Media Mentions

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.

An article by Elizabeth Bartholet: The 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.

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.”

Politico reports: “Trump himself is tens of millions of dollars in debt to China: In 2012, his real estate partner refinanced one of Trump’s most prized New York buildings for almost $1 billion.” The report explains, “The debt includes $211 million from the state-owned Bank of China — its first loan of this kind in the U.S. — which matures in the middle of what could be Trump’s second term, financial records show.” This is not simply a matter of messing up President Trump’s baseless attack on former vice president Joe Biden regarding his son’s dealings with China. It is a textbook case of an emolument — money from a foreign government, which is explicitly prohibited by the Constitution...Constitutional scholar Laurence Tribe tells me, “Both of these situations illustrate the ongoing foreign financial entanglements — and the obvious conflicts of interest those entanglements create — that President Trump’s compliance with the foreign emoluments clause at the outset would have avoided and that his continuing violation of that fundamental constitutional requirement highlights.”

It would have been a controversial move under any circumstances, but an announcement from the U.S. Environmental Protection Agency last week looked especially problematic given the context: During an outbreak of a disease that attacks people’s ability to breathe and has killed more than 45,000 Americans, the agency finalized a rule that says it’s no longer “appropriate and necessary” to regulate mercury and other toxic air pollution from power plants...Last week’s action doesn’t lower limits on mercury emissions, but instead alters the regulation’s mathematical foundation—a bureaucratic-seeming change that experts say could have profound consequences. The Obama administration had justified the regulation’s hefty cost by noting that it would improve public health not only by reducing exposure to toxic mercury, but also by capturing other pollution from smokestacks, preventing an estimated 11,000 premature deaths each year. But the Trump administration’s new rule says the government can’t consider those indirect benefits...That interpretation could leave not only the mercury standards, but also other regulations that promote public health, vulnerable to legal challenges from the fossil fuel industry, says Joseph Goffman, executive director of the Environmental and Energy Law Program at Harvard University and a former EPA official. “I think this has a little bit less to do with this particular set of emissions standards and more to do with a much bigger project the agency and the administration have, which is to essentially sabotage or manipulate cost-benefit analysis so that it always comes out to show that the costs of regulation outweigh the benefits,” he says.

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.

An article by Daniel Pessar '20: In 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.

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.

Discussions about how to tax online commerce were complicated enough during the economic expansion of the past 10 years, when the internet behemoths were assumed to be hugely profitable. The chaotic economic fallout from the novel coronavirus pandemic will turn that debate on its head, and it will force governments to accept that to raise revenue from digital activities, they'll also need to account for economic losses when those activities become unprofitable. Despite questions about whether governments can focus energy amid the crisis, the Organization for Economic Cooperation and Development remains committed to forging an agreement among nations on the issue by the end of this year. The pressure on countries to reach a deal, even as the task seems to grow more difficult by the day, has only increased as countries go deep into debt to fight the disease — and look to digital taxes as a way to climb out... “A tax on rents is designed to be a kind of painless tax, if there is such a thing,” said Stephen Shay, a tax professor at Harvard Law School. “The notion is that it taxes excess profits, which make them sound like they are not needed by the taxpayer. They increase the government's share when things are going well — and they go away when things are going badly.” Steep drops in revenue pose a larger threat to poorer countries and could make this new system less attractive to them, Shay said. “The countercyclical feature is great for rich countries that can borrow to cover fiscal deficits,” he said. “The feature for rich countries is a problem for poor countries that have no access to global capital markets and only can borrow from the World Bank and [International Monetary Fund].”

The Mercury and Air Toxics Standards (MATS), finalized in 2015, were designed to lower the amount of mercury and toxic air pollution Americans are exposed to from coal- and oil-fired power plants. But last week, the Trump administration relaxed those standards, rewriting a major aspect of the rules. With the vast majority of power plants already in compliance, why roll it back now? On this episode of our podcast, Trump on Earth, we hear first from someone who helped write the original rule. Joseph Goffman is a former senior counsel at EPA under the Obama administration. He now runs the Environmental and Energy Law Program at Harvard. And next, we hear from John Walke, senior attorney at the Natural Resources Defence Council. He explains why the rollback of the Mercury and Air Toxics Standards foreshadows what’s to come.

