largely agreed with Professor Shachar’s characterization of ‘boundary-redrawing,’ he looked at the issue from a historical angle and argued that governments, especially the U.S. government, have always manipulated the definition of a legal ‘border’ in immigration law. Thus, even though methods such as expedited removal procedures are new ‘tools’ in the government’s ‘toolbox’ for controlling immigration, the ‘toolbox’ itself is a very old one. For example, ‘parole status’ essentially allows noncitizens to enter the country but still be legally recognized as ‘standing at the border,’ thus without the protection or rights of those deemed to have entered the country. Professor Neuman cited a case from the 1920s, where a girl from Poland was refused entry to the U.S. but then ‘paroled’ into the country because World War I had broken out and she could not return to her country safely. She spent 10 years in the U.S., and her parents naturalized. She argued that she, too, should have been considered naturalized based on immigration law that existed at the time. Justice Holmes rejected her arguments, saying that as a parolee, she was deemed to have never entered the country, and the statutes in question therefore did not apply to her. This was a rather extreme example of the legal fiction of ‘the border’ being radically redrawn and then rigidly applied.

“Professor Anker, the director of the Harvard immigration and refugee clinic, drew on her work at the clinic and talked about a concrete example of the reshaping of the legal borders-the hardening of borders between the U.S. and Canada with respect to refugees. The U.S. was long considered a ‘safe third country’ for Canada to send its refugees, but recently, the Federal Court of Canada ruled that the U.S. should no longer be considered as such because refugees sent here face an unacceptable risk of being deported back to their home countries. The finding of the Court was based in part on the work done by Professor Anker and the Harvard Immigration Law Clinic.”

During her Winter Term, 2L Lauren Birchfield traveled to Delhi, India to work with the Human Rights Law Network on the Right to Food Campaign. Upon her return, she shared her story and photos with us.

“I spent January 2008 interning at the Human Rights Law Network (HRLN) in Delhi, India, working on the Right to Food. The Human Rights Law Network provides pro bono legal services, conducts public interest litigation, participates in advocacy, and collaborates with social movements and human rights organizations. Maintaining both litigation and publishing departments, HRLN works on issues such as Right to Food, Women’s Justice, Dalit Rights, Disability Rights, and rights for persons living with HIV/AIDS.

“Along with my colleague Jessica Corsi, I investigated and documented the history of the Right to Food Campaign, its accompanying case, PUCL v. India & Others, and the post-litigation implementation of India’s constitutional right to food. Our time in India was spent largely traveling around Delhi and other parts of the country conducting interviews with activists involved with the Right to Food Campaign. The fact-finding, research, and interviews conducted are currently being incorporated into a final document, which will be completed by June 2008. In our forthcoming paper, we intend to address not only the campaign and litigation, but also larger questions about the right to food, as well. These larger issues include food sovereignty, the effects of neoliberal economic policy and trade liberalization on the rural poor, and the relationship between food security, agricultural production, and employment rights.

“While in India, we had several opportunities to travel. These photographs document the time we spent in Uttar Pradesh and Rajasthan, as well as some of our excursions around Delhi. Our first week in Delhi, we observed and assisted on a fact-finding mission in the villages of rural Uttar Pradesh. The objective of this mission was to collect data on the status of food security in U.P.’s Banda district, and to assess how Supreme Court mandated food and employment orders were being implemented. These images depict some of the villages and the stone quarry we visited while in Uttar Pradesh.

Directly upon our return from Uttar Pradesh, we departed for Rajasthan, where we spent several days interviewing some of the key social activists involved with the Right to Food Campaign. Our first days in Rajasthan were spent in Beawar at a National Right to Information Youth Convention, where we had the opportunity to participate in a candlelight vigil commemorating the first Youth Convention that had taken place in Beawar several years earlier.

“Once we arrived back in Delhi, we spent our last ten days in India tracking down and interviewing human rights activists, economists, Supreme Court Commissioners, professors, and lawyers who had either worked directly on or were invested in food security in India. During our last few days, we also managed to squeeze in a few sight-seeing excursions. We toured the Taj Mahal, as well as some sights around Delhi, such as the Jama Masjid Mosque (Delhi’s principal mosque, which can hold up to 25,000 worshippers).

“Overall, words cannot really express how much I enjoyed both working at HRLN and my winter term experience. At HRLN I met incredibly passionate and qualified people, and was accepted into an office that recognized each of its staff members as important components in its vision for change. There was never a dull moment at HRLN - we were constantly on our feet, putting in calls to human rights activists, scheduling meetings, and traveling all over the country to interview those activists whenever and wherever they could meet with us. I greatly appreciated how much HRLN invested in us and in our project, and how much freedom is gave us regarding the project’s construction and implementation. I found HRLN a fantastic organization to work for, and I was pleased to walk away from the internship having recognized that this – this kind of work, this kind of project – is what I want to pursue as a career.”

