2014 Symposium Recap

Over lunch on February 11 and 12, the Harvard Law School Journal on Legislation hosted its annual symposium. This year’s topic, Drug Policy: Reality and Reform, proved timely and engaging to members of the Harvard Law community. Welcoming a standing-room-only audience to hear from some of the field’s leading experts and authorities, JOL succeeded in creating a meaningful dialogue around a topic seeped in critical statutory and policy implications.

The first panel opened with brief remarks from Jeffrey Miron, a Senior Lecturer on Economics at Harvard University who is known for his economic insights on the war on drugs and other related topics. The discussion, moderated by Harvard Law professor and former Deputy U.S. Attorney General Phillip Heymann, jumped immediately to brief historical accounts of the drug war, focusing specifically on an aspect which all panelists had dealt with in their careers: mandatory minimums. The perspectives ranged from academic theory to first-hand accounts from a former judge and the state director of a national non-profit organization working on the topic.

Former federal judge for the District of Massachusetts Nancy Gertner and John Pfaff, Associate Professor of Law at Fordham Law School, opened the conversation with detailed perspectives on the impact of mandatory minimums for drug offenses. Gertner recalled instances during her judicial career where she would have to sanction an offender per the mandatory minimum requirements and her frustrations, even when she felt that these minimums failed to produce the most equitable outcome. Gertner currently serves on the Board of Directors for The Sentencing Project, an organization working to advance the criminal justice system by promoting sentencing reform.

Professor Mark Osler of the University of St. Thomas Law School continued the thread of sentencing reform with his unique perspective of legal counsel in a critical sentencing case with far-reaching national impact. Osler served as lead counsel in Spears v. US where he successfully argued in the US Supreme Court that sentencing judges be allowed to reject the 100:1 ratio between crack and powder cocaine in the federal sentencing guidelines. Osler is renowned as a sentencing expert and has testified on the matter both in Congress and before the U.S. Sentencing Commission.

Finally, Barbara Dougan spoke on her experiences as state director for Families Against Mandatory Minimums (FAMM). Her organization works to reform sentencing laws in Massachusetts, and she was successful in contributing to the first-ever state drug sentencing reform in 2010. She urged her fellow panelists and the audience to remember that behind the statistics of drug sentences are individual human beings whose lives hang in the balance.

The conversation continued later in the evening during the documentary screening of “The House I Live in.” Students watched the condensed version of the film, which involved several personal narratives from offenders who had been sentenced under the mandatory minimum guidelines, experts in the field, and historians, among others.

The film was harshly critical of the drug war, and skeptically posed the question of how drugs become an actionable offense. The root of this issue, the film maintained, has unjust historical roots –  early privileged classes of individuals (i.e. the elite upper-class white) used drug offense enforcement as a means of discrimination against minority populations, sentencing the minorities in order to free up jobs. The film then traced the growth of this system, discussing the political enterprising of the “war on drugs” in the 1970s and 1980s and the concentration of drug trades in low-income urban areas. The film made no pretense of being a purely descriptive documentary—its intense anti-drug war advocacy was the focus throughout. One expert in the film even claimed the systematic discrimination in the current sentencing and prison system represents a modern-day Holocaust.

After the film, students engaged in a discussion with Osler and Dougan about some of the issues brought up by the documentary. Examining the range of topics and potential drug war solutions, from sentencing reform to outright legalization, the conversation concluded with an extremely pertinent and significant observation by Dougan. She noted how people talk about the extremes, mandatory minimums and a drug war on one end and sentencing reform and legalization on the other. But all of the steps in the middle, she said, represent progress. Dougan emphasized the lack of attention given to those small increments of progress that need to happen before we can get arrive at the other end of the spectrum.

One the second day of the symposium, the topic narrowed to the area of drug policy that has been dominating the headlines: marijuana.

With Colorado and Washington in the midst of implementing legal, recreational marijuana systems and other states such as Oregon and Alaska considering the move, the momentum would seem to be on the side of the reform movement. The standing-room only audience seemed to favor this approach as well. When moderator Professor Charles Nesson, himself a strong supporter of legal marijuana, polled the students in attendance, nary a hand went up in opposition to legalization.