An article by Guha Krishnamurthi: While we will probably never know the final total of infections, Wisconsin officials reported on Tuesday that at least 19 people who attended this month’s election in that state have contracted COVID-19. Of course, the election didn’t have to go forward as it did. The Wisconsin Supreme Court, which had a sitting justice up for reelection, overturned Gov. Tony Evers’ effort to postpone the election to a time when it might be safer. Subsequently, in a 5–4 decision, the conservative majority of the United States Supreme Court overturned a lower court’s decision to give voters six additional days to submit absentee ballots, a common-sense measure in light of closed, crowded, and unsafe polling places. Because of the Supreme Court’s reckless, reason-defying decision, tens of thousands of voters had to brave the polls in person, at grave risk to their health and well-being, or surrender their franchise. This is nothing new—the Roberts court has time and again abdicated its obligation in protecting our elections. The Wisconsin ruling raises concerns about what would happen in November’s presidential election if a second wave of the coronavirus pandemic is raging and the Supreme Court’s conservatives again have the chance to force citizens to choose between their health and the franchise. Worse still is the prospect of a nightmare scenario where pandemic-related voter suppression causes the Electoral College outcome to be in doubt in spite of a clear and decisive popular vote defeat of President Donald Trump, who has repeatedly said that he considers the prospect of a Democratic victory illegitimate. What would the court’s conservatives do if they were asked to decide the outcome of such an election?

As the coronavirus has spread throughout America so has the outcry from frontline workers anxious about their livelihoods—and their lives. Since the onset of the pandemic, walkouts and protests have been staged by, among others, packers and shippers in Amazon warehouses, those on the line at a Smithfield pork processing plant, Instacart supermarket shoppers, cooks and cashiers at McDonald’s and other fast-food chains, trash collectors in Pittsburgh, and nurses around the country. Today, scholars from the Clean Slate for Worker Power project at Harvard Law School and the Roosevelt Institute will unveil a proposal that seeks to channel not only employees’ indignation, but also their insight, into a mechanism that can help steer the nation through the crisis... “The medical folks need to take care of stopping the virus, but policymakers need to get the structural problems with the economy under control,” says Sharon Block, the executive director of Harvard’s Labor and Worklife Program, which runs the Clean Slate project. “Maybe what we’re going through now will open up some imaginations.” The proposal, which is intended to serve as the basis for the drafting of federal legislation, has three parts.

An obscure agency housed within the Office of Management and Budget has the power of life and death over all Americans. You may not have heard of it, but you’re living under its dictates. Every manner in which government acts flows through this team of fewer than 50 economists, who quantify and qualify whether it’s worth it to avoid noxious fumes in the atmosphere, or to prevent harmful chemicals from being ingested, or even to stop prison rape. The agency is called the Office of Information and Regulatory Affairs (OIRA), and it’s been around in one form or another for half a century. It uses centralized planning and cost-benefit analysis to determine the efficacy of regulations across the federal government, and historically this has delayed or even blocked rules that could save lives...We have assembled a series of voices to discuss the future of OIRA and the regulatory state in the next Democratic administration. Tucker and Nayak expand on their reasoning for why they see a boosted OIRA as the best opportunity for strong progressive governance. Sharon Block of Harvard Law gives her opinion for why the coronavirus pandemic makes the concept of a bulked-up OIRA even more urgent.

The Supreme Court on Thursday rejected the Trump administration’s reading of a key part of the Clean Water Act as creating an “obvious loophole” in its enforcement, and gave a partial win to environmentalists in a case from Hawaii. The court ruled 6 to 3 that a wastewater treatment plant in Hawaii could not avoid provisions of the act, which regulates the release of pollutants into rivers, lakes and seas, by pumping the pollutants first into groundwater, from which they eventually reach the ocean. Justice Stephen G. Breyer’s compromise language said an Environmental Protection Agency permit is required when a discharge is “the functional equivalent” of a direct release into navigable waters...In the Hawaii case, environmental law experts agreed that the court’s decision will resonate. The test endorsed by the court’s majority is “one under which environmentalists can prevail in most every kind of case that environmentalists have brought under the Clean Water Act,” said Richard Lazarus, an environmental law expert at Harvard Law School.

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.

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.

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.

An article by Cass Sunstein: Debates about the idea of a wealth tax are suddenly sounding a lot less hypothetical. With massive expenditures related to the Covid-19 pandemic, the U.S. needs to find ways to raise revenue. And with the economic burdens of the calamity falling disproportionately on the less affluent, income inequality has only become more glaring. No wonder the call to target the richest has increasing appeal. But is a wealth tax constitutional? It’s a question legal scholars have long discussed. Unfortunately, the answer is elusive. For that reason alone, there is a good argument that progressives should focus on other options – such as imposing higher income taxes on the wealthy and closing the many loopholes that benefit them. Let’s start with the 16th Amendment to the Constitution, ratified in 1913, which provides: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” If Congress wants to raise rates on the wealthy, it’s perfectly entitled to do that. Notably, however, the 16th Amendment is limited to “taxes on incomes,” so it does not authorize wealth taxes.

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.