Playing Fair
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Summer 2012 LABOR, NO MORE? A Look Back | Human Rights Crusaders | Playing Fair SM12_Cover-I_FINAL.indd 1 6/11/12 4:05 PM INSIDE Summer 2012 | Vol. 11 • No. 2 10 3 8 Features Columns FACULTY DELIBERATIONS By Wendy Parmet 10 Labor, No More? A newly invigorated pro-worker 3 Liberty (But Not movement may be just the lifeline labor Health Care) for All needs to survive. By Elaine McArdle Excluding immigrants from health insurance is detrimental to the health of us all. 16 Reflections TRENDS By Meghan Laska ’98 Dean Emily Spieler looks back on her 10-year tenure. By Emily Spieler 30 Are We Playing Fair? Fair use faces tough challenges — and an uncertain future — in our copy-and-link digital world. 20 Just Cause AT LAST By Sohrab Ahmari ’12 Entrepreneurial students and recent graduates tackle global human rights 40 Keep the Focus on Print issues. By Jeri Zeder A recent graduate leaves law behind to pursue a passion for journalism at The Wall Street Journal. Departments 4 NEWS BRIEFS 26 FACULTY NEWS Cover illustration by Gary Alphonso/i2i Art 32 CLASS NOTES PHOTOS: (LEFT-RIGHT) CHRIS HARTLOVE, MICHAEL MANNING, MARK OSTOW CHRIS HARTLOVE, MICHAEL MANNING, MARK OSTOW PHOTOS: (LEFT-RIGHT) EDEL RODRIGUEZ ILLUSTRATION: PHOTO: MARK OSTOW SM12_Contents-2pgs_FINAL2.indd 2 6/15/12 2:23 PM 20 PHOTOS: (LEFT-RIGHT) CHRIS HARTLOVE, MICHAEL MANNING, MARK OSTOW CHRIS HARTLOVE, MICHAEL MANNING, MARK OSTOW PHOTOS: (LEFT-RIGHT) EDEL RODRIGUEZ ILLUSTRATION: PHOTO: MARK OSTOW | Northeastern Law Summer 2012 1 SM12_Contents-2pgs_FINAL.indd 1 6/11/12 3:52 PM www.neu.edu/law/magazine dean’s message Summer 2012 | Vol. 11 • No. 2 A Fond Farewell Editor Deborah Feldman Associate Editor Maura King Scully Contributing Writers Elaine McArdle Jeri Zeder Class Notes Editor Siobhan Fanning am writing this column as the lovely Boston spring slides into Art Director Mark Gabrenya summer, and I prepare to step down as dean. At the end of May, I had the honor to preside over my 10th and final Please send editorial Icommencement. The Class of 2012 faces a challenging world. But, as correspondence to: always, these new graduates are better prepared than their peers from Deborah Feldman other law schools, and they head out into the world with strong profes- Director of Communications Northeastern University sional identities and networks. In this, they are like every class since 1971, School of Law when 12 adventurous souls graduated from the newly reopened 400 Huntington Ave. Northeastern University School of Law. Boston, MA 02115 I am continuously struck by the extraordinary [email protected] vitality of this law school. The articles in this mag- Postmaster and readers: azine provide a perfect Northeastern snapshot, as Send address changes to we think broadly, deeply and eagerly about the Office of Development and pressing issues of the day: from the decline of Alumni/ae Relations organized labor, to intellectual property and fair Northeastern University School of Law use, to the challenges posed by prosecutorial dis- 400 Huntington Ave. cretion and its effects on fairness in the criminal Boston, MA 02115 justice system. [email protected] The “Just Cause” article demonstrates the © 2012 Northeastern entrepreneurial spirit and the values that pervade University School of Law. everything we do. While the focus here is on our Printed in USA. Northeastern students and recent graduates who are founding Law Magazine is published and heading nonprofit organizations worldwide, semiannually by Northeastern that same self-directed and dynamic boldness characterizes our graduates University School of Law. All publication rights reserved. in all spheres. Northeastern attracts and produces people who are cre- ative, fearless and innovative. Opinions expressed are Our faculty both share and inspire this spirit. For example, you can those of the authors or read Wendy Parmet’s account of the issues she tackled as lead counsel in their subjects and do not necessarily reflect the Finch v. Commonwealth Health Insurance Connector Authority, the case views of Northeastern which successfully challenged the exclusion of documented immigrants University School of Law from the Massachusetts “universal” health care system. or Northeastern University. Using public records and transcripts, Mike Meltsner has written a play, Northeastern Law Magazine “In Our Name,” that exposes torture at Guantanamo Bay — performed in welcomes comments. Boston and New York and covered by National Public Radio and other media outlets. Following cold case stories in the deep South, Margaret Burnham and students are uncovering real history and leading efforts at reconciliation in Georgia and elsewhere through our Civil Rights and Restorative Justice Project. In June, our