Media Mentions

An article by Cass Sunstein: Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

Donald Trump has handled the pandemic arguably worse than any world leader and has lied about it serially. No one can dispute that. The question though is, can Trump be criminally charged with manslaughter for intentionally failing to warn Americans about the known threats of COVID-19—and worse, lying about them? As a lawyer, I believe the answer should be yes—at least if it can be proven that Trump knowingly misled Americans about the dangers of COVID-19 because he believed it helped his re-election efforts, and Americans relied on those lies to the detriment of their health/lives...Now to be clear, Trump being successfully prosecuted for lying is still a challenge, as many well-known legal experts explained. Laurence H. Tribe, the famed professor at Harvard Law School, had harsh words for Trump’s actions saying that, “Trump is almost certainly morally responsible for tens of thousands of coronavirus deaths that would not have occurred but for his recklessly misleading public pronouncements and his grossly negligent failures to act rationally on the basis of the medical evidence available to him.” But with that said, Tribe added, “proving that Trump caused these deaths beyond a reasonable doubt in a criminal trial would be almost impossible.”

An article by Laurence Tribe: In 1971, seven Asian elephants were captured from the wild, imported to California, and sold for $800 each to a safari park. As if to reinforce the indignity of taking these magnificent beings from their natural habitats and depriving them of lifelong relationships with members of their herd, their captors named them after Snow White’s seven dwarves. Today, only four of these elephants survive. One of them, ironically named Happy, has been imprisoned for the last 40 years at the Bronx Zoo. She is now 49 and lives in a small, barren space that experts have said cannot meet the needs of any elephant. Until 2002, the zoo also imprisoned Grumpy, euthanizing her after two other elephants attacked her. Happy was the first elephant to demonstrate self-awareness via the well-established mirror self-recognition test. In late 2018, she also became the first elephant to be the subject of a habeas corpus hearing. Happy’s case, brought by the Nonhuman Rights Project, will soon come before an appellate court in New York City. She has the chance to reclaim her dignity through recognition of her legal right to liberty and release to an elephant sanctuary. Today, Happy is considered a “thing” with no rights that we as humans have any legal obligation to respect. That needs to change. The just course is for courts to recognize Happy as a rightsholder (in legalese, a person) and order her release to an environment suited to her needs. That is why this week I submitted an amicus brief in support of Happy’s petition to be recognized as a holder of rights under the law.

Brighton graduate Toby Merrill was named to Time Magazine's list of the "100 Next." That's because Merrill has been a leader in the fight against predatory for-profit colleges and institutions. As student debt piled past one trillion dollars, Merrill launched a plan to combat what she calls the "worst-of-the-worst student debt." Merrill is the founder and director of Harvard Law School's Project on Predatory Student Lending. Her team represents thousands of former students who have been fleeced and lied to, often ending up with piles of debt and worthless degrees. One of her most recent cases named Education Secretary Betsy DeVos as a defendant. We discuss the plight of student loan debt, the worst offenders, and why the industry is still so profitable. Our guest: Toby Merrill, founder and director of Harvard Law School's Project on Predatory Student Lending.

Jacklynn Walters has homeschooled her oldest child for the last 6 years. When schools closed early this year to help stop the spread of the coronavirus, this mom of four says she didn’t have to worry about her children’s education...Walters volunteers as the media director for the homeschooling organization Midwest Parent Educators. She says more parents are inquiring about homeschooling...More parents are choosing home school over in-class instruction when school resumes this fall as school districts roll out their reopening plans during the global health crisis. A recent poll from the American Federation of Children shows 40 percent of respondents are more likely to pursue homeschooling after coronavirus lockdowns...Homeschool critics worry that students will be left behind as more parents consider alternatives. “In this country, we have almost no regulation of homeschool,” said Harvard Law School Professor Elizabeth Bartholet. “Only a dozen states require that parents have any credentials whatsoever. Those states only demand a high school degree.” Bartholet, who serves as the faculty director of Harvard’s Law School's Child Advocacy Program, adds that she supports virtual learning so students can remain safe during the current health crisis but she’s concerned about children’s safety as more parents choose to homeschool permanently. “One of the greatest protections for children against abuse and neglect has been the protection of the mandated reporter system, which means that certain people are designated as mandated reporters and they then have to report any suspected abuse and neglect,” she said.  “Teachers are mandated reporters […] and they constitute the largest group of people who report to child protection authorities abuse and neglect."

