Uncharted territory: Legal experts weigh in on the COVID-19 outbreak

Empty streets and stay home sign in Cape Town during the Coronavirus lockdown

Credit: fivepointsix/iStock

The spread of the new coronavirus has affected people all over the world, and state and local governments are taking sweeping actions to halt the spread of the disease and mitigate the public health and economic impact of the outbreak.

HLS scholars and legal experts consider the important legal and policy concerns and challenges that have emerged—including those involving civil liberties, privacy, historical precedent, and economic impact—as cities, states and countries respond to the epidemic.

The following selection of their articles and op-eds will be updated regularly.

Maine quarantine ruling shows everything old is new again

An article by Peter Brann and James TierneyLast Friday, the partisan leadership at the U.S. Department of Justice in Washington claimed that it knew better than Gov. Mills what should be done in Maine in the COVID-19 pandemic. They argued to a federal court in Maine that Gov. Mills’ emergency order mandating a 14-day self-quarantine for out-of-state visitors was unconstitutional (which is rich irony, given that they have also argued in favor of banning altogether persons in affected countries from even entering the country to slow the virus’ spread). Later the same day, U.S. District Judge Lance Walker rebuffed their efforts, finding: “The governor’s executive orders are informed by a desire to preserve public health in the face of a pandemic. Striking down the quarantine order would seriously undermine her efforts and, based on the current record, would effectively disregard the balance of powers established by our federal system.” The decision is preliminary, and so there is little doubt that the Justice Department will press its arguments, safe in the knowledge that they will not have to suffer the consequences if our parents, children and neighbors are infected by asymptomatic out-of-staters coming to Maine. If today’s Justice Department had only considered its own prior actions, it would know better.

Continue Reading at Portland Press Herald »

Why Debt Isn’t Always a Bad Thing

A podcast by Noah Feldman: Jason Furman, a professor of the Practice of Economic Policy at the Harvard Kennedy School, explains why we don’t need to be too concerned about the mounting federal debt caused by the coronavirus pandemic.

Continue Reading at Stitcher »

Surveillance Technology Will Only Get More Intense After Covid

When an outbreak of the bubonic plague swept through Europe in the 16th century, people in London were told to stay home for a month if anyone they lived with had contracted the disease. So long as they carried with them a long white stick, known as a plague wand, one person from an infected household could venture outside to get food or other supplies. The stick served as a warning sign. It told other people to stay away. Today, in the grip of the Covid-19 pandemic, the advice is the same: Stay home and avoid other people. But in the 21st century, we no longer use white sticks to identify those who may be contagious. Instead, governments and law enforcement agencies are turning to a vast armory of digital technologies in an effort to track and stop outbreaks in different parts of the world. We have surveillance systems that can map out the movements of entire populations, thanks to the invisible signals emitted by the smartphones we carry in our pockets. We have drones that fly above city parks and blast out audio warnings to anyone not following guidelines on social distancing…Many governments had broad digital surveillance capabilities in place prior to the pandemic. In 2013, the U.S. National Security Agency whistleblower Edward Snowden laid bare some of them. Snowden’s disclosures revealed that the NSA had built a global spying apparatus that was vacuuming up vast amounts of private communications from the world’s phone and internet networks. In December 2013, the Washington Post reported that the agency was covertly collecting almost 5 billion records every day on the whereabouts of people’s cellphones internationally… “They already have these ridiculous surveillance powers,” says Bruce Schneier, a security expert and cryptographer who lectures at Harvard’s Kennedy School. “The smartphone is the most invasive surveillance device our species has ever invented. I don’t see what’s happening now [during the Covid pandemic] as making any difference.”

Continue Reading at Bloomberg »

An ER Doctor Lost His Job After Criticizing His Hospital On COVID-19. Now He’s Suing

An emergency medicine physician from Washington state has filed a lawsuit to get his job back at a hospital. He was fired in late March after criticizing his hospital’s response to the coronavirus pandemic. “This is about people on the front line being given the opportunity to speak out without being terminated and being reprimanded,” says Dr. Ming Lin. Since 2003, Dr. Lin had worked in the ER at St. Joseph Medical Center in Bellingham, Wash., owned by health system PeaceHealth. As the coronavirus swept through Seattle, Lin started publicly outlining concerns about his hospital’s handling of the pandemic…After Lin’s firing, the American Academy of Emergency Medicine condemned the hospital administration’s actions and called for an investigation, saying “it is an essential duty of a physician to advocate for the health of others.” Harris Mufson, a partner with the law firm Proskauer, says the type of lawsuit filed in the Washington case can be difficult to win because it relies on common law…Along with using state laws, health care workers can pursue cases of workplace retaliation in federal court, and by filing complaints with the Occupational Safety and Health Administration (OSHA), says Steven Pearlman, a partner with Proskauer…OSHA has faced criticism during the pandemic for not being more responsive to worker concerns. That may drive health care workers to take other legal routes when facing retaliation, says Terri Gerstein, a labor attorney who directs the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. Gerstein is also a senior fellow at the Economic Policy Institute. “It’s so important that employers understand that when people raise these kinds of safety concerns, it’s not an adversarial thing,” she says. “They are trying to make their workplace safer and stem the spread of this horrible disease.”

Continue Reading at NPR »

How Accurate Are Antibody Tests?

A podcast by Noah FeldmanDr. Alex Marson, the Director of the Gladstone-UCSF Institute for Genomic Immunology, explains what antibodies tests can and cannot tell us.

Continue Reading at Stitcher »

The Constitution is not a suicide pact

An article by Peter Brann and James TierneyMaine is not immune from a virus that knows no borders as it sweeps across the world, stealing the lives of loved ones. To keep ourselves safe, we have also lost many of the things we hold dear, such as graduations, summer fairs and family get-togethers. To combat this plague, Gov. Janet Mills has invoked emergency powers to protect the health and safety of all Mainers. Every state governor has always had extensive emergency powers, and when they are invoked following hurricanes, tornados and other disasters, no one blinks an eye. Now we face the largest worldwide pandemic in more than a century, which has killed nearly 100,000 people in the United States and sickened more than 1,670,000 people in the United States (and more than 5,500,000 worldwide). A small minority nonetheless have gone to court to claim that Mills is violating their constitutional right to do whatever they want whenever they want, effectively claiming a constitutional right to endanger the rest of us. These lawsuits lack merit and mangle our national heritage. In the debate over whether to send troops to fight the Revolutionary War, Patrick Henry famously said, “Give me liberty or give me death!” Unfortunately, the critics challenging Mills’ emergency orders fighting the COVID-19 pandemic essentially misquote Henry, arguing instead, “Give me liberty and give me death!” Fortunately, the Constitution strikes a different balance.

Continue Reading at Bangor Daily News »

The Coronavirus and the Rise of the States

In early April, after the Trump administration brushed aside New York Gov. Andrew Cuomo’s appeals for ventilators, Kate Brown, the governor of Oregon, shipped 140 of the breathing devices to help New York blunt COVID-19. China chipped in with another 1,000. Weeks later, Cuomo sent 400 ventilators to Massachusetts after its governor, Charlie Baker, came close to a public meltdown over federal interference with his efforts to buy medical supplies…In a complete reversal of what has long been the normal crisis or wartime dynamic, action and authority have devolved from the White House to the governor’s mansions during the COVID-19 pandemic. It is the states that have emerged as the counterweight to Trumpian dysfunction, a development that has led Trump to rage against the very people confronting the daily doses of death and despair—and the fallout from his incompetence and indifference…In the absence of sane federal policy, moreover, these and other governors have begun working with their neighbors…The hardest-hit Northeastern states, New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, and Delaware, followed suit, as did the Midwestern states of Illinois, Indiana, Kentucky, Ohio, Michigan, Minnesota, and Wisconsin. States have established compacts before, on issues ranging from criminal justice to the environment and transportation. But there is likely no historical precedent for states “banding together in the face of inaction by the federal government,” according to constitutional law professor Annette Gordon-Reed of Harvard Law. “This situation is not like the drivers of the typical interstate compacts,” Gordon-Reed says. “This is different, as an acute health crisis in which time is of the essence and could have been ameliorated with a coordinated effort.”

Continue Reading at The American Prospect »

Can the Government Force You to Get a Coronavirus Vaccine?

State and federal governments can’t force people to receive a new coronavirus vaccine against their will, experts said, but lawmakers may be able to create a mandate that imposes consequences for not being vaccinated. Vaccine research for a new coronavirus is moving forward at an unprecedented rate and experts champion high rates of immunity in a population as a solution to stopping a virus from spreading. But a recent Reuters poll found about a quarter of the American public isn’t interested in a vaccine for SARS-CoV-2, and the federal government may have a tough time creating a requirement that people be inoculated. It’s possible Congress could have the power to mandate a vaccine under the commerce clause since the virus travels across state borders, constitutional law experts told Newsweek…The federal government could also leave the decision up to states. In the 1905 case, Jacobson v. Massachusetts, a citizen argued forced smallpox inoculations infringed on his personal liberty. The Supreme Court upheld the Cambridge Board of Health’s authority to require the vaccination under the 10th Amendment that grants state police powers. As it’s still a “perfectly good law,” Laurence Tribe, a Carl M. Loeb University Professor at Harvard Law School told Newsweek. The answer to whether states could mandate vaccinations, he said, was a “clear yes.”

Continue Reading at Newsweek »

On the Front Lines

A podcast by Noah FeldmanDr. Emily Rubin, a critical care pulmonologist at Massachusetts General Hospital, discusses what she has learned from treating coronavirus patients since March.

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Entering the Minefield of Digital Contact Tracing

An article by Jonathan Zittrain: People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.

Continue Reading at Medium »

Digital Bingeing: Time On Screens During COVID-19

Never before did parents think they’d be encouraging more screen time. But now, in the midst of a pandemic and nation-wide social distancing, we’re telling our kids to get online. That is, when they don’t have to share the Wifi with the adults in the house…With school lessons online on Zoom, and social media like TikTok all the rage, what’s the impact of double the screen use? And what are the privacy implications of virtually sharing so much of our personal lives? Guests: Dr. Delaney Ruston – primary care physician based in Seattle, documentary filmmaker, and creator of award-winning film “Screenagers” and “Screenagers NEXT CHAPTER.” Leah Plunkett – associate dean and associate professor at University of New Hampshire Franklin Pierce School of Law, faculty associate at the Berkman Klein Center for Internet and Society at Harvard, and author of “Sharenthood.”

Continue Reading at WGBH »

Social Media Users Think Politicians Should Pay Heavy Price for Spreading False COVID-19 Information

On Twitter, President Donald Trump has tossed his support behind the antimalarial drug hydroxychloroquine, which some public health experts have warned can have serious or potentially fatal side effects, as a COVID-19 treatment, and he’s encouraged protesters rallying against stay-at-home mandates — putting a strain on the social media site’s policy against content that could prompt real-world harm. And Trump hasn’t been the only world leader testing those boundaries in recent months. In March, Twitter Inc. deleted two tweets from Brazilian President Jair Bolsonaro that also praised the use of hydroxychloroquine to treat COVID-19 and encouraged the end of social distancing guidelines in his country. Twitter also deleted a tweet from Venezuelan President Nicolás Maduro promoting a “natural brew” to cure the illness…Dipayan Ghosh, co-director of the Digital Platforms and Democracy Project and Shorenstein fellow at Harvard’s Kennedy School of Government, said since removing questionable content from politicians and world leaders can be tricky, it’s important for the platforms to be transparent about how they determine what content violates their rules. “I’m sure that companies like Facebook and Twitter have developed internal guidelines around what to do if and when a public official says a particular type of thing concerning something that is particularly offensive,” he said. “What they should do is make those policy guidelines public so that we can see how their decision making is done.”

Continue Reading at Morning Consult »

Will Big Tech save us or enslave us in the Covid-19 meltdown? Dipayan Ghosh says: YES.

Dipayan Ghosh’s new book, Terms of Disservice: How Silicon Valley is Destructive by Design calls for a Digital Bill of Rights, anti-trust action on Big Tech and new rules to ensure the tech titans have American democracy in mind. But in this interview, he surprised us! He says YES to Google digitizing NYC with Governor Cuomo, YES to Big Tech running coronavirus Track and Trace if done carefully…and he goes deep with us on privacy, consumer rights, and using tech in a crisis.

Continue Reading at Apple Podcasts »

The cost-benefit analysis of saving an American life, featuring Cass Sunstein

What price does the U.S. government put on saving a life? The coronavirus pandemic and the push to reopen the nation and the American economy have resurfaced the notion that the federal government is often faced with the tough decision of choosing between taking an action that could save lives and the cost of implementing that policy or regulation. Harvard Law School professor and American legal expert Cass Sunstein joins the podcast to discuss this heavy topic. He draws upon his experience heading the White House Office of Information and Regulatory Affairs during the Obama administration and the calculus that goes into the cost-benefit analysis of regulations. “It’s very normal, and it’s surreal” to weigh the cost of an American life, Sunstein says in the podcast. “The balancing as you say of lives saved against cost happens all the time. And there are strategies the government uses and that are not politically contested really to handle them.” For instance, a new clean air regulation that might save one life at a cost of $90 billion — that’s probably dead on arrival. However, a transportation safety change that is estimated to save 500 lives a year at a cost of $10 million has a much better shot as a high-benefit, low-cost regulation.

Continue Reading at FedScoop »

One Way To Protect Workers In A Pandemic: Make It Harder To Fire Them

Donte Martin authored an illuminating as-told-to essay for The Washington Post last week about working in a grocery store during the pandemic. Martin, a front-end manager at a Giant in Silver Spring, Maryland, explained how the coronavirus has rendered customers he’s always loved a health threat. Many shoppers ignore the policies meant to protect workers like Martin and even get angry over the requirement that they wear face coverings in the store. He said a supervisor even told him not to wear a mask at one point, saying it made him look like “a terrorist.” Martin’s piece didn’t mention that he is a member of a union, the United Food and Commercial Workers Local 400. But if not for his union representation, he almost certainly would not have shared his experience with the world…Of course, those are the same reasons many employers and conservative politicians despise unions: They make it harder to get rid of workers, even though most collective bargaining agreements still allow layoffs for legitimate business reasons. But it’s hard to deny that there’s a public benefit to workers having the agency to speak out in a pandemic. After all, Martin wants to protect not just himself and his colleagues, but his customers, too. Terri Gerstein, a labor lawyer and fellow at the Harvard Law School Labor and Worklife Program, said safeguards like just cause are more important than ever. “Protection against unlawful firings is absolutely critical right now,” Gerstein said. “Workers need to be able to speak up without threat of losing their jobs. That’s important for worker safety and for public health.”

Continue Reading at HuffPost »

The Public Is Being Misled by Pandemic Technology That Won’t Keep Them Safe

The lockdown on commercial industry and personal activity in response to the global Covid-19 pandemic has been in place for almost two months in many parts of the U.S. Due to financial desperation and frustration with isolation, nonessential businesses are starting to reopen and more people are going out in public despite ongoing health concerns. Seeking to frame this economically driven agenda with a veneer of public health responsibility, governments and businesses are implementing a variety of precautions, including using thermal imaging cameras to detect elevated skin temperatures. Unfortunately, the use of this technology, like some of the others in the pandemic response kit, is “security theater,” to use a term coined by the security and privacy expert Bruce Schneier. It’s a dangerous, possibly life-threatening mirage that looks like strong leadership but, in fact, shimmers over empty promises that inspire false confidence about personal health and safety. Schneier has been warning us for years of this kind of facade, calling out familiar examples, from offices stationing a “uniformed guard-for-hire” to check visitors’ ID cards to airports banning liquids and using full-body scanners to search for explosive material that, it turns out, they are not great at detecting anyway. So much magical thinking pervades airport security that Schneier has bluntly declared, “The two things that have made flying safer since 9/11 are reinforcing the cockpit doors and persuading passengers that they need to fight back. Everything beyond that isn’t worth it.”

Continue Reading at Medium »

The Second (and Third, and Fourth) Wave of COVID-19

A podcast by Noah FeldmanYonatan Grad, an assistant professor at the Harvard T.H. Chan School of Public Health, explains why we may have to practice social distancing intermittently until 2022.

Continue Reading at Stitcher »

Trump uses virus to permanently suspend rules on industry

President Trump instructed federal agencies yesterday to search for regulations they could suspend or kill in hopes of jolting the U.S. economy out of its pandemic stupor. “The virus has attacked our nation’s economy as well as its health,” the president proclaimed in an executive order that directs agency heads to look for rules “that may inhibit economic recovery.” The order permits rules to be suspended temporarily or permanently to aid economic activity and job creation. Trump signed the order at a Cabinet meeting at the White House yesterday afternoon. “We’re fighting for the livelihoods of American workers, and we must continue to cut through every piece of red tape that stands in our way,” he said at the meeting. Under Trump, EPA has rolled back numerous regulations for air, water and chemicals in the name of streamlining them, and it has proposed to do more. Myron Ebell, who led Trump’s EPA transition team in 2016, told E+E News yesterday that the agency had already consulted with the White House on possible rules to freeze under this order…EPA Administrator Andrew Wheeler attended yesterday’s Cabinet meeting. A spokesman said the agency will “review the final [executive order] and work to assess which EPA regulations might be available to streamline in order to achieve the goals outlined in the EO.” The agency did not immediately say what regulations might be candidates for suspension. Joe Goffman, former chief counsel for EPA’s air office under Obama, said in an email to E+E News last night that the agency’s obligations and authorities are defined by statutes like the Clean Air Act and Clean Water Act, “not by President Trump’s executive orders, which cannot override environmental statutes or substitute rhetorical goals like ‘streamlining’ for statutory mandates.” “Streamlining or suspending rules is governed by these requirements and must be done via the rule-making process, which requires EPA to give persuasive reasons — on the merits — for its actions,” he said. Goffman added that public health standards and pollution controls are prerequisites for economic recovery, not obstacles to it.

Continue Reading at Climatewire »

How to Make Coronavirus Restrictions Easier to Swallow

An article by Cass SunsteinTo address the coronavirus pandemic, it’s essential to influence human behavior; to promote social distancing, to get people to wear masks, to encourage people to stay home. Many nations have imposed mandates as well. But to enforce the mandates and to promote safer choices as the mandates wind down, people have to be nudged. To organize current and coming efforts, a simple framework can be captured in an acronym: FEAST. The idea begins with the EAST framework from the Behavioural Insights Team in the U.K., which deserves to be better known. EAST refers to four ideas: easy, attractive, social and timely. If you want people to do something, make it easy for them. They have to know what to do and how to do it, and it should not be too burdensome, painful or costly. Automatic enrollment — for example, in savings plans or green energy — significantly increases participation rates, because it is so easy. Whenever the goal is to change behavior, the best question is easy to overlook: Why aren’t people doing it already? After getting the answer, public officials, employers, schools and others can take steps to remove the barrier. It matters whether an option or message is attractive. A simple and vivid communication has more impact than a dull and complicated one. With respect to Covid-19, officials in Ireland have made excellent use of this insight with striking informational signs. The same is true of New Zealand.

Coronavirus and Climate Change

A podcast by Noah FeldmanBill McKibben, who was one of the first people to warn us about climate change more than 30 years ago with his book “The End Of Nature,” discusses what COVID-19 and climate change have in common.

Continue Reading at Stitcher »

Strikes erupt as US essential workers demand protection amid pandemic

Wildcat strikes, walkouts and protests over working conditions have erupted across the US throughout the coronavirus pandemic as “essential” workers have demanded better pay and safer working conditions. Labor leaders are hoping the protests can lead to permanent change. Norma Kennedy, an employee at an American Apparel clothing plant is one of those people. Kennedy along with dozens of other workers walked off her job in Selma, Alabama, on 23 April after two workers tested positive for coronavirus. The plant has remained open during the pandemic to manufacture face masks for a US army contract…Working conditions, low pay and lack of safety protections have triggered protests throughout the pandemic as workers across various industries, including food service, meat processing, retail, manufacturing, transportation and healthcare have come together to protest about issues, many of which were apparent before the coronavirus…Uber and American Apparel did not respond to multiple requests for comment. Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, said it was too early to tell if these worker actions around the US will have a lasting impact. “These walkouts show that essential workers don’t want to be treated any more as if they were disposable. They are demanding a voice in how their companies respond to the pandemic. Having a voice is a life-and-death matter now more than ever,” said Block. “Success will be a matter of whether consumers and policymakers will be inspired by these workers’ courage.”

Continue Reading at The Guardian »

Structural racism is the real pandemic

An article by Monica Cannon-Grant and David HarrisAs the death toll mounts daily from COVID-19, so do the headlines and data documenting its disparate impact on communities of color, especially black people, immigrants, native people, poor people, and those living at the intersections of these identities. The impact of COVID-19 tells a tale of the “web of disadvantage” spun from decades of disinvestment in, and disregard for, poor communities of color. Structural racism is the pandemic; COVID-19’s disparate impact is just a symptom of a long-festering and deadly virus. The disparities and injustice being exposed and underscored by the unequal spread of the novel coronavirus are no revelation. Our people have been living through the pandemic of racism for centuries—too often ignored or unseen as many enjoyed health and prosperity, now suddenly threatened. We won’t dwell on the reasons for the disparities: poverty-stricken communities lack access to adequate personal protective equipment; poor communities of color are overburdened with preexisting social conditions of air pollution and environmental toxicity and food deserts and inequities in healthcare; social distancing is a privilege denied to “black and Latino workers  overrepresented among the essential, the unemployed, and the dead.” In recent weeks as we read about the surge, flattening the curve, protests over supposed infringement of rights, the threat to the economy, and additional billions in relief, we’ve seen more of the same on the streets of Boston. Our people are hurting. Our people are dying.

Continue Reading at Commonwealth Magazine »

The Tragedy of Costs and Benefits

An article by Roberto TallaritaA popular Internet meme from recent weeks depicts the following scene in the style of an old tarot card. A screaming woman is being sacrificed to a sullen Sun God, her heart ripped out of her chest and offered to the deity. The labels are brutal: the victim is “Grandma,” the Sun-God is the “Economy,” and the figure who kills Grandma to appease the economic deity is “the Economists” (or Trump, or—in a private version shared in one of my WhatsApp groups—a libertarian friend of mine). (Never mind that professional economists are overwhelmingly in favor of strong measures of social distancing.) Crises encourage simplistic contrasts, and the COVID-19 pandemic—the biggest crisis of our generation—has already spurred many of them. One is precisely the contrast presented in this meme: the survival of those infected with coronavirus versus the survival of our economy. Other extreme contrasts are found in countless op-eds, blog posts, tweets, and private conversations: complete social isolation versus health catastrophe; economic paralysis versus economic normality; civil rights versus death. We are fascinated with simple contrasts, it seems, because they pit some obviously sacred value against a deformed caricature of a conflicting interest: the choice between Grandma and a heartless, impersonal “Economy” is much more resolvable than the real dilemma we face.

Continue Reading at Boston Review »

As retailers including J. Crew and Neiman Marcus file for bankruptcy, experts worry about skittish creditors and an overloaded bankruptcy court system

J. Crew and Neiman Marcus are among the first major retailers to file for bankruptcy as the coronavirus pandemic further disrupts an industry that was already having its fair share of struggles. Others are expected to follow suit, with JCPenney seeming a likely candidate as it reportedly postpones a major debt payment. Filing for Chapter 11 bankruptcy protection gives distressed companies a chance to reorganize and get a fresh start. But retail companies going through bankruptcy proceedings right now are facing a set of difficulties that wouldn’t be happening if not for the pandemic. Being unable to predict stores’ future sales is a major challenge, as is not having a way to hold going-out-of-business sales while locations remain closed in certain states. Some experts are also starting to worry about what could happen if too many companies end up filing for bankruptcy protection at once…Ben Iverson, a professor at Brigham Young University, and Mark Roe, a professor at Harvard Law School, argued in an op-ed on Project Syndicate that the bankruptcy court system should immediately work to expand its capacity to hear cases in order to avoid these issues. “For starters, special procedures are needed for bankrupts to pay critical suppliers and sometimes employees. If courts are backed up, these payments will be delayed, causing disruptions to ripple throughout supply chains,” they wrote. They continued: “Furthermore, some bankruptcy decisions must be made almost immediately so that businesses can get and keep enough cash to stay alive through their next payroll.” The authors pointed out that bankruptcy filings typically surge several months after unemployment filings start to grow at an exponential rate.

Continue Reading at Business Insider »

Who’s Looking Out for Main Street?

An article by Glen Hubbard and Hal ScottSmall and midsize businesses have been hit hard by the pandemic, but they aren’t getting the help they need. Why, when the Cares Act provides direct assistance to the Treasury to assist these firms? Congress now has a chance to get to the bottom of it. On Tuesday the Senate Banking Committee will hold its first quarterly hearing on the Cares Act. It will hear from Treasury Secretary Steven Mnuchin and Federal Reserve Chairman Jerome Powell. Three questions should frame the hearing: Who is responsible for designing small and midsize business relief programs? The Treasury is required by law to approve any Fed lending facility, which must be adequately collateralized and available only to solvent borrowers…Why is Treasury risking so little money to save Main Street? Congress enacted the Cares Act nearly two months ago. It authorized the Treasury to provide at least $454 billion to back the Fed’s “Main Street” facilities, particularly to lend to small businesses and state and local governments…Why is Treasury making a priority of not losing money? The design of the Main Street facilities makes it extremely difficult for needy small businesses to qualify for loans.

Continue Reading at Wall Street Journal »

‘Immunity passports’ won’t reopen America

Antibody tests and “immunity passports” were supposed to be the great hope for safely reopening the economy. The problem is many of the more than 120 tests on the market are inaccurate. And scientists don’t really yet understand how much immunity antibodies confer or how long it lasts. But these tests — and the apps to promote them — are gaining traction among businesses and consumers eager to know who has been exposed to the virus, raising the risk that people will be relying on faulty results to promote their immunity from the coronavirus… “The appeal is obvious for employers. They would have no outbreak in their workplace, and for the more public facing businesses, it can be a selling point. ‘Our workers are immune, you can come to our restaurant,‘” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Like other legal experts, privacy advocates and bioethicists, Shachar said using “passports” or apps that are unregulated, unreliable and rife with errors to decide who can work, travel or eat out raises troubling questions about privacy, discrimination, risk and fairness…Harvard’s Shachar said an ethical framework would have to take access to testing into account; they can’t only be for the well-to-do, or the well-connected. Insurers are resisting covering all of the tests for free — and the economic crash has left millions unemployed and uninsured. “If tests are going to be used to make broad decisions about work, they have to be widely available,” she said. “It can’t be ‘My dad knows a guy who knows a guy who knows a guy.’ It has to be available, no cost to employees.” “If it’s not accessible to the grocery worker, it’s not ethical,” Shachar added.

Continue Reading at Politico »

‘We can only do so much’? Here’s what experts say Pa., Philly can do to protect workers during the coronavirus.

In April, a pork plant worker and a labor group filed a lawsuit against the worker’s employer, Smithfield Foods, for failing to keep workers, and the Missouri town where the plant was based, safe. The complaint alleged Smithfield was a “public nuisance” and asked not for money, but for safer working conditions. Although the lawsuit was eventually thrown out, it got results: Smithfield put up barriers between workers and allowed workers more opportunities to wash their hands. A new report from Harvard Law School and the National Employment Law Project suggests that cities and states could use this tactic, and others, to pressure employers to keep workers safe on the job — a pressing need as the economy slowly reopens despite the still-present threat of infection…The Occupational Health and Safety Administration (OSHA), the federal agency in charge of protecting workers, has largely left workplace safety up to employers…But the report, written by workplace legal experts, explains that there are measures that cities and states can take to protect workers in the absence of a proactive, fully staffed OSHA. “This is a moment for government to use whatever powers they can to protect working people,” said Terri Gerstein, a lawyer who runs a project on local enforcement at the Harvard Law School Labor and Worklife Program and one of the authors of the report. If business and government leaders are worried about the economic impact, the most important thing to do is make sure workers are healthy and safe, she said, as continued outbreaks will just prolong the current economic standstill.

Continue Reading at Philadelphia Inquirer »

Construction unions have led the way on safe reopening during the pandemic

These are unprecedented and challenging times. As the COVID-19 pandemic continues taking its toll, we mourn the loss of thousands of our fellow citizens while applauding the bravery and sacrifice of countless nurses, doctors, orderlies, EMT personnel, and other first responders — along with our neighbors stocking grocery shelves and working check-out lines in supermarkets throughout the country. COVID-19 has changed our world, and many of our industries will never be the same — including construction…In anticipation of the coronavirus taking hold, earlier this year our Northeast Carpenters Training Fund joined forces with the United Brotherhood of Carpenters International Training Center and established a COVID-19 Preparedness training component which has been praised by Michigan Gov. Gretchen Whitmer and is being used in other states, including Michigan and California…By demanding higher health and safety standards for our members up front, we were able to define the scenario under which many essential job sites remained open. As more and more construction sites open, our on-site union representatives continue to partner with contractors and management to ensure jobs sites are safe and run according to the latest directives from the Center for Disease Control. Harvard University’s Labor and Worklife Program fellow Mark Erlich said it best recently: “being a union member has been enormously beneficial in the past few weeks.” Erlich predicts the “appeal of unions will be stronger than ever going forward.”

Continue Reading at Philadelphia Inquirer »

Democratic governors hit with flurry of legal challenges to coronavirus lockdowns

The raging public debate over statewide coronavirus lockdowns is running parallel to a series of legal battles in state capitals — and the lockdown skeptics got a big boost this week. The decision by Wisconsin’s Supreme Court on Wednesday to toss Gov. Tony Evers’ statewide shelter-in-place order set off a scramble in cities across the state to impose their own local restrictions. Elsewhere, bars and restaurants shut down by the order declared themselves open for business. And legal challenges are continuing to pile-up across the country — even as governors who extend their state’s shelter-in-place orders begin peeling back some restrictions. The plaintiffs are business owners, aggrieved private citizens, pastors and in some cases, state legislators and legislatures. The targets? Almost always Democratic governors or their top health appointees…Among the chief questions most courts will examine are whether states’ orders have a compelling government interest and whether the order is narrowly tailored in order to achieve that interest, said Noah Feldman, a law professor at Harvard. Feldman slammed the Wisconsin ruling, calling it a political intervention by the conservative majority on the state’s Supreme Court and arguing the outcome in that case was likely an aberration, based on technicalities while sidestepping the statutory matter at hand.

Continue Reading at Politico »

How 23 organizations are reducing food waste during COVID-19

The novel coronavirus (COVID-19) has upended nearly every aspect of modern society, but especially the food system. Farmers are being forced to discard unprecedented amounts of food surplus because of the closure of schools, restaurants and hotels. And, because of the complex logistics of the food supply chain, diverting food supply away from wholesalers directly into the hands of consumers can be costly. Experts such as Dana Gunders of ReFED are concerned that more food waste will be produced in 2020 than in previous years. Despite these challenges, organizations around the world are working to reduce food waste…Directed by Emily Broad Leib, Harvard Law School’s Food Law and Policy Clinic (FLPC) is leading an emergency COVID-19 response effort to inform the public the pandemic’s impact on food systems. The response includes informational resources analyzing opportunities for low-cost home food delivery. It also includes policy briefings urging Congress and the USDA to take legislative action to mitigate the pandemic’s burden on the food system and its workers.

