Toby’s blog

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!

Q: How many years of experience do you have in advising students on public interest careers and what is the advantage of that length of experience?

A: I have been doing public interest advising for 14 years (not including the semester I spent as a Wasserstein Fellow-in Residence at HLS) before joining the office. My longevity offers HLS students a lot of benefits that advisers who haven’t been doing public interest advising as long just can’t match even if they have a lot of public interest work experience.

First, doing this work for a long time has allowed me to build up expertise in a wide range of practice settings and types of work beyond my own expertise. I was a poverty lawyer before joining HLS but because I have learned so much from our student and alumni experiences, I now have expertise in such divergent areas as the hiring practices of the Department of Justice and how to break into the competitive world of civil rights and civil liberties advocacy.

Perhaps even more importantly, I have a network of lawyers that I can call upon to give students insider advice about their areas of practice and sometimes an extra leg up in the application process. One service we provide to many students is to give them personal referrals to alums or other lawyers working in their area of interest from my own “mental rolodex” or from more formal databases. That network has been built through 14 years of meeting panelists and visiting Wasserstein Fellows (some of whom aren’t HLS grads but with whom I have a connection), through working with employers around the world and through knowing graduates who have cycled through OPIA. The many graduates who used our services while in law school and have personal connections to our staff are especially loyal.

Alexa Shabecoff heads up the Bernard Koteen Office of Public Interest Advising. I thought a little Q&A with her would help highlight our philosophy and practices in the area of public interest and public service advising and programming. I’ll do one Q and one A each day for the next 3…

Q: What is the advantage to students at Harvard Law School of having an entire office devoted to public interest advising (as opposed to having just one person or being part of a general career services office, as is the case at other schools)?

A: One advantage of an entire office with a number of advisers is that in peak seasons we still have plenty of staff to go around. Since we (and all law schools) aren’t allowed to provide 1Ls with individual career counseling until November 1^st, the floodgates open then and I would imagine that even at a small school one person would be swamped. We also are able to offer a wide range of backgrounds, personalities and expertise.

For example, we have a staffer with a ton of experience in criminal work. We have a staffer who does nothing but federal government advising and runs our Heyman Fellowships program. We have someone who only does Fellowships advising–her expertise is a main driver of our success at winning competitive outside fellowships (which is why we haven’t had to resort to having many of our own fellowships).

Our large staff means that we can build up expertise on a wide range of issues; for example, one person is developing a lot of expertise in human rights placements (on top of the expertise that the many attorneys in our Human Rights Program already have). Finally, it means we have people with different personality types that fit the wide array of personalities at HLS–extroverts, introverts, people who will hold your hand a lot and people who will help but let you do your own thing if you don’t need too much guidance–so that students can find the right adviser for them.

We are very fortunate in having a full office with its own budget as that allows us to focus on public service, continue to refine our expertise and create programs—not just advising but also community-building programs—that we think can best serve the students and alumni at Harvard Law School while working closely with other offices at the law school.

In case you don’t keep an eye on the home page, I wanted to highlight these videos from the big public interest reunion. We had 600 public interest alumni back on campus to mix and mingle and attend a series of panel and events. Speeches by former Mass. Governor William Weld ‘70 and death penalty litigator Bryan Stevenson ‘85 and a “conversation” between Dean Elena Kagan ‘86 and Michigan first couple Jennifer Granholm ‘87 and Daniel Mulhern ‘86 were part of the fun.

These links take you to the full stories and within the stories are links to the video:

Gov. Bill Weld

Gov. Jennifer Granholm

Bryan Stevenson

Anyone who’s considered working for the federal government after law school probably knows how coveted the positions are. Still, in spite of the prestige, the compensation can fall quite short of what one’s classmates can expect from the private sector (though with LIPP and the new Public Service Initiative’s 3L Tuition benefit, HLS can help a bit with that).

We recently reached out to Joan Ruttenberg, the Program Director for the Heyman Fellowship Program, to pick her mind on the issue.

Q: Generally speaking, what does HLS have to offer students interested in federal government work?

A: HLS has made a real priority of encouraging students to consider federal government work, and of supporting students who try it out. We offer targeted career advising for federal government work, extra stipends for federal summer internships, a competitive post-graduate fellowship program that offers both stipends and significant loan repayment assistance for grads starting federal careers, and on-campus programming with federal lawyers from all practice settings. Perhaps most important, Harvard’s network of willing alumni mentors in federal careers is unparalleled.