Last month, the United States Senate signed a bill that would increase regulation on Chinese companies listed on American exchanges. Listed companies will be required to prove that “they are not owned or controlled by a foreign government,” in addition to being subjected to three consecutive years of audit inspection by American regulators.  How did we get here, and how is this bill gaining rare bipartisan traction? The answer lies in investigative investment firm Muddy Waters.  According to Muddy Waters’s website, it produces three types of research reports: “Business fraud, accounting fraud, and fundamental problems.” It is known for publishing research on Chinese companies believed to be fraudulent...Muddy Waters more recently published research on Chinese online tutoring company GSX Techedu, accusing the company of fabricating online user traffic with bots. While GSX’s listing on the NYSE was not hit as hard, Muddy Waters’ due-diligence research sure gained its fair share of attention. This prompted a protectionist reaction from Congress; legislators were motivated by a desire to defend American investors. It received almost nonexistent legislative opposition...If Chinese firms are indeed in danger of being delisted from American exchanges, some experts note potential backfiring on Wall Street. Harvard Law Professor Jesse Fried predicts the transfer of these Chinese companies to exchanges in Hong Kong or the mainland as a response. He also expects a sharp fall in stock prices if Beijing disallows American inspections on Chinese-owned company audits–which could seriously hurt American investors just before these firms privatize. Fried also notes China’s desire to build up its domestic exchanges. Abandoning American trading soil could open up an opportunity to further develop local stock markets, increasing the attractiveness of the region. He says that China is therefore not desperate to keep listings in the U.S.

The question of where the 49-year-old elephant, Happy, should live—in the Bronx Zoo or at a 2,500-acre sanctuary in Tennessee—is intertwined with the history of the age-old writ of habeas corpus, her advocates are arguing as her case comes to life again in the New York courts. Her advocates now include renowned Harvard Law professor and constitutional scholar, Laurence Tribe, along with a group of 12 American and Canadian philosophers. Her primary benefactor and counsel of record is the Nonhuman Rights Project, a Florida-based nonprofit that defends “nonhuman animals” and that, for three years now, has argued in state court that Happy can only be happy if she is sent to the sanctuary, where she can bond with other elephants and roam with them for miles a day. Writes Tribe about why Happy should be considered a “legal person” under the writ, which has long been used by the imprisoned as a recourse against the power to hold them, “Happy is an autonomous and sentient Asian elephant who evolved to lead a physically, intellectually, emotionally, and socially complex life. Every day for forty years, her imprisonment by the Bronx Zoo has deprived her of this life.” In his friend-of-the-court brief lodged on Happy’s behalf this week, he also writes, “New York’s common law of habeas corpus … has a noble tradition of expanding the ranks of rights holders.” “In a time that is becoming acutely aware of the four-century history of racial discrimination and its enduring legacy,” Tribe later adds, “it cannot pass notice that African Americans who had been enslaved famously used the common law writ of habeas corpus in New York to challenge their bondage and to proclaim their humanity, even when the law otherwise treated them as mere things.”

An article by Kenneth Mack: In our present racial crisis, the words of the writer and essayist James Baldwin have reemerged and become ubiquitous in American public discourse. Baldwin’s writings, sometimes shorn of context, are now quoted endlessly on social media and have been prominently displayed during protests against police brutality. Documentary filmmakers and feature film directors, including Academy Award winner Barry Jenkins, have mined his work for their craft. The noted writer and theater critic Hinton Als has curated a multimedia art exhibit dedicated to a complex representation of his life and persona. In addition, Baldwin’s queerness — his status as a gay black man — seems to invest his words with a special prescience for us. Baldwin achieved the height of his fame in the middle of the 1960s, when the novelist and former boy preacher’s beautiful and evocative words seemed to capture the stakes of the black freedom movement like nothing else — particularly for white liberals. It is that prophetic aspect of Baldwin that Eddie S. Glaude Jr., chairman of Princeton’s African American studies department, seeks to recover in his book “Begin Again: James Baldwin’s America and Its Urgent Lessons for Our Own.” The strength of Glaude’s book depends on how well he makes the case that Baldwin speaks directly to our times. “Begin Again” is, in fact, two different books. The first takes the reader on a deeply researched tour of Baldwin’s essays and actions from the mid-1960s forward. Glaude wants to rescue Baldwin’s legacy from many critics who contend that his art and insightfulness declined once he became an international icon and felt the need to speak for black America. Indeed, Baldwin’s novels and essays from the late ’60s on often received tepid or negative reviews. He sympathized with the emerging black power movement but endured withering, homophobic criticism from figures like Eldridge Cleaver.

