Media Mentions

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.

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.

An article by Cass Sunstein: President Donald Trump is a liar — hardly the first but certainly the worst among U.S. presidents. By one count, he has made about 18,000 false or misleading claims, an unmistakable sign of his willingness to deceive. His supporters do not seem especially bothered. They focus on what Trump does, not on whether he tells the truth. Which raises a question: Is presidential lying really so bad? Actually, it’s worse than bad, and for reasons much broader than the dangerous confusion it has sown during the coronavirus pandemic. To see why, let us consult two moral traditions that have explored what's wrong with lying, and what makes it so corrosive. The first is rooted in the work of Immanuel Kant, the 18th-century German philosopher who emphasized the importance of treating people as ends rather than mere means. The second comes from Jeremy Bentham, Kant’s younger British contemporary and the founder of utilitarianism.

A podcast by Noah Feldman: Akiko 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.

An article by Oliver Roberts '21: The Trump administration has granted a 60-day reprieve for federal student loan payments and temporarily dropped the student loan interest rate to zero. While these measures provide temporary relief, they will do nothing to combat historically high tuition costs or end the cycle of student borrowing and indebtedness. With prolonged university closures, lawsuits for tuition refunds, and economic uncertainty ahead, now is the time to reform higher education. But in our hyperpartisan political environment, that is easier said than done. If we truly want to improve higher education, we must pursue a bipartisan approach that lowers tuition costs, reduces student loan debt, expands college opportunities for high schoolers, and comes without raising additional taxes. Currently, there is only one reform path that fulfills these goals: Degree-in-Three Reform. Degree-in-Three Reform calls for transitioning the college system from the traditional four-year degree toward a three-year degree model. By eliminating one year of college, tuition rates drop by 25%, and students pay less out-of-pocket, have fewer loans and interest to pay back, and can more easily financially-access college. Further, by removing a year, students could obtain employment and earn a salary one year earlier, which improves their immediate economic positioning.

Just two weeks after ruling that criminal juries in America were always meant to be unanimous, the U.S. Supreme Court agreed on Monday to swiftly decide whether its decision applies retroactively to thousands of inmates in Louisiana and Oregon who are serving time from earlier convictions by split juries. The decision suggested to prosecutors and some defense advocates that the high court may be trying to quickly put the retroactivity question to bed, probably in favor of keeping those older convictions intact...Defense advocates conceded that the court has made an unusual decision to tackle retroactivity upfront, choosing from several petitions that were pending before the high court while the Ramos case played out.  “Typically the (Supreme Court) allows such questions to percolate through the (state) courts because that approach allows the legal issues to be fleshed out fully before it arrives at the Supreme Court,” said Thomas Frampton, a Harvard Law School instructor and Louisiana defense attorney who has studied split juries in the state. “Here my concern is that the process seems to be short-circuited.”

The U.S. Supreme Court seemed to struggle Monday with rules for trademarking generic names that are combined with the .com phrase. Many justices seemed to agree with an attorney for Booking.com that a 132-year-old Supreme Court precedent probably doesn’t control the case. But they also sounded wary of granting an online monopoly over entire categories of goods and services, and that it could lead to a flood of litigation over similar sounding dot.com names...A longstanding rule of trademarks is that generic names cannot be registered. The PTO argues that adding .com isn’t enough to make a generic mark descriptive and potentially eligible for registration. The agency is invoking an 1888 Supreme Court ruling, Goodyear’s India Rubber Glove Mfg. v. Goodyear Rubber, that adopted a similar rule for the addition of “Company” or “Inc.” to a name. More recently, the U.S. Court of Appeals for the Federal Circuit has upheld the PTO’s refusal to register Hotels.com and Mattress.com, and the U.S. Court of Appeals for the Ninth Circuit has found AOL’s Advertising.com generic. The agency is getting amicus support from the Electronic Frontier Foundation and a group of intellectual property scholars led by Harvard’s Rebecca Tushnet, whose brief the justices brought up repeatedly Monday. The scholars caution against giving generic mark holders too big of a stick to ward off competitors and suggest that .coms can use unfair competition law to solve the problems they’ve identified.

An article by Nancy Gertner: Even 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 pretrial 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.

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.

An article by Noah Feldman: It’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.

President Donald Trump moved to sack Health and Human Services (HHS) Principal Deputy Inspector General Christi A. Grimm late Friday night by announcing the name of her would-be replacement. The attempted Grimm firing was immediately controversial...It has been recently reported that Grimm’s office would further investigate whistleblower and other complaints about the Trump Administration’s handling of the pandemic. Harvard Law Professor Laurence Tribe also slammed the move but cautioned that it was not likely to go over well. “President Trump’s knee-jerk response to anyone who has vital information to report that might cast him or his minions in a bad light is to shoot the messenger,” he told Law&Crime via email. “That’s got to be wearing thin even with his most loyal, reflexive supporters. Even they have got to see by now that this self-important, truth-defying bloviator is endangering not only abstractions like truth and decency but their own lives and the lives and health of their loved ones.”