Continue Reading at GreenBiz »

Will the Coronavirus Make Us Rethink Mass Incarceration?

On March 14th, Roslyn Crouch, a mother of twelve, left her house in New Orleans to stock up on toilet paper and canned goods, and didn’t return…Crouch failed to stop at a stop sign in Jefferson Parish and was pulled over by the police. She was then arrested for a string of petty crimes, including driving without proper registration and with a stolen license plate that police valued at twenty-five dollars. The most serious charge resulted from a nine-year-old warrant for possession of marijuana…In late March, Governor John Bel Edwards announced that Louisiana had the fastest-growing coronavirus infection rate in the world. According to state reports at the end of last year, Louisiana also had the highest incarceration rate in the country. The pandemic posed an immediate threat in the state’s jails, where cells are crowded and poorly sanitized, and people frequently cycle in and out of custody…Tae worried about her mother’s transfer to Orleans Parish, and eventually got in touch with Thomas Frampton, a public-interest lawyer and a lecturer at Harvard Law School. Ordinarily, Frampton would have been on campus, teaching Legal Research and Writing to first-year students. But his class now met on Zoom, and he was in New Orleans, where he lives part time. Frampton started looking through court records and found that Crouch had a four-year-old material-witness warrant out for her arrest in Orleans Parish…Frampton found that, in 2016, an Orleans Parish prosecutor had requested a material-witness warrant for Crouch, to compel her testimony in the trial of a man accused of shooting one of her friends. The defendant was acquitted, rendering the warrant moot. Still, the D.A.’s office pressed a judge to keep it open.

Continue Reading at New Yorker »

How Etsy Became America’s Unlikeliest Breadbasket

Just about every morning since America went on coronavirus lockdown, Suzanne McMinn has risen at 2 a.m. to bake in her home kitchen. She’s working there up to 15 hours a day, seven days a week. But she’s not cooking for herself, mostly. She’s cranking out dozens of orders daily for people all over the U.S.—people who found her on Etsy. Yes, she sells bread on the site best known for knitted hats and topical greeting cards and, lately, hand-sewn masks…Far from the Etsy corporate headquarters, other changes have swept across the U.S., making home-baked goods more commercially viable. From 2013 to 2018, 10 states passed so-called “cottage food laws” allowing home bakers to legally sell their goods in a variety of venues, including online, says Emily Broad Leib, faculty director of the Harvard Law School Food Law and Policy Clinic. Many other states amended existing food laws. While this wave of legislation was driven by, and has enabled, a grass-roots movement of professional home bakers who have found a natural home on Etsy, the company itself hasn’t done much to encourage this category above others. Those who have been selling baked goods on the site for years feel like the lack of promotion of Etsy’s many bakers shows the company’s interests lie elsewhere…Nevertheless, the category has exploded.

Continue Reading at Wall Street Journal »

With No Leader, Commission Overseeing Virus Relief Struggles

Seven weeks after Congress unleashed more than $2 trillion to deal with the coronavirus crisis, an oversight commission intended to keep track of how the money is spent remains without a leader. Four of the five members of the Congressional Oversight Commission have been appointed, but House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Mitch McConnell, R-Ky., have not agreed on a chair, leaving the commission rudderless as the federal government pumps unprecedented sums into the economy. Without a leader, the panel’s remaining members can still do some oversight work, but cannot hire staff or set up office space. The four members have not met as a group since the economic rescue law was passed by Congress and signed by President Donald Trump in late March. “If the commission is not functioning — which it is not — then there is no oversight” on a huge part of the economic rescue law, said John Coates, a professor of law and economics at Harvard Law School.

Continue Reading at New York Times »

Swamped bankruptcy courts threaten US recovery

In early March, just as Covid-19 was spreading alarm in the west, the US sporting goods retailer Modell’s filed for bankruptcy. The company has long been blighted with excess debt and poor sales, and was overdue for a shakeout. What happened next was odd — and symbolic. In the last two months, courts have repeatedly frozen Modell’s bankruptcy process, citing the pandemic. The company is now a zombie, neither dead nor alive. Its status could soon proliferate across corporate America, further confusing the economic outlook…Rating agencies project that default rates among companies whose debt they consider risky will hit or exceed the 15 per cent level seen after the 2008 crisis. Law professors Benjamin Iverson and Mark Roe predict “the biggest surge in bankruptcies” that the US court system has ever seen…The fifth — and biggest — problem is a shortage of judges. Profs Iverson and Roe calculate that if bankruptcies surge to 2008 levels, “a US bankruptcy judge would have to work close to 50 hours per week to keep up with the increased caseload”. However they fear that bankruptcy rates could actually be double the 2008 level. “No one can expect bankruptcy judges to work 100 hours per week,” they lament. Not even, presumably, with Zoom.

Continue Reading at Financial Times »

Wisconsin Lockdown Ruling Shows Right Wing’s Paranoia

An article by Noah FeldmanIn a fascinating, bizarre, only-in-America moment, a partisan majority of the Wisconsin Supreme Court has struck down the stay-at-home order issued by the Wisconsin Department of Health Services. There is no appeal to the U.S. Supreme Court from the state court’s 4-3 decision, because it’s based entirely on Wisconsin law. Although it probably won’t be replicated in other states, the decision tells you a lot about the state of judicial politics in the U.S. today — and how those politics interact with the developing partisan politics of the coronavirus pandemic. The majority opinion is lawyerly — not in the admiring sense of the word favored only by lawyers, but in the pejorative sense of the term favored by ordinary human beings. To simplify only slightly, the Wisconsin DHS issued its directive to stay at home in the form of what it called an “emergency order.” The state court held that it wasn’t actually an “order” under Wisconsin law, but a “rule.” According to the court, what made the emergency order into a rule was that it applied to the entire state. Orders can be issued on an emergency basis by the Wisconsin DHS. Rules, however, need to go through a somewhat lengthy administrative process of information gathering and public discussion before they can be enacted. Needless to say, the emergency order didn’t go through that process, which would have taken time.

Continue Reading at Bloomberg »

The Supreme Court v. the coronavirus

An article by Lawrence LessigAt any time, arguing any case before the US Supreme Court is challenging. The justices are among the best lawyers in the nation. They do their homework. They are prepared. An argument quickly focuses on the weak points on both sides. The whole purpose of the argument is to give the court a chance to work through the implications of each side. And for practically the whole of the Supreme Court’s history, that exchange has happened in person, with justices and counsel given the chance to see each other face to face and to read in the eyes and the body language of the justices what’s been heard and understood. The coronavirus pandemic has changed all that. For the past two weeks, the Supreme Court has heard arguments by telephone. Not Zoom, not Google Meet, by telephone. The format is different, and much more strictly formatted. The lawyer on each side opens with a two-minute statement; each justice gets a couple of minutes of questions. The questions go in order of seniority. That at least makes it clear who is speaking and when. It is difficult to say whether these changes make the process better or worse. In some ways, it’s clearly better: Justices are encouraged to participate, and more of them do. They come to the argument prepared with questions. They’ve learned how to present their questions concisely because time limits are severe. The format is the format of a congressional hearing, yet the justices get less time for their questions than a congressional representative.

Continue Reading at Boston Globe »

Smart Collaboration in the Time of COVID

In this Law Technology Now episode with host Ralph Baxter, Ralph welcomes Heidi Gardner to talk about her research into collaboration and her work furthering the concept of Smart Collaboration. Heidi defines the meaning of Smart Collaboration, and gives her thoughts on the impacts COVID-19 is having on collaboration throughout the industry. She also discusses her time at Harvard Law School, how she developed a passion for studying collaboration, and why she’s devoted her career to improving how we work together. Heidi Gardner is the distinguished fellow & lecturer on law at Harvard Law School.

Continue Reading at Legal Talk Network »

“Disposable workers” doing essential jobs

Millions of Americans are risking their lives to feed us and bring meals, toiletries and new clothes to our doorsteps — but their pay, benefits and working conditions do not reflect the dangers they face at work. Why it matters: People who stock grocery shelves and deliver packages never expected to be on the front lines of a national crisis, and now they’re playing a vital, but undervalued, role…What’s happening: Some companies, including Amazon and Walmart, increased hourly pay or distributed cash bonuses to low-wage workers when the pandemic began — in recognition of the hazards involved — but many of those pay bumps are expiring as employers worry about how much longer the pandemic will last…The bottom line: The coronavirus crisis is exposing the ugly ways in which low-wage workers are treated — by employers and customers alike. “But for the first time, the workplace conditions of low-wage workers are directly relevant to the whole country,” says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School…Says Block: “The fates of workers and consumers are tied together in a way that the American public has never known before.”

Continue Reading at Axios »

Coronavirus Is Giving Cost-Benefit Analysts Fits

An article by Cass SunsteinI love cost-benefit analysis. But for the coronavirus pandemic, cost-benefit analysis and I are going to have to see a marriage therapist. We might be headed for a divorce. Consider the following questions: What kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be, exactly, and exactly when? To answer such questions, governors, mayors and President Donald Trump seem to be engaging in a kind of intuitive cost-benefit analysis as they struggle to balance the value of increased economic activity against the threat to public health. Regulators and executive-branch policymakers try to be more rigorous in their analysis of costs and benefits. They ask: How do you calculate the benefits of restrictions, and what’s the right measure of costs? They try to come up with reliable numbers. The goal is to impose restrictions when (and only when) the benefits exceed the costs — and to adopt an approach that has the highest net benefits, that is, benefits minus costs. You might not think that’s the loveliest way to proceed, but the basic thinking is simple: Official decisions should have the best possible consequences for people. Looking at costs and benefits is the best available way of figuring out what decisions will have the best consequences.

Continue Reading at Bloomberg »

The Financial Markets and COVID-19

A podcast by Noah FeldmanBoaz Weinstein, founder of the hedge fund Saba Capital, discusses why the stock market seems to be doing relatively well when the economy is in shambles.

Continue Reading at Stitcher »

The Trump Administration, COVID-19, and the continuing assault on the rights of asylum seekers and refugees

An article by Sabi Ardalan: Sixty people in bunk beds in one room. A communal bathroom. Time in the ‘hole’ – or solitary confinement – if sick. That is how one asylum-seeking client describes the situation in immigration detention during COVID-19. Held in private, for-profit detention centres for more than 16 months, this client has difficulty breathing, a racing heart, and other complications from a stab wound he suffered before fleeing his home country. In recent weeks, he has described constant and debilitating body aches and pain. But despite repeated requests to see a doctor, he has not received any medical attention.  This client’s case is just one example of the disproportionate and devastating impact of the COVID-19 pandemic in the United States – and, as important, the Trump administration’s malicious response to it – on refugees and asylum seekers. Lawsuits challenging immigration detention during COVID-19 have met with varying degrees of success across the country. The judge who heard this client’s case has thus far refused to order his release, convinced by the warden that social distancing was possible. Some judges have, however, mandated the release of immigrants from detention, citing the rapid spread of COVID-19. Others have ordered Immigration and Customs Enforcement to assess whether medically vulnerable immigrants should be detained. But this piecemeal approach has left many of the approximately 50,000 immigrants detained each day in the US at risk of contracting the virus.

Continue Reading at UNSW Kaldor Centre »

Don’t Ignore Costs of Coronavirus Regulation

An article by Cass SunsteinIn Congress and the executive branch, U.S. officials are about to face an unexpected dilemma, one that will define a range of domestic policy in the coming years, and that has the potential to redefine how Americans think about the modern regulatory state. On the one hand, the coronavirus pandemic has made it unmistakably clear that in some areas, the U.S. needs more regulation, especially to protect health and safety. On the other hand, the economic destruction it has caused will require new caution about costly regulatory mandates. Businesses, large and small, are facing unprecedented challenges. For many of them, survival is at stake, and expensive regulations might prove devastating. It is almost certain that the administration of President Donald Trump will be keenly alert to the second point, while neglecting the first. There’s also a risk that progressives — including those in charge if Joe Biden wins the White House in November — will be keenly alert to the first point, but insufficiently appreciative of the second. Over the past three years, Trump’s regulators have kept down the costs of new regulations. On an annual basis, those costs have been far lower than they were under Presidents Bill Clinton, George W. Bush and Barack Obama. (Regulatory costs were not officially documented before 1998.) The less good news is that Trump’s regulators have also produced unprecedentedly low benefits, a category that includes not only purely economic savings, but also reductions in death and disease.

Continue Reading at Bloomberg »

Tesla’s Reopening Lawsuit Doesn’t Make Sense

An article by Noah FeldmanIt’s not exactly the Montgomery bus boycott, and Elon Musk is no Rosa Parks. But Tesla is apparently engaged in a highly unusual act of corporate civil disobedience. Ordered by Alameda County health authorities to keep its Fremont, California mega-plant shuttered, the company opened the factory over the weekend and started making cars. On Monday, its employee parking lot was reported to be almost full, suggesting a near-total reopening. CEO Elon Musk had announced two days earlier that the company would be suing the county in federal court. That lawsuit hasn’t yet yielded any results, however. So far as it’s possible to determine, Tesla is knowingly and intentionally breaking the law. If that sounds extreme, it should. Corporations aren’t supposed to engage in unlawful disobedience. The principles of corporate law treat intentional unlawful conduct as a violation of the corporation’s fiduciary duty to its shareholders. A glance at Tesla’s lawsuit is enough to reveal that the company’s case is not a sure winner. The first and central argument seems to be that because manufacturing cars counts as critical infrastructure exempted from a statewide shutdown under the California governor’s guidelines, Alameda County can’t shut down the plant.

Continue Reading at Bloomberg »

Students Call College That Got Millions In Coronavirus Relief ‘A Sham’

A for-profit college received millions of dollars from the federal government to help low-income students whose lives have been upended by the coronavirus outbreak, but that same school, Florida Career College (FCC), is also accused of defrauding students. A federal class-action lawsuit filed on behalf of students in April calls FCC “a sham” and alleges that, long before the pandemic, the college was targeting economically vulnerable people of color. The plaintiffs say the vocational school enticed them with false promises of career training and job placement — but spent little on instruction while charging exorbitant prices and pushing students into loans they cannot repay. The lawsuit comes as thousands of colleges across the country are receiving federal emergency relief in response to the coronavirus pandemic. Through the CARES Act, FCC has been allotted $17 million. The law requires that at least half of that money goes directly to students, but makes few stipulations for the rest of it…The complaint alleges that Florida Career College, along with its parent company, specifically targets economically vulnerable people of color. “They are recruiting at majority Black high schools,” says Toby Merrill, director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School, one of the organizations representing the plaintiffs. “They are putting up billboards in towns where the population is mostly Black. And they’re doing a lot of advertising on social media where you can choose to target your ad essentially by race.”

Continue Reading at NPR »

A third of Dallas families are without home internet, making online learning all the more difficult

Rocio Lopez paused for a second before heading into Dallas ISD’s Young Women’s STEAM Academy in Balch Springs. A handful of parents had lined up on April 24, crammed in a tight vestibule outside the school’s main office, waiting to pick up a mobile hotspot — a device that can connect computers and tablets to the internet through a cellular network…Schools in Dallas and the rest of the country are closed for the year. Learning, such as it is, now happens online. But logging online isn’t a given for many families in Dallas, where approximately 1 of every 3 people lack fixed access to the internet, Lopez included…These differences between digital haves and have-nots worry experts and educators, who see the COVID-19 crisis as a potential accelerant to existing learning and opportunity gaps. In truth, said Susan Crawford, a Harvard University law professor, author and WIRED columnist who focuses on tech and telecom policy, the inequities in broadband access were already causing problems. “Three-quarters of American teachers assume that their students have access to the internet, and hand out homework accordingly,” said Crawford, who served as former President Barack Obama’s special assistant for science, technology and innovation policy during his first year in office. “Families were already scrambling to cope with this gap in internet access, and the pandemic has shone a bright light on the terrible state of internet access in America. We have all these poor kids in America, all these kids who deserve an opportunity, not being able to exist above a subsistence level. And from the beginning of the Republic, access to education has been a central tenet to the American experiment. And here we are denying that access to potentially half of American schoolchildren.”

Continue Reading at Dallas Morning News »

‘What’d You Miss?’

Scarlet Fu and Romaine Bostick bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street. Today’s show tackles the impact of the coronavirus on real estate, movie theaters and the markets Guests Today: Frances Donald of Manulife Asset Management, Mark Tushnet of Harvard Law School, Benno Dorer of Clorox, Diane Ramirez of Halstead Real Estate, Tim League of Alamo Drafthouse Cinema.

Continue Reading at Bloomberg »

Dead Taxpayers Got Relief Checks. Can Survivors Keep Them?

President Donald Trump, Treasury Secretary Steven Mnuchin — and now the IRS — are urging people who received coronavirus relief payments for a deceased taxpayer to return the money to the government. But legal experts say there is no law requiring people do that. Some of the more than 130 million economic impact payments that went out to taxpayers as part of the $2.2 trillion economic relief package were sent to dead people. That happened mainly because of a lag in reporting data on who is deceased. It’s happened with past federal stimulus payments, and tax experts say is almost inevitable. However, this is the first time the IRS has asked for the money back from the deceased taxpayers’ survivors…Olson and others, including Keith Fogg, a clinical professor of law at Harvard, don’t expect the government will go to extreme measures to claw back the money. The government would be hard pressed to prove survivors weren’t entitled to the payments in the first place as the law is written… “If you feel bad, send it back. If you don’t feel bad about it I wouldn’t say you have to send it back,” Fogg said. “You are not breaking the law as I see it.”

Continue Reading at New York Times »

America Has No Plan for the Worst-Case Scenario on Covid-19

An article by Noah FeldmanIn the midst of the constant up-and-down of coronavirus news, both from science and the markets, it’s easy to lose sight of the scariest scenario of them all: the one where there’s no magic bullet. In this entirely plausible situation, there would be no effective Covid-19 vaccine or transformative therapy; the combination of testing and contact tracing wouldn’t successfully suppress the outbreak; and herd immunity would come, if at all, only after millions of deaths around the world. Even raising this possibility is a big downer. But the fact that an outcome is terrible doesn’t make it impossible. Since the end of February, I’ve conducted some 20 interviews with epidemiologists and virologists like Marc Lipsitch, Angela Rasmussen, and Carl Bergstrom; economists like Paul Romer, Stefanie Stantcheva and Larry Summers; and leaders at top hospitals and experts on government agencies whose names you may not know, but whose life’s work is preparing for moments like this one. Despite getting expert answers to dozens of my questions, the one question I haven’t been able to get an answer for is this: Who, exactly, is planning for the nightmare scenario in which we never get a vaccine or a breakthrough treatment?

Continue Reading at Bloomberg »

The Global Fight Against COVID-19

A podcast by Noah FeldmanNader Mousavizadeh, who formerly served in the Executive Office of UN Secretary-General Kofi Annan, explains why international organizations like the WHO and the UN have not been able to effectively coordinate a global response to the pandemic. Plus, is it a good thing or a bad thing that Bill Gates had stepped in to fill that void?

Continue Reading at Stitcher »

Trump’s Plan to Reopen U.S. Puts Labor’s Scalia in Limelight

Labor Secretary Eugene Scalia’s spot aboard Air Force One for a trip to a Honeywell International Inc. plant in Arizona on Tuesday was the latest sign the low-profile Cabinet member with a familiar last name is primed for an increasingly public role in the Trump administration’s efforts to recover the economy from the coronavirus pandemic. Scalia’s Labor Department oversees many of the paid leave, workplace safety, and training programs the administration is likely to turn to as President Donald Trump shifts focus from combating the health-care crisis to restarting the nation’s economy…Business groups and some Republican officials expect Scalia to get a more public spot in leading the charge to get Americans back to work. That includes pushing for Republicans’ top legislative and policy priority: legal liability protections for companies operating during the pandemic…The labor chief is already under fire for his management of the DOL’s Occupational Safety and Health Administration. Worker advocates have accused OSHA of being too lax in its response to the pandemic by ignoring calls to issue emergency safety standards that would be mandatory for businesses. AFL-CIO President Richard Trumka seized on that issue in a letter to Scalia last week…Scalia argued OSHA’s approach of periodically updating guidance for employers is a better way of responding to the contagion because scientific knowledge of Covid-19 continues to evolve. “At almost every decision point he has opted against the position that would be the most protective and compassionate,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and a senior DOL official under President Barack Obama.

Continue Reading at Bloomberg »

The Impact of COVID-19 on the Food Supply & Feeding the Hungry

The COVID-19 pandemic has caused several kinks in the food supply chain, making the recovery of excess food more difficult at a time when the population is increasing and already vulnerable to shortages. During Waste360’s recent webinar, “The Impact of COVID-19 on the Food Supply & Feeding the Hungry,” food waste and food rescue experts provided their thoughts on the potential short-term and long term effects the pandemic may have on the food supply chain, what it means for food recovery and how food banks and agencies are pivoting to make sure excess food gets to the people who need it the most. Discussing the virus’ effect were Dana Gunders, executive director of ReFED; Justin Block, managing director of retail information services at Feeding America; and Emily Broad Leib, clinical professor of law, director of the Food Law and Policy Clinic and deputy director of the Center for Health Law and Policy Innovation at Harvard Law School…In addition to CFAP, the federal government has increased funding to The Emergency Food Assistance Program (TEFAP) through the Families First bill. States and municipalities can apply to the Federal Emergency Management Agency (FEMA) for money to feed people, and there has been some flexibility in food safety when it comes to requiring nutritional labels, according to Leib of the Harvard Law School FLPC. The clinic provides legal and policy advice to nonprofits, government agencies, entrepreneurs, entrepreneurs and other organizations on a range of food policy questions, Leib said. Later this month the FLPC will be launching the new Global Food Donation Policy Atlas, which she said is “really relevant to this moment.”

Continue Reading at Waste 360 »

Will Lessons from Cholera in Haiti Be Applied to COVID-19?

An article by Adam Houston and Beatrice LindstromIn recent weeks, the United Nations Department of Peace Operations announced a series of protocol changes to reduce the risk that peacekeepers will introduce COVID-19 into vulnerable countries. As the introduction of cholera to Haiti in 2010 by UN peacekeepers demonstrates, such preventative measures are critical. Yet there is cause for concern that the lessons from cholera in Haiti have not translated into adequate action to protect peacekeeping host communities from the preventable transmission of disease. Peacekeeping presents a unique risk of introducing diseases into the world’s most vulnerable places. Since the World Health Organization (WHO) first declared the novel coronavirus a Public Health Emergency of International Concern in January, peacekeepers from over 120 countries have been involved in UN missions, traveling in and out of extremely fragile states. As Under Secretary-General for Peace Operations Jean-Pierre Lacroix observed, “the places where [UN] peacekeepers operate—vulnerable civilians there are the most at risk… [they are] fragile political environments, where individuals are living in conflict-affected or post-conflict societies with little to no infrastructure or social and sanitary safety nets.” This risk posed by peacekeeping is not merely hypothetical.

Continue Reading at IPI Global Conservatory »

Digital contact tracing is becoming available, but is it effective?

Technology companies are offering a new tool to countries and states trying to reopen their economies amid the coronavirus pandemic: digital contact tracing applications. Touted as a way to track cases and isolate carriers quickly through the use of smartphones people already have in their pockets, the technological fix has gained significant attention from governments and private companies alike. But it’s not clear how effective the alternative to traditional one-on-one interview-based contact tracing would be. And it also raises other issues dealing with surveillance. Apple and Google have been two of the leaders developing digital contact tracing and jointly released API this week for public health officials to build applications with. The unprecedented collaboration from the Silicon Valley giants allows applications to use bluetooth emissions to create a log of the people the phone’s user has come into proximity with. This would give officials a list of people that an individual infected by COVID-19, the disease caused by the coronavirus, may have passed it to. There are a few potential roadblocks with the technology…Bruce Schneier, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, told The Hill that issues with apps could negatively color users’ perceptions of contact tracing more broadly. “My fear is that an app people lose trust in could cause more harm than good,” he said. “Some things in life an app can’t solve.”

Continue Reading at The Hill »

Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

U.S courts won’t block governors’ stay-at-home-orders. At least not yet. With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19…The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts… “Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right — yes for religious services, no for beauty parlors, etc.” The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.

Continue Reading at Bloomberg »

Planning for an American Bankruptcy Epidemic

An article by Ben Iverson and Mark RoeNeiman Marcus and J.C. Penney, two of America’s retailing giants, recently failed to pay interest on their debt. We should expect one or both firms to file for bankruptcy soon, heralding a surge of US business failures caused by the COVID-19 pandemic. And with most American households currently lacking the cash to pay expenses for three months, many families and individuals will declare bankruptcy, too. Before long, the United States could face a trifecta of millions of insolvent consumers, thousands of small-business failures, and many bankruptcies of large public firms, with whole industries going broke at the same time. Bankruptcy filings in the US have historically peaked several months after a surge in unemployment. And US unemployment is now rising at an unprecedented rate, with more than 30 million claims filed in the last six weeks. If historical patterns hold in the coming months, the bankruptcy surge could be the biggest that the US court system has ever experienced. Bankruptcy works well enough and quickly enough in normal times, particularly for restructuring large public firms. But it cannot work well, and the economy will suffer, if the system is overloaded and businesses become stuck in legal proceedings.

Continue Reading at Project Syndicate »

State Emergency Authorities to Address COVID-19

An article by Samantha Fry ’20, Masha Simonova ’20, Jacques Singer-Emery ’20, and Benjamin Della Rocca: The coronavirus has spread to all 50 states, the District of Columbia and multiple territories, with case totals still increasing rapidly in the United States. Governors across each of the states and territories have been responsible for much of the response, enacting restrictions on nonessential businesses and enforcing stay-at-home orders. On Lawfare, several of us previously reviewed the U.S. state and territory laws authorizing quarantine and isolation. Here, we review the other emergency authorities that state and territory executive authorities possess to address the pandemic. We have prioritized states with the most cases and will continue updating by alphabetical order. One authority across the 50 states and most inhabited territories is the Emergency Management Assistance Compact (EMAC). It is an “all hazards – all disciplines mutual aid compact” ratified by Congress. All 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands have enacted legislation to become EMAC members, which permits them to assist in emergency response efforts in other states. EMAC members can send personnel, equipment and commodities to other states, and transfer services and conduct virtual missions.

Continue Reading at Lawfare Blog »

Virginia Should Treat Churches as Essential During Coronavirus

An article by Noah FeldmanAttorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship. The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away. Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules. The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.

Continue Reading at Bloomberg »

The Technology 202: Coronavirus raises the stakes in new court fight for gig worker benefits

The coronavirus pandemic is lending the battle over Uber and Lyft’s classification of its drivers fresh urgency. California is suing the companies for allegedly breaking a landmark state law that went into effect earlier this year that would reclassify many gig workers as employees, my colleague Faiz Siddiqui reports. Attorney General Xavier Becerra, who is among the California attorneys bringing the suit, said the ride-hail companies are preventing drivers from enjoying many worker protections and accessing safety net programs by continuing to classify them as independent contractors…And Uber and Lyft drivers do not have mandated sick leave because of their work classification. The  companies have taken steps to expand sick leave during the pandemic, but drivers have raised concerns that it’s difficult to access.  “What it’s done is laid bare more the consequences of allowing companies to opt out of the social safety net,” Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told me. “For a lot of workers, those consequences have been very apparent for a while. What’s happening right now is the public is being forced to see this in a different way when there is such a groundswell of workers who are dealing with those consequences all at the same time.”

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Some countries, against advice, mull certifying ex-virus patients immune

Governments and health agencies around the world are considering issuing “immunity passports” to help restart their economies — documents certifying that the holders are immune to COVID-19 because they’ve already had it. But global health authorities warn that such documents would be unreliable and potentially dangerous…Meanwhile, the World Health Organization says there’s no proof that being infected once with the coronavirus makes a person immune. And critics warn that granting additional freedoms to people who are theoretically immune would risk creating a black market for certification – and even create an incentive for deliberate infection…Harvard University bioethicist Glenn Cohen said he worries that some people might be tempted to intentionally expose themselves to the virus in the hope they can battle through and then get back to work. And there is concern that some people could resort to illegal tactics to get an immunity badge, creating a black market. “I’m really worried about the diverting of resources which are finite to cracking down on the black market rather than have these resources aimed at the interventions that are most efficacious in curbing infection and helping people survive,” Cohen said.

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Hong Kong Tests Travelers’ Saliva to Thwart Spread of Coronavirus

Layla Keith had just gotten off a flight from Singapore when she and her fellow passengers were met at the gate by Hong Kong government officials and ushered onto buses that shuttled them to a nearby convention center. There, they were handed forms to fill out and given small containers to spit into…Those who tested positive for the coronavirus were sent to a hospital for treatment; others were allowed to go. But the data from their saliva stayed behind in a government database. In the global battle to curb Covid-19, governments have collected troves of data from testing and contact-tracing apps to try to find the disease and stop its spread. Even as many are willing to surrender personal information amid the crisis, privacy experts worry about who controls the data and what will happen to it after the crisis ends…Hong Kong isn’t the only place where personal data and politics are interwoven. At least one other country, Vietnam, currently greets travelers with swab tests on arrival. Vietnamese officials said that the records of every test result are retained but that it is against the law to reveal anyone’s name… “If nothing else, it is important for Hong Kong to be transparent about the details of the program so travelers can use that information in determining whether they want to travel to Hong Kong or not,” said I. Glenn Cohen, a Harvard University law professor and expert on the intersection of bioethics and the law.

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When Will We Have a Vaccine?

A podcast by Noah FeldmanAkiko Iwasaki, a professor of immunobiology at Yale University School of Medicine, explains what types of coronavirus vaccines are currently being researched and evaluates their chances of success.

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Coronavirus can mean a death sentence to prisoners

An article by Nancy GertnerEven with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts. In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy. In a second federal courtroom, another judge refused pre\trial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.

Continue Reading at Boston Globe »

When Collaboration Boosts Productivity—And When It Doesn’t

The coronavirus pandemic has made collaboration more challenging for many workers, especially those who aren’t used to working from home. But it’s also made effective collaboration more essential than ever, as workers who are feeling anxious and disconnected need the sense of security that a common purpose provides…Team leaders need to be able to explain—to themselves and to everyone on their team—why each member is crucial, says Heidi Gardner, a fellow at Harvard Law School and author of Smart Collaboration. If all you need is a person’s buy-in, or a targeted use of their skills or knowledge, then don’t invite them to every meeting. Instead, find ways to keep them informed about progress, or bring them in for a specific task. For significant collaborations, Gardner favors a formal project launch where the leader spells out team objectives and individual roles. Individuals should be given the time to reflect on how their skills, knowledge or background can contribute to the team. They can also discuss their own personal work styles or communication preferences. As teams shift to remote work during the pandemic, colleagues are often working with new tools or facing new personal or professional expectations. This is a good opportunity to revisit the team “basics” that were determined during the project launch, Gardner says.

Continue Reading at Forbes »

Does Texas Know Something California Doesn’t?