In our latest episode of NothingWasted!, we chat with Emily Broad Leib, Clinical Professor and Director, Food Law and Policy Clinic (FLPC), Harvard Law School. The Food Law and Policy Clinic provides legal advice to nonprofits and government agencies seeking to increase access to healthy foods, prevent diet-related diseases such as obesity and type 2 diabetes, and reduce barriers to market entry for small-scale and sustainable food producers, while educating law students about ways to use law and policy to impact the food system. We spoke with Emily about global food bank trends and laws; organic waste bans; and food waste as it relates to COVID-19, climate change and more. Here’s a glimpse into Emily’s observations.

Section 230 of the Communications Decency Act has become a frequent topic in the news and political debate. In the past few months alone, the “law that created the internet” has faced attacks ranging from President Trump’s Executive Order on Preventing Online Censorship to calls by Sen. Josh Hawley and presumptive Democratic presidential nominee Joe Biden to revoke Section 230. But what does Section 230 actually say? Despite all the debate, there’s a remarkable lack of consistency among the law’s critics about its substance. It often seems that Section 230 means different things to different people for different reasons. To address this issue, I convened a weeklong lunch series of five 90-minute webinars...The fifth and final panel moved from the present to the future of Section 230, asking: What would the world look like without Section 230 in it? To begin the conversation, Kendra Albert, lawyer at Harvard Law School’s Cyberlaw Clinic, and Lorelei Lee, a writer and sex worker advocate, described the effects of SESTA/FOSTA, legislation that endangered Section 230 protections for platforms organizing or hosting advertisements for sex work. Though proponents of SESTA/FOSTA argued it would hold sites liable for potentially advertising for sex trafficking, both Albert and Lee described how the loss of immunity had done little to help solve the problem of sex trafficking and only served to further marginalize an already at-risk community. The writer and activist Cory Doctorow spoke about early reform attempts on the internet, such as copyright, that had resulted in more censorship and harm to minority communities. Rejoining the conversation, Daphne Keller reminded the panel of how changes to Section 230 shape the global conversation—and, in turn, how the U.S. can learn from international bodies. The main struggle of the internet, the panelists discussed, is the tension of allowing people to minimize harms against themselves while maximizing the internet’s positive effects—which Doctorow framed as balancing tools for “self-reliance” against “inter-operability.”

A federal district judge’s decision striking down the Trump administration’s rollback of methane emissions standards could fuel other litigation over an obscure tool used to study the impacts of climate change. California Judge Yvonne Gonzalez Rogers last week rebuked the Bureau of Land Management for eliminating Obama-era restrictions on releases of the potent greenhouse gas from oil and gas infrastructure on public and tribal lands. Her opinion included a detailed assault on how the land agency used a metric called the social cost of methane, calling the approach “riddled with flaws.” Industry advocates say the judge improperly substituted her own judgment instead of deferring to the agency. But legal scholars expect litigants to use the decision to push for enhanced climate analysis in other federal decisions. “This decision will certainly be important as we work through litigation in other contexts,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program...Similar debates over the social cost of greenhouse gases—or about proper cost-benefit analysis more generally—are cropping up in litigation over the Trump administration’s decisions to undercut Obama-era targets for vehicle emissions, and constrain how the Environmental Protection Agency weighs the collateral benefits of air pollution rules. “It doesn’t bode well for some of their other rulemakings,” Vizcarra said of the Trump administration. District court decisions don’t create binding precedent for other courts, but they can be persuasive. What’s less clear, Vizcarra said, is whether the ruling will help climate advocates force agencies to use the social cost of carbon in the first place. The California court’s frustrations stemmed from the fact that the Obama administration used one approach, and the Trump administration used a very different one without adequate justification, she said.