The panel was more divided. Nesson’s support for legality was echoed by United States Congressman Jared Polis (D-Colorado), who was conferenced into the event via skype to offer introductory remarks. Panelist Ethan Nadelmann, Founder and Executive Director of the Drug Policy Alliance, posited that ending marijuana prohibition was a moral necessity to help stem the tide of broader drug war injustices. But the opponents of legalization put up a spirited defense in front of the skeptical audience.

Massachusetts State Senator John Keenan stressed the dangers of putting yet another substance with harmful and habit-forming effects in the hands of big corporations, who would react to the profit incentives in the market and sell cannabis aggressively. With such huge societal costs from tobacco and alcohol already, Keenan said, we should not rush to make things worse with a new commercialized drug. At the very least, he concluded, we should wait to see how the experiments in Colorado and Washington develop before we adopt legal marijuana nationwide.

Charles Stimson, Senior Legal Fellow at the Heritage Foundation agreed with Keenan and discussed what he called the often overlooked negative health effects of, and number of people receiving treatment for, heavy cannabis use.

Nadelmann countered that he’d be perfectly willing to wait and see how things went in Colorado and Washington if not for the fact that hundreds of thousands more Americans, a disproportionate percentage of them minorities, would be arrested for marijuana offenses in the interim. The bad effects of marijuana, he said, were not enough to justify the worse effects of so many needless arrests and disrupted lives.

There was no exit poll, so it is unclear whether Keenan and Stimson succeeded at changing some minds. The event as a whole, though, helped give a full and well-argued airing to the positions of all sides, as did the entire symposium. JOL hopes that students and faculty employ the perspectives they gained from the symposium as they evaluate and even participate in the debates surrounding American drug policy.

– 2015 Symposium Chairs Kellen Wittkop and Colin Ross

Prescription for Paternalism

Prescription for Paternalism

Jenna Tynan[*]


Multiple commentators have weighed in on the relative merits of the long-awaited Obamacare implementation.[2] Both perspectives, however, have shown that any legislation’s impact is determined not only by the text of the act but also by the parties affected. A recent personal experience at the doctor’s office demonstrates the reactionary impact of legislation. After determining that I had a common eye infection well treated by oral antibiotics, the physicians chose a different antibiotic regimen, referring to their inability to dispense the antibiotic for fear that I may be pregnant. I firmly vouched that I was not pregnant, but the physicians responded that they would like to take my word but could not do so.

At first, I thought that antibiotic manufacturers were now taking the paternalistic approach that isotretinoin (acne medication) producers have taken. Isotretinoin producers now require patients, pharmacists, and physicians to join the iPledge program to prevent pregnancy during medication ingestion.[3] However, my physicians’ prescribing choice was not driven by such a formalized program, but the combination of a labeling restriction promulgated in 2013 and, as I opine, fear of medical malpractice suits. The particular regulations on their face appear benign: providing for updated labeling requirements. The Act, among other things, requires warnings that highlight increased risks of birth defects for drugs falling in the FDA’s pregnancy categories C, D, and X.[4]

(As a side note, the category system weighs the benefits of the drug in each category against potential pregnancy-related risks. Drugs in Category A have the greatest benefit per risk ratio. Category X drugs, conversely, carry substantial risk per unit of benefit; labels for category X drugs require “contraindication” instructions strongly advising against use if the patient is possibly pregnant.)

However, physicians seem to have responded to these labeling restrictions by tightening their own prescribing decisions. Further, radiologists have either begun or have been recommended to conduct pregnancy tests before administering x-rays.[5] This anecdote underscores that well-thought-out and even uncontested regulations can produce unsavory effects. Now, a female of childbearing age seems to have, as Carol Gilligan has put it, “lost her voice” to vouch for her own pregnancy status without independent verification.[6] Yes, physicians and pharmaceutical producers do have specialized knowledge that average consumers do not, but that knowledge should not impair the patient rights of a particular class of individuals. Car manufacturers could use the same rationale, taken to its extreme, to require pregnant women to occupy only the back seat of a car for fear of miscarriage liability due to faulty airbag deployment.