An article by Noah FeldmanIt’s a tale of two mega-states — and probably of two Americas, each with a nearly opposite approach to Covid-19 restrictions. The governor of Texas allowed his stay-at-home order to lapse and restaurants, theaters and stores to reopen, along as long as they stay below 25% capacity. Meanwhile, California’s governor ordered a “hard close” of the beaches of Orange County. The divergence reflects an increasingly fundamental divide between different states’ attitudes toward the public health science about the coronavirus pandemic. Texas is following the most permissive conceivable interpretation of the evidence; California is deploying what is just about the most restrictive possible interpretation. It isn’t only because of different experiences with the virus. Although California has identified over 55,000 cases, and Texas has only 32,000, California is much larger, with about 10 million more residents. It is surely not a coincidence that their decision to go different ways reflects partisan differences in attitudes toward the coronavirus. This bodes ill for any sort of coherent or consistent national approach in the weeks and months ahead. Some ten states, including Texas, eased restrictions on May 1, with some four more scheduled for this week. Just about all of these are red states. Blue states, including many in the hard-hit Northeast, are maintaining restrictions, with some localities actually tightening their rules.

Continue Reading at Bloomberg »

Hotelier’s Push for $126 Million in Small-Business Aid Draws Scrutiny

Monty Bennett’s sprawling hospitality company is the biggest known applicant of the government’s small-business relief program. The Texas conservative has remained unwilling to return his loans even as public anger builds over large companies getting the funds — a fact now drawing the scrutiny of a key lawmaker. Hotels and subsidiaries overseen by Mr. Bennett’s firm, Ashford Inc., have applied for $126 million in forgivable loans from the Paycheck Protection Program. According to company filings, about $70 million of that has been funded. By comparison, the average loan size in the program’s first round was $206,000. On Friday, Senator Chuck Schumer, the Democratic leader, sent a letter to the Small Business Administration demanding a thorough review of use of the program by Mr. Bennett’s companies, saying that he is “deeply concerned that large, publicly traded companies, like Ashford, may be exploiting” it…A board oversees the company’s operations, but it is filled with people with close ties to Mr. Bennett, including one director whose wife’s firm provides services to the company. Mr. Bennett recently married former board member Sarah Zubiate Darrouzet. A former Texas politician, Matt Rinaldi, to whom Mr. Bennett had donated, sits on one of the real estate investment trusts’ board. “The executive pay arrangements reflect a substantial disconnect between pay and performance, and raise serious corporate governance concerns,” said Lucian A. Bebchuk, director of the Program on Corporate Governance at Harvard Law School.

Continue Reading at New York Times »

Poor air quality has been linked to Covid-19 impacts. Trump’s EPA is still limiting pollution restrictions.

There is much that we still don’t know about the coronavirus and the disease it causes, Covid-19. But for all the mysteries that scientists are still working to solve, we have known from the start that this virus unleashes a brutal assault on the respiratory system, and is especially dangerous for people with lung and heart disease…A new Harvard study has further connected the dots, showing a link between exposure to air particle pollution and severe cases of coronavirus. Despite the evidence, the Trump administration has continued its quest to limit restrictions on the fossil fuel industry, which is the source of much of this pollution…The current PM 2.5 standard requires air particle levels to be limited to 12 micrograms per cubic meter. But the EPA’s draft review in September 2019 estimated that the current PM 2.5 standards are associated with 45,000 deaths annually, and tightening them to 9 micrograms per cubic meter could reduce deaths by up to 27%. Still, the EPA decided to leave the regulations untouched… “It’s a stunning decision by the EPA, but one can’t say that it’s unexpected, only because this administration has made several of these,” said Richard Lazarus, a professor of environmental law at Harvard Law School…In its new cost analysis, the EPA found that the costs of limiting these hazardous pollutants — estimated at between $7.4 billion and $9.6 billion annually — now outweigh the benefits…Lazarus says this could have big consequences when it comes to how the agency regulates other pollutants, and could open existing rules up to challenges in the courts. “They’re indicating that they’re going to measure costs and benefits in a very narrow way, which will reduce the level of benefit calculated as compared to the costs,” Lazarus said. “In future rulemaking, it will be harder to justify tougher hazardous air-pollution standards under the Clean Air Act.”

Continue Reading at CNN »

What you know about coronavirus victims in Pennsylvania depends on where you live

Northampton County Executive Lamont McClure said he knew what he wanted when it came to tracking and disclosing the county’s coronavirus-related deaths: useful public information but not enough to identify the dead and their grieving families. The problem, McClure said he learned, was finding that balance during what has become a public health crisis unlike any other. As the number of deaths rises in Pennsylvania, and especially the hard hit Lehigh Valley, it’s becoming clear that the amount of information the public can expect about local coronavirus cases is a decision largely left up to county and municipal officials, resulting in a patchwork system in which what you know depends on where you live. Over the long run, some bioethicists say, that could erode both trust in the government and affect the safety of the public. “People are being asked to really trust the government here and give up a lot of civil liberties,” said Glenn Cohen, a professor of bioethics at the Harvard Law School. “As part of that large social contract, we should be willing to share as much information as possible.” … The United States’ emphasis on local autonomy is part of its history and usually works fine, Cohen said. But it turns out that the patchwork approach is not helpful during a global pandemic, he said. “I would love to see the government come up with clear guidelines, such as, if you have X level of population, you need to report X specifics. State governments could take a leadership role here,” Cohen said. “I worry that some places might think there is something to hide and, therefore, discount what is being reported.” The debate about reporting more specific information on community infections and virus-related deaths is one that’s happening all over the country, Cohen noted.

Continue Reading at The Morning Call »

Did Murphy have the constitutional power to lock down N.J.? Here’s what the experts say.

He’s ordered New Jerseyans to stay home, banned gatherings, closed schools, shuttered nonessential businesses, moved elections, declared authorities can seize medical equipment from private companies. And his administration has frequently issued tickets to those who disobey, publicly naming them in the process. Gov. Phil Murphy says the goal of these temporary yet sweeping orders is to protect residents from the coronavirus, a fast-moving disease that has already killed more than 7,700 Garden State residents — more than any state but New York. But the sheer breadth of it all might have you asking: What gives him the right? … Numerous legal experts say state laws instill governors with broad powers during crises and courts are likely to define their moves are constitutional as long as they’re narrowly crafted to protect the public’s health in a set period of time. “When a government is restricting liberty — fundamental liberty — a state has to have a very compelling state interest. You need a very, very good reason to do this,” said Noah Feldman, a law professor at Harvard Law School. “Stopping people from dying is a compelling interest.” … Feldman, the Harvard professor, said to dovetail with the U.S. Constitution, governors’ actions must be “narrowly tailored” and “use the least restrictive means possible” to reach that objective. Given the size of New Jersey’s outbreak, Feldman said, it’s “overwhelmingly likely” a court would uphold Murphy’s stay-at-home order. “In any case of an emergency, courts would probably be pretty deferential to the governors because the court’s not gonna say, ‘We know better than public health officials in emergency circumstances,’” he said.

Continue Reading at NJ.com »

Laurence Tribe: Trump’s judicial picks will be ‘bound to carry out his agenda for as long as any of us are alive’

Constitutional lawyer and Harvard Law prof. Laurence Tribe discusses Sen. Mitch McConnell’s efforts to pack the courts with “people loyal to the Trump philosophy” amidst coronavirus.

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Preparing to Move On in a Time of Losses

An article by Annette Gordon-ReedFirst, I want to say how deeply sorry I am about the circumstances that make this type of commencement address necessary. Students in their final year are special. They are on the cusp of finishing a multiyear journey that has inevitably helped transform them in ways anticipated and not. From my own experiences at college and law school, and as a parent of college graduates, I know that senior year can be a time of mixed emotions. I recall being excited about graduating but also slightly alarmed. “They’re going to make us leave!” I joked to my friends as we sat outside on a perfect spring day. Those final weeks of getting ready for graduation—wrapping up classes and making plans for my family to come up for the ceremony—helped ease the tension by forcing me to remember what those years had been about: preparation to move on in life. There is no way to hide from the stark fact that you have been deprived of that preparation. You have missed out on some things that I’m sure most of you were looking forward to greatly: having your parents—for the first time for some of you—get to see the place where you lived and learned, meet your friends and their families in person, and share the pomp and circumstance as you were sent on your way. But the sense of loss is, I suspect, about more than the graduation ceremony.

Continue Reading at Wall Street Journal »

Essential Workers Unite for a May Day Strike. Is It Enough?

On Friday, front-line workers from Amazon, Instacart, Shipt, Target, and Whole Foods have organized to walk out of their jobs together over demands that their companies provide better pay, benefits, and protections…Despite being classified as essential workers in a crisis, they say, their companies treat them as disposable…That workers are now looking outside their own company isn’t surprising, some experts say. “The problem isn’t unique to Instacart, or Target, or Whole Foods. The problem is across essential work,” says Benjamin Sachs, a labor law expert at Harvard Law School…In other countries, there’s ample precedent for industrywide organizing among workers with similar jobs, like a delivery workers union, but not in the United States. “In fact, under existing law, it’s almost impossible to form unions and bargain at the level of the sector,” says Sachs. As a leader on Clean Slate for Worker Power, a project at Harvard Law School, he recently called for a change in labor law that would allow people who do similar types of work to band together and demand industrywide changes, either as a union or an official collective of workers. “You don’t fix cross-sectoral health and safety problems with just a group of workers at Whole Foods,” he says. Friday’s strike, Sachs says, highlights the pressing need for that kind of change. So far, companies like Amazon have successfully fought off efforts to form unions within their workforce. Withholding labor is only one part of a strike’s goals. The other part is rallying consumer action. “Even a small strike with a lot of attention can hugely influence consumers—and these are all entirely consumer-dependent companies,” says Sachs.

Continue Reading at Wired »

Texas Still Won’t Say Which Nursing Homes Have COVID-19 Cases. Families Are Demanding Answers.

As elderly and vulnerable citizens continue to die from COVID-19 in closed-off long-term care centers around the country, many of their relatives have begged elected leaders to release the locations of these outbreaks. Their pleas have carried weight with governors in Georgia, New York, Oklahoma and Florida, among others, who mandated an accounting of where the virus had spread. Not in Texas. Despite more than 300 deaths in such facilities, Gov. Greg Abbott has not moved to make public where patients and caretakers have fallen ill or died. The state’s expansive medical privacy law has made Texas among the most opaque for releasing information about the spread of the coronavirus, even as deaths in these facilities surged nationwide. More than 10,300 elderly people in 23 states have died in long-term care centers, according to the most recent available government data analyzed by the Kaiser Family Foundation, a national health policy think tank…Pat Souter, a lawyer who represents health care institutions and oversees health care studies at Baylor University’s law school, said Texas entities were correctly following state law by not releasing detailed information. Other states providing such details “may not have the same level of protections,” he said, “or determined that such release was permissible under an exception to their laws.” Federal privacy law only creates minimum standards, agreed I. Glenn Cohen, who directs Harvard University’s Center for Health Law Policy, Biotechnology and Bioethics. But he said best practices encourage transparency during public health emergencies.

Continue Reading at ProPublica »

First County Jail Inmate Dies Of COVID Complications

A prisoner in the Middleton House of Correction become Massachusetts’ first county jail inmate to die of COVID-related causes, heightening concerns among advocates that not enough is being done to reduce incarcerated populations, test inmates or prevent the spread in the state penal system. Essex County Sheriff Kevin Coppinger said Thursday that the 41-year-old prisoner died Wednesday, was one of 60 in his facilities to have tested positive for the virus. The prisoner — whose name was not released — had other health issues and had been incarcerated in the jail since Feb. 18, county officials said…Mostly, advocates hope to see the governor and state Parole Board do more to release prisoners. In early April the state Supreme Judicial Court ruled that inmates who are awaiting trial and not charged with certain violent, serious offenses can seek release with a presumption that they we will be let go unless they are considered to be an “unreasonable danger” or a flight risk. The court also urged the state Department of Correction and the Parole Board to expedite parole hearings and increase the release of prisoners already approved for parole and those nearing the end of their sentences. Since then, there have been 654 prisoners released pursuant to the ruling, according to the ACLU data tracker. Only 15 of those were released from the state prison system. Katy Naples-Mitchell, a legal fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, says she’s watching the number of cases rise with concern. “We are watching a pretty rapidly moving disaster,’’ she said. “It’s impossible to contain a virus like this inside.”

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Barr signals DOJ support for lockdown protesters

When Attorney General William Barr this week directed U.S. prosecutors to safeguard civil liberties amid state-level pandemic orders, he signaled Justice Department support for lockdown protesters by highlighting religious and economic rights. In a two-page memo, the nation’s top cop gave the clearest indication yet of the kind of battles federal prosecutors are likely to focus on. In doing so, Barr suggested the Department of Justice (DOJ) might back church groups and those seeking a swifter economic reopening while staying on the sidelines of fights over new limits on abortion and voting access… “One example of what Barr is concerned about is how churches have been singled out for different treatment,” (Gary) Bauer wrote in response to the Barr memo. “Why is it okay for people to gather at Walmart but not at church?” Legal experts say Barr might continue to press that question in court. “Religious liberty is a place where the DOJ in the Trump administration has been bringing more and more affirmative litigation on behalf of church groups and other religious voices,” said Glenn Cohen, a professor at Harvard Law School. “I will be curious to see if this becomes more than a signal and if the 93 U.S. attorneys begin bringing more litigation.”

Continue Reading at The Hill »

The new normal: 8 ways the coronavirus crisis is changing construction

In the span of two months, the coronavirus crisis has demanded sweeping changes from the U.S. construction industry, and experts say many of them will remain in place even after the outbreak recedes. As contractors prepare to return to work on sites that have been shut down by shelter-in-place initiatives, they will face an industry that has been drastically changed by the both public health and economic effects of the pandemic…Since World War II, the percentage of the U.S. construction industry involved in union memberships has steadily declined, from about 87% of the workforce in 1947 to 12.8% in 2018. Nevertheless, since the pandemic began, trade unions have taken on renewed influence in many areas of the country by advocating for members’ best interests in keeping sites operational and safe…During the crisis, unions have provided a voice for workers who are struggling to decide whether they should stay home or go to work, said Mark Erlich, a fellow at Harvard University’s Labor and Worklife Program. Unions also help laborers find new work after a layoff. “Clearly, being a union member has been enormously beneficial in the past few weeks,” he said. The appeal of unions will be stronger than ever going forward, Erlich said, a trend that “will likely come into conflict with cost-cutting measures that construction employers will inevitably be considering once they reckon with the financial losses from the crisis.”

Continue Reading at Construction Dive »

A facial recognition company wants to help with contact tracing. A senator has questions.

Just a few months ago, Clearview AI faced outrage for scraping photos off social media sites like Facebook to create a near-universal facial recognition system that has been embraced by law enforcement agencies. Now, the company is again in the spotlight, this time after its CEO, Hoan Ton-That, said it’s in discussions with federal and state agencies to help with contact tracing of people infected with the coronavirus. Ton-That said federal authorities and three states have communicated with him about using his company’s technology as part of their coronavirus mitigation efforts…It’s not yet clear whether a contact tracing system can slow the spread of the coronavirus, but even if it can, critics wonder whether one that incorporates technology like Clearview AI’s might forever compromise a user’s privacy. “In many places across the world, technology has been mixed with what I would call implements of social control that are coercive or quasi-coercive,” said Glenn Cohen, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard University. “There are big risks about privacy, about the relationship we have to the state, about access to the things we need to have good lives, like employment. And these are all things that I think need to be sorted out in real time rather than say: ‘Oh, there’s this shiny new toy over here. Let’s go ahead and use it, because what harm can it do?'”

Continue Reading at NBC »

Why Americans are more willing to share their personal information for drug trials than contact tracing efforts

Contact tracing and drug trials could be two key milestones on the path forward to safely reopening America’s economy. But Americans have differing views on each: they’re hesitant to share their personal information for contact tracing efforts, but the same is not true when it comes to drug trials, studies suggest…Contact tracing is a way to help identify a person’s whereabouts who tests positive for a contagious disease and then track down people who may have crossed paths with them. In South Korea, health officials are able to pinpoint exactly where a person who has tested positive has been using security camera footage, credit-card records, GPS data from cellphones and car navigation systems…The technology, which is strictly opt-in, works by harnessing short-range Bluetooth signals, known as Bluetooth beacons. Using the Apple-Google technology, contact-tracing apps would gather a record of other phones with which they came into close proximity. Apple and Google spokesmen said separately that none of the information gathered from phone users will be monetized and will only be used for contact tracing. Both companies can disable the broadcast system on a regional basis when it is no longer needed. The tech giants’ proposal “is the version of digital contact tracing that is the most privacy respecting,” said Glenn Cohen, a professor of health law policy and bioethics at Harvard University. “It remains to be seen, though, what these architectural decisions will mean as to efficacy.”

Continue Reading at Market Watch »

Trump’s Coronavirus ‘Orders’ Are Just Suggestions

An article by Noah FeldmanPresident Donald Trump’s decision not to renew the federal stay-at-home advisory is the perfect symbol of his approach to the Covid-19 pandemic: Once again, Trump is operating by signal and sign and suggestion, not concrete directives or orders. It’s not so much that the president is not leading at all. It’s that his leadership operates as a kind of shadow play, not as a practical reality. The federal advisory was never anything more than a nonbinding suggestion to the states. Declining to renew it is also nothing but a nonbinding hint that perhaps some states should be able to reopen. Neither has any formal consequences. Both amount to atmospherics. It’s important to remember that the president of the United States does have the power to lead by action, not suggestion. True, existing federal law most probably didn’t authorize Trump to order a nationwide lockdown. But consider what Trump could have done via regulation. He could have directed every agency in the executive branch to devise and issue Covid-19 regulations binding the industries that those agencies regulate. That would have enabled him to shut down large parts of the economy in order to achieve safety and health results. Trump could have invoked the emergency powers of the Defense Production Act more quickly and more completely to focus resources on protective equipment and tests. Trump has used the DPA to target a few individual firms (some of which were already producing the necessary equipment). But the Act gives him the power to marshal entire sectors of the economy, to nationalize the distribution of key resources, and to designate single a federal agency to coordinate all of this activity. So far, he hasn’t used those powers.

Continue Reading at Bloomberg »

What to Read During a Pandemic

A podcast by Noah FeldmanMarta Figlerowicz, an associate professor of comparative literature and English at Yale, discusses classic works of literature about pandemics from Boccaccio’s The Decameron to Camus’ The Plague. Plus, she psychoanalyzes Noah’s love of detective novels.

Continue Reading at Stitcher »

Challenges to U.S. Sanctions Against Iran During the Coronavirus Pandemic

An article by David Benger ’20, Todd Carney ’21, and Marina Lorenzini: The coronavirus has hit Iran hard. As the country grapples with the highest mortality rate from COVID-19 across the Middle East, the Trump administration has faced widespread calls to ease U.S. sanctions on Iran. The strict bilateral sanctions, which the Trump administration has reimposed since the U.S. withdrawal from the Iran nuclear deal in May 2018, have left the Iranian economy in a deepening recession, with foreign companies and governments remaining hesitant to engage in financial and trade exchanges with Iran. Though the Department of the Treasury purports to allow exceptions to sanctions restrictions for humanitarian aid, medical equipment and pharmaceuticals, the pandemic has highlighted the cracks in this system. In the meantime, however, other nations have stepped up to fill the void, providing some of the much needed aid to the struggling Iranian people. The international community’s will to deliver medical supplies despite potential penalties from the U.S. government demonstrates a challenge to the U.S. “maximum pressure” campaign. Several U..S. allies have deepened those cracks by developing their own mechanisms that deliver humanitarian aid and/or trade with Iran, some with the direct cooperation of the U.S. Treasury Department, others less so.

Continue Reading at Lawfare »

In It Together 4/29/2020

On tonight’s show, host Arun Rath learned more about how community health centers in Massachusetts are aiding in stemming the spread of the coronavirus. It’s hard to fathom in 2020, but there are still areas of Massachusetts with no internet connectivity or unreliable service. First, we heard how widespread the problem is, why it exists and what can be done to solve it. Then, we checked in with a school district in Berkshire County on how they are adapting during this pandemic. Internet connectivity is spotty in Berkshire County, which makes virtual learning more difficult. Finally, with non-essential businesses now closed until May 18, local stores across the state are hurting. We heard how two bookstores are managing and adapting in this time…Featuring Waide Warner, Harvard’s Berkman Klein Center for Internet and Society.

Continue Reading at WGBH »

The Coronavirus Is Showing Banks That Oil Is A Bad Investment

Banks are finally starting to get it: Fossil fuels ain’t worth it. Just last week, Citigroup joined the wave of banks no longer investing in oil and gas projects in the Arctic. The only major bank in the U.S. that hasn’t committed to this is Bank of America. The economic crisis brought on by the spread of coronavirus has shown just what a risky investment fossil fuels are—and this new reality may just accelerate how soon these banks leave behind fossil fuels for good…However, it’s unlikely that the coronavirus had anything to do with these announcements as these commitments usually follow months of planning and preparation. “The timing is more coincidental than there’s a real causal connection there,” Hana Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program, told Earther. “I don’t think the coronavirus has anything to do with these particular announcements, but I do think they may accelerate some of the work already going on in this area.” …As permanent as the changes we’re experiencing feel, all this is pretty short term in the big picture of economics. And long-term trends are what banks care about, Vizcarra said. For oil and gas, the long term doesn’t look too great. Because, hello, climate change means no more fossil fuels. That future, however, feels a lot more tangible now that banks have actually seen what the death of oil might look like, particularly if they don’t start planning for it now. “Making that risk a reality and seeing that upfront—what that could really do, that demand shock, which causes a severe price drop—I think that will probably adjust some of their longer-term concerns,” Vizcarra said.

Continue Reading at Gizmodo »

Coming to a grocery store near you: meat shortages

Gary Holland is a carnivore: He’s on a first-name basis with the meat manager at his local Market Basket, and gets special cuts put aside for him at the counter. So when he got word from his guy this week that the store’s supply was growing thin, Holland sprung into action…The novel coronavirus has brought the US meat industry to a seemingly unheard of moment in a first-world country: rationing in the grocery aisles as some two dozen meatpacking plants across the country have shuttered as infections raced through the workforce. Consumer prices have jumped, stores are limiting purchases, and farmers and ranchers are euthanizing livestock because slaughterhouses are closed…So how did we get here? “When we suddenly declared everyone working in food production as essential, it was a green light for those businesses to keep doing business as usual,” said Emily Broad Leib, head of the Food Law and Policy Clinic at Harvard University. Plants continued operating without issuing proper protective gear to their workers, she said, and once people started falling ill, it set off a chain reaction that we’re seeing now. “This is going to get worse before it gets better,” she said.

Continue Reading at Boston Globe »

We Need An “Army” Of Contact Tracers To Safely Reopen The Country. We Might Get Apps Instead.

On the phone inside her San Francisco apartment, Lucía Abascal gently informed two brothers she had never met that they had been exposed to the coronavirus. Privacy rules, however, meant she could not tell them who had possibly infected them. She also told the siblings they’d have to stay inside for the next 14 days and monitor themselves for signs of a disease that has killed 59,000 Americans and counting…These days, she works in “contact tracing” — a public health strategy to contain the spread of disease by tracing backward from an infected person to others who may have been exposed so they too can be tested and quarantined…But amid all the sobering statistics of the coronavirus pandemic in the US, here is one more: There are nowhere near enough Lucía Abascals. Experts estimate the country needs as many as 300,000 contact tracers to chart and break the chains of the pandemic. Currently, there are fewer than 8,000…China, Singapore, and South Korea have been lauded for their use of phones, in conjunction with old-fashioned shoe leather, to track infected people’s movements and trace clusters of the disease. Germany and Australia are launching their own programs. Yet many are skeptical about how the US is going about it, or even whether the country would accept it… “My problem with contact tracing apps is that they have absolutely no value,” Bruce Schneier, a privacy expert and fellow at the Berkman Klein Center for Internet and Society at Harvard University, told BuzzFeed News. “I’m not even talking about the privacy concerns, I mean the efficacy. Does anybody think this will do something useful? … This is just something governments want to do for the hell of it. To me, it’s just techies doing techie things because they don’t know what else to do.”

Continue Reading at Buzzfeed News »

Internet access proves necessary to ‘participate in life’ during pandemic

Reliable, reasonably priced, high-speed internet access has been an issue in the United States for quite some time, but the ‘haves’ and ‘have-nots’ are even more evident during the pandemic. Susan Crawford, a professor at Harvard Law School and author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age joined KIRO Nights to discuss the digital divide. “Like many other fragile structures in American life, like our public health infrastructure, and our ability to vote securely, internet access is turning up to be a giant, difficult issue for America,” Crawford said. “It’s been in place as a huge issue for years and years, but the pandemic reveals that those who have it and have it inexpensively are able to educate their children at home…are able to visit doctors at a reasonable price without having to go directly to the hospital in person, are able to participate in life.” The coronavirus pandemic has proved the centrality of internet access to our daily lives, and Crawford said has shown we are failing as a country to make sure everyone has access. To understand the internet access situation today, Crawford went back to 2004.

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Businesses Seek Sweeping Shield From Pandemic Liability Before They Reopen

Business lobbyists and executives are pushing the Trump administration and Congress to shield American companies from a wide range of potential lawsuits related to reopening the economy amid the coronavirus pandemic, opening a new legal and political fight over how the nation deals with the fallout from Covid-19. Government officials are beginning the slow process of lifting restrictions on economic activity in states and local areas across the country. But lobbyists say retailers, manufacturers, eateries and other businesses will struggle to start back up if lawmakers do not place temporary limits on legal liability in areas including worker privacy, employment discrimination and product manufacturing…In theory, Congress could set uniform federal standards and take away the right to file lawsuits in state courts, said John Goldberg, a Harvard law professor who specializes in torts, or the law of civil wrongs and injuries. The Constitution gives Congress the right to regulate interstate commerce, and restarting a national economy wrecked by a national pandemic would probably qualify. “Saying we’re doing this to restart a national economy that has basically collapsed — it would be pretty hard to say that isn’t directly related to interstate commerce,” he said. But what Congress could do and what it is politically likely to do are two different things.

Continue Reading at New York Times »

Should There Be Deals During a Pandemic?

Financial crises follow a sequence. One of the steps is outrage. Then comes regulation — think Dodd-Frank, Sarbanes-Oxley and the like. During the pandemic that is both a heath and a financial crisis, a lot of outrage is aimed at stock buybacks. Over the past three years, S+P 500 companies spent $2 trillion on buybacks. Pundits are quick to point out that U.S. airlines spent nearly all of their free cash flow on buybacks over the past decade. Many now argue that if these companies kept more cash on hand, they wouldn’t need bailouts now. This criticism joins longer-running arguments over whether buybacks encourage short-termism and limit investment in research and development. But there are good reasons to support buybacks. They allow capital to be deployed efficiently and stop managers from spending excess cash on vanity projects. And contrary to conventional wisdom, buybacks don’t benefit shareholders alone. Jesse Fried of Harvard Law School has testified to Congress that, for every $100 in repurchases, companies issue $80 of equity, meaning public investors net just $20. Employees are probably the biggest beneficiaries: Companies, particularly tech firms, use stock buybacks to repurchase stock options…To be sure, there are issues with buybacks. Mr. Fried has ably documented how executives can time them to their personal benefit, something akin to insider trading. Companies do buy back shares when they’re too expensive or otherwise spend money that should be saved. And in other cases, stock buybacks have encouraged a short-term focus.

Continue Reading at New York Times »

Podcast: Camille François on COVID-19 and the ABCs of disinformation

Camille François is a leading investigator of disinformation campaigns and author of the well-known “ABC” or “Actor-Behavior-Content” disinformation framework, which has informed how many of the biggest tech companies tackle disinformation on their platforms. Here, she speaks with Lawfare‘s Quinta Jurecic and Evelyn Douek for that site’s series on disinformation, “Arbiters of Truth.”

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23 Organizations Eliminating Food Waste During COVID-19

The novel coronavirus (COVID-19) has upended nearly every aspect of modern society, but especially the food system. Farmers are being forced to discard unprecedented amounts of food surplus because of the closure of schools, restaurants, and hotels. And, because of the complex logistics of the food supply chain, diverting food supply away from wholesalers directly into the hands of consumers can be costly…Despite these challenges, organizations around the world are working to reduce food waste…Directed by Emily Broad Leib, Harvard Law Schools’ Food Law and Policy Clinic (FLPC) is leading an emergency COVID-19 response effort to inform the public the pandemic’s impact on food systems. The response includes informational resources analyzing opportunities for low-cost home food delivery. It also includes policy briefings urging Congress and the USDA to take legislative action to mitigate the pandemic’s burden on the food system and its workers.

Continue Reading at FoodTank »

Cafe chain Cosi sues SBA for excluding bankrupt companies from emergency loans

Fast casual restaurant Cosi sued the Small Business Administration on Tuesday, alleging it illegally denied its $3.7 million emergency loan request on grounds that the company is currently undergoing bankruptcy proceedings. The Charlestown, Massachusetts-based flatbread chain filed a lawsuit on Tuesday in the U.S. bankruptcy court for the District of Delaware, arguing that the company should be eligible, under the CARES Act, to apply for Paycheck Protection Program loans designed to help small businesses keep employees on payroll amid the novel coronavirus. In a five-count complaint, requesting that the court enjoin the SBA from excluding Cosi and other bankruptcy debtors from access to PPP funds, the food chain alleges that the exclusion is discriminatory, exceeds authority under the CARES Act, and is arbitrary and capricious…Harvard Law professor Mark Roe told Yahoo Finance that bankruptcy could “cut a couple of different ways” under the SBA’s language. “One, is companies that might be able to get out of bankruptcy with the PPP money can’t get it,” he said. “It also gives companies an incentive to not file, or at least not file right away, so that they can get the PPP money and hope that staves off of bankruptcy.” Cosi argues Roe’s first point: That the CARES Act exclusion compromises the company’s chances for emerging from Chapter 11 reorganization. But the main challenge for the SBA is parsing businesses struggling as a result of COVID-19 from businesses that happen to be struggling during COVID-19.

Continue Reading at Yahoo! »

A New Strategy in the Fight Against COVID-19

A podcast by Noah FeldmanDr. Louise Ivers, the executive director of the Massachusetts General Hospital Center for Global Health, explains why states like Massachusetts are investing in a strategy called contact tracing to stop the spread of the novel coronavirus.

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William Barr Is Echoing Trump on Stay-at-Home Orders

An article by Noah FeldmanAttorney General William Barr has issued a memo threatening to sue states if they infringe on people’s freedoms during the coronavirus pandemic — and encouraging U.S. attorneys to look for cases to bring against the states. Not to put too fine a point on it, but what in the world does Bill Barr think he’s doing? As the memo itself acknowledges, restrictions on movement are necessary public health measures legitimately carried out by states. It’s hard to know for sure, and the memo is so vague and equivocal that it reads almost like some sort of secret code. One interpretation is that Barr is trying to harness the power of the Department of Justice to contribute to Donald Trump’s rhetorical, electioneering efforts to urge the rapid reopening of state economies. Trump has been making life harder for governors by encouraging public protests against their stay-home orders. Barr’s memo now threatens those governors with legal enforcement measures. If and when the states reopen, Trump (and Barr) can then try to take credit for state governors’ decisions by claiming to have forced them into it.