The Federal Energy Regulatory Commission made two decisions yesterday that affect renewable energy, prompting starkly opposing reactions from wind and solar supporters. In a unanimous vote, FERC rejected a contentious petition that sought to end nationwide net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate...The commission rejected the petition by the New England Ratepayers Association (NERA) on procedural grounds, saying the request didn't identify a specific controversy or harm for the agency to address. Republican Commissioners James Danly and Bernard McNamee offered comments about the petition, raising questions about whether the commission might have an appetite to examine federal jurisdiction over net metering in the future...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School's Environmental and Energy Law Program who has been critical of NERA's petition, said in general, he doesn't see the commission picking the issue back up, however. "Although perhaps yes if [Republicans] hold the majority for another five years, which might provide enough time for someone to file a more specific petition/enforcement action," he wrote in an email. Peskoe said Danly seemed to suggest parties might now bring lawsuits in federal court to challenge net metering. "Perhaps he knows something. His premise is that various courts might draw different conclusions about FERC's jurisdiction, and that would be a bad result," he said. "He therefore appears to suggest that FERC ought to weigh in, to ensure a uniform national approach to FERC's jurisdiction." He added that a court faced with a net-metering lawsuit could simply ask FERC to weigh in as has happened in the past.

State election officials are bracing for two trains on a possible collision course this fall: potential record turnout for the Nov. 3 general election, and an expected surge of the highly contagious and sometimes deadly COVID-19...Though the federal government can provide money and offer assistance, states control every aspect of voting except the date of Election Day, such as how elections are run, how and when voter registration takes place, the methods used to cast votes, what ballots look like, and how close races are handled. That local control comes with a price. “The core problem with the U.S. is you don’t have a single expert federal authority that runs elections that could have lots of resources, lots of expertise. You have 50 political secretaries of state; you have thousands of counties, all of which administer their own elections, and so, you’re never going to have uniform improvement or uniform competence when you have such a decentralized electoral system,” said Professor Nicholas Stephanopoulos, an election law expert at Harvard Law School...The case Stephanopoulos said he’s most closely watching is one filed by the Republican National Committee and several affiliated organizations that seeks to bar the state of California from sending ballots to every eligible voter. State officials, including Gov. Gavin Newsom, a Democrat, say they want to avoid forcing citizens to choose between exercising their right to vote and risking their health. But Republicans, including President Trump and Attorney General William Barr, claim without evidence that mail-in voting invites fraud and makes it easier for foreign actors to interfere in elections. In June, the president said the “biggest risk” to his reelection is losing these legal fights to stop the expansion of mail-in voting.

An article by Bruce Schneier: Twitter was hacked this week. Not a few people’s Twitter accounts, but all of Twitter. Someone compromised the entire Twitter network, probably by stealing the log-in credentials of one of Twitter’s system administrators. Those are the people trusted to ensure that Twitter functions smoothly. The hacker used that access to send tweets from a variety of popular and trusted accounts, including those of Joe Biden, Bill Gates, and Elon Musk, as part of a mundane scam—stealing bitcoin—but it’s easy to envision more nefarious scenarios. Imagine a government using this sort of attack against another government, coordinating a series of fake tweets from hundreds of politicians and other public figures the day before a major election, to affect the outcome. Or to escalate an international dispute. Done well, it would be devastating. Whether the hackers had access to Twitter direct messages is not known. These DMs are not end-to-end encrypted, meaning that they are unencrypted inside Twitter’s network and could have been available to the hackers. Those messages—between world leaders, industry CEOs, reporters and their sources, heath organizations—are much more valuable than bitcoin. (If I were a national-intelligence agency, I might even use a bitcoin scam to mask my real intelligence-gathering purpose.) Back in 2018, Twitter said it was exploring encrypting those messages, but it hasn’t yet. Internet communications platforms—such as Facebook, Twitter, and YouTube—are crucial in today’s society. They’re how we communicate with one another. They’re how our elected leaders communicate with us. They are essential infrastructure. Yet they are run by for-profit companies with little government oversight. This is simply no longer sustainable.

Massachusetts House leaders reviewing the Senate policing bill received hundreds of emails Friday with testimony ranging from police officers opposing changes to qualified immunity to civil rights activists who say the bill does not go far enough to tackle institutionalized racism in law enforcement. The Senate approved a massive omnibus bill early Tuesday after an all-night session debating the provisions, including how the bill would change qualified immunity standards when misconduct is alleged...Katy Naples-Mitchell, legal fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, urged the legislature to extend its session beyond July 31 to ensure the omnibus bill includes provisions that involve the input of people affected by institutionalized racism. One concern Naples-Mitchell raised was the proposed temporarily facial recognition ban exempting the Registrar of Motor Vehicles. “The Registry may continue to suspend people’s licenses using a technology we know to be racist and unreliable, which the chief of police in Detroit says misidentifies people 96% of the time,” Naples-Mitchell’s testimony states. Perhaps one of the biggest concerns she raised was that the bill would create several commissions and councils to study problems she said are already known to exist, based on existing data and research. “These commissions are nothing but a delay tactic and a way to preserve power for an elite professional class, putting off for tomorrow what this body refuses to do today,” Naples-Mitchell wrote.