Though I doubt we’ll ever approach such a result, I do believe that one’s autonomy in health decision-making should not be reduced based on being a female in a particular fertility cohort. Perhaps this particular reaction will indeed reduce birth complications. However, I posit that such reactions are a prescription for paternalism whereas patients would be better served with a double dose of autonomy.

[*] J.D. Candidate, Harvard Law School, 2016.

[2] See, e.g., Jules Witcover, Obama’s crowning legislative achievement is now his albatross, Baltimore Sun (Feb. 14, 2014), http://www.baltimoresun.com/news/opinion/oped/bal-obamas-crowning-legislative-achievement-is-now-his-albatross-20140213-story.html [https://perma.cc/PXW9-5GQM].

[3] Safety Notice, iPledge, https://www.ipledgeprogram.com/iPledgeUI/home.u [https://perma.cc/7RDF-GNXT].

[4] See FDA Pregnancy Categories, Chemical Hazards Emergency Med. Mgmt., U.S. Dep’t of Health and Human Servs., https://chemm.nlm.nih.gov/pregnancycategories.htm [https://perma.cc/N4TT-LUJY], citing Content and Format of Labeling for Human Prescription Drug and Biological Products; Requirements for Pregnancy and Lactation Labeling, 73 Fed. Reg. 30831 (May 29, 2008) (later codified at 21 C.F.R. pt. 201).

[5] See Kimberly E. Applegate, Pregnancy screening of adolescents and women before radiologic testing: does radiology need a national guideline?, 4(8) J. Am. Coll. Radiology 533–36 (2007).

[6] See Emily Eakin, Listening for the Voices of Women, N.Y. Times (Aug. 29, 2002), https://www.nytimes.com/2002/03/30/arts/listening-for-the-voices-of-women.html [https://perma.cc/MNW3-9XVM].

Student Loan Debt: Expansion of Borrowers’ Rights?

Student Loan Debt: Expansion of Borrowers’ Rights?

Kellen Wittkop[*]


College students navigate a constant balancing act of managing the many stresses that accompany enrollment at any institution of higher learning: classes, activities, job searches, etc. But one of the largest causes of anxiety for students is something that often looms largely in the shadows – debt. According to American Student Assistance, a non-profit organization that promotes itself as a “nonprofit you can rely on for neutral, honest student loan solutions,” of the approximate 20 million students in attendance each year, 60% (12 million) of those students borrow annually to cover costs of their education.[2] Estimates from the Federal Reserve Bank of New York and the Consumer Finance Protection Bureau (CFPB) put outstanding student loan debt in the range of $902 billion to $1 trillion.

Some members of Congress have recognized this problem and have taken action. In late December 2013, a group of Democratic senators—led in large part by former Harvard Law professor Elizabeth Warren—announced a package of bills aimed largely at giving student loan borrowers greater rights, now officially titled the “Student Loan Borrower Bill of Rights.”[3] Essentially, the bill seeks to amend the Truth in Lending Act to provide greater disclosure information to borrowers and direction for the order of payment applications by servicers, among other goals.

Some of the issues covered in the bill include: new regulations for servicing private loans (about 14% of all student loans) involving advising the borrower of their long-term options; a “Bill of Rights” section aimed at directing servicers to apply any extra money to outstanding loan principle with the highest interest rate, helping to ensure that borrowers pay down their more expensive loans first; a similar section for the “rights” of borrowers of federal student loans including an instruction to the CFPB to draft rules promoting cost-minimization for borrowers; and other sections involving specific provisions for members of the military and enrollment verifications for servicers.[4] The bill has been referred to the Committee on Health, Education, Labor, and Pensions.

For now, those of us with the specter of debt imminent to our futures, we can only hope that this bill and others like it will change the culture of student loan borrowing.  As Senator Jack Reed stated, “If we’re going to make a dent in making college affordable, we have to hold servicers accountable, increase transparency, and ensure students and their families get a fair deal.”[5]

[*] J.D. Candidate, Harvard Law School, 2016.

[2] Steven Hansen, Are Student Loans Destroying Consumption?, Seeking Alpha (Dec. 30, 2012, 3:09 AM), https://seekingalpha.com/article/1086811-are-student-loans-destroying-consumption [https://perma.cc/7YJP-XHBE].