Continue Reading at Bloomberg »

Homeschooling Approaches During, After COVID-19

As the novel coronavirus began to spread, school districts quickly shut down, closing facilities and shifting classes online. As a result, many parents suddenly found themselves thrust into a new role: teacher. With more than 50,000 coronavirus deaths in the U.S., state governments have issued social distancing measures and orders to stay at home. Some government officials have proclaimed that schools won’t reopen this spring while some colleges have already moved summer classes online and are looking ahead to the possibility of remote instruction for the fall. Despite the pandemic, the need for an education at all levels continues…Some critics worry about both the safety and efficacy of homeschooling. “Kids are falling through the cracks,” says Elizabeth Bartholet, a law professor and faculty director and founder of the Child Advocacy Program at Harvard University in Massachusetts. Bartholet is concerned about homeschool children being abused and neglected. Her concern is prompted by the regulatory patchwork that governs homeschooling in the U.S. Even among states with more stringent rules on homeschooling, she says, there is potential for harm to children because state laws often lack oversight of home environments. “Many jurisdictions don’t even require homeschoolers to register. And if they do require them to register, they don’t enforce the requirements,” Bartholet says. “It’s really hard to study the overall population.”

Continue Reading at US News »

On not learning the wrong lessons from the coronavirus

An article by Laurence TribeIn times as dark as these, it can be tempting to wonder whether the American experiment has failed. New York digs mass graves as though out of Boccaccio’s most ashen imaginings; the president of the United States just recommended we all inject cleaning solvent. More than a crisis of the times, this episode feels like a calamitous failure of government. How is it that our national stockpiles were left to languish, our Centers for Disease Control and Prevention was slashed and left to ossify, and our experts’ wise counsel ignored, our alarm bells silenced? For some, this is symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18-century dream more papier-mâché than proper governance. As Kreitner bewails, “Neither the paralyzed, sclerotic central government” nor our “arbitrarily determined States” have been able to tackle the crisis laid at our feet. He recommends a radical overhaul of the system — disintegration into loosely cooperative regional networks à la the failed Articles of Confederation — and, in effect, its abandonment altogether. Such radical solutions might be mere doomsayings, but their premise simply isn’t true. To misconstrue this moment as the death knell of federalism dangerously misunderstands how the pandemic has showcased federalism’s versatility, resilience, and strength. As these endless months have stretched on, American federalism has flexed its institutional muscles not in a hapless rendering of Trump’s ego projects, but squarely in the common defense.

Continue Reading at Boston Globe »

Experts: Arizona officials unlawfully holding COVID-19 information

Arizona officials in multiple agencies are unlawfully withholding data, statistics, and information regarding COVID-19 outbreaks and abusing health privacy laws, according to top experts in public information and health privacy. The experts said one of the most notable violations involves Governor Doug Ducey, Arizona Department of Health Services Director Dr. Cara Christ, and Maricopa County Health Department Director Dr. Rebecca Sunenshine. All three are refusing to release the names and locations of long-term care facilities with positive coronavirus cases. ABC15 interviewed Marsh and three other experts for this report. They include: David Bodney, a prominent First Amendment attorney based in Phoenix; Dan Barr, another Phoenix attorney with a long history of fighting for public access and records; and I. Glenn Cohen, a Harvard Law professor who studies health law and privacy…For weeks, reporters have requested statistics and locations regarding long-term health facilities… “Truthfully, I think it erodes the public trust,” Cohen said. “Anybody who has a loved one in these nursing facilities has a lot of questions and probably deserves some answers.” Cohen cited the example of a New Jersey nursing home where more than 70 people have died. Some of the residents found deceased in their rooms.

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Barr tells prosecutors to watch for pandemic restrictions that violate Constitution

Attorney General William Barr on Monday directed federal prosecutors to “be on the lookout” for public health measures put in place amid the coronavirus pandemic that might be running afoul of constitutional rights. In a two-page memorandum to the 93 U.S. attorneys, Barr cautioned that some state and local directives could be infringing on protected religious, speech and economic rights. “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote…The Supreme Court has long held that constitutional rights can be lawfully restricted when emergency public health measures are in place, though the precise scope of government public health power is not clearly defined. Legal experts caution that governments can be prone to overreach amid exigent circumstances. “In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” Harvard Law professor Glenn Cohen previously told The Hill.

Continue Reading at The Hill »

Hull resident is first inmate to test positive for coronavirus at Wyatt in R.I.

Hull’s David Maglio says he began to feel ill on April 2, shortly after being transferred from a prison in Massachusetts to the Donald W. Wyatt Detention Facility. He put in sick slips, but his complaints went unanswered, he says…On April 21, Maglio, of Hull, became the first Wyatt detainee to test positive for COVID-19, the illness caused by the novel coronavirus. At the time, Maglio was one of three inmates tested for the potentially deadly virus out of about 580 being held at the quasi-public prison. Since then, seven others — one a 43-year-old Mexican national in U.S. Customs and Enforcement custody — have tested positive. So far, no staff been found to be positive for COVID-19…Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard Law School, was aghast by the prison’s treatment of Maglio. “Taking care of business now is like closing the barn door after the horses escaped,” Gertner said Monday. “Eight inmates is an outbreak. … It’s clear they didn’t do the things they needed to do before an outbreak.” Prisons face the unique challenges of confronting the virus while housing a vulnerable population with acute health risks who cannot socially distance with medical care that is often not up to snuff, she said. An additional obstacle is that inmates may be reluctant to report symptoms due to the punitive nature of isolation; there must be incentives, she said. She urged that reducing Wyatt’s numbers is the only way to ensure that detainees can socially distance, as has been seen at prisons elsewhere. Wyatt is now at 75% capacity.

Continue Reading at Patriot Ledger »

Fired in a Pandemic ‘Because We Tried to Start a Union,’ Workers Say

Truck drivers and warehouse workers at Cort Furniture Rental in New Jersey had spent months trying to unionize in the hopes of securing higher wages and better benefits. By early this year, they thought they were on the cusp of success. But when the coronavirus arrived, Cort, which is owned by Warren Buffett’s Berkshire Hathaway, laid off its truck drivers and replaced them with contractors, workers said. The union-organizing plans were dashed. “They fired us because we tried to start a union,” said Julio Perez, who worked in Cort’s warehouse in North Bergen, N.J. As American companies lay off millions of workers, some appear to be taking advantage of the coronavirus crisis to target workers who are in or hope to join unions, according to interviews with more than two dozen workers, labor activists and employment lawyers…The pattern is playing out across the American business landscape. “This is a continuation of behavior that has become all too common, of employers being willing to use increasingly aggressive tactics to stop unionizing,” said Sharon Block, a former National Labor Relations Board member appointed by former President Barack Obama. “The pandemic has given them another tool in their toolbox.”

Continue Reading at New York Times »

A Solution to the Covid-19 Liability Problem

An article by Noah FeldmanWhenever we’re ready to re-open Covid-closed businesses, we’ll have to resolve some important questions about how to do so safely. One of them: what kind of measures should businesses take to keep employees and customers safe, and how should business owners be held accountable if they play fast and loose with others’ health? This debate over limiting liability has just begun, and it’s already taken a partisan turn. That’s unfortunate, because there’s a straightforward middle-ground solution available. Republicans have called for federal legislation to render businesses immune from lawsuits; Democrats are skeptical of the whole idea. Both sides are on to something important. The risk of being sued — and having to pay outsize damages if people become sick — is real. But so is the risk that complete immunity from lawsuits would lead to lax safety standards that endanger public health. Congress should direct the CDC to issue a specific protocol designed to keep workers and customers safe. Businesses that follow these federal rules should have a safe harbor from liability, even if some people get sick on their premises. Those who break the rules should be able to be sued for breaches that lead to infection.

Continue Reading at Bloomberg »

If We Can’t Test Everyone for Coronavirus, This Is the Next Best Thing

An article by Louis KaplowWe are flying blind in the fight against Covid-19. The number of cases is surely much greater than what we see and what is being relied on to provide direction for devising and implementing policy. But is the true number two to three times higher, as some experts say? More like 10 times, as other analysts calculate? Or perhaps as much as 50 to 100 times higher, as indicated by early random testing in Iceland; a population study of Vò, Italy; and some recent results in California? Every day, national leaders, governors, mayors and public health officials are making decisions that are among the most consequential of our lives, with the agony compounded by the magnitude of the unknowns. If we knew more, we could markedly improve health resource allocation and decisions about where, when and how we can safely reopen parts of the economy. Random population testing is the key to unlocking the mysteries surrounding Covid-19. The quantity of current testing still does not tell us what we need to know. Think about it this way: No one would rely on a poll of the Trump-Biden race, even of a large number of individuals, if everyone was queried at a Trump rally. With the coronavirus, most current testing is skewed toward the symptomatic and the sickest — those who show up in E.R.s or otherwise seek tests, a group significantly, perhaps wildly, unrepresentative of the population.

Continue Reading at New York Times »

At-risk children need more than virtual visits during the coronavirus pandemic

An article by Elizabeth BartholetThe US Department of Health and Human Services recently announced that social workers need not see children being monitored in foster care in person, as required by federal law, but can instead use video conferences to reduce the risk of COVID-19. It’s more troubling that social workers are making increasing use of video conferences for children living with the parents who have subjected them to maltreatment, resulting in heightened danger for children. The risk of repeat maltreatment at home is higher today, with the near-universal closing of schools, widespread stay-at-home orders, and the related isolation of families. Child abuse thrives in isolation and in the situations of financial and emotional stress that are part of the fallout from the coronavirus pandemic. In-home visits would allow child welfare workers to identify signs of abuse or neglect. Homeschooling deprives children of one of their best protections against maltreatment: signs of abuse observed by teachers and other school personnel, who are mandated reporters and responsible for the largest number of reports to state departments of child protective services. Prior to this crisis, there was evidence that homeschooled children were at greater risk for abuse than children attending regular schools. For example, child abuse pediatricians published studies that show a high percentage of seriously abused children were homeschooled.

Continue Reading at Boston Globe »

Internet Speech Will Never Go Back to Normal

An article by Jack Goldsmith and Andrew Keane Woods: Covid-19 has emboldened American tech platforms to emerge from their defensive crouch. Before the pandemic, they were targets of public outrage over life under their dominion. Today, the platforms are proudly collaborating with one another, and following government guidance, to censor harmful information related to the coronavirus. And they are using their prodigious data-collection capacities, in coordination with federal and state governments, to improve contact tracing, quarantine enforcement, and other health measures. As Facebook’s Mark Zuckerberg recently boasted, “The world has faced pandemics before, but this time we have a new superpower: the ability to gather and share data for good.” Civil-rights groups are tolerating these measures—emergency times call for emergency measures—but are also urging a swift return to normal when the virus ebbs. We need “to make sure that, when we’ve made it past this crisis, our country isn’t transformed into a place we don’t want to live,” warns the American Civil Liberties Union’s Jay Stanley. “Any extraordinary measures used to manage a specific crisis must not become permanent fixtures in the landscape of government intrusions into daily life,” declares the Electronic Frontier Foundation, a digital-rights group. These are real worries, since, as the foundation notes, “life-saving programs such as these, and their intrusions on digital liberties, [tend] to outlive their urgency.”

Continue Reading at The Atlantic »

Facebook Is Removing Protest Pages. That’s a Terrible Precedent.

Last week, images of MAGA-hat wearing protestors, unmasked and tightly packed together on street corners, ricocheted across the internet…Depending on your politics — and perhaps your trust in epidemiologists — the attendees were either brave freedom-fighters resisting government overreach or reckless ideologues, risking public health to produce a moment of media spectacle. On Monday, Recode reported that Facebook, after consulting with state governments, had removed certain event pages for in-person rallies against coronavirus lockdowns in California, New Jersey, and Nebraska. The decision was met with immediate backlash…The move raises serious questions about the role of social platforms during the pandemic — and not just among those sympathetic to anti-quarantine rallies. Social distancing has eliminated many of the traditional methods for effectively leveraging political energy against decision-makers…Due to a dearth of human content moderators, Facebook is relying more heavily on its AI algorithms to flag unacceptable speech. “The platforms are churning out new rules by the day and being unapologetic about it,” said Evelyn Douek, a doctoral student at Harvard Law School who focuses on social platforms and digital constitutionalism. To an extent, Douek said, that makes sense. “Emergency powers are good when there’s an emergency.” False or deliberately harmful information about Covid-19 could endanger millions of lives.

Continue Reading at Medium »

Boosting shell egg supply during the pandemic

An article by Daniel Pessar ’20In response to the COVID-19 pandemic, countless government agencies at the federal, state, and local levels are working to relax certain rules to help industry operate and respond to the needs of the public. For example, the U.S. Food and Drug Administration has issued a host of temporary policies to facilitate increased production of hand sanitizer, sterilization of respirators, and increased availability of shell eggs for retail sale. This last effort impacts countless Americans and will be the focus of this post. Just as the FDA has an interest in helping medical supplies manufacturers and users to have enough inventory on hand, it seeks to respond to the changes in supply and demand in food markets, such as the current trends in the market for shell eggs. Shell eggs are the eggs many of us purchase in supermarkets, as distinguished from the processed egg products—available in liquid, frozen, or dried form—sold to restaurants and prepared foods manufacturers. Because of the pandemic, there are more people buying more shell eggs and fewer people eating in restaurants. As a result, the egg industry asked the FDA to help make it easier for them to direct more eggs to meet shell egg demand, rather than being sent for further processing.

Continue Reading at On Food Law »

Biden says Trump will try to delay the election. Experts say he can’t.

Joe Biden warned his supporters Thursday night that President Trump will try to delay the November election. “Mark my words,” the former vice president said, “I think he is gonna try to kick back the election somehow, come up with some rationale why it can’t be held.” Even if Biden is right and Trump wanted to postpone the election — Trump’s campaign flatly denied the president has any desire to do so — the president has no power over when America votes. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country…But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.

Continue Reading at Washington Post »

Why People Are Protesting Stay-At-Home Orders And Advisories

Around the country, protesters have started pushing back against stay-at-home orders and advisories, calling for a reopening of normal business operations. On Saturday, hundreds of people reportedly assembled outside the New Hampshire statehouse to protest Gov. Sununu’s handling of the coronavirus crisis. We’ll hear from a protester and talk about the intersection between our civil liberties and public safety with WBUR’s legal analyst and retired federal judge Nancy Gertner. Plus, we’ll get perspective from Dr. Shira Doron, an infectious disease physician and hospital epidemiologist at Tufts Medical Center, who will explain why our leaders have turned to such extreme measures in combating the coronavirus.

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What Happens to Health Care Workers Who Speak Out?

As the number of COVID-19 cases continues to climb in the U.S., so do the risks facing health care workers on the frontlines of the pandemic. Across the country, we’ve been hearing about shortages of testing supplies, bodies stacking up in hospital morgues, and doctors and nurses still without the equipment they need to protect themselves and their patients. One of the reasons we know about all these things is because of the health care workers willing to speak up about what they’re seeing, whether it’s on social media or in the press. These health care workers are not just putting their lives at risk, but their jobs, too, as some hospitals have turned to disciplining, sometimes even firing, workers who speak publicly about their concerns. Some of you were concerned about sharing your thoughts — and voices — on our airwaves and texted us instead…For more on the risks facing health care workers who speak publicly, we turn to Glenn Cohen, professor at Harvard Law School and the faculty director of its bioethics center.

Continue Reading at WNYC »

‘The flood is coming’: Coronavirus could spur unprecedented wave of business bankruptcies

Business bankruptcy filings year-to-date are trending slightly higher compared with the same period last year, but industry experts warn the seemingly moderate escalation obscures the reality of a spike in fillings to come in the wake of the novel coronavirus pandemic…While the current filing numbers look benign on their face, there are several reasons filings have not already skyrocketed despite COVID-19’s shutdown of the U.S. economy since March. Harvard Law professor, Mark Roe, told Yahoo Finance that part of the delay is due to the fact that most companies, when hit with a shock, will exhaust cash sources first, and file for bankruptcy only when they have no other choice. Cash resources contributing to a delay could include the grants and loans made available to small and large businesses through the CARES Act, the $2.2 trillion coronavirus stimulus bill passed by Congress last month. “Even if a company isn’t selling anything now, if it has some cash in the bank, or can draw on a bank line, or can somehow just push things along to kick the can down the road most companies will try to do that,” he said, adding that small businesses that have already entered bankruptcy are not eligible for the Act’s Payroll Protection Program. Roe estimated that if the economy continues on its current trend, a surge in bankruptcies should be expected around September or October. In addition, he said, historical correlations exist between increased claims for unemployment and business bankruptcy filings.

Continue Reading at Yahoo! »

Coronavirus-detecting drones stir privacy concerns

A Connecticut town has become a testing lab for a new kind of drone-based surveillance program. The company behind it say it can pick out symptoms from the air, raising questions about a world where we could be monitored without know it. NBC technology correspondent Jake Ward reports for TODAY as the Search for Solutions series continues. Glenn Cohen weighs in.

Continue Reading at Today »

Finding Real Life in Teaching Law Online

An article by Jeannie Suk GersenDuring my first year teaching at Harvard Law School, I fell flat on my face. In addition to prepping for class like a maniac, I spent an inordinate amount of time cultivating a professional aura. I always dressed up for class, did my hair, and put on makeup. One day, I found myself late getting to class. In my pencil skirt and heels, I entered the amphitheatre-style classroom from the back. My fifty students were already seated and ready. Rushing down the gauntlet of steps toward the podium, carrying my casebook, teaching notes, seating chart, and a hot tea, I felt my ankle buckle. Everything flew out of my hands and I face-planted. The univocal gasp of my students still haunts my nightmares. I thought, in that moment, that my teaching career was over, but I got up, walked to the podium, and began teaching the class, because I didn’t know what else to do. I was immediately more relaxed and comfortable than I’d ever been in the classroom—and so, it seemed, were my students, who loosened up immensely…Teaching over Zoom has revealed the role that spatial distance plays in education in the first place. The geography of a large classroom, with the professor at the front, automatically communicates the hierarchy that separates teacher and students. That distance is visually erased in a Zoom class, where there’s no podium, or front or back of the room. The face of the professor appears onscreen in the same way as the faces of students when they speak. The closeup view brings everyone in close.

Continue Reading at New Yorker »

INSIGHT: Just When It’s Most Critical, Republicans Seek End of Affordable Care Act

An article by Robert Greenwald and Will Dobbs-Allsopp ’20Even in the midst of the worst domestic crisis in over a century, the White House and Republican state officials still want the U.S. Supreme Court to invalidate the Affordable Care Act in a case set for review later this year. It’s a baffling decision given the circumstances: amid escalating health-care needs, increased strain on our health systems, rising rates of uninsured, and an impending recession, the ACA offers policymakers critical tools that can help steer the nation through the Covid-19 pandemic. Because many Americans receive health insurance through their employer—itself a vestige of an earlier crisis—a pink slip frequently also entails a loss of health insurance coverage. In recent weeks, the Department of Labor has reported record-shattering unemployment insurance claims, more than 22 million to date. One analysis predicts that the number of employees losing health coverage will grow to between 12 million and 35 million by the crisis’s end.”

Continue Reading at Bloomberg »

We’ve made new rules to protect our families. We must protect kids’ privacy too.

An article by Leah PlunkettThe terms and conditions of our lives have changed beyond recognition in recent weeks. It’s time the terms and conditions provided by digital technology companies be rewritten to match. Consider the deal we’ve made with most tech companies: we give up our private information and they give us free or low-cost digital services in exchange for using this data however they want. On any given day, this deal is dishonorable. During the Covid-19 pandemic, when children and their parents are relying on the internet more than ever, it’s immoral. Data that is collected from and about our children, used by tech companies, and shared with third parties can have a serious impact on their future. Tech companies should safeguard our children’s privacy by stopping these invasive practices. From school to sports to social activities and so much more, we are scrambling to get our kids online in order to adapt to our new reality. We are logging in to countless platforms to bring the world into our homes. In doing so, we’re also giving out our children’s personal information at an ever-increasing rate.

Continue Reading at CNN »

The Way out of the Pandemic? Generosity.

A podcast by Noah FeldmanPardis Sabeti, a computational biologist at Harvard and the Broad Institute, discusses when and how to re-open colleges and universities, why the US is behind other countries when it comes to containing the spread of coronavirus, and a plan to stop pandemics in the future.

Continue Reading at Stitcher »

Harvard law professor believes homeschooling can be ‘dangerous’ because it gives parents ‘authoritarian control’ over their children

A Harvard law professor believes that homeschooling can be ‘dangerous’ because it gives parents authoritarian control over their children. More than 50 million children in the United States are at home due to the coronavirus pandemic that forced the shut down of schools, restaurants and bars, and other businesses deemed non-essential. While states are developing plans to slowly reopen, it’s unclear if that will take weeks or months, which means children will likely be at home for the remainder of the 2019-2020 school. And Harvard law professor, Elizabeth Bartholet, believes that is a ‘dangerous’ thing. In the May-June issue of Harvard Magazine, Bartholet speaks about her thoughts on children being homeschooled by their parents or guardians. ‘The issue is, do we think that parents should have 24/7, essentially authoritarian control over their children from ages zero to 18?’ Bartholet asked. ‘I think that’s dangerous. I think it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority,’ she said. Bartholet explained her reasoning by pointing at the possibility of children being abused while at home, especially since teachers are ‘mandated reporters’ if they suspect child abuse.

Continue Reading at Daily Mail »

Low-income and laid-off veterans struggle to access state benefits created for them

With job losses mounting during the pandemic, thousands of Massachusetts veterans are turning to a $72 million state program that is intended to provide them with emergency cash assistance for basic needs such as housing, food, fuel, and medical care. The Veterans Legal Clinic at Harvard Law School has reported a tenfold increase in recent visitors to its online calculator that helps veterans determine their eligibility for the benefits program, which the state describes as the only one of its kind in the nation…Advocates said the state needs to do a much better job providing veterans with information about benefits that can exceed $1,000 per month for a single person with no dependents. A veteran and spouse can receive a maximum of twice that amount. “We urge DVS to more aggressively get the word out about these benefits, including making information about the program more accessible to the public on its website,” said Betsy Gwin, associate director of the Harvard veterans clinic…Officials at the two advocacy organizations said they still had not received a single reply from Francisco Urena, the Department of Veterans’ Services secretary, despite multiple requests over the past month to discuss how to expedite and ease access to the benefits…Richardson and Daniel Nagin, director of the Harvard legal clinic, wrote to Urena late last month that with “mortgage, rent, and other bills looming, and new layoffs, furloughs, and COVID-19 cases occurring each day, it is critical that DVS act now to ensure access to this vital resource.”

Continue Reading at Boston Globe »

Are stay-at-home orders ‘laws,’ as Jay Inslee said?

Washington Gov. Jay Inslee, who issued some of the earliest social-distancing orders of any governor to combat the spread of the coronavirus, took issue with President Donald Trump’s tweeted solidarity with protesters in several states who were demanding an end to stay-at-home orders…We wondered whether it’s accurate to call state stay-at-home orders “laws,” and whether they conflict with freedoms of speech and assembly under the First Amendment. So we asked legal experts. They agreed that while most fall under the heading of “proclamations” or “executive orders,” they were issued under legal authority delegated by legislatures, meaning that have the same practical effect. The orders also would have a good chance of being deemed constitutional in court, they said…Experts told PolitiFact that despite the linguistic and procedural differences between orders and law, the stay-at-home orders effectively carry the force of law. “Calling it ‘the law of the state’ is fair,” said I. Glenn Cohen, a Harvard Law School professor. “Statutes passed by legislatures are what most people think of when one says ‘laws,’ but from a lawyer’s point of view, a common-law decision by a judge, a regulation, or an action by the governor would all qualify broadly as ‘the law.’”

Continue Reading at Politifact »

California Weighs Emergency Lawyer Licensing Due to Virus Threat

Two groups led by law school students and deans, respectively, are urging the Supreme Court of California to cancel in-person bar exams due to Covid-19 for the remainder of 2020, but it’s been harder to find a consensus in the state and beyond for what comes next. The two California coalitions agree that the exam currently scheduled for July 28-29 shouldn’t be delayed until September, which was recently recommended as a “preferred option” by the state bar’s board of trustees, but rather dashed altogether because of lingering virus-related public health dangers. But beyond that, their perspectives diverge. A group of deans from 17 California law schools, including Berkeley, Stanford, and UCLA, are in favor of provisional licenses, which would allow new graduates to practice while overseen by a licensed attorney until they eventually take and pass the bar, as long as they meet other bar admission requirements…The law student-led coalition, which includes more than 1,400 law students and recent graduates, professors, and practicing attorneys argued this approach would be highly disruptive to young lawyers. Instead, they’re in favor of “emergency diploma privileges,” which allow law students to practice without passing the bar. “It’s the only alternative that makes sense during a global pandemic,” said Donna Saadati-Soto ’20, a third-year Harvard Law School student who has co-led the coalition. Delays of any kind make little sense, because no one knows when the virus crisis will be over, said Saadati-Soto. Plus, some law students already have locked in full-time job start dates.

Continue Reading at Bloomberg »

Digital coronavirus data tracing would barter away American liberties: Laurence Tribe

An article by Laurence TribeThe benefits of the data-driven coronavirus tracing programs are immediate and tangible. The costs are more abstract and uncertain. But by trading abstract harms for short-term gain, we risk permanently damaging the fabric of our society. Reopening our economy and society will require revealing more about ourselves than ever before. Knowing who can safely reenter public spaces demands extensive contagion testing, contact tracing and sharing medical information long deemed “private.” Especially for the digital generation, that might seem a low price to pay for greater normalcy. But history teaches us to beware such bargains. They can permanently transform us in ways we will come to regret, as we drift over a “privacy horizon” from which we might never return. Paradoxically, privacy is a public value. It begins with personal choices about what individuals share, and with whom. But the cumulative impact of those judgments far exceeds the sum of their parts. Just as decisions about liberty of speech shape not only personal expression but the vibrancy and openness of society as a whole, so too do decisions about privacy shape the character of the community.

Continue Reading at USA Today »

Can Trump Ban All Immigration? The Supreme Court Will Decide

An article by Noah Feldman: It’s not an exaggeration to say that the total ban on immigration that President Donald Trump announced by tweet is among the most extreme acts of unilateral executive authority attempted by any president since World War II. It will generate immediate legal challenges, and the ensuing litigation will reach the Supreme Court sooner rather than later. “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump tweeted at 10pm last night, “I will be signing an Executive Order to temporarily suspend immigration into the United States!” An actual order hasn’t yet been issued yet, and without one, it’s tough to predict what the legal result of any challenges to it will be. But the court’s Trump v. Hawaii decision upholding the president’s Muslim ban provides some guidance. Federal law authorizes the president to “suspend the entry of all aliens” into the United States whenever he “finds” that their entry “would be detrimental to the interests of the United States.” To suspend all immigration now, the Trump administration will have to explain why allowing any immigrant into the country would be detrimental to U.S. interests. In practice, that means the government will have to provide a reason for the ban that is based on facts, not mere presidential fiat expressed in under 240 characters.

Continue Reading at Bloomberg »

The Roadblocks to Mass Testing

A podcast by Noah Feldman: Omai Garner, the director of clinical microbiology testing at UCLA Health, explains why more Americans have not been tested for COVID-19.

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Regulate the skies

An article by Ashley NunesTo say US airlines are struggling is putting it mildly. Coronavirus has crushed air travel demand, threatening both balance sheets and jobs. It’s true we’ve been here before. In the aftermath of the 9/11 attacks, public enthusiasm towards flying waned which culminated in heavy losses for the airlines. Back then, however, US airlines received just $15 billion in government aid to stay afloat. In a sign of how serious the current situation is, Washington has upped the ante to the tune of $50 billion. Bailing out airlines is risky. Do nothing and the knock-on effects might drag down the economy. America’s economic might depends in large measure on having a vibrant aviation industry. But propping up private carriers at taxpayers’ expense naturally invites public ire. Americans may love to fly but we also love to complain about flying. Which explains why Washington wants consumer-friendly strings attached to any bailout package. The most relevant of these (for passengers at least) include the waiving of change fees, bag fees, and fees for really anything airline execs can think of (bland meals, flat pillows and more legroom come to mind). Bailing out airlines is risky. Do nothing and the knock-on effects might drag down the economy. America’s economic might depends in large measure on having a vibrant aviation industry. But propping up private carriers at taxpayers’ expense naturally invites public ire.

Continue Reading at Financial Times »

Trump Is Breaking the Presidency to Save His Re-Election

An article by Noah FeldmanPresident Donald Trump’s encouragement of protests against states’ stay-in-place orders is un-presidential in the colloquial sense: it’s unbecoming of a president. But Trump’s latest gambit is un-presidential in a much deeper sense, too. It contradicts the very constitutional justification for why we have a president in the first place. The whole point of the presidency is to have an elected official who represents the interests of the entire country, not of a specific state or electoral district. That is, the purpose of the presidency is unification. Trump’s goal, to the contrary, is to drive state-by-state division. He’s undermining the very ideal of a unified United States in pursuit of electoral advantage. To understand why we have a president, it’s useful to consider why we don’t have a prime minister. After all, the founding fathers were creating a republic, in which all officials would be elected and nobody would be above the law. If the United States of America was not to have a king, it would have made logical sense for its executive to be a member of the legislature, first among equals. But the framers of the Constitution wanted to create a different version of the separation of powers than Britain’s.

Continue Reading at Bloomberg »

Foundations and Donors Step Up Grants to Help Workers Hurt by the Pandemic

In the coronavirus era, the heroes drive delivery trucks, bag groceries, and clean hospital floors. As those employees have stayed on the job, risking their lives to ensure others can stay comfortable in seclusion, a new movement is underway to help those workers. Foundations that have long supported labor groups are stepping up their funding and recruiting others to join a movement that some experts think could lead to sweeping policy changes. On Tuesday, a group of eight grant makers and individual donors committed $7.1 million to the Families and Workers Fund, which will make grants for emergencies and for advocacy efforts to push for long-term policy efforts to reshape labor regulation…Other labor nonprofits are building support for policy changes that would benefit employees. The Clean Slate for Worker Power at Harvard University Law School’s Labor and Worklife Program, for instance, used grants from the Ford, Hewlett, Kellogg, and Public Welfare foundations to produce a 130-page set of policy recommendations that would help worker groups generate revenue, provide better or portable health coverage for workers, and require that 40 percent of corporate board seats are chosen by workers, among other things. Sharon Block, the program’s executive director, says the project will continue to flesh out a labor agenda. “We are not going to alleviate the pain that so many workers are in tomorrow,” she says. “What we want to do is provide source material for groups that are trying to make systemic change. We want to provide some of the answers.”

