Media Mentions

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.

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.

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.

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.”

He is 37 and less than 10 years out of law school. He had never tried a case, nor served as co-counsel at trial, when he was tapped last year for America’s federal bench. But he did go on Fox News to push the cause of Brett Kavanaugh when Trump’s supreme court pick was mired in sexual abuse claims two years ago. And now he is bound for the second highest court in the land. Conservative Justin Walker’s nomination to serve as circuit judge on the US court of appeals for the District of Columbia circuit, announced by Donald Trump on 3 April, barely caused a ripple in a world transfixed by a deadly pandemic. But it was a wake-up call for Democrats: the fight for the White House and Senate in November will also be a fight for the rule of law. The Trump administration has brought a laser-like focus to nominating and winning Senate confirmation for 193 judges – two supreme court justices, 51 circuit court judges (a quarter of the total), 138 district court judges and two US court of international trade judges – at a pace unmatched since the presidency of Ronald Reagan. “I’ve never in my lifetime seen an election whose stakes were higher,” said Laurence Tribe, who was born in 1941 and is a constitutional law professor at Harvard University. “The transformation of the federal judiciary into a series of puppets for a very rightwing ideology will have lasting impact for decades.”

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.

Former Vice President Joe Biden's proposal for a Cabinet-level climate change secretary is getting mixed reviews from veterans of past administrations. Their question is this: Will it help or hurt efforts to deliver aggressive action on warming? The presumptive Democratic nominee said earlier this month at a virtual campaign fundraiser that if elected, he would consider creating three Cabinet positions, including one on climate that "goes beyond EPA." It would be the first time the official responsible for climate change policy held Cabinet-level status. The move could reshuffle — and potentially complicate — the chain of command related to environmental policy. Most domestic climate policy is now under the purview of the EPA administrator, who is not a Cabinet member though is generally treated as one...Joseph Goffman, who served as EPA's top lawyer on air and climate under Obama, said that besides being barred from issuing regulations, a new Cabinet official also couldn't redirect money or make infrastructure investments approved by Congress for other agencies... "It's really easy to create high-profile positions occupied by high-profile powerhouse people," said Goffman. "But if they're disconnected from the actual resources of the government that you need to bring to bear to produce results, then you're not going to have a particularly effective climate strategy and you're not really going to be able to produce effective climate policies." Goffman said Biden should focus on using his existing authorities to tackle climate change, as Obama did in his second term.

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.

A podcast by Noah Feldman: Dr. 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.

An article by Noah Feldman: Attorney 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.

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."

An article by Laurence Tribe: In 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.

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.

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.

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.

Georgia lost a close U.S. Supreme Court case over the state’s ability to copyright its annotated legal code, in a ruling heralded by public access advocates over dissent that lamented its disruptive impact on states’ existing business arrangements. Copyright protection doesn’t extend to annotations in the state’s official annotated code, Chief Justice John Roberts wrote for a 5-4 majority on Monday that crossed ideological lines. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined Roberts. The high court clarified the scope of the “government edicts doctrine,” which had previously barred copyright in materials created by judges. The doctrine’s logic also applies to materials created by legislatures, Roberts wrote. Because Georgia’s annotations are authored by an arm of the legislature in the course of its official duties, the doctrine bars copyright here, too...The decision is “great news for those who want to publish, comment on, or build on the law,” added Kendra Albert, clinical instructor at the Harvard Cyberlaw Clinic, which also supported Public Resource in a high court brief, on behalf of Caselaw Access Project. “The Supreme Court’s adoption of a bright line rule that the legislators’ works are uncopyrightable will help ensure that the law is accessible in a variety of formats and mediums.”

An article by Dustin Lewis: I am grateful for the invitation to contribute to this online symposium. The preservation of international legal responsibility and agency concerning the employment of artificial-intelligence techniques and methods in relation to situations of armed conflict presents an array of pressing challenges and opportunities. In this post, I will seek to use one of the many useful framings in the ICRC’s 2019 “Challenges” report’s section on AI to widen the aperture further in order to identify or amplify four areas of concern: detention, humanitarian services, uninhabited military maritime systems, and legal advice. While it remains critical to place sufficient focus on weapons and, indeed, on the conduct of hostilities more widely, we ought to consider other (sometimes-related) areas of concern as well. Drawing on research from an ongoing Harvard Law School Program on International Law and Armed Conflict project that utilizes the analytical concept of “war algorithms,” I will sidestep questions concerning the definitional parameters of what should and should not be labeled “AI.” (A “war algorithm” is defined in the project as an algorithm that is expressed in computer code, that is effectuated through a constructed system, and that is capable of operating in relation to armed conflict.) Instead, I will assume a wide understanding that encompasses methods and techniques derived from, or otherwise related to, AI science broadly conceived.

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.”

An article by Noah Feldman: Whenever 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.

The U.S. Environmental Protection Agency opened a Pandora's box for utilities with an about-face on the justification underpinning an Obama-era rule limiting coal-fired power plants' mercury emissions, including the potential that ratepayers will try to claw back what they paid for utilities to comply with the rule. Experts say that at best, the EPA's finalized cost-benefit analysis of its Mercury and Air Toxics Standards rule is an empty gesture to utilities. The EPA said it's not "appropriate or necessary" to regulate hazardous air pollutants from coal and oil-fired plants under Section 112 of the Clean Air Act, but the rule remains in place and utilities have already spent billions to comply with it. At worst, the EPA's move could spark renewed legal challenges to overturn the MATS rule in its entirety...Experts say the EPA could have really cut the legs out from under the MATS rule by also removing power plants from the list of pollution source categories subject to regulation under Section 112, but ultimately decided not to. "Although there is still some chance that the coal industry will challenge the standards on the grounds that the appropriate and necessary finding is gone, their prospects for success are dimmer now," said Joseph Goffman, an Obama-era EPA official who is now the executive director of Harvard Law School's Environmental and Energy Law Program. Still, if a court were to enjoin the MATS rule, utilities might not only have spent billions of dollars on pollution controls in vain, but could also face attempts from consumer groups to convince state utility regulators that utilities can't recover the costs of installing those pollution controls from ratepayers.

An article by Louis Kaplow: We 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.