In a effort to shake things up a bit recently, I decided to let some students have a little fun interviewing their professors. One such individual was Andrew Klaber, a 2nd-year JD/MBA, who sat down for a chat with his Legal Education and Ethics Professor Daniel Coquillette.

Professor Coquillette teaches Legal History: American Legal Education. After Spring, 2008, he will continue to direct the Harvard Law School History Project.

Andrew Klaber has undergraduate degrees in International Studies and Ethics, Politics, and Economics. Before coming to HLS, he spent two years at Oxford on a Marshall Scholarship, earning Masters of Science degrees in Financial Economics and Economic History.

Andrew Klaber with Daniel Coquillette: (19:20)

In a effort to shake things up a bit recently, I decided to let some students have a little fun interviewing their professors. One such individual was 1L Talhia Tuck who sat down for a chat with her professor of Race Relations Law: From the Jim Crow Era to the Present Moment, Randall Kennedy.

Professor Kennedy specializes in the intersection between racial conflict and legal institutions in American life. He currently teaches race Relations Law, Issues Involving Freedom of Expression, and Contracts.

Before coming to HLS, Talhia spent most of her professional life in television, first as a production assistant for Hardball with Chris Matthews and a researcher for The Nightly News with Tom Brokaw and then later TV-News Reporter for the WINK-TV, the CBC Affiliate in Fort Myers, Florida. She is interested in combining her interest in journalism with law by pursuing avenues such as First Amendment law, communication law, or media law.

Talhia Tuck and Randall Kennedy: (23:21)

Do you find yourself emptying your wallet every semester for costly course packets? Did you ever angrily speculate that, as part of the public domain, you should be allowed free access to your materials? Scholar and writer Lewis Hyde, a fellow at Harvard’s Berkman Center for Internet and Society, gave a talk recently to discuss the reclamation of fair use rights and to brainstorm on what educators should do to lobby on behalf of their fair use rights.

According to Hyde, fair use regulations came into being centuries ago to benefit the public good. “This concern began to shift to a focus on the commercial good with Justice Joseph Story following the case of Folsom v. March in 1841,” said Hyde. “The question of free speech versus the ownership of ideas began to be scrutinized….fair use as a concept comes from the spreading range of copyright control.” However, the fair use defense of copyright infringement was not formally codified until 130 years later under section 107 of the 1976 Act. When considering fair use of an original work, the user should take into account (1) the purpose and character of use; (2) the nature of copyrighted work; (3) the amount and substantiality of portion used in relation to the copyrighted work as a whole; (4) and the effect of use upon the market or potential market for the original work.

“The problem here of course is the vagueness of these guidelines,” said Hyde. “There’s no distinction between derivative works such as translations and transformative works, which mark a departure from the original work.” Hyde explained the that, for scholars and teachers, infringement has little meaning. “The doctrine is too general, and where it is specific, it’s too specific for application.”

The real question then is how to adopt educator-developed practices of fair use. After weighing the abolition of fair use and the implementation of further guidelines, Hyde proposed developing a system of best practices by convening communities of scholars to discuss normative use. “There needs to be a research phase to identify the problems and limits of fair use…culminating in a publication that articulates the case of the community in question.” Hyde insisted that this system would allow educators, musicians, and authors, among many others, to return to their professional norms in determining right and wrong fair use behavior. “The publication must then be taken to adjudicators to ensure that it is in line with current legal practices… and then the community conducts outreach.”

“Educational fair rights use has been eroded,” concluded Hyde. “Now is the time to return to the mission of higher learning and the dissemination of knowledge.”

The Iraqi refugee crisis looms ever larger. With 2.5 million external refugees currently living in large numbers in Jordan and Syria and another 2 million internally displaced peoples, the international response just seems inadequate to many. Refugee Program Director for Amnesty International Sarnata Reynolds and documentary filmmaker Kalyanee Mam visited HLS recently to discuss the humanitarian emergency and to screen an excerpt from her documentary “Between Earth and Sky.”

At the close of the final scene in which an Iraqi claimed to have “lost himself since the beginning of the War,” Mam insisted tearfully that more interest in the refugees has to be mobilized. “Everyone I talked to, all their stories had a common thread: their national identity has been lost… they never imagined that things, as bad as they were before the war, would be so dire now,” she said. “For Jordan and Syria, those countries harboring refugees, we desperately need more humanitarian and bilateral assistance.”

For Amnesty International, the problem is clinical. Reynolds, who also chairs the Iraqi Refugee Working Group, is working with that coalition and with Amnesty International on efforts to allow more refugees into the United States, to support refugees and asylum seekers already in the system, and most importantly, she said, to reopen Iraq’s borders.

With millions of Iraqis trapped inside the country and millions more living without adequate healthcare and education in Jordan, Syria, and several other countries, the plight is enormous. “Detention is on the rise,” said Reynolds, “and eviction is becoming more hostile as countries are fed up with the ‘protracted guest’ situation.” Furthermore, Syria, Jordan and Lebanon are not signatories to the 1951 Refugee Convention, giving refugees very little legal protection, are banned from working, and subject to changing requirements for entry and stay.