Continue Reading at The Chronicle of Philanthropy »

Don’t let Big Gig game the system

An article by Sharon Block and Mike Firestone: In its sweeping response to the coronavirus pandemic, Congress threw a financial lifeline to millions of Americans and made so-called “gig economy” workers, like Uber drivers, eligible for unemployment assistance for the first time. But the economic crisis begs the question why Uber drivers weren’t eligible already. The answer is simple. It’s because, unlike other Massachusetts businesses, Uber doesn’t pay unemployment insurance to cover its workers or extend them other crucial protections, and the major gig-economy companies (we’ll call them Big Gig) fight every effort to require it. This opposition left millions of workers without a safety net when the bottom fell out of our economy. Massachusetts should continue to fight Big Gig’s tactics to deny full protection to workers, but in this moment of crisis, the state should take new action to require Uber to pay for benefits their drivers so desperately need and deserve. It’s time to end Uber’s free ride. States like Massachusetts, New Jersey, and California have fought for years to protect gig workers by demanding that DoorDash, Lyft, and other Big Gig companies stop misclassifying their drivers and delivery workers as independent contractors instead of as employees. Through misclassification, Big Gig companies have flouted state laws requiring employers to cover the cost of unemployment insurance, workers’ compensation, minimum wage, and sick days.

Continue Reading at Commonwealth Magazine »

The Internet’s Titans Make a Power Grab

An article by Evelyn DouekThe ordinary laws no longer govern. Every day, new rules are being written to deal with the crisis. Freedoms are curtailed. Enforcement is heavy-handed. Usual civil-liberties protections, such as rights of appeal, are suspended. By act, if not by word, a state of emergency has been declared. This is not a description of the United States, or even Hungary. It’s the internet during the coronavirus pandemic. We are living under an emergency constitution invoked by Facebook, Google, and other major tech platforms. In normal times, these companies are loath to pass judgment about what’s true and what’s false. But lately they have been taking unusually bold steps to keep misinformation about COVID-19 from circulating. As a matter of public health, these moves are entirely prudent. But as a matter of free speech, the platforms’ unconstrained power to change the rules virtually overnight is deeply disconcerting.

Continue Reading at The Atlantic »

Who’s in Charge of the Response to the Coronavirus?

An article by Jeannie Suk GersenMost crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states. By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place. The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the director of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.” Fauci is not alone in thinking that a national order would be preferable.

Continue Reading at New Yorker »

‘How do we overcome fear?’ Americans need confidence before life can return to normal.

Danny Meyer — restaurateur and founder of Shake Shack — said he is already envisioning the changes he will make when he finally gets the green light to reopen his restaurant empire. Kitchen employees will have to wear masks and not only have their temperature taken, but also look their manager in the eye and verbally confirm they are feeling healthy…Last week, President Trump released a set of guidelines for beginning to reopen the country amid the coronavirus pandemic. But what Trump says won’t much matter if skittish elected leaders, business owners and customers don’t trust that they will be safe returning to their daily lives — and at the moment, most Americans don’t have that confidence. In a poll released Thursday by the Pew Research Center, three-quarters of U.S. adults said the worst is yet to come with the novel coronavirus, and two-thirds were worried that restrictions would be lifted too soon…Cass Sunstein, a professor at Harvard Law School and a former adviser to President Barack Obama, said people’s behavior will hinge in part on how trustworthy they view the leader offering the guidance. “If the governor seems to be credible on the health topic,” Sunstein said, people are far more likely to be reassured “than if the governor seems to be responding to political pressure or seems to be scared of something.” But, he added, community signals will also be crucial. “What do people see people like them doing?” Sunstein asked. “If people see everyone else staying home, they tend to think that’s the right thing to do, and they see everyone going out, they tend to think, ‘Well, I should go out, too.’”

Continue Reading at Washington Post »

Ending Virus Shutdowns Too Soon Poses Legal Risk for Businesses

Whenever U.S. stores, restaurants and theaters reopen from coronavirus shutdowns, they may face an unexpected problem: lawsuits from sick patrons and workers. Business owners hit hard by Covid-19 are eager to get back to work as the outbreak shows signs of slowing and the Trump administration pushes for a quick restart of the nation’s economy. But with no vaccine for the easily transmitted virus, companies opening too soon could be blamed if more people get sick…A wave of personal-injury cases could bankrupt businesses, according to the U.S. Chamber of Commerce, which is recommending government protections. And though it may be difficult to prove that any one company was responsible for spreading Covid-19, legal experts say a surge in such claims could strain the court system…For those that reopen before eradication, there is an increased risk that customers will claim they got sick and suffered due to the company’s negligence, said John Goldberg, a professor at Harvard Law School and an expert in tort law. Plaintiffs must show, among other things, that the business breached a duty of care owed to the customers and that its actions caused them harm, Goldberg said.

Continue Reading at Bloomberg »

Natick students’ online messages on school platforms are analyzed for potential danger and distress

In these times of COVID-19, schools are closed, offices are shut down and families must coexist while sheltering in place. The result is a spike in fear and a decrease in happiness nationwide, according to an artificial intelligence algorithm that analyzes more than a billion social media messages in the U.S. each day. Some online messages created by Natick public school students are included in those billion-plus messages, because the district has a contract with Social Sentinel, a Burlington, Vermont-based company that created the algorithm…Some experts who spoke with the Daily News question whether the arrangement is an invasion of privacy, and whether it could potentially erode a sense of trust between school officials and students…State and federal laws don’t give a clear answer on whether companies like Social Sentinel represent an invasion of personal privacy, said David O’Brien, assistant research director for privacy and security at the Berkman Klein Center for Internet and Society at Harvard University. The federal Family Educational Rights and Privacy Act prohibits schools from releasing sensitive information, such as grades and disciplinary records, according to O’Brien. O’Brien said many laws regarding privacy were enacted in the 1970s. In many cases, they give schools control over information released about students. But when it comes to companies like Social Sentinel, O’Brien thinks there could be an invasion of privacy. “In my opinion, things become more invasive when collecting in mass,” he said. “An algorithm that gives insight into behavior and feelings starts to look more invasive.”

Continue Reading at Milford Daily News »

Farmers and Ranchers to Receive $19 Billion Economic Rescue Package

On Friday, President Donald Trump announced a $19 billion economic rescue package for some of our most essential workers: farmers and ranchers. To learn more, KCBS Radio news anchor Ted Ramey spoke with Emily Broad Leib, Clinical Professor of Law and Director of the Harvard Law School Food Law and Policy Clinic.

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What Is a ‘Very Good Job’ on Coronavirus Deaths?

An article by Cass SunsteinHow many Americans are going to die from the coronavirus? How will we know if the national government or the states have done a commendable job or a terrible one? Here’s a comment from President Donald Trump in late March: “So you’re talking about 2.2 million deaths, 2.2 million people from this. And so if we could hold that down, as we’re saying, to 100,000. It’s a horrible number, maybe even less — but to 100,000. So we have between 100 and 200,000, and we altogether have done a very good job.” Do you see what Trump did there? It’s called “anchoring,” and it’s one of the most important findings in behavioral science. People who have been involved in real estate, like Trump, are often experts in the use of anchors. Trump specified an anchor (2.2 million deaths), and he used it to support his claim that if 100,000 to 200,000 Americans end up dying, he has “done a very good job.” Whenever the goal is to affect people’s evaluations, it’s smart to get a particular number in their heads, whether it involves pricing property or estimating deaths. That number often sticks. It influences their judgments about what’s likely or what’s fair, and about what counts as a successful outcome or instead a disaster.

Continue Reading at Bloomberg »

Main Street Needs More Fed Help

An article by Glenn Hubbard and Hal ScottThe U.S. economy is in free fall. Leading economic forecasters predict as much as an 11% year-over-year decline in second-quarter gross domestic product. Small businesses—those with under 500 employees, which constitute 50% of the workforce and 44% of GDP—have closed their doors and are teetering from illiquidity to insolvency. Depression is around the corner. The priority should be to get funds to these firms to avoid disaster. Unfortunately, the Main Street Expanded Loan Facility, designed by the Treasury and Federal Reserve, will fail to do so. It wrongfully prioritizes preventing losses over rescuing the economy. The Treasury needs to allocate much more than $75 billion to this program if it is to succeed. The Main Street Facility is an essential expansion of the $349 billion Congress initially provided to small business through the Cares Act’s Paycheck Protection Program—money that ran out Thursday. Lawmakers rightly prioritized saving small business over the substantial cost involved. Most of the PPP loans won’t be repaid, because the program forgives loans if borrowers spend 75% on retaining employees. Congress is expected to allot another $250 billion to PPP.

Continue Reading at Wall Street Journal »

Why Is Trump Gutting Regulations That Save Lives?

An article by Cass SunsteinSince Jan. 30, 2017, the Trump administration’s approach to federal regulation has been defined by a simple requirement: “one in, two out.” The basic idea, set out in one of President Trump’s first executive orders, is that whenever a federal agency issues one regulation, it has to take at least two regulations away — and produce an incremental cost, on the private sector, of zero. The idea was absurd from the very start. It was profoundly demoralizing to experts in federal agencies, who know a lot about science and who have plenty of good ideas about how to protect public health and safety. But its absurdity has been put in a whole new light by the Covid-19 pandemic, which demonstrates that the regulatory state is no enemy of the people — and that smart safeguards, designed by specialists, save lives. It is true that to many people, the one-in, two-out idea has a lot of intuitive appeal. For one thing, it instructs regulators — at the Environmental Protection Agency, the Department of Transportation, the Department of Health and Human Services and elsewhere — to get rid of outmoded or dumb regulations. If we want to free up the private sector from regulations that do more harm than good, it might make sense to insist: If you want to do something new, you had better get rid of something old. But there is a subtler point. Mr. Trump clearly wanted to slow the issuance of new regulations. The one-in, two-out principle is well suited to achieving that goal.

Continue Reading at New York Times »

Don’t repeat the mistakes of 1918

An article by Carol Rose and Robert Greenwald: During the 1918 influenza pandemic, local governments in the United States placed special placards on the doors of homes where sick people were subject to quarantine. The measure was an attempt to contain the spread of a virus that ultimately killed nearly 700,000 people in the United States alone. Sadly, this well-intentioned move backfired: Many doctors chose not to report cases in order to prevent homes from being quarantined. Families of sick people sought to evade the stigma of a placard on their homes by not seeking medical attention. In light of today’s coronavirus crisis, it’s useful to recall this history and to avoid repeating the mistakes of the past. Yet in an executive order dated March 18, the administration of Governor Charlie Baker directed local boards of health to submit to first responders the home addresses of people who have tested positive for the virus. The idea is that police, fire services, and EMTs should know which homes have COVID-19 cases so that responders can adequately protect themselves. Protecting the health of first responders is certainly an important priority that the state needs to address; however, some public health experts have noted that disclosing addresses does not ensure a first responder would be safe from exposure from asymptomatic people or from those who are infected but remain untested. It may seem counterintuitive, but this order could indeed do more harm than good.

Continue Reading at Boston Globe »

As workers face virus risks, employers seek liability limits

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work. Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states. The powerful lobby argues the sheer number of lawsuits could overwhelm businesses. Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die…It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing. “The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

Continue Reading at Roll Call »

Tax Pros Fear IRS Appeals Cases May Suffer During Pandemic

While all tax attorneys face challenges representing clients during the COVID-19 pandemic, tax practitioners fear that IRS Appeals cases face particular setbacks due to a lack of face-to-face meetings with Appeals employees and the office’s resource constraints. Successfully working cases before the Internal Revenue Service’s Independent Office of Appeals depends particularly on the relationship between the tax practitioner and Appeals officers. That rapport can be difficult to maintain when all meetings are conducted over the phone or via teleconference while IRS employees are under a work-at-home order…Attorneys involved in lower-tiered disputes that don’t involve complex portions of the tax code or large case files may not be affected that much, according to T. Keith Fogg, law professor and director of the Federal Tax Clinic at Harvard Law School’s Legal Services Center. “For most of my clients, because they’re low income, Appeals doesn’t want to have a face-to-face conference to begin with,” Fogg told Law360. “We don’t normally push for one either. So it’s not a big deal for us.”

Continue Reading at Law 360 »

Can you argue in pajamas? Lawyers get ready for first-ever Supreme Court oral arguments by phone

The Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers. The court said that it will hear 10 arguments over the first two weeks in May, including blockbuster disputes over the Electoral College and whether President Donald Trump can keep his tax records shielded from investigators. The issues are weighty, whether they are discussed in a basement office over a cell phone or inside the Supreme Court’s historical Corinthian building. But lawyers who will be arguing before the court are still adjusting…In interviews, lawyers expressed overwhelming relief that the court was moving forward with arguments, even as some worried about kids and dogs being overheard on the phone. The most pressing concern, unanimously, was about how to gauge the justices’ reactions without body language cues. “The opportunity to see people, and how they are understanding or not understanding what you’re saying, is very important,” said Lawrence Lessig, the Harvard Law School professor and 2016 Democratic presidential candidate, who will represent Electoral College voters next month in a dispute over whether they may disregard their state’s popular vote. Lessig said he had already been doing moot courts, or rehearsals, over the videoconferencing platform Zoom. Now, he will “definitely” be doing moots by phone, he said.

Continue Reading at CNBC »

Greens plot court strategy for stronger soot limits

Environmental groups said they are prepared to sue EPA over its proposal to leave national soot standards unchanged, a move that conflicts with scientific evidence and career staff calls for stronger restrictions on fine particulate matter. The agency’s draft rule preserving limits set on those particles, known as PM2.5, in 2012 tees up unusual legal questions of whether EPA can override recommendations from its staff and some of its scientific experts to strengthen those standards…Once the proposed rule appears in the Federal Register, interested parties will have 60 days to comment on EPA’s plan. The agency is expected to finalize the rule later this year, which would trigger litigation. Joe Goffman, an Obama-era EPA official who is now at Harvard Law School, said he expects the comments to include lots of scientific research demonstrating the need for tighter restrictions on PM2.5. “The record is the one thing that the administrator can’t rig a priori,” he said. “Ultimately, challengers are going to be able to bring to the D.C. Circuit a very strong record, notwithstanding what’s in the proposal.”

Continue Reading at E&E News »

Is it too soon for a “CoronaPass” immunity app?

As the world continues to fight against Covid-19 with lockdowns and social distancing, the notion of antibody screening—using data from serology tests to determine who is eligible to participate in society—is gaining traction…The concept has its issues—but already, there’s an app for that. Bizagi, a UK-based tech company whose normal business is helping companies like Adidas and Occidental Petroleum digitize their operations, today released “CoronaPass,” an app that will use an encrypted database to store information about users’ immune status, based on antibody test results provided by the user’s hospital or other healthcare provider…In any case, the more relevant law in the US is likely the Americans with Disabilities Act, said Glenn Cohen, a bioethics expert at Harvard Law School. ADA normally prevents employers from asking questions about an employee’s health that could be used to discriminate against them. But in the context of the Covid-19 pandemic, the US Equal Employment Opportunity Commission has loosened some ADA restrictions, including allowing employers to ask employees about relevant symptoms and take their temperature. “It pretty clearly signals the direction they are going,” Cohen said, “which is that [requesting antibody test results] will be deemed permissible, but they haven’t quite said that yet.”

Continue Reading at Quartz »

Keeping ethics alive during the pandemic

With life-and-death issues of health and medicine foremost in our minds, ethics can get short shrift. To bring them to the public eye, the Edmond J. Safra Center for Ethics has issued the COVID-19 Rapid Response Impact Initiative, a series of white papers from some 40 thinkers on issues of justice, values, and civil liberties designed to inform policymakers during the crisis… “You have to make sure that with any tactics that you pursue to secure public health, you also look at the impact on our liberties,” said Allen, the James Bryant Conant University Professor and lead author on that first white paper. That paper — co-authored with Assistant Professor of Philosophy Lucas Stanczyk; James A. Attwood and Leslie Williams Professor of Law I. Glenn Cohen; Executive Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Carmel Shachar; Columbia University Professor of Economics Rajiv Sethi; Microsoft economist Glen Weyl; and Georgetown Law Professor Rosa Brooks — says: “The goal is not to defeat the adversary at any cost but to preserve one’s society.”

Continue Reading at Harvard Gazette »

A start-up is using photos to ID you. Big tech can stop it from happening again.

An article by Jonathan Zittrain and John BowersEarlier this year, the public learned that a tiny start-up called Clearview AI was offering a big service. Clearview subscribers could give the company a photo of someone they had just taken and get links to other photos of the same person, often revealing information like who they are and where they live. A little tweaking and the service might simply identify people over any live feed aimed at any street, hallway or classroom. Though it has been marketed as a one-stop warrantless law enforcement tool, Clearview’s client list is also reported to include casinos, gyms, supermarkets, sporting leagues and wealthy parents curious about their kids’ dates. The upshot? The fundamental comfort — and liberty — of being able to walk down a street or enter a supermarket or stadium without the authorities, or fellow strangers, immediately knowing who you are is about to evaporate without any public debate about whether that’s okay. It’s as if someone invented glasses that could see through walls, sold them to a select few, and everyone else inexplicably shrugged. Now, the Wall Street Journal reports that Clearview AI is “in discussions with state agencies about using its technology to track patients infected by the coronavirus, according to people familiar with the matter.” It’s a savvy move, aimed at turning a rogue actor into a hero.

Continue Reading at Washington Post »

The federal government needs to take a role in ‘advising governors about how they can serve the national interest’

President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.

Continue Reading at Yahoo! »

The Next President Needs More Pandemic-Fighting Powers

An article by Noah FeldmanAs everyone but President Donald Trump seems to understand, the Constitution doesn’t give the president any inherent authority to shut down or open up the economy in an emergency like the coronavirus pandemic. But Congress could lawfully give that authority to the executive branch. And there’s good reason to think that Congress should do exactly that, not for Trump, who has shown himself to be entirely unworthy of congressional trust, but for future presidents, who will almost certainly be better. A truly national crisis in fact demands a truly national response. That response should be centralized and based on expertise, not partisanship. The patchwork of coronavirus responses that we’ve seen across the states has been harmful and irrational. As soon as this crisis is over, we need new legislation that will guide future executives — legislation that will both empower future presidents to act decisively and also constrain them so that they must act on the basis of reasoned, expert judgment, not political gain.

Continue Reading at Bloomberg »

Modeling the Coronavirus

A podcast by Noah Feldman: Carl Bergstrom, a computational biologist at the University of Washington and co-author of the forthcoming book “Calling Bullshit: The Art of Skepticism in a Data-Driven World,” explains how to make sense of all the different coronavirus models and discusses the impact of misinformation on public health.

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Here’s what the Constitution’s 10th Amendment says about Trump’s claim to have total authority over states

While discussing whether he or the nation’s governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, “When somebody’s president of the United States, the authority is total.” The president’s unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority…Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump’s claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive. Fried said the 10th Amendment was a “bogus concern” in this instance and anyone making that argument is “barking up the wrong tree” or is a “10th Amendment nut.” “People like Cheney just want to bring federalism into everything, but it’s not a federalism problem,” Fried told USA TODAY. Fried said the problem was really in the fact that Congress hadn’t given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution. “And that’s why I don’t like referring to the 10th Amendment. It’s not really a 10th Amendment issue. It’s a rule of law issue,” Fried said. “The president can’t just say, ‘I am the boss.'”

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‘We Can Do Better’: One Plan to Erase America’s Digital Divide

With many millions of Americans working or attending virtual school from home during the coronavirus pandemic, the longstanding gap between those who have reliable, affordable internet and those who don’t has never been so clear. Susan Crawford, a Harvard Law School professor, has said for years that America’s internet system is broken. She advocates government intervention to help finance and oversee online pipelines, as happened previously for essential services like telephone lines and electricity. Susan’s critics say she’s proposing an unviable government overreach. But it’s clear the status quo isn’t working, so I talked to Susan about her proposed solutions. How big is the problem, exactly? No one really knows, Susan says. Microsoft estimates that 157 million Americans — about half the population — aren’t using relatively fast internet connections. The government, using different counting methods, says more than 21 million Americans, mostly in rural areas, don’t have access to fast internet. Either way, a lot of people are being left behind. In rural and suburban areas, people may have the choice of only a modern version of dial-up internet. In cities where fast internet is widespread, many lower-income people can’t afford it. Americans pay more for worse service than our counterparts in many affluent countries.

Continue Reading at New York Times »

How the COVID-19 Era Will Change National Security Forever

An article by Samantha PowerSpeaking before the U.N. in 1987, President Ronald Reagan said, “Perhaps we need some outside universal threat to make us recognize [our] common bond. I occasionally think how quickly our differences worldwide would vanish if we were facing an alien threat from outside this world.” Reagan’s focus was avoiding conflict between countries rather than within them, but the coronavirus must do the work of that alien invader, inspiring cooperation both across borders and across the aisle. History shows us that seismic events have the potential to unite even politically divided Americans behind common cause. In the U.S., the COVID-19 pandemic has already taken more than seven times the number of lives as terrorists did in the 9/11 attacks, but the outpouring of solidarity Americans have shown for one another has so far not translated into more unity over government’s proper role at home or America’s proper role abroad. Indeed, the virus struck in an era of the most virulent polarization ever recorded—an unprecedented 82-percentage point divide between Republicans’ and Democrats’ average job-approval ratings of President Trump. And so far that gap appears only to be widening, while internationally, political leaders are trading recriminations rather than coordinating the procurement of medical supplies.

Continue Reading at Time »

To Tackle COVID Price Gouging, 3M Turns To Trademark Law

Price gouging on face masks during a pandemic is pretty crummy behavior, but is it a violation of federal trademark law? 3M, the country’s largest producer of crucial N95 masks, certainly thinks so. The consumer goods giant filed a lawsuit Friday accusing a New Jersey company called Performance Supply LLC of violating federal trademark law by trying to resell millions of the company’s N95s to New York City at drastically increased prices. Later that day, 3M filed a nearly identical lawsuit against a Utah company for similar behavior. According to 3M, both companies were selling the masks at more than four times the list price…According to Rebecca Tushnet, a professor at Harvard Law School, 3M’s claim that defendants illegally held themselves out to be “authorized vendors” is something of a stretch, supported by little discussion of what separates such an endorsed distributor from a plain-old vendor. “The vendor-authorized vendor issue is a really important distinction that companies would like to ignore so that they can kill the first-sale doctrine,” Tushnet said. “But first sale provides important benefits to consumers and to competition.” Those concerns aside, the protections of the first-sale doctrine do have limits, and experts like Tushnet say the defendants may have crossed them by holding themselves out as actually connected to 3M. For instance, in the New York City lawsuit, 3M says the defendant company misleadingly warned the city that “acceptance of the purchase order is at the full discretion of 3M.” “3M doesn’t need to kill first sale,” Tushnet said. “It can go after the actual falsities alleged here, and N.Y.’s attorney general is ready, willing and able to enforce the anti-price gouging statute.”

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Who Has Authority To Re-Open Parts Of The Economy?

It’s clearly not time now, but a big question on everyone’s minds, including the President Donald Trump’s, is how and when the country reopens. President Trump claimed Monday night he has “total authority” over the decision, but two groups of state governors, including a seven-state coalition with Massachusetts, say they’ll make that call. We discuss with WBUR Senior Political Reporter Anthony Brooks and WBUR Legal Analyst Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

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EPA retains Obama-era air quality standards despite staff questions of adequacy

The Environmental Protection Agency (EPA) proposed to make no changes to certain air quality standards even though members of its staff raised questions about whether one of the standards is adequate. The agency on Tuesday proposed keeping the maximum acceptable levels of both fine and coarse forms of a pollutant known as particulate matter at Obama-era levels. Assessments have linked long-term exposure to fine particulate matter to as many as 52,100 premature deaths and suggested that stricter standards could save thousands of lives…The announcement comes on the heels of a Harvard study that determined that people who lived in areas with more exposure to fine particulate matter are more likely to die from the coronavirus pandemic…Critics also raised procedural objections, namely the EPA’s 2018 decision to fire scientists that helped the agency review its air quality standards. “It’s not just a bad result, it’s a fouled process that led to the result,” said Joseph Goffman, an Obama administration EPA official who is now the executive director of Harvard Law’s Environmental and Energy Law Program.

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Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological Lines

President Trump’s claim that he wielded “total” authority in the pandemic crisis prompted rebellion not just from governors. Legal scholars across the ideological spectrum on Tuesday rejected his declaration that ultimately he, not state leaders, will decide when to risk lifting social distancing limits in order to reopen businesses. “When somebody’s the president of the United States, the authority is total,” Mr. Trump asserted at a raucous press briefing on Monday evening. “And that’s the way it’s got to be.” But neither the Constitution nor any federal law bestows that power upon Mr. Trump, a range of legal scholars and government officials said…For Mr. Trump, the legal emptiness of his assertion fits with a larger pattern in his handling of the pandemic and more. Where President Theodore Roosevelt liked to invoke an African proverb to describe his approach to wielding executive power — “speak softly and carry a big stick” — Mr. Trump sometimes talks as if he has a big stick but with little to back it up. Despite his “extreme, proud rhetoric about how he can do whatever he wants,” said Jack Goldsmith, a Harvard law professor and senior Justice Department official in the George W. Bush administration, the story of the Trump presidency has been, with few exceptions, “talking a big game, but not in fact exercising executive power successfully.”

Continue Reading at New York Times »

Home Care Workers Struggle To Care For People During The Coronavirus Pandemic

Here’s the Radio Boston rundown for April 14. Tiziana Dearing is our host. President Donald Trump says he has the authority re-open the country for business. But Gov. Charlie Baker has joined the east coast states making their own plan. WBUR’s Anthony Brooks and WBUR legal analyst Nancy Gertner break down the tension. We take listener calls and speak with people who are struggling to care for people at home during the coronavirus pandemic and what support they need most.

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A Profound Economic Problem

A podcast by Noah FeldmanFormer Treasury Secretary Larry Summers helped get us through the 2008 financial crisis. He has some ideas about what to do to get through this one.

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The Opportunity For A Pandemic-Era Iran Deal

An article by Omeed Alerasool ’22 and Ryen Bani-Hashemi ’22The coronavirus pandemic is straining healthcare systems and economies around the world. A failure to coordinate an effective global response and aid struggling countries at this early stage will only intensify an already dire reality. The quick spread of the virus since last December highlights the nature of contagion in a globalized world. One country’s inability to manage an epidemic can rapidly metastasize into a global pandemic. To defeat this historic pandemic, the United States must rise to the challenge and provide aid and support to all countries—allies and foes. And success in responding to this global crisis requires coordination with one of the hardest-hit countries, Iran. Alarming forecasts from Sharif University in Tehran predict a scenario of up to 3.5 million Iranians, nearly 5% of the population, dying from COVID-19 by the end of May. Continued sanctions and animosity create a nearly insurmountable obstacle in the way of Iran’s pandemic response, and, by extension, only hamper efforts to rid the world of the coronavirus. Global coordination is necessary to address the coronavirus pandemic.

Continue Reading at Diplomatic Courier »

Blue and Red States Must Work Together to Reopen

An article by Noah FeldmanYesterday, six governors from a string of contiguous eastern seaboard states stretching from Rhode Island to Delaware announced that they would form a working group to cooperate on reopening businesses in the region. This kind of state-level coordination is much needed. The federal government hasn’t taken the lead in ordering coronavirus lockdowns, and so it won’t take the lead in reopening economies. But the composition of the working group is also a little worrisome — because it reveals the potential effects of partisan politics in efforts to fight Covid-19. The original group included Connecticut, New York, New Jersey and Pennsylvania in addition to Rhode Island and Delaware. But why weren’t Massachusetts and New Hampshire to the immediate north initially included, or Maryland to the immediate south? What about Vermont, which adjoins New York, or Ohio and West Virginia, which adjoin Pennsylvania? It’s not because they don’t share common challenges and interests in fighting the coronavirus. It’s hard to avoid the conclusion that it’s because the initially excluded states all have Republican governors. The six states in the original working group all have Democratic governors.

Continue Reading at Bloomberg »

Can Trump Delay the 2020 Election? Here’s What the Constitution Says

An article by Cass SunsteinIt is alarming, to say the least, that people are even asking this question: Does President Donald Trump have the legal authority to postpone or cancel the 2020 presidential election? The answer is entirely clear: He does not. Start with the Constitution itself: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” The founding document reflects an unambiguous judgment that Congress, and not a potentially self-interested president, gets to decide when the leader of the United States shall be chosen. If the president could set the time of his own election, he could specify a date that is favorable to him – or postpone a specified date until the conditions are just right. Congress has exercised the authority that the Constitution gives it. A law enacted in 1948 says this: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” A finicky reader might respond: Those provisions are about selection of members of the Electoral College. What does that have to do with the popular vote? The answer is that the two are inextricably intertwined.

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The Constitution and the Coronavirus

An article by Laurence TribeI am not one to underestimate the unspeakable pain that COVID-19 has already inflicted on the American people, with nearly half a million of us infected by the disease, with a death toll passing 20,000, and with the untold suffering that putting the economy into an induced coma has inflicted on all but the wealthiest among us. But the impact of this epidemic is going to spread beyond matters of health and economics. And one of the downstream effects is going to be an assault on constitutional democracy and its foundations. This assault is being obscured by the progress of the virus so that the contours of it have only just begun to emerge. But it now seems possible that when it flowers fully, it will threaten to end our centuries-long experiment with self-government. And what is clear already is that the institutions we have inherited to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves. Only we can save them.

Continue Reading at The Bulwark »

Trump Declines to Tighten Clean Air Rule, Disregarding Coronavirus Link

Disregarding an emerging scientific link between dirty air and Covid-19 death rates, the Trump administration will decline to tighten a regulation on industrial soot emissions that came up for review ahead of the coronavirus pandemic. Andrew R. Wheeler, the head of the Environmental Protection Agency, is expected to say on Tuesday morning that his agency will not impose stricter controls on the tiny, lung-damaging industrial particles, known as PM 2.5, a regulatory action that has been in the works for months…Just last week, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates. The study found that a person living for decades in a county with high levels of fine particulate matter is 15 percent more likely to die from the coronavirus than someone in a region with one unit less of the fine particulate pollution. “The timing of this is unbelievable,” said Richard Lazarus, a professor of environmental law at Harvard. “There’s this big study that just came out linking this pollutant to Covid. This seems like a colossal mistake on the administration’s part.” …Mr. Lazarus, the Harvard lawyer, said that he expected that E.P.A. would be legally required to incorporate the findings of the Harvard study into the rationale for the rule before it is made final, likely later this year. “It will eventually be part of the legal record,” he said. “Historically, Harvard’s public health studies have been central to E.P.A. public health rules.”

Continue Reading at New York Times »

Supreme Court to Break Tradition, Hold Oral Arguments by Teleconference

The Supreme Court, breaking with longstanding tradition because of the coronavirus pandemic, said Monday it will hear oral arguments by teleconference in May, including in cases about the potential disclosure of President Trump’s financial records. “In keeping with public-health guidance in response to Covid-19, the Justices and counsel will all participate remotely,” the court said in a written statement, adding that it will share more details “as they become available.” The court for the first time will transmit a live audio feed of its sessions, allowing the public to hear the arguments as they unfold…Lawrence Lessig, a Harvard law professor who will argue on behalf of so-called faithless electors from the 2016 election, said the teleconference format would present challenges. “It’s difficult to do an argument like this without the opportunity to have eye-to-eye contact with justices,” he said. “The most important thing in an oral argument is to understand where they’re getting what you’re saying, and where they’re not getting what you’re saying,” something advocates pick up from facial expressions and body language. “We’re going to be thinking through the strategy of what the right response to that is—do you package your points more concisely, or more comprehensively?” Mr. Lessig said.