[3] S. 1803, 113th Cong. (2013).

[4] Karen Weise, Unpacking the Proposed Student Loan Borrower Bill of Rights, Bloomberg Businessweek (Dec. 13, 2013), https://www.bloomberg.com/news/articles/2013-12-13/unpacking-the-proposed-student-loan-borrower-bill-of-rights [https://perma.cc/VK75-NWUN].

[5] Press Release, Office of Sen. Dick Durbin, Durbin, Warren, Boxer, Reed Introduce Student Loan Borrower Bill of Rights (Dec. 11, 2013), https://www.durbin.senate.gov/newsroom/press-releases/durbin-warren-boxer-reed-introduce-student-loan-borrower-bill-of-rights [https://perma.cc/GW8C-RNDP].

I Spy: The Problems with NSA Overreach

I Spy: The Problems with NSA Overreach

Tyler Anderson[*]


Over the past several months, Congress has generated considerable outrage regarding the NSA’s collection of data from foreign officials.[2] Some of this criticism is surely deserved; for example, we recently learned that the NSA spied on Ban Ki-moon’s talking points before Ban’s meeting with President Obama to discuss, among other things, global climate change[3]—Moon is not the sort of existential threat toward which the NSA should be dedicating its resources.

Nevertheless, the outrage generated by international spying domestically—and particularly by Congress—largely misses the problems generated by NSA surveillance that is both secret and expansive. Here, the history of intelligence surveillance reform is instructive. The original Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Act Amendments Act (FAA) strongly distinguished between surveillance conducted on foreigners compared to surveillance conducted on Americans.[4] While some of this tailoring is due to Constitutional (primarily 4th Amendment) constraints, it is important to remember that Congress put the policy of limiting surveillance overreach into play as a direct response to the unauthorized wiretapping of non-violent civic activists and other egregious behavior by the intelligence community against American citizens.[5]

In an overly punitive criminal justice system where the typical American commits up to three felonies a day,[6] information gathered by an NSA that can always make credible arguments that its power must be expanded to prevent the next terrorist attack,[7] gives the United States government enormous power that could be leveraged against every American. This is a problem that Angela Merkel and Dilma Rousseff don’t have to worry about.

(I say this while acknowledging that there are many measures the United States government can bring to bear against non-U.S. citizens that can make life very unpleasant for them. Hat tip, Ted Weisman.)

[*] J.D. Candidate, Harvard Law School, 2014.

[2] See Jack Goldsmith, Skepticism about Supposed White House and Intelligence Committee Ignorance About NSA Collection Against Allied Leaders, Lawfare (Oct. 29, 2013, 12:01 PM), https://www.lawfareblog.com/skepticism-about-supposed-white-house-and-intelligence-committee-ignorance-about-nsa-collection [https://perma.cc/TW28-QBBV].

[3] Scott Shane, No Morsel Too Miniscule for All-Consuming N.S.A., N.Y. Times (Nov. 2, 2013), https://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html [https://perma.cc/7D3Y-TFCK].

[4] See generally Tyler C. Anderson, Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the Foreign Intelligence Surveillance Act, 8(2) Harv. L. & Pol’y Rev. 413 (2014).

[5] See id.; see also Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate (“Church Committee”), Report No. 94-755 (1976), available at https://www.intelligence.senate.gov/resources/intelligence-related-commissions [https://perma.cc/9YW2-FC8Y].

[6] See generally Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2011).

[7] See Yochai Benkler, How the NSA and FBI foil weak oversight, The Guardian (Oct. 16, 2013), https://www.theguardian.com/commentisfree/2013/oct/16/nsa-fbi-endrun-weak-oversight [https://perma.cc/56Y9-8ZPV].