The result of these benefits is tangible: at DOJ alone, for example, in the past decade, from 26% to 41% of Harvard Law students applying to the extremely competitive post-grad DOJ Honors Program have received offers every year (from 14 to 26 students); the percentages for students receiving offers for the competitive second year DOJ Summer Law Intern Program are comparable, ranging from 22% to 46% of applicants each year (from 12 to 25 students). Typically, Harvard Law students receive more offers for the Honors and SLIP programs than students at any other law school in the nation. And dozens of students participate in the second year Volunteer Law Intern program at DOJ as well.

Q: What is the Heyman Fellowship Program?

A: The Heyman Fellowship Program was established in 2000 by HLS alumnus Samuel J. Heyman, ’63. Heyman spent the early years of his career in Robert Kennedy’s Justice Department, and still regards that experience as unmatched in excitement, challenge and commitment. Through the Heyman Fellowship Program, he seeks to encourage more of the best and the brightest of HLS students to enter federal public service. The Heyman Program has several components: a summer internship program, offering extra stipends to students in federal summer internships and providing the opportunity for students to meet and converse with prominent federal lawyers and judges; the graduate fellowship program, providing fellowship payments to 15-20 young HLS graduates in federal careers annually and (to a subset with heavy debt loads) loan repayment assistance on top of HLS’ already-generous loan repayment program; and on-campus programming, including visits from Heyman Fellows to talk about their careers, as well as brownbags and one-on-one counseling sessions with federal lawyers from a variety of practice settings.

Q: How does the Heyman Fellowship Program work?

A: Any first or second year student who is pursuing a summer job in federal government can apply to be a Heyman Summer Intern. Any federal position other than a judicial internship is eligible, whether in DC or elsewhere. Those selected will receive a stipend (that is in addition to any guaranteed Summer Public Interest Funding [SPIF] they may already be getting from HLS). During the summer, Heyman Summer Interns will be able to attend lunches with lawyers like the Legal Adviser to the State Department, top legislative counsels on Capitol Hill and United States Attorneys. They will also socialize with graduate Heyman Fellows and find mentors among them.

Current HLS graduates and those from the prior two years’ classes who are going into federal government work are eligible to apply for the graduate Heyman Fellowship Program. Those who are selected as Heyman Fellows will receive a $5,000 one-time fellowship payment, and some, based on debt load, will also be eligible for up to $25,000 in additional loan repayment assistance. Heyman Fellows agree to spend at least three years in federal government, and to act as mentors to HLS students and graduates interested in federal public service.

Programming throughout the year creates a wonderful sense of community among the Heyman Fellows; for example, upwards of 60 Fellows and program alumni attend our annual banquet in Washington, DC every year, where they welcome the new class of Fellows and hear comments from Dean Elena Kagan, founder Samuel J. Heyman, and other HLS alumni with impressive federal careers.

The Heyman Fellows are a growing and inspiring network of HLS graduates in federal public service. This network is available for all HLS students and graduates to use in their own career planning and exploration. Heyman Fellows have helped students get some great summer jobs at the last minute when other plans have fallen through (for example, when one student’s security clearance did not come through in time for her internship at the Department of Defense, a Heyman Fellow was able to point her to an opening in the Office of Foreign Assets Control at the Department of Treasury, where she had a fantastic summer) and give each other the heads-up about job opportunities in their own offices (more than one Heyman Fellow has found a second federal job through information on the Heyman network). Heyman Fellows also return regularly to HLS to speak on panels and offer one-on-one counseling with HLS students interested in or curious about federal practice.

Q: How does the Heyman Fellowship Program differ from similar programs at other schools?

A: There are essentially no comparable programs at other law schools. A few schools have much smaller programs that offer assistance to one or two students a year, but none are of the magnitude of HLS’ program. Federal public service (or even government work in general) is often excluded from other schools’ loan repayment assistance programs, either categorically or de facto because of resource limitations. HLS has always had an incredible set of alumni who have had spent stellar careers (or portions of their careers) in federal government. But the Heyman Program has added to this a growing sense of community and giving back among its federal government alumni that is of tremendous value to current and future students. The size of the HLS student body and of the Heyman Program itself have resulted in a critical mass of alumni federal lawyers and active mentors that is not replicated at any other school.

For more details, and to see a roster of Heyman Fellows and where they work, go to www.law.harvard.edu/students/opia/fellowships/heyman/

Starting with the incoming Class of 2011 (starting this fall), HLS students can get their 3rd year of law school tuition paid by us in return for a 5-year commitment to public service. The official announcement is here on the home page.

Here are the details on the Student Financial Services website.

It is also being covered in the New York Times and Wall Street Journal Law Blog.

We’re very excited to be the first law school in the country to do this!

Assistant Professor of Law, Jeannie Suk, recently sat down with me to discuss her principal areas of research in interrelated topics of family law, criminal law, and criminal procedure.