Reynolds also debunked the return of refugees to Iraq as a harbinger of better security. “The government paid each refugee $800 to return…people ran out of options and money elsewhere.” According to Reynolds, the Iraqi government has preyed on their peoples’ desperation only to welcome them back to a country in which the borders of 11 out of 18 governorates are closed. “The protection space has narrowed, and humanitarian organizations are barred due to security concerns.” Reynolds insisted that the U.S. has an obligation to spearhead the international response and begin to offer thousands more Iraqis asylum. “It’s hard for Iraqis to have hope, but they really do try… we need to honor their trust.”

Watching Tim Russert’s interview with Senator Hillary Clinton on Meet the Press several weeks ago prepared me well for a recent class in Austin West. Visiting winter term professor Judge Brett Kavanaugh solicited opinions for the Senator’s response to Russert’s question on whether she would follow the Justice Department’s guidelines for executive pardons. Such guidelines include consideration of the post-conviction conduct, character, and reputation of an offender and observing a period of at least five years after conviction or release from confinement before filing a pardon application. Both President Bush and President Clinton have been cited for not adhering to these recommendations. After several students opined that Clinton was in a tough position and probably should have crafted a better response than “Yes. . . ,” Kavanaugh concluded the introduction of his class. “Her interview was just a case study of how executive powers can come back to haunt you.”

Designed to examine the structure of the federal government and the system of separated powers with checks and balances, Kavanaugh’s Separation of Powers course uses historical precedent, current events, and controversies to illustrate the interplay among the three branches. Having clerked on the Supreme Court under Anthony Kennedy, worked in the Independent Counsel’s office, and served in the White House under George W. Bush, Kavanaugh has quite a bit of experience with these issues. On the day of my visit, the topic was executive privilege which included discussion of the Presidential Records Act, United States v. Nixon, and the protocol of congressional hearings. “These topics will be examined in scrutiny during the next administration,” said Kavanaugh.

I caught up with 3L Vikas Desai for his thoughts. “I tend to enjoy classes dealing with topics in constitutional law and have always found separation of powers issues to be among the most interesting. It never seemed to me like the doctrine in this area of the law was very clear, so I thought it would be a good experience to be able to delve into the topic more deeply. I have really liked the class. The law in this area is very relevant to many of today’s most contentious issues and I have appreciated being able to develop more informed opinions on them for myself. Also, Judge Kavanaugh has really had an interesting and varied career in government so he brings a unique perspective to classroom discussions.”

Upon taking the podium at a recent event sponsored by the Human Rights Program, Soviet Jewish historian Joshua Rubenstein took particular care in framing his discussion. “This is grim material, folks… it doesn’t get more serious and bewildering than looking at mass atrocities.” Rubenstein was referring to the release of his latest book entitled The Unknown Black Book: The Holocaust in the German-Occupied Soviet Territories, a compilation of testimonies from Jews who survived atrocities inflicted by the Germans in occupied Soviet territory during World War II.

Collected through the efforts of renowned Jewish Soviet journalists Vasily Grossman and Ilya Ehrenburg, the testimonies are firsthand accounts by survivors of the work camps and ghettos across Eastern Europe. “This book deals with the enormous scale of destruction often overlooked by Western accounts,” explained Rubenstein. Indeed, between the time of the Soviet-Nazi Nonaggression Pact of 1939 and the expulsion of the Nazis by the Red Army in 1944, it is estimated that 2.5 million Jews were liquidated in Soviet Territory. Contrary to prevailing Western belief that the Soviets denied the presence of the Holocaust in their territory, Soviet Jewish journalists began documenting survival accounts before the end of the war. “It was difficult for Stalin and the Soviets… they did not want to accept that individual collaborators were turning their Jewish neighbors over to the Germans,” said Rubenstein, “Stalin understood he needed to repair ties with the West to overcome the Nazis.”

To reinforce this relationship and to sever his relationship with Hitler, Stalin created a Jewish Anti-Fascist Committee whose mission included manufacturing propaganda aimed at bolstering the Western/Soviet alliance. Jews in the United States got behind the Soviet effort and enabled Ehrenburg to publish his Black Book. Destroyed by Soviet censors, the Book itself was not officially published until 1980. “The remarkable thing about these testimonies is that you have the account of people interviewed directly after Liberation,” explained Rubenstein, “Most other accounts are informed by events that transpired years later.”

The official journal of the American Constitution Society for Law and Policy, the Harvard Law & Policy Review (HLPR) encourages lively debate on pertinent policy questions between progressive legal scholars, policymakers, and practitioners.

Staffer Julia Foresman recently caught up with President Derek Lindblom, 3L, to discuss the HLPR’s focus on finding pragmatic solutions to today’s greatest policy hurdles.

Derek Lindblom: (8:30)