Employer Justification for Smoker Discrimination

Employer Justification for Smoker Discrimination

Jenna Tynan[*]


Imagine you’re a first-year associate and after your standard fourteen-hour workday, you sit back and indulge in a product recently found more addictive than cocaine: the iconic Oreo.[2] You rush back to work the next morning with a wayward Oreo stain on your favorite blazer only to end yet another long day…with a pink slip!?!  You violated the firm’s categorical ban on Oreo consumption promulgated to reduce diabetic healthcare costs believed to rise with sugar consumption.  Luckily for this author, no employer has banned recreational Oreo consumption, but America’s over 43 million smokers aren’t so fortunate.[3] Healthcare industries, city municipalities and airlines have banned hiring prospective candidates who smoke or use tobacco products, citing controlling costs and presenting a “healthy” image for their rationale.[4] These employers may be justified in their decision given the new “tax” for not proving health benefits to all employees. However, employer regulation, and especially government employer regulation, of what happens in an employee’s home seems to conflict with those penumbral privacy rights cherished and protected by our judicial system.

As a result, twenty-nine states and the District of Columbia have enacted “smoker protection laws,” which prohibit various forms of discrimination based on a candidate’s off-duty smoking habits.[5] The laws vary in their expansiveness and application.[6] For example, D.C.’s legislation exempts employers who prove nonsmoker status is a Bona Fide Occupational Qualification (BFOQ). This carve out may lessen the worries of the hospitals, clinics and fire stations most likely to institute the bans. Other state legislation such as Kentucky’s statute eases employers’ cost concerns by banning smoking-based discrimination for hiring and termination decisions but allowing employers to charge higher rates to smokers for employer-subsidized healthcare premiums. However, most of these laws prohibit any smoker-directed discriminatory activity, and some, such as California’s and North Dakota’s, extend protection to any employee’s “lawful off-duty” activities. Especially with the recent legalization of marijuana, employers may question how these laws square off with previously adopted drug-free workplace policies.

Though employers’ smoking-based discrimination seems to infringe an employee’s right to engage in a lawful off-duty and private activity, state intervention could also be attacked with a similar rationale.  First, employers may invoke the “contract clause” constitutional defense, which states that no state can enact a law violating the obligation of contracts.[7] Employers could aver that such statutes impinge on both their rights and an employee’s rights to enter into valid employment obligations. However, such an argument is likely to fail in the post-Lochner Era. Employers could also appeal to theories that such regulation constitutes confiscatory “takings;”[8] but they are more likely to rely on business needs (such as the case with hospitals), the need to guarantee compliance with smoke-free workplace requirements,[9] or the notion that they shouldn’t have to pay for wrongs caused by tobacco companies. In this case, a business’s right to control costs and shape its workforce conflicts with a person’s right to engage in a lawful private activity. This conflict evokes the questions of whether states should legislatively declare smokers a protected class and how legislation should be tailored to balance competing employer interests. With the rapidly-changing healthcare regime, this issue is one to watch in the future.

[*] J.D. Candidate, Harvard Law School, 2016.

[2] Oreos just as addictive as cocaine—in rats, United Press Int’l (Oct. 15, 2013), https://www.upi.com/Health_News/2013/10/15/Oreos-just-as-addictive-as-cocaine-in-rats/76821381873121/ [https://perma.cc/L9DY-GACE].

[3] See Current Cigarette Smoking Among Adults in the United States, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/ [https://perma.cc/WVQ3-ADX2].

[4] David A. Asch, Ralph W. Muller & Kevin G. Volpp, Conflicts and Compromises in Not Hiring Smokers, New England J. Med. (Apr. 11, 2013), https://www.nejm.org/doi/full/10.1056/NEJMp1303632 [https://perma.cc/H2TY-E4LR].

[5] State ‘Smoker Protection’ Laws, Am. Lung Assoc., http://www.lungusa2.org/slati/appendixf.php [https://perma.cc/AR6R-ERNY].

[6] Discrimination Laws Regarding Off-Duty Conduct, Nat’l Conf. of State Legislatures (Oct. 18, 2010), http://www.ncsl.org/documents/employ/Off-DutyConductDiscrimination.pdf [https://perma.cc/JNN5-8MAC].

[7] U.S. Const. art. I, § 10, cl. 1.

[8] U.S. Const. amend. V.

[9] See, e.g., State Smoke-Free Laws for Worksites, Restaurants, and Bars—United States, 2000-2010, Ctrs. for Disease Control and Prevention (Apr. 22, 2011), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6015a2.htm [https://perma.cc/99C3-V36U].