Donald Trump announced this week one of the biggest rollbacks of established environmental law in a generation, declaring in a speech in Atlanta that his administration was moving forward with a fundamental overhaul of the 50-year-old National Environmental Policy Act (NEPA)...Trump’s overhaul of NEPA reverses those protections and processes. If it survives the expected legal challenges, it will undo 50 years of NEPA precedent and interpretations by federal agencies and the courts and make it much more difficult for communities burdened by pollution or worried about climate change to push back on destructive projects.  “Less projects will now go through environmental review, and when an environmental review is performed, many impacts will be excluded from discussion, consideration, and public knowledge,” Caitlin McCoy, a fellow for the Environmental and Energy Law Program at Harvard University, told Sierra. “We will not have a full accounting of the impacts of these projects, how they will affect our health, environment, and communities.” ...In the past, projects could be evaluated for their impact on the environment in the future, such as on climate change. When projects emit greenhouse gases like carbon dioxide and methane, those gases build up in the atmosphere over time and cause damage over time. Under the new regulations, impacts that occur either later in time or are geographically removed in distance from the project can no longer be considered. “Climate change is a tremendous and breathtaking threat to our planet and our lives,” McCoy said. “There is almost no deeper irony than the fact that these changes to our foundational environmental statute are laser focused on excluding climate impacts from environmental review. And it’s happening now during a global pandemic, which seems to be more deadly if you breathe polluted air, when we’re reckoning with racial justice, and, at a time when the climate crisis is accelerating.”

The Federal Energy Regulatory Commission made two decisions yesterday that affect renewable energy, prompting starkly opposing reactions from wind and solar supporters. In a unanimous vote, FERC rejected a contentious petition that sought to end nationwide net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate. That sparked praise from renewable groups that also blasted the agency for a separate, final rule updating the Public Utility Regulatory Policies Act (PURPA), a 1970s energy law meant to promote the adoption of small-scale, independent wind and solar projects...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School's Environmental and Energy Law Program who has been critical of NERA's petition, said in general, he doesn't see the commission picking the issue back up, however. "Although perhaps yes if [Republicans] hold the majority for another five years, which might provide enough time for someone to file a more specific petition/enforcement action," he wrote in an email. Peskoe said Danly seemed to suggest parties might now bring lawsuits in federal court to challenge net metering. "Perhaps he knows something. His premise is that various courts might draw different conclusions about FERC's jurisdiction, and that would be a bad result," he said. "He therefore appears to suggest that FERC ought to weigh in, to ensure a uniform national approach to FERC's jurisdiction." He added that a court faced with a net-metering lawsuit could simply ask FERC to weigh in as has happened in the past.

It’s well over a hundred days into the Covid-19 crisis, and I have to make a confession. I hate doing everything over video chat. I hated it at the start, and I hate it in new ways now. You’ve probably heard of the term “Zoom fatigue.” I’ve transcended Zoom fatigue. At this stage in the pandemic, I’m experiencing something more advanced, like that moment on a long run when you’ve fought through fatigue, tapped into your body’s store of endorphins, and also lost a toenail. Whether I like it or not, most of my work life and social life will happen via webcam in the weeks and months to come. Despite my complaints, however, this does not have to be a bad thing. Even when the pandemic ends, video chat will play an increasingly important role at work, for school, in health care, and in our relationships with friends and family. The pandemic not only pushed this technology into new scenarios of our daily lives but also forced everyone to learn how to use it...Zoom fatigue is the feeling of utter hopelessness you get after your ninth video call of the day, and experts say it’s brought on because the technology overtaxes your brain. Presented with a cropped, often blurry image of a human and a few milliseconds of lag throughout the conversation, your mind splits its attention between what people are saying and what’s happening on the screen, longing for nonverbal cues that just don’t cross over. Some call it “Zoom burnout,” though the “fatigue” descriptor better encapsulates how we’re tired of video calls but have to keep doing it. Others suggest the real problem is that we’re all depressed by the state of our lives in the pandemic. Regardless, video chat has always had fundamental flaws that make it prone to creating unsatisfying experiences. “We are constantly presented with the promise of instantaneous connection that seamlessly connects us with the people we love and the people we work with, and that’s always a fiction,” Jason Farman, a faculty associate with Harvard University’s Berkman Klein Center for Internet and Society, explained. “I think we’ve seen that promise for well over 100 years.”