In her Yale Law Journal article, Criminal Law Comes Home, Suk outlined the changing model for defining domestic violence through the lens of criminal law. As she wrote, “The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction.”

Jeannie Suk: 11:35

In an era where the financial world is rife with corporate scandal, the demand for attorneys who specialize in white-collar litigation is fast on the rise. Recently, the Harvard Association for Law and Business (HALB) hosted a panel of New York-based attorneys who are familiar with this new trend in corporate litigation through their work in investment banking, hedge funds, law firms, and the U.S. attorney’s office.

“The market for white-collar criminal defense is very new,” began Carey Dunne, a partner at Davis Polk & Wardwell and former prosecutor at the Manhattan District Attorney’s Office. “Back when I started in the mid-1980s, very few firms had a white-collar criminal practice and there was no focus on the prosecution of corporations, mainly because the Justice Department didn’t see fit to do so.” This began to change in the mid-1990s in part because of the Uniform Sentencing Laws, which reshaped the view of corporations engaging in criminal behavior. “Thus, as these larger companies have run into such problems as compliance with SEC enforcement, the market for expertise in law firms has changed,” explained Dunne. All the panelists agreed that this new market is unlikely to change regardless of which transgressions are under scrutiny; the recent credit fallout is merely the latest crisis.

“Because of this new white collar focus, the regulating agencies have come into play in a huge way, and thus what it means to be in-house counsel has changed dramatically,” said Pierre Gentin, Managing Director and Head of Litigation at Credit Suisse Securities, LLC. Gentin cited four focal points that he felt banks should reexamine frequently: 1) evaluating the ability to manage the regulatory obligations of SEC agencies; 2) determining whether any litigations brought against the firm involve counterparties or new claims for civil litigation consequences; 3) approaching and dealing with the “ethical minefield” of non-compliant employees; and 4) analyzing the under-discussed impact of the media on company press. “As an in-house attorney, you must manage these risks simultaneously,” said Gentin.

Looks like lots of opportunities for HLS-trained attorneys…!

New Assistant Clinical Professor, Alex Whiting, recently visited with me to discuss his areas of expertise in international humanitarian law, prosecutorial ethics, and procedures of international criminal tribunals.

In addition to teaching a domestic prosecution course this semester entitled “The Government Lawyer,” Professor Whiting is also teaching a war crimes clinic. During the Winter Term, 2008, he and ten students will be traveling to the Hague for an introduction of the International Criminal Tribunal Court system. There, they will meet with various key players for an overview of the court system, and during the spring semester, the class will work on cases long-distance.

Alex Whiting: 10:23

When Dean Kagan gave her State of the School address a couple of months ago, she alluded to several pilot programs taking hold at HLS. One such initiative was the Program on Terrorism and the Law, which was officially launched with last week’s panel discussion that brought together some of the nation’s leading authorities on terrorism, including: Congresswoman, Jane Harman HLS ’69; National Counterterrorism Center Director, Michael Leiter HLS ’00; Professor Jack Goldsmith; and Professor Phil Heymann.

“I think this program will be useful for Harvard on both an intellectual framework level and on a practical level,” said Congresswoman Harman. When Professor Minow posed the question of what Congress should be doing now to address terrorism, the entire panel expressed the need for a Congress to define and outline a new framework for identifying and lawfully prosecuting terrorists. “For one thing, Congress needs to get serious, stop the partisanship and blame game on the war… and stop dealing with this problem on an ad hoc basis.” Professor Heymann agreed. “Addressing terrorism requires that we decently, not 100%, secure America. We must strive to preserve tolerance and freedoms, and we must also preserve our alliances.”

Further, Heymann explained that since the government will not be able to stop all serious attacks in the decades to come, it must strive to reduce the enthusiasm of hostile parties to attack the U.S. “There’s no question that is a mistake to push this issue off until the next election,” Leiter added, “The gap right now really is less on the intelligence side and more on the policy side… we need to focus on the long struggle versus the war at hand, and it’s always hard to get adequate funding for long-term foreign service issues.” For his part, Professor Goldsmith focused on what he felt should be an immediate goal of Congress to address the military detention of terrorists. “As a product of this Administration’s unilateralism, there is no legitimate system for detaining them… I hope Mukasey will make this his issue,” he said, “But before the next election, I believe we will have a detention policy.”

In response to the growing concern over the Administration’s consolidation of power, Harman adamantly asserted that Congress must reinsert itself in policy drafting. “This executive has chosen to play the fear card which makes it easy for people to throw up their hands… terrorism is a tactic, not an enemy,” she said, “Congress has abdicated its duty to legislate.”