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Reading the Justices a Potential Challenge With Phone Arguments

The Supreme Court’s plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said. “We’re in a new frontier here,” said Colorado Attorney General Phil Weiser, who will argue remotely in an election case on behalf of the state. While lawyers are thankful that the court is showing historic flexibility amid the coronavirus pandemic and moving forward with their cases beginning May 4, they wonder how things will ultimately work via phone… “The Court’s decision to allow argument via teleconference in some of its more time-sensitive cases” like these “perhaps reflects an awareness that it could be important to decide some of these issues before the next election cycle,” said Bryan Cave partner Barbara Smith, who clerked for Justice Samuel Alito in the court’s 2015 term…Perhaps the justices cherry-picked the cases they thought would be easier to decide, said Harvard law professor Lawrence Lessig, who will be arguing one of the faithless elector cases. And while telephone arguments are a first in the Supreme Court, some advocates have experience working remotely. Weiser noted that his office has been conducting virtual meetings during the Covid-19 outbreak, and Lessig said he’s gotten more comfortable with remote working by teaching remotely for the past three weeks.

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COVID-19 will accelerate AI’s replacement of humans as factor of production

An article by J. Mauricio Gaona: As the world speeds toward an unprecedented economic recession with billions of people and businesses across the planet under some form of lockdown — for weeks or months — amid one of the worst pandemics on record, counting more than 1.8 million people infected and more than 100,000 dead so far, the novel coronavirus will likely produce a yet more enduring change in a post-COVID-19 world: the replacement of humans as factor of production. Prior to COVID-19, the often-contested race between human productivity options and machine productivity advantages appeared less definite. In the last two decades and with aim of making humans highly productive, promoting general wellbeing and increasing business competitiveness, several ideas gained traction — namely, telecommuting, remote work, and co-working spaces. In fact, billions of dollars have been invested around the world in real estate (“co-working spaces”) to enable people to commute to their workplace by either just taking an elevator or walking a few blocks from home. Yet the very nature of the COVID-19 virus imposing social distancing as precautionary measure has made remote work our last available option to move on with our lives.

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‘Cautiously Optimistic’ On COVID-19 — Daleys Dial In For Easter — Demolition Prompts Call For Probe

Off Their Plate, a national effort to get meals to health care workers on the front line of the Covid-19 crisis and keep restaurant workers paid and working, has started a Chicago operation. The nonprofit will deliver 175 meals today to the Lawndale Christian Health Center. The group plans to deliver 500 additional meals to hospitals on the North and West Sides by the end of this week and more than 1,000 next week. The Chicago effort is headed by Adam Smith ’20, a Harvard Law student who most recently served as campaign manager to Cook County Circuit Court Judge Jack Hagerty. Other team members include Stephen Brokaw and Saralena Barry, who worked as presidential candidate Pete Buttigieg’s national political director and special assistant, respectively; and Daniel Egel-Weiss ’20, also a Harvard Law student and former chief of staff to state Sen. Sara Feigenholtz during her time in the state House.

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Assessing the effect of the COVID-19 pandemic on correctional institutions

Across the country and the world, communities are working feverishly to measure the coronavirus pandemic’s impact — struggling with shortages of tests and depleted health care capabilities to gauge the numbers of the infected, the sick, and the dead. Accurate data is the first vital step in understanding the scope of the problem and developing and calibrating the best response. But, as the world moves to lockdown and social isolation, what is happening to the approximately 2.3 million people behind bars in the United States and to the tens of thousands who work in those facilities — line officers, administrators, nurses, therapists, doctors? Harvard Kennedy School Professor of Public Policy Marcella Alsan and Harvard Law School Professor of Law Crystal Yang have teamed up with the National Commission on Correctional Health Care (NCCHC) to conduct the first detailed survey on the coronavirus pandemic’s impact on the country’s prisons, jails, and juvenile detention facilities. HKS discusses their groundbreaking work, what it tells us about the spread and treatment of the disease among some of the most vulnerable populations, and how this valuable data can guide practitioners and policymakers.

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Can Law Enforcement Handle Scofflaws Amid A Pandemic?

To prevent the spread of the deadly coronavirus that’s killed more than 20,000 Americans, at least 316 million people across the country have been urged — and in some cases, ordered — to stay home. While most have voluntarily complied in an effort to protect themselves and others from COVID-19, scofflaws put police in a pickle: How do you enforce public health directives at a time when jails and prisons incubate the very disease you’re trying to suppress? “There’s the dilemma — you don’t want to put anyone in prison,” said Judge Nancy Gertner, a professor at Harvard Law School. “Detention facilities are petri dishes. You send someone to jail, it could be a death sentence.” Jail as capital punishment is no hyperbole: Cook County Jail in Illinois is the hardest-hit per-capita COVID-19 site in the country, with more than 350 cases and at least two inmate deaths. Rikers Island in New York City has had over 700 cases between inmates, staff and health care workers, including seven jail employee deaths and two inmate deaths.

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The Fed Needs to Move Faster

An article by Hal ScottThe Federal Reserve has become the first responder for the U.S. economy. Normally, the Fed is concerned with the safety of the financial system. But its fate as an independent central bank may turn on whether it can preserve the real economy. To succeed, the Fed needs to put aside normal concerns about credit risk and picking winners and losers. Clearly no moral-hazard issues arise from this virus outbreak. The Fed must move quickly to get cash in the hands of business owners. Small businesses constitute almost 50% of the country’s workforce. Many have only a three- or four-week cash cushion. They need money now. The Fed is the perfect vehicle to save the economy. It’s trusted politically, staffed by skilled professionals, and has the experience of 2008 from which to draw. Most important, it can create money and operate with negative capital. The Fed can always pay its bills.

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HLS clinics and students fight for the most vulnerable amid COVID-19

Screen shot of an online meeting with professor and a male and female student

For the Clinical Program at Harvard Law School, the past weeks of the COVID-19 pandemic have been a time to mobilize. As the clinics have moved to working remotely, their work has continued with new urgency.

Researchers release first detailed survey on the effects of the coronavirus pandemic on correctional facilities in the United States

A survey by Crystal Yang and Marcella Alsan: A collaboration between Harvard University researchers and the National Commission on Correctional Health Care has yielded the first detailed survey on the effects of the coronavirus pandemic on correctional facilities in the United States. The ongoing survey has so far collected data from more than 320 facilities housing approximately 10 percent of the country’s inmates across 47 states. While not necessarily representative of all correctional institutions, the results nonetheless are vital for policymakers responding to the pandemic in their own states and communities. Among the key findings: Correctional officers, like the general population, are at risk for contracting of COVID-19 infection, with a higher infection rate than inmates. Many protocols call for screening inmates and staff for COVID-19 on a regular basis, but a significant fraction of facilities still lack access to lab testing. The nationwide shortage of PPE as well as ancillary supplies (such as cleaning products and thermometer probes) is also a problem for correctional health care operations.

Continue Reading at Harvard Law Today »

Law School Clinics Across the Country Offer Coronavirus Help

Law school clinics and programs have pivoted in recent weeks to focus on legal matters involving COVID-19—even as their own operations have transformed from in-person to online formats. Their efforts involve advocating to protect the health of prison inmates, ensuring access to food amid a pandemic, executing wills remotely, helping small businesses buffeted by the crisis and much more…The closure of universities, restaurants, and many other businesses due to social distancing requirements means that a lot of excess food isn’t getting into the hands of those who most need it. Enter Harvard’s Food Law and Policy Clinic, which is working to find ways to redirect that excess food to food banks; is seeking to inform public policy to ensure that government programs such as the Supplemental Nutrition Assistance Program can facilitate food delivery; and is working to get government aid to food producers. It’s the type of work the clinic has been doing for years, but the pandemic has created a tsunami of food-related issues that need immediate attention…The clinic has produced a handout designed to help organizations donate their excess food. It has also produced a briefing for state and federal agencies on how to implement food delivery through existing nutritional assistance programs. And the clinic has also worked with a national agriculture advocacy group to help get appropriated funding into the hands of farmers and other food producers.

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As With Cigarettes and Seat Belts, Face Mask Expectations Will Change

An article by Cass SunsteinIt has been almost a week since the Trump administration recommended that all Americans wear masks, or some face coverings, in public to protect against the spread of coronavirus. But the president himself is still not following that advice. As he put it, “Wearing a face mask as I greet presidents, prime ministers, dictators, kings, queens — I just don’t see it.” Why doesn’t he “see it”? To answer that question, let’s ask another one. If you pass a neighbor on the street or in a grocery store, and if he’s wearing a mask, what do you think? Here are some possibilities: 1. He has coronavirus. 2. He is far more frightened than he should be. 3. He looks weird. 4. He is being prudent. 5. He is simply following the government’s recent recommendations. All over the country, people who wear masks are still producing reactions 1, 2 or 3. To be sure, those reasons were more common a few weeks ago than they are now — but they continue to be widespread. Here’s the problem: If you know you’re going to produce one of the first three reactions, you’re less likely to wear a mask, even if it’s a sensible thing to do.

Continue Reading at Bloomberg »

Mail-In Voting Is the Only Safe Way to Hold the 2020 Election

An article by Noah FeldmanMail-in voting is the best way to ensure that the November 2020 election can proceed safely despite the coronavirus pandemic. It’s all too likely we’ll still be dealing with outbreaks then, and it’s well before we’ll have a vaccine. The U.S. needs to start making plans for mail-in ballots now; and yet President Donald Trump has begun to make it clear he intends to stymie any large-scale vote-by-mail efforts. Mail-in voting will become the key battleground because it’s essentially the only realistic option for holding an election during a pandemic. Donald Trump can’t delay the November 3 vote — that’s beyond his constitutional power. In fact, the Constitution doesn’t provide any option for suspending or delaying a presidential or congressional election. Congress “may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” according to the Constitution, but precedent makes it pretty certain that Congress won’t delay the presidential election either; it didn’t even do so in 1864, when the Civil War was in full swing.

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Health departments are sending police the addresses of people who have coronavirus

In a growing number of cities and states, local governments are collecting the addresses of people who test positive for the coronavirus and sharing the lists with police and first responders…But some public health experts and privacy advocates have raised concerns about police departments maintaining a list of addresses of confirmed coronavirus cases. They say that it could make people reluctant to seek medical care or get tested for COVID-19, the disease caused by the coronavirus, because of a fear of profiling by law enforcement. “With any infectious disease, there’s going to be stigma and discrimination about who has it,” Robert Greenwald, a professor and the director of the Center for Health Law and Policy Innovation at Harvard Law School, said. “If you’re in a situation now where the word starts to get out that if you get screened then your address goes on a list that goes to first responders, it discourages screening for people who don’t want to be on this list.” Greenwald and three other public health experts also questioned the usefulness of a list of addresses with confirmed cases, noting that since the coronavirus has spread so widely, first responders ought to assume anyone they encounter could be infected. Still, police officials and officers said this information is a helpful reminder to exercise extra caution in the field, beyond the usual safety measures.

Continue Reading at Yahoo! »

Democratic senators urge Trump administration to halt environmental rollbacks during pandemic

Senate Democrats are urging the Trump administration to pause non-critical work like overhauling environmental policies during the coronavirus pandemic. But the proposal is dead on arrival with the Trump administration, which said the crisis highlights the need for regulatory reform to cut red tape holding back businesses across the economy. It also comes as the administration enters a critical window — just weeks remain to formalize rules that cannot be easily overturned by Democrats, should they prevail in November’s elections. By late May or early June, there is no guarantee, legal experts say…From the date a regulation is formalized, Congress has 60 legislative days when it can vote to overturn the regulation, and then seek a presidential signature or veto. Because of breaks, weekends, and other days Congress is not in session, experts say the Congress that assembles next year could reach back as far as June or late May. This scenario does not become a factor if Trump wins reelection, or Republicans control at least one chamber of Congress. The administration does not have time at this point to propose an entirely new rule, perform the required formal steps and avoid the possibility it is rejected by incoming Democrats, according to Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. Her team is tracking the Trump administration’s regulatory changes and says the administration may have time to finalize several of its environmental priorities before the deadline.

Continue Reading at CNN »

Missouri Health Care Workers Lack Legal Protections For Potential Life-Or-Death COVID-19 Decisions

With COVID-19 cases yet to peak locally, health care workers on the front lines of the growing outbreak face the possibility of having to make excruciating decisions about who gets care and who doesn’t. And in Missouri at least, doctors, nurses and others working under these crisis conditions currently lack any legal protections for such life-and-death decisions, worrying health experts and bioethicists. “When [health care workers] are making these decisions … we do not want them thinking about medical malpractice or criminal liability. We want them to know ‘we have your back,’” Harvard Law Professor I. Glenn Cohen told KCUR in an email…“Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support,” a recent opinion piece in the Journal of the American Medical Association declared. The piece, by Harvard’s Cohen, another Harvard law professor and a doctor at the University of Pittsburgh, says that even though the risks of legal liability in such crisis circumstances are low, “even a small chance of a serious lawsuit could push physicians toward a less ethical and less efficacious first-come, first-serve allocation system for ventilators, leading to a major loss of lives.” Cohen told KCUR that while the risk of getting sued is small, it’s “non-trivial.” “We are asking people to act heroically, to engage in some of the most difficult decisions and actions any physician will undertake – withdrawing a ventilator from someone who will benefit against their wishes,’” Cohen said in an email.

Continue Reading at KCUR »

The Problem With Immunity Certificates

During the Great Plague of London in 1665, houses where the infection appeared were painted with a red cross and sealed, condemning the occupants to death. Now the idea of visibly identifying the infected is being turned on its head as governments around the world look at how to reopen economies shattered by the coronavirus crisis. With hundreds of millions forced to stay home to stop the spread of the virus, politicians and public-health experts are searching for safe mechanisms to allow people to return to work without sparking a second wave of infections. Officials and scientists in Italy, Germany, and other countries are considering giving certificates to people who’ve recovered from Covid-19, the illness caused by the coronavirus…Wearing a bracelet or waving a piece of paper to show your immune status might sound like the plot of a dystopian novel, and scientists and public-policy experts are warning the prospect of “immunity passports” could make the current crisis worse. For one, they worry it could create a two-tiered workforce and perverse incentives for people to try to contract the virus, particularly millennials who might feel their chances of surviving it are high. “Like the ‘chickenpox parties’ of old, some workers will want to get infected,” says I. Glenn Cohen, a bioethics expert at Harvard Law School, referring to when parents deliberately exposed children to others with chickenpox at a young age, when symptoms tend to be milder. “That sounds crazy, but if having the antibodies becomes the cost of entering the job market and thus feeding your family, there may be workers who feel pressured into it.”

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Coronavirus may bring a labor reckoning for Amazon

From the Bubonic plague in the Middle Ages to the 1918 flu epidemic, pandemics in the past have wreaked havoc on — and restructured — how society treats its workers. With pressure on mega-retailers like Amazon to deliver essential goods to people stuck at home — coupled with increased scrutiny over labor practices and a long-simmering labor movement that has been nipping at the heels of these huge suppliers — could this coronavirus pandemic bring about the labor reckoning that activists have been seeking? “It should,” said Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “I certainly hope that one of the lessons we’ll learn from this horrible experience is how important so many low-wage workers are, and how precarious their positions are.” …Still, it seems like labor pressure may be building elsewhere. A group of warehouse workers in Chicago staged a demonstration on March 30 as well. Workers in Detroit did the same two days later, and Amazon quickly announced thereafter that they would provide masks and temperature checks in warehouses, the Verge reported. But Block told Digital Trends she was unsure if the labor movement can successfully leverage this moment to have its demands met. “Part of recovering from this nightmare will be giving workers the tools they need to have the voice they’re demanding,” Block said. A post-coronavirus world could offer opportunities for workers to snatch more rights for themselves.

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Passover, Plagues, and Coronavirus

A podcast by Noah FeldmanTo mark the start of Passover, Idan Dershowitz, a biblical scholar and junior fellow at the Harvard Society of Fellows, discusses the ten plagues of Egypt in the context of the coronavirus pandemic.

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We Can’t Rely on the Supreme Court to Guard the 2020 Election

An article by Noah FeldmanThe Supreme Court’s decision in the Wisconsin election case isn’t exactly the shot heard round the world. In a narrow, 5 to 4 decision, the court’s conservatives held that a federal district court shouldn’t have granted a coronavirus-inspired emergency extension for mailing in absentee ballots. But the Supreme Court’s ruling nevertheless matters a lot. It’s the opening salvo in what is likely to be a seven-month long series of legal battles about how the 2020 elections will be accomplished with Covid-19 disrupting the voting process. So it’s highly unfortunate that the justices split along partisan lines in this first case, a case with relatively low stakes. The nation badly needs the court to avoid a scenario reminiscent of the 2000 Bush v. Gore case, in which the justices were perceived to have decided the election for Bush along roughly ideological lines. The takeaway for states, and for democracy, is clear: Plan now, plan well, and don’t rely on the courts to resolve controversial questions about mail-in voting and deadlines — especially at the last minute.

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Keep the Parks Open

An article by Zeynep Tufekci: Across the world, from Zurich to St. Louis, authorities are closing down public parks and outdoor spaces—with many citing overcrowding, which they fear will fuel coronavirus infections. In one notable and much-discussed example, officials in London just announced in a scolding tweet that they were closing down Brockwell Park, after they claimed that about 3,000 people took to the park to enjoy the good weather. In the short run, closing parks may seem prudent, when our hospitals are overrun and we are trying so hard to curb the spread of COVID-19. But in the medium to long run, it will turn out to be a mistake that backfires at every level. While it’s imperative that people comply with social-distancing and other guidelines to fight this pandemic, shutting down all parks and trails is unsustainable, counterproductive, and even harmful. To start with, the park crackdown has an authoritarian vibe. In closing Brockwell Park, for example, pictures showed two police officers approaching a lone sunbather, who was nowhere near anyone else—well, except the police, who probably had something better to do. Such heavy-handedness might even make things worse, as it may well shift the voluntary compliance we see today into resistance.

Continue Reading at The Atlantic »

This Won’t End for Anyone Until It Ends for Everyone

An article by Samantha PowerClose to 370,000 infections and nearly 11,000 deaths in the United States. Nearly 10 million Americans filing unemployment claims. Unimaginable heartbreak and hardship, with worse to come. Given this still-developing emergency, and the fatal inadequacy of the U.S. government’s domestic preparedness and response so far, it is very hard to focus on the devastation that is about to strike the world’s poorest and most vulnerable. But if President Trump doesn’t overcome his go-it-alone mind-set and take immediate steps to mobilize a global coalition to combat the Covid-19 pandemic, its spread will cause a catastrophic loss of life and make it impossible to restore normalcy in the United States in the foreseeable future. Covid-19 is poised to tear through poor, displaced and conflict-affected communities around the world. Three billion people are unable to wash their hands at home, making it impossible to follow sanitation protocols. Because clinics in these communities have few or no gloves, masks, coronavirus tests, ventilators (the entire country of South Sudan has four) or ability to isolate infected patients, the contagion will be exponentially more lethal than in the developed countries it is currently ravaging.

Continue Reading at New York Times »

Injured Athletes, Sports Leaders Face Ethical Issues Amid Pandemic

Even if there’s a baseball season this summer, Red Sox fans won’t see left-hander Chris Sale pitch. He underwent Tommy John surgery on March 30 and talked about the rehab process in a teleconference on Tuesday. “It’s going to be nine to 14 months of just getting after it and being able to get my body back in shape,” Sale said. “And I’m gonna have a better elbow than I did before.” But Sale’s elbow ligament reconstruction — and that of two other Major League Baseball pitchers — drew attention to a different timeline. They all happened after the American College of Surgeons recommended that elective procedures be minimized, postponed or canceled because of the coronavirus. And they raised new ethical issues for the sports world…But for bioethicists, there’s a dangerous ripple effect when high-profile, non-essential surgeries take place during a pandemic. “We have a message that we’re all in it together, sink or swim together,” said I. Glenn Cohen, a Harvard Law School professor who’s an expert in health law and bioethics. “And when we see people who are not sinking or swimming together, but swimming to the top, it’s very disheartening and really erodes some of that solidarity.” Cohen also noted that it highlights inequities in the American health care system. Professional athletes can draw even more attention to those inequities. That happened when NBA players gained quick and easy access to coronavirus tests when most people had to wait.

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Tested positive for coronavirus? Health workers may share your address with police

In a growing number of cities and states, local governments are collecting the addresses of people who test positive for the coronavirus and sharing the lists with police and first responders. Law enforcement officials say this information sharing — which is underway in Massachusetts, Alabama and Florida, and in select areas of North Carolina — will help keep officers and EMTs safe as they respond to calls at the homes of people who have been infected. The first responders can take additional precautions in those cases to avoid being exposed to the virus, state health departments and local police officials say…But some public health experts and privacy advocates have raised concerns about police departments maintaining a list of addresses of confirmed coronavirus cases. They say that it could make people reluctant to seek medical care or get tested for COVID-19, the disease caused by the coronavirus, because of a fear of profiling by law enforcement. “With any infectious disease, there’s going to be stigma and discrimination about who has it,” Robert Greenwald, a professor and the director of the Center for Health Law and Policy Innovation at Harvard Law School, said. “If you’re in a situation now where the word starts to get out that if you get screened then your address goes on a list that goes to first responders, it discourages screening for people who don’t want to be on this list.”

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How states and employers can use work sharing to avoid more layoffs

An article by Sharon Block and Terri Gerstein: An unprecedented 10 million people applied for unemployment insurance across the country over the last two weeks with more likely to come. Many employers are responding to shutdown orders, lack of cash flow, and the crisis by laying people off. Leaders have enacted measures to encourage employers to avoid more layoffs, such as conditioning business loans on maintaining payroll and providing tax credits for payroll expenses. There is a little known program within our existing unemployment system, however, that would enable us to avert more layoffs. Most companies and workers have not heard of it, but work sharing, also known as “short time compensation” is a way to avoid layoffs and keep people employed while reducing payroll. It was widely used during the Great Recession. In the book “Policies to Address Poverty in America,” Melissa Kearney and Ben Harris noted that work sharing programs “played a substantial role in ameliorating the rise in unemployment in many countries” when the Great Recession hit hard. Rhode Island has made good use of work sharing, with claims accounting for a sixth of state unemployment claims in 2009. This proven approach should be getting far more attention right now.

Continue Reading at The Hill »

In prisons, a looming coronavirus crisis

As the world scrambles to respond to the coronavirus pandemic, Harvard experts across the University are trying to help one of the most vulnerable populations survive the crisis. More than 75 faculty members from the Harvard T.H. Chan School of Public Health and Harvard Medical School sent a letter Tuesday to Massachusetts Gov. Charlie Baker urging him to reduce the state’s incarcerated population, a group that could be particularly subject to the rapid spread of COVID-19…On Tuesday, the Massachusetts Supreme Judicial Court heard arguments in a petition by the state’s public defenders, various district attorneys, and the ACLU of Massachusetts, among others, seeking the release of vulnerable inmates and pretrial detainees. Add to those voices that of Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, who supports the release of certain inmates and says that the current crisis reflects the history of the nation’s unfair treatment of those too long considered “outcasts.” “There was no sense that they needed to be treated humanely, no guarantee of safe, sanitary conditions, or adequate medical care under the law until the 1960s, in the context of Civil Rights and prisoners’ rights movements,” said Brown-Nagin, who is also the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School. “It was only in ’60s that the Supreme Court and then the lower courts determined that prisoners do not lose their constitutional rights when they enter these institutions.”

Continue Reading at Harvard Gazette »

What Happens If We Run out of Ventilators?

A podcast by Noah FeldmanLydia Dugdale, the Director of the Center for Clinical Medical Ethics at Columbia University, discusses how medical supplies will likely be allocated if there are shortages.

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In Coronavirus Response, Republicans and Democrats Like Big Government

In the scramble to contain the coronavirus financial fallout, U.S. policy makers have embraced an ambitious big-government agenda—from new worker protections to a guaranteed minimum income—that could redefine Washington’s role in the economy. The evolving emergency response playbook, adopted by the White House and congressional leaders from both parties, draws from key elements of the liberal activist platform honed over the past decade…Organized labor has also won new protections. One new rule says that larger corporate aid recipients are required to honor existing collective bargaining agreements for the duration of their federal loans and two years beyond. That provision flows from the lingering political fallout from the bailouts during the 2008 financial crisis. “Companies that took bailout money said, ‘Let’s share the sacrifice, we have to renegotiate our agreements,’” said Sharon Block, executive director of the labor and worklife program at Harvard Law School. “Then shareholders benefited quickly during the recovery, while it took workers—especially auto workers—a long time to get back to where they were before,” said Ms. Block, who was a labor adviser in the Obama White House.

Continue Reading at Wall Street Journal »

The coronavirus is expanding the safety net

Like millions of other US workers, Charlie Burke and Mutwaly Hamid were used to getting up in the morning and putting in long days on the job. But when the coronavirus pandemic shut down huge parts of the economy, they weren’t just left out of work, they were left on their own. As two of the nearly 9 million US workers considered self-employed or independent contractors, Burke and Hamid had no claim on unemployment benefits and quickly found themselves in an economic free fall. Burke, who runs seminars for sales agents and brokers in the real estate industry, says his income is poised to drop by 90 percent this month. For Hamid, the $1,000 or so a week he was making by driving up to 60 hours for Uber and Lyft has gone overnight to zero, leaving him unable to pay his rent for April. The pandemic has exposed big holes in the country’s social safety net, openings that millions of people are now falling through. With nearly 10 million people filing unemployment claims in the past two weeks alone, the federal government is mounting an unprecedented emergency expansion of that safety net for workers. The $2.2 trillion emergency CARES Act approved 10 days ago includes a $350 billion loan program for businesses and extends unemployment pay to self-employed workers, independent contractors, and others not usually eligible for such benefits. Unlike most workers, who are covered by basic protections including unemployment insurance, these people “operate a high wire act with no safety net,” said Mark Erlich, the former head of the New England Regional Council of Carpenters, who is currently a fellow at the Labor and Worklife Program at Harvard Law School.

Continue Reading at Commonwealth Magazine »

Half Of Americans Suffering Mental Health Issues During Coronavirus, New Poll Shows

Like most Americans, Jenny Korn, a Research Affiliate at the Berkman Klein Center for Internet and Society at Harvard University, is doing her best to adjust to the “new normal.” Sheltered in place in Chicago, she is living, working, eating and sleeping at home, communicating remotely with her team in Cambridge, Massachusetts. “I used to understand what ‘okay’ meant,” Korn says, “but now, I’m not so sure. Everything feels so unsafe and in flux. I feel every day is a battle between working hard and hardly working.” At the end of the day, Korn admits, “Life is abnormal, and I feel subpar.” In addition to her not-so-normal life, Korn also worries about her aging parents, who live too far to visit, and the anti-Asian racism that is spreading alongside the COVID-19 pandemic. “As an Asian woman, I have been more vigilant about going out in public because I know anti-Asian sentiment and racism are real,” says Korn, “so I worry more now about my physical safety. While COVID-19 continues to wreak havoc on our bodies and health care system, a new poll by the Kaiser Family Foundation, published on April 2, shows the psychological toll the pandemic is taking on many Americans.

Continue Reading at Forbes »

We need smart solutions to mitigate the coronavirus’s impact. Here are 16.

The coronavirus crisis has upended American life, and fresh ideas are needed for dealing with the problems it’s creating. Here is a collection of smart solutions… “House mild cases in hotels” by Jeremy Samuel Faust and Cass Sunstein: One of the toughest decisions facing physicians and public health officials is where to send patients who test positive for the covid-19 coronavirus. For the small but significant proportion with severe or critical illness, the decision to hospitalize is trivial. But where to send the apparently large majority of cases that are mild or even symptom-free? These patients, often young, need to be isolated to reduce spread. But using a hospital bed for isolation alone takes up capacity, puts others at risk and chews through protective equipment that doctors, nurses and other staff desperately need. A natural alternative is to send people home, with clear instructions to self-isolate. But in some cases that is not feasible, and it poses evident risks. The World Health Organization recommends placing mildly ill patients in dedicated covid-19 facilities as the gold standard for isolation. While countries such as China have the logistical capability to erect new hospitals for this purpose in a matter of days, most places cannot achieve that. Fortunately, there is a potential answer: America’s prodigious hotel industry. And in case you haven’t noticed, there is plenty of room at the inn.

Continue Reading at Washington Post »

The War on Coronavirus Is Also a War on Paperwork

An article by Cass SunsteinAs part of the war on coronavirus, U.S. regulators are taking aggressive steps against “sludge” – paperwork burdens and bureaucratic obstacles. This new battle front is aimed at eliminating frictions, or administrative barriers, that have been badly hurting doctors, nurses, hospitals, patients, and beneficiaries of essential public and private programs. Increasingly used in behavioral science, the term sludge refers to everything from form-filling requirements to time spent waiting in line to rules mandating in-person interviews imposed by both private and public sectors. Sometimes those burdens are justified – as, for example, when the Social Security Administration takes steps to ensure that those who receive benefits actually qualify for them. But far too often, sludge is imposed with little thought about its potentially devastating impact. The coronavirus pandemic is concentrating the bureaucratic mind – and leading to impressive and brisk reforms. Consider a few examples.

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Federalism and the Coronavirus

Professors Robert Tsai and Glenn Cohen discuss the concepts of federalism and states’ rights in the context of the ongoing COVID-19 crisis.

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Details on coronavirus cases are often scant as health officials point to privacy laws

When a Boys and Girls Club employee in Bremen tested positive for the coronavirus last month, the local school superintendent quickly decided to make a public announcement about the case…As the number of COVID-19 infections climbs throughout the Midwest and the rest of the nation, state and county health officials are typically releasing broad information and statistics on infections, despite a hunger from residents for more details on the spread of the virus in their communities, or even their neighborhoods. In Illinois, Indiana, Kentucky, Michigan and Ohio, health officials are releasing little more than limited data on gender, age ranges and county of residence. Health officials and some experts argue that the conservative approach is justified by medical privacy rights…But while HIPAA allows doctors to share some data with public health authorities, it offers little guidance on what types of information those health officials can release to the public, even during epidemics. That leaves local health departments to decide how much data about COVID-19 cases they ought to share with the public. I. Glenn Cohen, a Harvard Law School professor who focuses on bioethics, said public health officials must make judgment calls about the details they can provide without identifying patients. “There’s a lot of leeway here, but what they ought to be thinking about is, ‘How can I be transparent and open with the population and share the most information we can without risking the identification of individual patients,’” Cohen said.