The Trump administration gave its final rewrite of a rule on how agencies conduct environmental reviews a better chance of surviving legal challenges by backing away from clear language that may have been vulnerable to attack, but in doing so, it may have created new problems by leaving certain terms up to agencies to define. The White House on Wednesday stepped back from the proposed rule's total ban on consideration of a project's "indirect" effects on the environment during a National Environmental Policy Act review, while declining to completely spell out what types of projects are exempt from NEPA reviews. By avoiding hard-line positions that environmental groups and more liberal states could have challenged as arbitrary or capricious, the White House Council on Environmental Quality gave more protection to its final rule from one line of attack. Yet the choice to be less clear leaves blanks for federal agencies to fill — and that opens a Pandora's box of potential litigation, experts say. "So much is going to depend on the way that this is implemented," Caitlin McCoy, a staff attorney with the Environmental & Energy Law Program at Harvard Law School, said. "By opening up a lot of different elements of these regulations to interpretation in order to avoid taking hard positions that could be challenged as arbitrary, CEQ is just exposing all of the agencies to a huge round of litigation." ...That means while the rule might be more legally sound and helps fulfill the goal of narrowing the types of projects that require NEPA reviews — creating more certainty for project proponents and speeding up the process — there still will be lots of chances for opponents to thwart those aims at the agency level, McCoy said.

An article by Margaret Bourdeaux, Beth Cameron and Jonathan Zittrain: As Covid-19 cases surge to their highest levels in dozens of states, the nation’s testing effort is on the brink of paralysis because of widespread delays in getting back results. And that is very bad news, because even if testing is robust, the pandemic cannot be controlled without rapid results. This is the latest failure in our national response to the worst pandemic in a century. Since the Trump administration has abdicated responsibility, governors must join forces to meet this threat before the cataclysm that Florida is experiencing becomes the reality across the country. Testing should be the governors’ first order of business. Despite President Trump’s boast early this month that testing “is so massive and so good,” the United States’ two largest commercial testing companies, Quest Diagnostics and LabCorp, have found themselves overwhelmed and unable to return results promptly. Delays averaging a week or longer for all but top-priority hospital patients and symptomatic health care workers are disastrous for efforts to slow the spread of the virus. Without rapid results, it is impossible to isolate new infections quickly enough to douse flare-ups before they grow. Slow diagnosis incapacitates contact tracing, which entails not only isolating those who test positive but also alerting the infected person’s contacts quickly so they can quarantine, too, and avoid exposing others to the virus unwittingly. Among those who waited an absurdly long time for her results was the mayor of Atlanta, Keisha Lance Bottoms. “We FINALLY received our test results taken 8 days before,” she tweeted last week. “One person in my house was positive then. By the time we tested again, 1 week later, 3 of us had COVID. If we had known sooner, we would have immediately quarantined.”

The impact that pretrial risk or risk and needs assessment (RNA) tools have on criminal justice decisions is usually relative to each jurisdiction. After all, states use different tools at different times for different purposes. How much risk assessment tools exacerbate or mitigate bias within criminal justice processes, therefore, often comes down to how they’re designed, validated and considered by a judge or correctional officer. But outside of individual implementations, the use of risk assessments as a whole, and the value—or lack thereof—they provide is a matter of intense debate...Both judges and assessment tools are “relying [on] and using court-provided and criminal information, [and] both sources of those information are biased,” says Colin Doyle, staff attorney at the Harvard Law School’s Criminal Justice Policy Program, who works on pretrial reform and bail issues. “Whether you’re a judge or an algorithm, that bias is baked into your thinking about predicting future crimes.” Are risk assessment tools, then, inherently biased? The answer is both simple and complex. The simple answer: ones that are designed and validated poorly certainly can be...Essentially, the data used on these risk assessment tool “is not neutral,” Doyle says. “It’s a record of police activity and not people’s activity. When you use that to evaluate people’s risk, whatever police do will distort your system.” ...Others have said that if local criminal justice systems continue to use risk assessment tools, then at the very least, there needs to be more open discussions about how they work. “We probably have to do a better job of communicating about these tools,” Doyle says. He notes, however, that some jurisdictions, such as Pennsylvania and Massachusetts, have allowed for community involvement and transparency in their risk assessment roll-outs.