Program on Human Rights and the Global Economy (PHRGE), with joint sponsorship from the ABA’s Center for Human Rights and AIDS Coordination and Columbia Law School’s Human Rights Institute, held a web-streamed program, “UN Guiding Principles for Business and Human Rights: What Lawyers Should Know.” Lawyers, in Continued on page 29 PHOTO: DAVID LEIFER 2 Northeastern Law | Summer 2012 SM12_Dean_FINAL.indd 2 6/11/12 4:08 PM By Wendy Parmet FACULTY DELIBERATIONS Liberty (But Not Health Care) for All Wilson’s cry illustrated, fear of coverage for undocumented immigrants helped arouse opposition to the Affordable Care Act (ACA). Although Democrats managed to enact the ACA in 2010, Republican state officials from 26 states challenged the Act’s constitutionality in federal court. (At n September 2009, as President Obama spoke before the time of this writing, the Supreme Court is considering a joint session of Congress, Representative Joe Wilson those challenges.) infamously shouted, “You lie!” Wilson’s outburst came in In 2010, the Massachusetts legislature excluded more Iresponse to the President’s promise that undocumented than 40,000 legal immigrants from Commonwealth Care, immigrants would not receive benefits under his health a state-subsidized health insurance program. By excluding reform proposal. Wilson’s breach of decorum exposed a tax-paying legal immigrants from Commonwealth Care, longstanding and deeply troubling relationship between Massachusetts undermined the fundamental goals of its own xenophobia and health policy. health reform: to move people from high-cost emergency In the early 20th century, for example, nativists claimed room care to lower-cost, outpatient care. Equally important, that immigrants brought disease, threatening the nation’s the state breached the promise of near universality it made health. In response, medical examin- when it passed health reform in 2006. ations at Ellis Island in New York and In January of this year, the Supreme Angel Island in San Francisco screened Judicial Court of Massachusetts ruled immigrants, denying many the right to in Finch v. Commonwealth Health make a better life in the New World. Insurance Connector Authority that Fear of immigrants’ health has per- the exclusion of legal immigrants sisted. For example, early in the AIDS from Commonwealth Care violated epidemic, many HIV-positive Haitian the state constitution’s guarantee of immigrants were detained in prison- equal protection. But many legal like conditions at Guantanamo Bay immigrants remain barred from until a federal court ordered their Medicaid, and undocumented release. The federal government did immigrants remain ineligible for not lift its ban on immigration by HIV- Commonwealth Care. positive individuals until 2010. Nationally, the situation is even The fear of immigrants bearing and bleaker. If the ACA survives the spreading disease does not only infect constitutional challenges to it, legal immigration policy; it pervades health immigrants will become eligible in policy. Although immigrants as a class 2014 for tax subsidies to purchase are actually healthier than native-born insurance on the newly formed health Americans, myriad laws and policies insurance exchanges. But many will conspire to keep immigrants from accessing health care. continue to remain ineligible for Medicaid. And despite Most notable is the 1996 Personal Responsibility and Work Wilson’s rebuke, undocumented immigrants will be ineligible Opportunity Reconciliation Act, commonly known as the for the subsidies provided by the ACA. “Welfare Reform Law.” It denies federal funding for Medicaid These exclusions will undoubtedly harm the health of to most immigrants who have held a green card for less than our immigrant neighbors. They will also ensure our health five years. As a result, many states deny such immigrants insurance remains riddled with exceptions that are corrosive access to state-supported health insurance, forcing them to of universality and ultimately, detrimental to the health of all. seek medical care in the most expensive venue possible: emergency rooms. Matthews Distinguished University Professor Wendy Parmet The desire to keep immigrants, both undocumented and is a national health law and policy expert. In 2011, she legal, from accessing health insurance has undermined successfully argued for the Finch plaintiffs before the numerous attempts at health care reform. For example, as Massachusetts Supreme Judicial Court. PHOTO: DAVID LEIFER ; ILLUSTRATION: EDEL ROGRIGUEZ EDEL ROGRIGUEZ LEIFER ; ILLUSTRATION: PHOTO: DAVID | Northeastern Law Summer 2012 3 SM12_Deliberations_FINAL.indd 3 6/11/12 4:12 PM NEWS BRIEFS Northeastern Grads Triumph in DOMA Challenge In May, a federal appeals court in Boston declared unconstitutional the federal Defense