Continue Reading at South Bend Tribune »

How Trump Could Dismantle Workers’ Rights with Another Four Years

From the perspective of the liberal policy establishment, Donald Trump has launched an aggressive and unprecedented assault on workers’ rights and the labor movement. From the perspective of the right, Trump has governed on labor almost exactly as any other Republican president might have…One way Trump has taken aim at unions is through the National Labor Relations Board, or NLRB, which is the federal agency tasked with protecting the rights of private-sector workers and encouraging collective bargaining. Private-sector workers are barred from bringing workplace grievances through the courts themselves, so filing complaints with the NLRB—which has more than two dozen regional offices spread across the country—is how employees can seek redress if they feel their rights have been violated…The decisions already issued by Trump’s NLRB could weaken the impact of California’s new labor law by confusing workers and deterring other states from moving forward with their own solutions. “I think it is probably very confusing to hear that you are not an employee and don’t have a right to collectively bargain under federal law, but that you are an employee for the purposes of California law,” said Sharon Block, an Obama Labor Department official and now a labor expert at Harvard Law School. “When labor rights are more complicated it makes it less likely that they will be invoked. It’s good lawmakers are moving forward in California, but this counter-signal from the federal government could have a chilling effect on workers who might otherwise assert their rights.”

Continue Reading at Washington Monthly »

The covid-19 crisis is going to get much worse when it hits rural areas

An article by Michelle A. Williams, Bizu Gelaye and Emily M. Broad Leib: Over the past few weeks, our urban centers have scrambled to mobilize in response to the mounting covid-19 cases. But be forewarned: It’s only a matter of time before the virus attacks small, often forgotten towns and rural counties. And that’s where this disease will hit hardest. Covid-19 is infiltrating more of the country with each passing day. Colorado, Utah and Idaho are grappling with sudden clusters in counties popular with out-of-state tourists. Cases are also skyrocketing in Southern states such as Georgia, Florida and Louisiana. So far, sparsely populated communities have been better insulated from the spread. But since no place in the United States is truly isolated, there’s simply no outrunning this virus. Every community is at imminent risk. Rural communities could fare far worse than their urban and suburban counterparts. Rural populations are older on average, with more than 20 percent above the age of 65. Rural populations also tend to have poorer overall health, suffering from higher rates of chronic illnesses such as heart disease, diabetes and lung conditions, all of which put them at greater risk of becoming severely ill — or even dying — should they become infected.

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This is how Odisha quarantined me after I returned from Harvard. Other states should learn

An article by Rangin Pallav TripathyI recently completed 14 days of quarantine at my residence in Cuttack, Odisha, after I returned from my Fulbright post-doctoral research fellowshsip at Harvard Law School. Enforcing home-quarantine of foreign returnees has been a challenge for state governments across the country. There have been many examples of people violating their quarantine, putting others at risk. While Odisha has not been without incidents of administrative lapses and willful negligence, the state government has done a far better job of monitoring the quarantine situation than most of its counterparts. Even though the bureaucratic inefficiencies are still glaringly visible, the state machinery has done a rather commendable job so far. One of the astute measures the Naveen Patnaik government took was to start an online portal and a helpline number where foreign returnees are required to register themselves. While lack of registration will trigger criminal penalties, the government has also incentivised the process by offering Rs 15,000 to all individuals who register themselves and complete the 14-day quarantine. The online form requires a foreign returnee to provide details of recent travel history and also local residential details along with contact information. There were, however, two shortcomings in the implementation that I noticed from my experience.

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Protect the Doctors and Nurses Who Are Protecting Us

An article by I. Glenn Cohen, Andrew M. Crespo, and Douglas B. White: Our health care system is on the cusp of a crisis not seen before. A ventilator shortage is coming, if it’s not already here. Hospitals, physicians and nurses are likely to face a terrible choice: Should they withdraw or withhold ventilators from some patients so that others with better odds of survival might benefit from the machines? Doctors are used to discontinuing ventilator treatment if it doesn’t achieve a patient’s goals or is inconsistent with a patient’s wishes. But Covid-19 presents an altogether different issue: Denying some patients short-term ventilation, against their wishes, will probably cause them to die when they might have gone on to live long and healthy lives with the treatment. But it will also make limited numbers of ventilators available to other patients who are more likely to survive. Facing this dilemma, doctors and medical ethicists have designed model triage protocols that ration and reallocate scarce ventilators among patients, with a goal of saving the most lives. But some doctors, nurses and other health care professionals are already wondering whether following those protocols will put them at risk of being sued or even prosecuted.

Continue Reading at New York Times »

The Real Reason Epidemiologists and Economists Keep Arguing

An article by Noah FeldmanIt’s not only factories that can’t retool overnight to meet the Covid-19 pandemic. Our brains can’t, either. The way we think and the things we think about follow patterns that are capable of evolution and change — just not that fast. You can see this phenomenon all around you right now: whatever we cared about before, we’re now using as our lens to think about the novel coronavirus. And subject matter experts, the people we need most in a crisis, are also the most likely to keep thinking as they have, because their thinking is so strongly shaped (or deformed) by professional training and strong collective values. I could give you lots of examples. If you usually think about workplace diversity, now you’re likely to be focused on the disparate impacts of the virus on workers based on sex, race and class. If you’re focused on reforming incarceration, you’re probably among those warning of the pandemic’s impact on the prison population. But perhaps the most important two examples of experts following their training and beliefs are the two disciplines whose knowledge is most central to the current crisis: epidemiologists and economists.

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Hell No, You Can’t Go

In July 2016, Margaret Beebe of Syracuse, New York, suffered a career setback when a local laboratory rescinded a job offer, which included higher wages, regular hours, and no travel. The laboratory discovered that Beebe had signed a non-compete agreement with her former employer, a Texas-based nationwide provider of clinical services. The agreement prohibited her from working for competitors within a fifty-mile radius for nine months…The attorneys general of Illinois and New York conducted a similar investigation of WeWork, which provides shared office space for rent and associated services to clients in the United States and internationally. They found that the New York City-based company’s non-compete agreement prevented nearly all of its 3,300 employees nationwide from taking jobs with competitors for two years… “Many of these employees were cleaners, mail associates, and executive assistants, some of whom earned as little as $15 an hour,” says Terri Gerstein, who led the investigation by the New York State Attorney General’s office and is now the director of the State and Local Enforcement Project at the Harvard Law School’s Labor and Worklife Project. “The agreement violated basic fairness,” Gerstein says in a phone interview. “Just because an employee works for a company now doesn’t mean that he or she should do so forever. The mere mention of a non-compete agreement was enough to keep some terrified employees in dead-end jobs for years.”

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Virus Poses Extra Obstacles for Attorneys With Tax Court Cases

The new coronavirus pandemic is increasing the challenges for attorneys representing clients at the U.S. Tax Court, a place already slow to technological advancement. Attorneys have long grappled with technological barriers at the court—not being able to electronically file petitions or access many case documents online, for example. But now that the building is shuttered until further notice, tax professionals are facing additional hurdles, and they fear it could get worse the longer the virus outbreak continues…One result of the building closure is that visitors can’t access court documents at the Tax Court’s records room. Those who are unable to get the documents from the actual petitioner or that person’s attorney are left with one potentially prohibitive option: Pay a $0.50 per page charge from the Tax Court and have the documents mailed. The Tax Court has cited concerns about privacy as a reason to preserve those restrictions. That can be an issue particularly for people interested in reaching out to self-represented petitioners because their contact information can be viewed on their petition, said T. Keith Fogg, who directs Harvard Law School’s Federal Tax Clinic. “It’s no longer possible to go to the court and sit in the docket room to do research or to call the court and get copies of documents,” Fogg said. “The closing of the court accentuates the problems caused by the Tax Court’s decision not to make its documents public except through a portal that becomes unavailable when it closes.”

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EPA Chief Says Virus-Linked Looser Enforcement ‘Very Mild’

EPA Administrator Andrew Wheeler said the agency’s response to relaxing enforcement due to the novel coronavirus pandemic has been “very mild” compared to the Obama administration’s similar approach to natural disasters. In an interview on Thursday, Wheeler said the pandemic has put the Environmental Protection Agency in the unusual position of handling requests for guidance from all 50 states, as opposed to the small handful of states that it had to respond to in past crises. In contrast, Wheeler pointed to the EPA under former President Barack Obama, when the agency issued 13 separate enforcement discretion actions and five fuel waivers in the wake of Hurricane Sandy, which he said mainly only affected four states in 2012…Cynthia Giles, who held Bodine’s post at the EPA under the Obama administration, also said she recognizes the EPA must respond to what is clearly “a very unusual situation today.” “But a nationwide waiver for every company in the country for all environmental standards is widely over-broad,” said Giles, currently a guest fellow with Harvard Law School’s Environmental and Energy Law Program. Giles was most critical of leaving the memo open-ended, saying in the past the EPA had to justify why it made sense to extend a policy.

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Can the president cancel the 2020 election over coronavirus?

Two weeks ago, Ohio Governor Mike DeWine, a Republican, asked a court to postpone his state’s presidential primary the next day to help stop the spread of the novel coronavirus. When the court refused, DeWine postponed the election anyway, citing the public health threat. It’s an election year. Trump faces the greatest trial of his presidency. And the coronavirus outbreak is a challenge that could make voting in the traditional way a threat to public health. He hasn’t floated the idea, but could a scenario ever emerge in which Trump follows DeWine’s lead and postpones the presidential election this fall? Does a president even have that power? Trump, after all, has wielded presidential power in ways none of his more than 40 predecessors did, testing the limits of the Constitution, his co-equal branches of government, and his party, and taking actions seen as trampling American traditions and mores. But the answer in a word: no, according to legal scholars and the law itself…While state and local elections — and even presidential primary dates — are largely up to individual state and local governments, the general election is not. “The idea that President Trump can somehow delay or cancel the election is just not plausible,” said Harvard Law School professor Noah Feldman. “I am not speaking about his motives. I am [speaking about] his options.”

Continue Reading at Boston Globe »

Who Should Doctors Save? Inside the Debate About How to Ration Coronavirus Care

As the toll of the coronavirus pandemic rises, Americans confront with increasing distress the idea of rationing health care. Choosing to deny care to people in desperate need is anathema; it feels unAmerican, even. But in fact it happens all the time: when Congress allocates money for Medicare and Medicaid; when insurance companies reject claims; when the Trump administration decides to shut down the Federal marketplace for the Affordable Care Act. Rationing is also what happens when governments whittle down their budgets for preparing for deadly pandemics, as they did over the last decade…A wild card is how a litigious society will respond when patients are denied care. In the absence of clear protocols, doctors and hospitals run the risk of legal challenges that could gum up the works. “We think the risk to physicians is low, but not zero, and not trivial,” says Glenn Cohen, a law professor and bioethics expert at Harvard Law School. The act of taking a patient off a ventilator is, legally speaking, fraught. Criminal law generally doesn’t hold doctors responsible for not providing care if they don’t have the resources, but taking a patient off a ventilator without their consent is a different matter. “It looks on paper like homicide,” he says. “It doesn’t matter if the patient would have died anyway. Case law says that shortening a life even by a few hours could lead to charges of manslaughter or murder.”

Continue Reading at Newsweek »

Coronavirus Shouldn’t Delay Justice in California

An article by Noah FeldmanIn a little-noticed move over the weekend, California’s judicial council unanimously took some worrisome steps away from constitutional principles. Drawing on emergency powers conferred by state law and an executive order by the California governor, the council changed the deadline of 48 hours for arraigning arrestees to as much as a week. It also extended the date for a mandatory preliminary hearing in criminal cases from 10 days to 30 days; and it added an extra 30 days to the “speedy trial” deadlines for both misdemeanors and felonies. These measures deserve close scrutiny on their own merits. Fast arraignments, hearings and trials are cornerstones of judicial due process. California is the most populous state in the union, and the changes will affect many arrestees. But the measures also need a close look because they may set a trend. Throughout the coronavirus crisis, California has been at the leading edge of adopting new measures. San Francisco and other Bay Area counties were the first to adopt formal shelter-in-place orders; and California was the first state to adopt a statewide movement-restricting order. Both of these became influential models. What California does today in criminal justice may soon be followed by other states.

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Alarm, Denial, Blame: The Pro-Trump Media’s Coronavirus Distortion

On Feb. 27, two days after the first reported case of the coronavirus spreading inside a community in the United States, Candace Owens was underwhelmed. “Now we’re all going to die from Coronavirus,” she wrote sarcastically to her two million Twitter followers, blaming a “doomsday cult” of liberal paranoia for the growing anxiety over the outbreak. One month later, on the day the United States reached the grim milestone of having more documented coronavirus cases than anywhere in the world, Ms. Owens — a conservative commentator whom President Trump has called “a real star” — was back at it, offering what she said was “a little perspective” on the 1,000 American deaths so far…Yochai Benkler, a professor at Harvard Law School and co-author of a book on political manipulation called “Network Propaganda,” said that as the magnitude of the virus’s effects grew and the coverage on the right shifted, Mr. Trump’s loyalists benefited from having told people not to believe what they were hearing. “The same media that’s been producing this intentional ignorance is saying what they’ve always been saying: ‘We’re right. They’re wrong,’” he said. “But it also permits them to turn on a dime.” “We can look at that and get whiplashed,” he added. “But from the inside it doesn’t look like whiplash.”

Continue Reading at New York Times »

Addresses of coronavirus-positive residents handed over to police in some states

Alabama and Massachusetts health officials are sharing with law enforcement the addresses of people diagnosed with new coronavirus so emergency responders can be properly prepared when answering 911 calls involving those who have tested positive. The personal information is limited to the addresses of people who have known COVID-19 cases, and is only provided to first responders, such as police officers, according to the respective laws…But the order has received opposition from a number of people, such as Robert Greenwald, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School. Greenwald wrote a letter to Gov. Charlie Baker on March 20, in which he called the emergency order “misguided” and said it would “undermine both individual and public health.” “Our first responders must treat everyone as if they potentially have COVID-19 and use universal precautions on all calls,” he wrote. “Relying on information provided by state health officials is not helpful. There will be no effective ‘list’ as the overwhelming majority of people who are infected with COVID-19 do not know it. And sadly, over time, more than half the addresses in our state will likely end up on the list.”

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Life-or-Death Hospital Decisions Come With Threat of Lawsuits

Doctors and hospitals overwhelmed in the pandemic will have to make their excruciating life-or-death decisions meticulously or they risk being second-guessed by a jury when the onslaught is over. Lawyers who defend health care providers are already giving advice on how their clients can avoid liability if they’re forced to choose between patients. How they prepare for this battlefield triage now — and how they practice it in the chaos of peak infections — will determine whether negligence cases against them are dismissed or lead to trials or settlements over the death of a parent or spouse…There is an established standard of care in the industry, however, and providers could be accused of breaching their duty to patients by violating it and of negligence for failing to have enough ventilators on hand, for example. It’s a tough case to make in a pandemic. “I would expect hospitals to argue that their obligations are to make sure they have adequate equipment in ordinary times, not in pandemic times, and that seems quite persuasive to me,” said I. Glenn Cohen, a bioethics expert at Harvard Law School…In the wake of the pandemic, providers may be accused of failing to foresee a crisis that the Centers for Disease Control and Prevention and others have warned was inevitable, said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy at Harvard Law School. That’s especially so after the recent drumbeat of outbreaks from SARS to swine flu to Ebola.

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Waste not, want not

During a pandemic, a lot of things come to a halt, but one thing that never ceases is our need for a reliable supply of safe, nutritious food. Harvard Law School Professor Emily Broad Leib, J.D. ’08, director of the HLS Food Law and Policy Clinic (FLPC), and her students have been working furiously to ensure that the most vulnerable — and ultimately the rest of us — are fed…As universities suddenly began to move to online learning and close down most campus operations, and many businesses reduced hours or shut their doors, Broad Leib knew this would leave behind excess food…Broad Leib also understood that the basic problem the clinic has been addressing was about to grow dramatically. “There are already so many people who were in vulnerable situations,” she says. “The crisis has exacerbated food access challenges for those people, and it has added so many more individuals and families in need. Workers are losing jobs, especially those doing hourly work — many, in fact, who work in the food industry. We are going to see a huge increase in people who suddenly need help getting basic needs met, especially food.” COVID-19 also adds a complex new layer to concerns about food safety. Not only are more people going to need food; they also need safer ways to get it.

Continue Reading at Harvard Gazette »

Hospitals Tell Doctors They’ll Be Fired If They Speak Out About Lack of Gear

Hospitals are threatening to fire health-care workers who publicize their working conditions during the coronavirus pandemic — and have in some cases followed through. Ming Lin, an emergency room physician in Washington state, said he was told Friday he was out of a job because he’d given an interview to a newspaper about a Facebook post detailing what he believed to be inadequate protective equipment and testing. In Chicago, a nurse was fired after emailing colleagues that she wanted to wear a more protective mask while on duty. In New York, the NYU Langone Health system has warned employees they could be terminated if they talk to the media without authorization… “It is good and appropriate for health-care workers to be able to express their own fears and concerns, especially when expressing that might get them better protection,” said Glenn Cohen, faculty director of Harvard Law School’s bioethics center. It’s likely hospitals are trying to limit reputational damage because “when health-care workers say they are not being protected, the public gets very upset at the hospital system.”

Continue Reading at Bloomberg »

Why Coronavirus (and Other) Falsehoods Are Believable

An article by Cass SunsteinSports fans have been thrilled to learn that Major League Baseball will be back in May. Okay, that’s false. But if you’re like most people, that false statement will linger in your memory, making you think, in some part of your mind, that baseball might indeed be returning pretty soon. (Sorry!) The broader phenomenon is something that psychologists call “truth bias”: People show a general tendency to think that statements are truthful, even if they have good reason to disbelieve those statements. If, for example, people are provided with information that has clearly been discredited, they might nonetheless rely on that information in forming their judgments. Similarly, people are more likely to misremember, as true, a statement that they have been explicitly told is false than to misremember, as false, a statement that they have been explicitly told is true. It follows that if you are told that some public official is a liar and a crook, you might continue to believe that even after you learn that she’s perfectly honest. And if you are told that if you’re under the age of 50, you really don’t need to worry about the coronavirus, you might hold onto that belief, at least in some part of your mind, even after you are informed that people under 50 can get really sick.

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The Search for a Treatment

A podcast by Noah FeldmanAngela Rasmussen, a virologist at Columbia University Mailman School of Public Health, discusses what treatments for COVID-19 are currently being researched, and why rushing the scientific process can be risky.

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With strikes and a ‘sick out,’ some grocery and delivery workers take defiant stance: One-time bonuses, temporary pay hikes aren’t enough

Temporary wage hikes. Special bonuses. Paid sick time. In recent weeks, tensions are on the rise between grocery workers and their employers, spurring many to take public action. Employees at Amazon-owned Whole Foods planned a “sick out” Tuesday, while some drivers who deliver Whole Foods groceries are calling for more protections. Thousands of people have signed an online petition circulated by Trader Joe’s employees. On Monday, some Instacart workers held a nationwide strike. And a major grocery union, United Food and Commercial Workers Union, is advocating for workers to have access to coronavirus testing and protective gear…Grocers don’t have the depths of experience dealing with dangerous work, said Sharon Block, executive director of Harvard Law School’s Labor and Worklife Program and a former Obama advisor. With health-care workers, the Occupational Safety and Health Administration requires certain standards, such as employer-provided protective gear for hospital workers to wear when they draw a patient’s blood. She said there are no similar rules for grocery workers now thrust into a similar situation — and there’s few ways to quickly force those requirements. “Whether the law requires it or not, this is just a moment that it’s incredibly important for employers to listen to their workers,” she said. “It’s very concerning that there are a lot of really life-and-death decisions being made and so few workers have the ability to be part of the decision that drives those answers.”

Continue Reading at CNBC »

SJC hears arguments over releasing some inmates during the pandemic

Debate over efforts to head off a disastrous coronavirus outbreak inside Massachusetts prisons and jails intensified Tuesday, as several attorneys for and against the wide release of inmates presented arguments in a four-hour telephone hearing, the first in the history of the state’s supreme court. With the rate of coronavirus infection rising, and most of the state relegated to working in isolation, justices and attorneys appeared via phone to debate a petition, filed last week, for inmates’ release. The coalition, which includes the Committee for Public Counsel Services (CPCS), the American Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers, says that crowded and unsanitary conditions make COVID-19 “virtually impossible” to stop in prisons and county jails…To some observers, keeping people in cramped, possibly unsanitary conditions could amount to a death sentence. “These people were sentenced, but not sentenced to death,” a retired federal judge, Nancy Gertner, said in an interview. “This is a tragedy in the making.” So far, the department’s efforts to prevent a wide outbreak of the virus have mostly worked. Only 17 of the estimated 8,000 inmates in state custody have turned up infected with the virus, all of them housed at the Massachusetts Treatment Center in Bridgewater. Five Department of Correction staff have tested positive.

Continue Reading at Boston Globe »

A Nobel Prize Winner’s Suggestion for Fixing the Economy

A podcast by Noah Feldman: Paul Romer, a Nobel Prize-winning economist at New York University, argues that we can keep the economy from tanking during the coronavirus pandemic without risking people’s health. We just need many, many more tests.

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Privacy vs. public safety: How much should counties tell us about COVID-19 patients?

When health officials in southwest Missouri announced earlier this month that another resident had contracted the coronavirus, they released details about where the person had been in recent days. The patient had shopped at a Walmart Neighborhood Market in Springfield on the morning of March 17. The day before, the person had lunch at a local Mexican restaurant and then went to another Walmart. On March 15, the patient had gone to a comedy club after dinner. Anyone who might have been at those same places — with specific locations identified — around those same times knew to more closely monitor their own health…A government should release as much “aggregate information” as possible as long as it doesn’t identify a patient, stigmatize vulnerable groups and induce additional panic, said I. Glenn Cohen, a bioethics expert at Harvard Law School, in an email to The Star. “Government always owes us transparency in general, but especially in a pandemic crisis when it is asking Americans to completely upend their daily lives and make sacrifices, sharing accurate information is necessary to maintain trust and make sure people continue to be willing to make those sacrifices,” he said. “So the default should be sharing information unless there is a very good reason not to.”

Continue Reading at Kansas City Star »

Department of Justice opens inquiry into stock trades by Republican Sen. Richard Burr

The Department of Justice has begun to investigate controversial stock trades by members of the Senate after receiving non-public briefings about the impending coronavirus pandemic, according to a new report. CNN reported that the Federal Bureau of Investigation (FBI), which is coordinating its probe the Securities and Exchange Commission (SEC), has reached out to at least one member of Congress: Sen. Richard Burr, R-N.C… “Senator Burr’s stock transactions raise more than a little suspicion,” Harvard Law professor Laurence Tribe told Salon by email. “They have the whiff of insider trading and of betrayal of the public trust — not to mention the public’s health. Let’s hope the FBI-SEC investigation into the details is fair and thorough and keep our fingers crossed that it won’t be a whitewash of the sort I wouldn’t be surprised to see from our highly-partisan attorney general.”

Continue Reading at Salon »

Coronavirus Response Shows Trump Isn’t a Dictator

An article by Noah FeldmanThis weekend, President Donald Trump did a rapid about-face, pulling back from his suggestion that he might try to quarantine New York, New Jersey and Connecticut. It marked a significant moment in his response to the coronavirus pandemic. It symbolizes Trump’s fairly consistent choice thus far in the Covid-19 crisis to reject the impulse to grab power. There’s a script for populist autocrats in emergencies: maximize executive power, restrict civil liberties, delay or suspend elections. Trump has pretty consistently done the opposite during this crisis. Trump has even held back from exercising the substantial presidential power afforded him by existing law. Rather than encouraging or promoting restrictions on movement — a key civil liberty — Trump has so far repeatedly discouraged lockdowns. And notwithstanding lots of nervous speculation by Democrats, Trump so far has said not a word about delaying the 2020 election, which in any case he lacks the constitutional power to do.

Continue Reading at Bloomberg »

How Much Should the Public Know About Who Has the Coronavirus?

When the first case of the coronavirus in Silicon Valley was discovered in late January, health officials were faced with a barrage of questions: What city did the patient live in? Whom had he come in contact with? Which health clinic had he visited before he knew he was infected? Dr. Sara Cody, the chief health officer for Santa Clara County, which has a population of two million across 15 cities, declined to give details…As the coronavirus spreads across the United States the limited disclosure of data by officials would seem to be a footnote to the suffering and economic disruptions that the disease is causing…I. Glenn Cohen, an expert in bioethics at Harvard Law School, says the guiding principle during this crisis should be sharing more rather than less. “Public health depends a lot on public trust,” he said. “If the public feels as though they are being misled or misinformed their willingness to make sacrifices — in this case social distancing — is reduced…That’s a strong argument for sharing as much information as you can,” he said.

Continue Reading at New York Times »

U.S. Civil Rights Office Rejects Rationing Medical Care Based on Disability, Age

The director of the federal health department’s civil rights office said on Saturday that his office was opening a series of civil rights investigations to ensure that states did not allow medical providers to discriminate on the basis of disabilities, race, age or certain other factors when deciding who would receive lifesaving medical care during the coronavirus emergency. The office released a new bulletin on civil rights during the coronavirus crisis, days after disability rights advocates filed complaints arguing that protocols to ration lifesaving medical care adopted by Alabama and Washington State were discriminatory…The bulletin “represents an important first step in protecting the rights of people with disabilities in the current crisis,” said Ari Ne’eman, a visiting scholar at the Lurie Institute for Disability Policy at Brandeis University and a senior research associate at the Harvard Law School Project on Disability. He said there was an “urgent need for comprehensive guidance.”

Continue Reading at New York Times »

Rhode Island’s Search for New Yorkers Starts in Beach Towns

Rhode Island authorities on Saturday began searching for New Yorkers defying mandated self-quarantine as the state’s governor said the epidemic’s danger outweighed the appearance of persecution. The state’s National Guard said it was working with the police and health agencies to go door-to-door in coastal communities to identify New York residents and collect information on them. Those who defy the self-quarantine order face fines or jail, said Governor Gina Raimondo…Laurence Tribe, a professor of constitutional law at Harvard University, said Saturday that states aren’t required to ignore contagious diseases, but neither can they ignore America’s founding principles. Raimondo’s order “raises red flags,” he said in an email. The order doesn’t cover people arriving from hot spots besides New York, he said. “We need to be on the alert for discrimination against outsiders, including not just foreigners but Americans from other states, that isn’t strictly and objectively warranted by the facts,” he said. “As the Supreme Court put it in one famous case, our Constitution was founded on the philosophy that we must sink or swim together.”

Continue Reading at Bloomberg »

Why American Workers Have Been Left Out of Our Life-and-Death Decision-Making

An article by Sharon BlockBy now, almost every worker in America has been affected by the coronavirus. As grocery stores ramp up, restaurants close, flights get canceled, and hospitals get swamped with patients, workers are on the front lines of dealing with the consequences of this crisis. For too many American workers, this crisis is happening to them, not with them. With only approximately 6 percent of the American private-sector workforce in unions, the vast majority of workers have no voice in the decisions that businesses are making in response to the pandemic. Our laws fail to ensure that workers have an adequate voice in important decisions that affect their lives. The current crisis highlights the ways that our labor law leaves workers out of these critical conversations.

Continue Reading at The American Prospect »

Coronavirus bailout: Airlines should be required to have emergency cash just like banks

An article by Ashley NunesThe numbers are staggering. Delta Air Lines is parking at least 50% of its entire fleet. United Airlines reports passenger bookings are down 70%. And 75% of American Airlines’ international flights are to be cut. Across the pond, Virgin Atlantic is offering staff eight weeks of unpaid leave, Norwegian Air is furloughing 90% of its workforce, and Austrian Airlines has suspended flights altogether. The culprit for all this is COVID-19. The rapid spread of the virus — coupled with government-imposed flying restrictions — has caused travel demand to plummet. Airline execs liken the situation to the 9/11 attacks. The comparison has some merit. In the aftermath of those attacks, bookings dropped, and airlines were left reeling. In their desperation, free market loving airline execs turned to governments for help. Governments obliged, forking out billions in taxpayer cash to keep airlines afloat. With COVID-19, expect more of the same.

Continue Reading at USA Today »

As Trump signals willingness to break with experts, his base assails Fauci

A cadre of right-wing news sites pulled from the fringes in recent years through repeated mention by President Donald Trump is now taking aim at Anthony Fauci, the nation’s top infectious diseases expert, who has given interviews in which he has tempered praise for the president with doubts about his pronouncements. Although both men are seeking to tamp down the appearance of tension – “Great job,” Trump commended the doctor during the White House’s briefing on Tuesday – the president is increasingly chafing against medical consensus. He has found support from a chorus of conservative commentators who have cheered his promise to get the U.S. economy going again as well as his decision to tout possible coronavirus treatments not yet approved by the U.S. Food and Drug Administration…Over the weekend, Matt Whitlock, a senior adviser to the National Republican Senatorial Committee, wrote on Twitter, “Shouldn’t need to be said, but I personally couldn’t care less if Dr. Fauci said nice things to say about Hillary Clinton.” The “politicization of public health” means it very much does need to be said, according to Robert Faris, the research director at Harvard’s Berkman Klein Center for Internet and Society. “Having Trump and Fauci on the same public stage at the same time is an untenable position for right-wing media,” he said. “Something’s got to give, and I don’t know what it is.”

Continue Reading at Philadelphia Inquirer »

Google, Oracle and Trump Put on Supreme Court Hold By Virus

The coronavirus pandemic has put on indefinite hold a major portion of the U.S. Supreme Court’s docket, including a multibillion-dollar clash between software giants Google and Oracle Corp. and cases that could affect President Donald Trump’s re-election chances. What was supposed to have been a drama-filled spring at the high court has instead become a season of waiting, especially for the lawyers and litigants in 20 arguments that had been scheduled for March and April. The court has postponed 11 of those cases and could do the same soon for the remaining nine…Similarly, the court had been aiming to resolve clashes over the Electoral College, the body that will formally select the next president, before any election controversies may arise. At issue in cases scheduled for argument April 28 is whether states can stop “faithless electors” who try to cast a vote for someone other the candidate who won their state’s balloting. “We’ve gotten no indication about whether it’s going forward,” said Lawrence Lessig, a Harvard Law School professor and the lawyer for two groups of electors who say they have the right to vote as they please. But “we’re preparing as if it is.”

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How to Stay Sane During a Pandemic

A podcast by Noah FeldmanLaurie Santos, a Professor of Psychology at Yale, shares tips for dealing with coronavirus-induced anxiety. For further listening, check out Laurie’s podcast “The Happiness Lab,” also from Pushkin Industries.

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This Time the Numbers Show We Can’t Be Too Careful

An article by Cass SunsteinI have long been an enthusiastic defender of quantitative cost-benefit analysis, and recently wrote a book about it. I have also long been a critic of the precautionary principle, which calls for potentially expensive precautions against bad outcomes in the face of scientific uncertainty. In the context of the coronavirus pandemic, it’s unusually challenging to engage in quantitative cost-benefit analysis. But the best available estimates, released within the last few days, suggest that the U.S. should continue with expensive precautions, even if they take a major economic toll. Back to normal by Easter, as President Donald Trump suggested? The new estimates show that that would be reckless. To adapt Patrick Henry, “Give me precautions, or give me death.” It should be acknowledged that Trump, and many others, have been right to emphasize the importance of balancing a range of considerations, and not focusing only on one. Some people in the public-health community like to look only at one side of the ledger. But a zero-risk mentality makes no sense.