An article by Oliver Roberts '21: Amid a global pandemic, colleges nationwide have indefinitely shifted classes online. With students no longer using campus facilities and resources, they have created petitions and filed class-action lawsuits calling for tuition reduction and reimbursement. This discontent arises against the backdrop of a turbulent economy, historically high tuition costs and record levels of student loan debt. Now is the time to take definitive action on higher education reform to best position our next generation of students. But the current mainstream reform proposals — like free college and debt cancellation — engender uncompromising, hyperpartisan reactions, which inevitably lead to inaction. If we truly want to improve our higher education system, we must pursue a bipartisan approach that reduces tuition costs and student loan debt, expands college opportunities for high school students, and requires no increase in taxes. Currently, there is only one proposal that adequately fulfills these goals: Degree-in-Three reform. It calls for transitioning the college system away from the traditional four-year degree model to three-year degrees. Tuition would be reduced by 25 percent, students would have fewer loans and interest to pay back, more could afford college degrees, and they could seek employment and start earning salaries a year earlier.

On April 14, a group called the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission (FERC) calling on the Commission to supersede all state-level net metering program and make the mechanism federally-controlled. In response, The Center for Biological Diversity has filed a Freedom of Information Act (FOIA) request seeking records of FERC’s communications with NERA and the historically anti-net metering attorney representing the group...NERA is represented by Steptoe and Johnson LLP, with one of the attorneys listed on the petition being David B. Raskin. Raskin has been calling for FERC control of net metering for the better part of the last decade, previously on behalf of the Edison Electric Institute...It did not take long for this filing, as well as NERA’s ties to Raskin and the Edison Institute, to draw the attention of renewable energy advocates. Leading the charge came Ari Peskoe, director of the Electricity Law Initiative at Harvard University, who took to twitter to put the filing on blast. In the thread, Peskoe calls the timing of the filing “outrageous,” asserts that no new case developments have been made since the last time that Raskin raised this issue and accuses the Edison Electrical institute of attempting to “Hide behind this group calling itself a ‘Ratepayers Association’ that somehow has the same lawyers as EEI and major utilities.” ...The Center then goes on to cite the flagship argument against NERA’s petition, the same one raised by Peskoe, that if the measure were to be approved, the deployment of rooftop and community solar could be threatened. The Center also raises similar concerns to Peskoe, putting forth that the petition is founded upon “Thoroughly debunked industry talking points that solar customers are unfairly subsidized, ignoring both the enormous subsidies given to the fossil fuel industry and distributed clean energy’s power to curb pollution, improve the grid and otherwise advance the vital clean energy transition.”

An article by Jeannie Suk Gersen: During his confirmation hearing, in 2018, Brett Kavanaugh insisted that “one of the greatest moments in American judicial history” was the case of United States v. Nixon, in 1974. In a unanimous decision, written by Chief Justice Warren Burger, one of President Richard Nixon’s appointees, the Supreme Court rejected Nixon’s claim of absolute executive privilege, ordering him to comply with a judicial subpoena to turn over the White House tapes that would lead to his resignation. In an article from 2016, Kavanaugh wrote, admiringly, that the Justices “stood up to the other branches, were not cowed, and enforced the law.” In the coming months, several cases will test the Court’s strength in this regard. In each of these cases, President Donald Trump is attempting to block the examination of his conduct, by claiming that the chief executive is immune from various forms of investigation. At stake in these cases is the public’s ability to know about, and seek accountability for, misconduct. But, more important, they represent a gut check for our system of separation of powers. As the Supreme Court hears these cases, beginning this month and extending through the next term, it will enter what may prove to be among its greatest moments or its worst.

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.

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.”

“Since January, the coronavirus has overtaken our lives and transformed our world,” said Larry Fink, chairman and CEO of BlackRock, in his January 2020 letter to the global investment firm’s shareholders. “For the private sector, it has upended how companies operate. … In my 44 years in finance, I have never experienced anything like this.” Yet, something more disruptive and longer lasting than COVID-19 is at work in BlackRock’s New York offices — and its implications may well extend beyond one financial firm and its shareholders. Astonishingly, BlackRock now threatens to vote against directors who don’t incorporate its views on environmental and social issues, the “E” and the “S” in ESG social-investing criteria...In their critique of the Business Roundtable’s recent adoption of such stakeholder capitalism, former Secretary of State George Shultz and his coauthors suggest that the demotion of profit and shareholder accountability should be seen as a response to a resurgence of a socialist impulse in American politics; it will result in decisions that sacrifice shareholder value and is a formula for endless legal wrangling and litigation. In a March 2020 working paper, “The Illusory Promise of Stakeholder Governance,” Harvard Law School’s Lucian Bebchuk and Roberto Tallarita conclude that the stakeholderism advocated by the Business Roundtable and BlackRock should be viewed “largely as a PR move.”

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.

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.

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.

An article by Annette Gordon-Reed: First, 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.