Continue Reading at Bloomberg »

Emily Broad Leib talks Food Law and COVID-19

Today on “Food Talk with Dani Nierenberg,” Dani interviews Emily Broad Leib, Clinical Professor at Harvard Law School & Director of Harvard Law School’s Food Law & Policy Clinic, about protecting and promoting better wages for food workers in the COVID-19 crisis. “If part of what comes from this is that we realize all the people who are handling the food from the beginning on the farm to the end of the chain are really vital. We need to treat them better, pay them better, give them benefits,” says Broad Leib.

Continue Reading at Food Tank »

Food waste impacts emerging as coronavirus shifts life from commercial to residential

Food waste experts are slowly assessing the short and long-term impacts of the new coronavirus, which remain murky. With the fallout likely stretching into coming months, some are worried about supply chain impacts — including food recovery for donation — as well as a future uptick in waste amid dramatic lifestyle alterations. Initial volume shifts are unclear at the moment, but a major surge in grocery purchases appears to be driving a decline in food waste associated with retail. Higher education and entertainment venue closures, however, are generating greater amounts than usual, while the shuttering of farmer’s markets is also expected to drive an increase in discarded products. One concern is public demand for food may lead to an uptick in waste, not only through organics, but through packaging as people shift to takeout and delivery. “I think waste is very low priority [for people right now], but food is very high priority,” Dana Gunders, executive director of ReFED, told Waste Dive. Her organization and the Harvard Law School Food Law and Policy Clinic (FLPC) are sharing resources aimed at connecting those issues.

Continue Reading at Waste Dive »

Why coronavirus may be a watershed moment in this digital age

They say if you do a thing for 14 days, it will become a habit. If they’re right, a lot more of us are washing our hands and keeping them out of our faces. That’s a good thing…The questions that linger for me, at least, are will this new way of doing things last and, more importantly, how will it impact our relationships with one another long term? Whatever happens, David Weinberger, a senior researcher at Harvard’s Berkman Klein Center and a pioneering thought leader about the internet’s effect on our lives, businesses and ideas, told me this is going to be a clarifying moment for many fields that, no doubt, will soon discover that the price we pay for physical proximity is higher than we thought, and the deprivations we assumed intrinsic to digital social interactions are lower than we thought. This, he said, is not entirely unlike what email did to business meetings in the 1990s. “We thought we all had to get in the same room to work through issues and coordinate our efforts,” Weinberger said. “But as soon as email became common throughout organizations, the cost of having to get everyone in the same room became clear: The flow of work was put on hold until everybody had an open time and was in the same place.” At meetings, for instance, he said everyone had to pay attention to conversations that merited the time of only some. Anybody remember those days?

Continue Reading at Atlanta Journal-Constitution »

Trump set for clash with governors over reopening economy

President Trump’s aggressive timeline for reopening the economy could set the White House on a collision course with governors and mayors who seem intent on maintaining social distancing policies beyond the president’s Easter target date if necessary. Trump’s proposal on Tuesday to ease restrictions by mid-April came as a number of state and local governments have moved in the opposite direction, heeding the advice of public health officials to implement stay-at-home orders and close non-essential businesses to stem the rising number of coronavirus infections…While the president has clear authority to rescind or alter federal health guidelines, legal experts say state and local officials are not required to follow them if their jurisdiction’s health situation warrants stricter measures. Analysts believe that if federal and local governments begin to move in dramatically different directions in response to the outbreak, it could trigger a political fight, or perhaps a legal standoff, with implications for the fall elections. A majority of Americans, 58 percent are optimistic that the economy will recover quickly after the coronavirus abates. But if economic reality fails to match the rosier predictions, Trump could blame the weak recovery on state and local governments’ more stringent public health restrictions. “I think his biggest leverage is going to be political, to say ‘these people are ruining your local economy for no reason and I tried to stop them,’ ” said Harvard Law professor Glenn Cohen.

Continue Reading at The Hill »

Will the Armchair Coronavirus Experts Please Sit Down

An article by Noah FeldmanOne of the noteworthy aspects of our current coronavirus moment is the rapid proliferation of self-appointed data analysts. These armchair epidemiologists seem to believe they can project the trajectory of Covid-19 better than actual epidemiologists who have spent their whole careers studying the spread of disease. You know who I’m talking about: It’s not just the guy on Medium whose post gets 35 million pageviews. It’s your uncle and your co-worker (funnily enough, many of them are men) who are trying their hand at beating the pros. And of course, it includes our president. Donald Trump has said in his daily press conferences that he’s “a smart guy” who “feel[s] good about” his own predictions and has “been right a lot.” There are several possible explanations for why so many of us are trying to make our own predictions. What they all have in common is that they are based on conceptual errors. As anyone with any kind of subject matter expertise — whether in construction or constitutional law — knows, there’s a difference between actually knowing what you’re talking about and winging it.

Continue Reading at Bloomberg »

Aggregated mobility data could help fight COVID-19

An article by Urs Gasser: As the coronavirus disease (COVID-19) epidemic worsens, understanding the effectiveness of public messaging and large-scale social distancing interventions is critical. The research and public health response communities can and should use population mobility data collected by private companies, with appropriate legal, organizational, and computational safeguards in place. When aggregated, these data can help refine interventions by providing near real-time information about changes in patterns of human movement. Research groups and nonprofit humanitarian agencies have refined data use agreements to stipulate clear guidelines that ensure responsible data practices (1). Tools for specifying different levels of privacy for different users, such as the OpenDP platform (2), can effectively manage data access, and aggregation steps have been carefully reviewed on a legal and methodological basis to ensure that the analyses follow ethical guidelines for human participants (3). To monitor social distancing interventions, for example, rather than showing individual travel or behavior patterns, information from multiple devices is aggregated in space and time, so that the data reflects an approximation of population-level mobility (4).

Continue Reading at Science Magazine »

Get ready for the $4.5tn takeover

One of the most moving responses to coronavirus has come from home-quarantined Italians singing together from their balconies. They were belting out Il Canto della Verbena or Volare. The subtext was that interdependence is the only defence humans have against their own fragility. For postwar individualist philosophers like Ayn Rand — cheerleader for the primacy of private capital — the jig is well and truly up. Witness the extraordinary efforts by governments to stabilise their economies and forestall the collapse of business. The US signed off on a $2tn aid package in the early hours of Wednesday morning and the global bailout — central bank liquidity support included — will have a sticker price of more than $4.5tn. That is a big number, even by the standards of recommended takeovers…Whole sectors — notably airlines, hotels and cruise lines — will lack a raison d’être for months. For many companies, revenues will fall short of overheads. But state support, and the quid pro quos that go with it, are preferable to going bust. “This is analogous to a war we have to mobilise to deal with,” says Jesse Fried, an economist and Harvard law professor. “It is not part of the normal boom and bust cycle.”

Continue Reading at Financial Times »

‘Coughing while Asian’: living in fear as racism feeds off coronavirus panic

When Rosalind Chou was on a flight at the end of February, she saw a woman in front of her raise her phone up high, as if taking a selfie. The woman snapped a picture and sent it to a friend, whose reply showed up in big font on the woman’s phone: “Oh no, is he Chinese?” Across the aisle from Chou was a man she later learned is Korean American and a woman sitting next to him, also of Asian descent. The woman quickly replied to her friend: “There’s a lot of them. Pray for me.” Chou knows her experience was not an anomaly. Across the US, Chinese Americans, and other Asians, are increasingly living in fear as the coronavirus spreads across the country amid racial prejudice that the outbreak is somehow the fault of China. It is a fear grounded in racism, but also promoted from the White House as Donald Trump – and his close advisers – insist on calling it “the Chinese virus” …There is also a history of leaders painting those in an outsider group as diseased, evoking fear and often violence in their followers toward that group of people, said Susan Benesch, a faculty associate at the Berkman Klein Center for Internet and Security at Harvard. Benesch coined the term “dangerous speech”: rhetoric that is used to turn one group of people violently against another… “It’s not really hatred that is the most operative in motion regarding [dangerous speech], it’s fear. Fear is what makes people turn violently against another group of people more than hatred,” Benesch said. “The level of fear is so great around this epidemic.”

Continue Reading at The Guardian »

Trump wants to scale back coronavirus restrictions by Easter to help economy. Is it all up to him?

President Donald Trump has said he wants to curtail the strict social distancing guidelines his administration put in place to slow the spread of the coronavirus pandemic because of the potential impact on the U.S. economy. But Trump is not the only executive to take action in the hope of “flattening the curve,” the term medical experts use to describe a slow and steady rise in the number of cases of COVID-19 rather than a sharp spike that could overwhelm the nation’s healthcare system. As the president weighs loosening the federal guidance, he does so against a backdrop of governors who have implemented their own statewide – and independent – restrictions, from curfews to lockdowns to sweeping school and business closures…The country’s public health law is a patchwork of responsibilities divided up between the federal and state governments, but typically states are in control of “police powers,” according to Professor Glenn Cohen, faculty director for the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School. Some states even delegate those powers to individual localities. But if Trump decides to lift the federal guidance, states like California or New York that have issued stay-at-home orders “may decide to follow suit or not, but typically have significant discretion as to what to do,” he said.

Continue Reading at USA Today »

U.S. Semi-Shutdown Is Mostly Voluntary, and Uniquely American

An article by Noah FeldmanAs more U.S. states roll out stay-at-home orders to combat the spread of coronavirus, it’s now possible to identify an emerging American model of such restrictions. The approach is notably less strict than Covid-19 measures adopted in other affected countries, not only autocratic China, but even democratic Italy. And although the model is sufficiently restrictive that it will have massive effects on the economy, it does not come close to a complete shutdown of economic activity. The emerging American model has several distinctive elements. The first is that, while its contours are being specified in emergency orders issued first by local governments and now by state governments, it isn’t particularly coercive. Indeed, at least in this first iteration, the American model depends mostly on voluntary compliance. To be sure, governors are issuing what they are calling “orders,” not mere recommendations. Some governors, like New York’s Andrew Cuomo, have made a point of saying that the orders are meant to be taken seriously, and hinted that police could issue fines to violators. Yet even if police enforcement is mentioned, there is little practical possibility of systematically implementing it. There just aren’t enough law enforcement officers. The legal basis for such enforcements would be shaky given the language of the orders thus far drafted.

Continue Reading at Bloomberg »

Fighting Coronavirus with Data

A podcast by Noah FeldmanFarzad Mostashari, the former National Coordinator for Health Information Technology at the Department of Health and Human Services, says we need to collect better data to effectively fight the spread of the virus.

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For college kids coming back to Kentucky amid COVID-19, the digital divide awaits

An article by Shane Fowler ’21: The novel coronavirus has shone a spotlight on seemingly incongruous pairings: Healthcare with employment, children’s nutrition with school attendance, and corporate size with access to government assistance. So too should we examine the relationship between internet access and geographic residence. Millions of rural Americans are digitally excluded from an information-rich world. This exclusion is significant for students returning to their rural homes as universities across the country move to online learning. In doing so, the response to coronavirus exposes the nation’s uneven distribution of high-speed internet access and marginalizes students from rural America. “Digital divide” refers to the growing disparity of access to high-speed internet between underprivileged members of society, specifically those living in rural areas, and wealthier, middle-class Americans living in urban or suburban areas. According to the Federal Communication Commission and Microsoft, Kentucky is one of the worst states for access to high-speed internet and cellular data. But the state is not unique in its short-comings, around 27% of people living in rural America do not have access to minimum speed broadband internet.

Continue Reading at Lexington Herald Leader »

A Way to Help Keep the COVID-19 Economy Working

An article by Mark Roe: As the coronavirus pandemic shuts down the world’s economies, stock markets plummet, and unemployment rises, policymakers will be forced to figure out how to contain the outbreak while preventing financial and economic collapse. Most economic proposals in developed countries focus on cash payments to people, deferred tax payments, and business bailouts. But biomedicine is critical to saving the economy, and of the three major biomedical channels now in play, the least important medically is the one that could impede an economic Armageddon. It’s a test to check whether a person has had, recovered from, and thus become immune to COVID-19. Scientists say that low-symptom and symptomless cases exceed the symptomatic. When these asymptomatic people are over the infection, they could go to work – they will not infect those with whom they come into contact. But we need to know who they are.

Continue Reading at Project Syndicate »

Compassionate release now for prisoners vulnerable to the coronavirus

An article by Nancy Gertner and John Reinstein: Prisons are Petri dishes for disease in the best of times, but they could become incubators for COVID-19 now. Prisoners sleep, eat, and shower in enclosed quarters with limited ventilation. Social distancing is impossible. Prison populations also have greater rates of serious health problems than the general population. Many are elderly, and have diabetes, cardiovascular disease, asthma, and cancer, conditions that, if they become infected with COVID-19, make them more likely to require intensive care and especially vulnerable to dying of the disease. On Saturday, officials announced the first case of COVID-19 at the Massachusetts Treatment Center in Bridgewater. An inmate serving a life sentence and his roommate have been quarantined from each other and the rest of the inmate population. We don’t have to speculate about what will happen as the disease hits the general prison system. We have seen it.

Continue Reading at Boston Globe »

House Democrats plead with key committee chairman to allow remote voting amid coronavirus pandemic

Nearly 70 House Democrats on Monday formally requested that the chamber change its rules to allow lawmakers to vote remotely during national emergencies like the coronavirus pandemic. House members, most of whom are currently in their districts across the nation, are increasingly fearful for their safety if they have to travel back to Washington, D.C., and congregate in large groups to vote on the next economic stimulus package…In a letter led by Reps. Eric Swalwell (D-Calif.) and Katie Porter (D-Calif.), a total of 67 Democratic lawmakers asked House Rules Committee Chairman Jim McGovern (D-Mass.) to temporarily change the lower chamber’s rules to enable remote voting…The letter cited Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, pointing to the Constitution stating that “each House may determine the rules of its proceedings” and Harvard law professor Laurence Tribe stating that the Constitution “needn’t and shouldn’t be construed to preclude virtual presence any more than it had to be constituted to treat air travel or indeed email as something other than interstate commerce or electronic surveillance as less than a fourth amendment search and seizure.”

Continue Reading at The Hill »

Online Learning: How Colleges And Universities Are Educating Students Virtually

Online learning. Can it really replace the learning and community that’s being lost as campuses across the country are closed? Guest: Justin Reich, assistant professor in the comparative media studies and writing department at MIT. Faculty associate of the Berkman Klein Center for Internet and Society. Director of the MIT Teaching Systems Lab.

Continue Reading at WBUR »

Prisons and Jails Are a Coronavirus Time Bomb

A podcast by Noah Feldman: Homer Venters, the former Chief Medical Officer for the New York City Jail system, says that we need to stop the spread of coronavirus in prisons, jails, and detention centers to have any hope of flattening the curve.

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Trump’s Fear of Experts Hurt the Coronavirus Response

An article by Noah FeldmanWith every passing day, it becomes more and more apparent that the U.S. federal government’s  response to Covid-19 has been appallingly slow and inadequate. A major reason is that the person at the apex of that institution, President Donald Trump, dislikes and distrusts the expert bureaucrats who make the government actually function. The laws that govern emergencies like the coronavirus pandemic give enormous power to the executive branch to direct and coordinate disaster response. These laws are not designed to empower the president personally. To the contrary, the whole point of the emergency laws is to empower government experts who know what must be done in a crisis — that is, career technocrats who work at agencies like the Centers for Disease Control and Prevention (CDC) and the federal emergency management agency (FEMA). Congress doesn’t trust the president in an emergency. It trusts the experts.

Continue Reading at Bloomberg »

Coronavirus: Yes, businesses can kick you out for coughing. But there are some exceptions.

As millions of Americans shut their doors to the threat of coronavirus, those who venture out — whether to seek necessities or in ignorance of new guidelines — face a rapidly changing world. Businesses have shuttered or limited their hours. Health care facilities have changed their intake procedures. And places that do remain open have refused service to customers for reasons that just weeks ago would have seemed unreasonable: because they wore scrubs, talked about recent travel abroad or had a coughing fit. Scores of affected Americans have taken to social media to complain, with some even asking whether it’s legal for businesses to boot coughing customers. The short answer to that question is, yes…Under the Civil Rights Act, a business can’t deny goods or services based on race, color, religion, or national origin. Under current circumstances, that means a business can’t deny service to a customer from a specific country, even if it’s seen an uptick in coronavirus cases. The same goes for people with impairments, who are guaranteed accommodations under the Americans with Disabilities Act. But the law does not require businesses to serve those who pose “a direct threat to the health and safety of others,” said Joseph Singer, a law professor at Harvard Law School. Nor does a coronavirus diagnosis qualify as a disability under the law, added Stacey Lee, a business law expert at Johns Hopkins University.

Continue Reading at USA Today »

Could Trump declare national coronavirus shutdown? Momentum is rising

Momentum appears to be building for a national shutdown to confront the coronavirus crisis, raising the prospect that President Trump could issue an order requiring people to stay at home. Such an order would be unprecedented in American history, but some of Trump’s top advisers have said publicly they would be open to it. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said Sunday he had raised the prospect of such a dramatic step with the administration…What such an order at the federal level might look like — and even whether Trump has the authority to issue an order — is unclear, because no president had ever tried it before. “I don’t think Congress has ever authorized the president to issue a curfew or a shelter-in-place order,” said Michael Klarman, a constitutional law expert at Harvard Law School. “I’m sure the Trump people will think Trump can do whatever he thinks is necessary to protect the nation’s health. I have a hard time imagining this Supreme Court ruling otherwise. And I have little doubt Trump would violate a court order anyway if he thought he could get away with it.”

Continue Reading at The Hill »

California’s Stay-at-Home Order Is a Legal Mess

An article by Noah FeldmanCalifornia Governor Gavin Newsom’s stay-at-home order may well be necessary as a matter of public health in the face of the new coronavirus — I will leave that to epidemiologists to determine. But viewed as a legal declaration, it’s a total mess. Most worrisome, the order fails to create an exception to the stay-at-home requirement for the free press to function — an exemption that is certainly mandated by the First Amendment. Instead, the order creates exceptions by referring to a federal list of 16 “critical infrastructure sectors” — a list that itself fails to say that a free press is a constitutionally specified form of critical infrastructure, without which we cannot hope to cope with a pandemic like Covid-19. The order is also drafted so badly that it creates contradictions with the state’s own website explaining it; with the governor’s own speech rolling it out; and with common sense. As written, the order does not say clearly that Californians can leave their homes to buy food or medicine or other necessities. It doesn’t say whether they can go out to help family members or friends who are themselves vulnerable or otherwise in need. It is silent on going out for exercise. Although context suggests all these may be permitted, the formal legal implication of the text would be that all are prohibited.

Continue Reading at Bloomberg »

U.S. Federalism Isn’t Great at Handling Pandemics

An article by Noah Feldman: One of the weirdest things in this weird historical moment is the hodgepodge nature of the coronavirus responses from different state, county, and local governments throughout the United States. In essentially every other country on earth, central government authorities are directing and running the response to Covid-19. If Italy shuts down, it’s the Italian government that decides to do it. If Germany chooses to end hotel stays, it’s Chancellor Angela Merkel who makes the call. But in the U.S., separate Bay Area counties can go one way, the mayor of New York another, and the governor of Massachusetts yet a third. There’s little if any national coordination. It hardly seems like an optimal arrangement during a global pandemic. The explanation for this bizarre diversity of uncoordinated responses can’t be laid solely at the feet of President Donald Trump, despite his alarming lack of leadership. The deeper explanation is the distinctive, peculiar system of U.S. federalism.

Continue Reading at Bloomberg »

Cooking Through the Crisis with Mark Bittman

A podcast by Noah Feldman: With restaurants and bars across the country temporarily closing down due to concerns about the novel coronavirus, many of us are finding ourselves cooking for the first time in a long time. So today, Deep Background is taking a quick break from covering the spread of COVID-19 to share this conversation with Mark Bittman, the food writer who taught so many of us how to cook. The author of best-selling cookbooks like How to Cook Everything and Vegan Before 6, Bittman offers some tips on how to cook fish and reflects on what he has learned from over two decades of writing about food.

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Signs and Symptoms of COVID-19

A podcast by Noah Feldman: Dr. Rebecca Berman, program director for UCSF’s Internal Medicine Residency, discusses the signs and symptoms of COVID-19, what to do if you feel sick, and tips for self isolating safely. Plus, hospital readiness, and the situation on the ground in San Francisco.

Continue Reading at Stitcher »

In Fight Against Coronavirus, Governments Face Trade-Offs on Privacy

1000’s of individuals in the USA have examined optimistic for COVID-19, and the dying toll around the globe has surpassed 6,000. Italy is below lockdown and in New York Metropolis the federal government is demanding companies together with bars, eating places and film theaters be closed in an effort to stem the unfold of the virus. After draconian measures have been applied in China to halt the fast an infection charge of the virus, together with motion restrictions, massive scale surveillance and compelled isolation, it appears such measures are working, with new instances in China declining…Beneath laws from the Occupational Security and Well being Administration plus legal guidelines together with the People with Disabilities Act (ADA), HIPAA, and the Genetic Info Nondiscrimination Act (GINA), amongst others, employers should respect employees privateness and different rights. With coronavirus, that will preclude administering any form of well being testing or straight inquiring about an worker’s well being situation or medical prognosis, says Elizabeth M. Renieris, a lawyer and a fellow at Harvard College’s Berkman Klein Center for Web and Society… “This isn’t a time for employers to opportunistically accumulate further details about their staff or to introduce worker surveillance measures,” says Renieris. “Staff don’t give up all of their privateness rights in a disaster.”

Continue Reading at Sunrise Read »

The government might want your phone location data to fight coronavirus. Here’s why that could be okay.

The United States government wants tech companies to tell it where you’ve been as part of its effort to fight the Covid-19 coronavirus pandemic, according to the Washington Post. And while that sounds invasive on its face, it is possible for the government to do this and preserve our digital civil rights — as long as the correct safeguards are put in place first. The Post reported on Tuesday that the US government is in “active talks” with tech companies including Facebook and Google about using location data they collect from users to map the spread of the virus or predict future outbreak areas. The government has yet to confirm the report, but the details we have suggest that this plan is in its early stages…David O’Brien, a senior researcher and assistant research director for privacy and security at the Berkman Klein Center for Internet & Society, told Recode that the American government will have to walk a fine line if it wants to get useful information while still preserving citizens’ privacy rights. “It is possible to do this and to provide some privacy,” O’Brien said. “But I think that the trade-off has always been you want to very carefully match any types of privacy measures you put in place against what is it that you ultimately want to learn from the data.”

Continue Reading at Vox »

The Pandemic Could Change How Americans View Government

The economic fallout is here. As a result of the coronavirus pandemic, Americans are losing their jobs, watching small businesses around them close up shop, and fretting about their retirement savings. It’s a bleak scenario that has lawmakers scrambling to soften the blow: Yesterday, Congress passed a relief package that temporarily mandates paid sick and family leave for some workers, expands unemployment insurance, and increases funding for food stamps and Medicaid—and that could be only the beginning of the government’s response…More recently, the same dynamic played out with the Affordable Care Act. Though the law was fairly unpopular when it first passed, it drew more support from Americans over time. In fact, while the GOP ran on repealing the law for the better part of a decade after its passage in 2010, Republicans quickly changed their message from “repeal” to “repeal and replace” when it became clear that most Americans didn’t want the law to go away—a tacit acknowledgement that the country would not be returning to a pre-ACA era. Even when Republicans controlled the White House and both chambers of Congress at the start of Donald Trump’s presidency, they repeatedly failed to overturn the ACA—though the administration has undermined the law in other ways.“The attempt to delegitimize the Affordable Care Act is to delegitimize the idea that government can actually do things to help the lives of citizens,” Kenneth W. Mack, a Harvard University law professor, told me.

Continue Reading at The Atlantic »

A terrible precedent: We lost one of Tuesday’s four primary states

Ohio Gov. Mike DeWine has done an excellent job proactively addressing the coronavirus pandemic. Closing schools, restaurants and bars was absolutely the right call for someone unwilling to engage in pandemic denial. However, the Republican governor’s action to delay the primary election was a mistake. (The other three states that vote on Tuesday all affirmed they would proceed with the elections.)…In a chaotic interval between the governor’s announcement and the scheduled opening of the polls at 6:30 a.m., the state supreme court weighed in to side with the governor. Four justices — two Democrats and two Republicans — agreed to delay the primary. Constitutional scholar Laurence Tribe warns, “Postponing elections could become dangerously easy. The temptation is one worth trying hard to resist.”

Continue Reading at Washington Post »

Maybe COVID-19 will remind us why government is not the enemy

An op-ed by Susan CrawfordAfter the stock market collapsed in late 1929, many people in the United States lost their jobs. By 1932, one in four Americans was suffering from lack of food. President Hoover, enamored of the efficiency of the private market and suspicious of all foreign countries, raised tariffs and waited, confident that the market would recover and all would be well again. Government intervention, he warned, would plunge the country “into socialism and collectivism.” The world seemed dark. With the COVID-19 crisis growing worse by the hour, the federal government’s colossal mishandling of it from the start — with faulty and too few tests and President Trump’s false claims that the virus was contained — may finally wake up our complacent country. We desperately need competence and courage in our government. In 1932, Franklin Roosevelt trumpeted this message before cheering crowds, and went on to swiftly create a set of government structures based on the idea that government planning and support are necessary to keep us safe, provide opportunities to all, and ensure that no one is left out. It’s too bad that it takes a crisis to remind us what government is good for, but that’s where we are today.

Continue Reading at LA Times »

‘Shelter in Place’ Is Not Martial Law

An article by Noah FeldmanA “shelter in place” order has been issued for seven counties around San Francisco, and New York Mayor Bill de Blasio is considering issuing one for New York. Leaving aside the degree of public health necessity, the obvious question is: How can and will such orders be enforced? The first point to note is that the Bay Area order doesn’t — at present — contain any criminal sanction for violation. It is, in effect, firm guidance rather than government command backed by the threat of criminal penalties. Some European countries are imposing monetary fines for breaking such orders. The San Francisco order doesn’t do that. The order does “request” that the police “ensure compliance with and enforce this order.” And it declares that violation of the order “constitutes an immediate threat and creates an immediate menace to public health.” But if the police chose to arrest violators, this language would probably not be enough to sustain a criminal conviction. The order is simply too vague, and the punishment for constituting a threat or a public health menace would have to come from some existing statute or ordinance.

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The Right Way for Presidents to Address ‘Fear Itself’

An article by Cass Sunstein: The coronavirus epidemic has produced several different kinds of crises. It is of course a public health crisis, first and foremost. But it’s also an economic crisis, an international-relations crisis and a crisis of public morale. Fear is widespread and mounting. There was no pandemic, of course, but the economic crisis was incomparably worse. And the crisis of public morale, though also much worse, had similar features. The U.S. has not been here before, but it has been in the vicinity. In some ways, the closest analogy is to the Great Depression.

Continue Reading at Bloomberg Opinion »

The Economic Impact of COVID-19

A podcast by Noah Feldman: Stefanie Stantcheva, Professor of Economics at Harvard, discusses the economic harms of COVID-19 and measures governments can take to soften the blow of a recession.

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Explaining a mass quarantine: What does it mean to ‘shelter in place’? And who has the power to call for it?

Six counties in the San Francisco metro area made headlines when they announced Monday they were ordering all their residents to “shelter in place” in response to the novel coronavirus. The sweeping proclamation is the most striking example to date of state and local governments in the United States taking sweeping action to halt the spread of the novel coronavirus and to limit the impact of the disease it causes, Covid-19. While the Bay Area is the first region in the U.S. to issue such an order, a number of states have mandated school and business closures and vastly curtailed nearly all major events… “The good news [is] there are a number of cases on public health needs, the constitution, and the so-called state ‘police power.’ The bad news is they are quite old, mostly turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area,” said Glenn Cohen, the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.

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Criminal Courts Can’t Pause for Pandemics

An article by Noah Feldman: It’s good news that the Supreme Court has suspended oral arguments indefinitely. If nothing else, it helps keep Justice Ruth Bader Ginsburg safe. Spry but still a cancer survivor, she celebrated her 87th birthday yesterday. I would say it’s practically a national security imperative to keep the nation’s unofficial favorite Jewish grandmother away from anyone who might give her the coronavirus. Apart from the health of the other justices (such as Justice Stephen Breyer, 79), the court personnel and the lawyers, the suspension of Supreme Court arguments also carries an important lesson for the rest of the justice system: It must respond creatively to the pandemic by maintaining core operations while limiting those aspects of its usual functioning that might endanger public health. At the Supreme Court, it’s relatively easy to eliminate situations that might lead to infection. That’s because the justices in general have relatively little public interaction with the parties who appear before them.

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White House Seeks Financial Crisis-Era Powers to Buttress Economy

Treasury Secretary Steven Mnuchin said on Sunday that he would ask Congress to reinstate powers that were used during the 2008 financial crisis to support the economy as the coronavirus threatens to grind business activity in the United States to a halt. The comments suggest that the White House is bracing for a widespread downturn that could harm sectors well beyond the travel and cruise ship industries, and that the federal government could need to return to the type of crisis-era measures that were ultimately scaled back by lawmakers in the 2010 Dodd-Frank Act…Hal Scott, an emeritus professor at Harvard Law School and the director of the nonprofit Committee on Capital Markets Regulation, said the Fed must restore its ability to be the world’s most powerful lender of last resort. It was unfortunate that such authorities needed to be reinstated amid a crisis, he said. “It would have been better to do it before the crisis,” Mr. Scott said. “When you get into a crisis and you do it, there’s a concern that you’re sending a panic signal — that we’ve got to do this, we need this power.”

Continue Reading at New York Times »

Civil Liberties in the Time of COVID-19

A podcast by Noah FeldmanRichard Lazarus, a law professor at Harvard and a leading Supreme Court advocate, discusses where public health stops and our individual liberties begin. Plus, what does it mean that the Supreme Court has postponed oral arguments?

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T14 Law Schools Go Virtual in Response to Coronavirus

The top rated law schools in the country will all be moving to virtual instruction in order to help prevent the spread of the coronavirus. All of the T14 law schools, which hold the top rankings in U.S News and World Report, had announced plans to move to virtual instruction in the coming weeks as of Thursday. Many other law schools across the country, including those in areas among the most affected by the virus, such as Washington State and New York, have also suspended in-person classes. Harvard Law School brought broad attention to the issue of coronavirus spread with an announcement March 10 that students will be asked to go remote.

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Response to coronavirus could test limits of government powers

Coronavirus lockdowns abroad are raising questions about the upper limits of government power as health officials in the U.S. and around the world scramble to slow the spread of infection. The U.S. public health toolbox contains a host of potential measures, ranging from gentle prodding over hand washing, to more severe actions like prohibitions on large gatherings and even sharp restrictions on the movement of infected individuals. … “In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” said Harvard Law professor Glenn Cohen.

Continue Reading at The Hill »

What We Know About How Coronavirus Spreads

A podcast by Noah Feldman: Siddhartha Mukherjee, physician, researcher, and author of the 2011 Pulitzer-Prize winning book The Emperor of All Maladies, discusses what we know about how coronavirus spreads and what we don’t know.

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