Media Mentions

In July 2016, Margaret Beebe of Syracuse, New York, suffered a career setback when a local laboratory rescinded a job offer, which included higher wages, regular hours, and no travel.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

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

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

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

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

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

The Trump administration yesterday unsheathed the second part of its massive rollback of Obama-era clean car standards, setting the stage for a prolonged legal feud as the nation struggles to address the global coronavirus pandemic. The long-awaited and nearly 2,000-page Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule unravels a 2012 standard designed to significantly curb air pollution and greenhouse gas emissions from cars and trucks. EPA and the Transportation Department last fall released part one of the SAFE Vehicles Rule, which prevented California from setting stricter emissions limits than the federal government. That regulation is already subject to challenges in the courts...Lawsuits against the new rules will likely be rooted in the Administrative Procedure Act, which governs federal rulemaking, said Caitlin McCoy, a climate, clean air and energy fellow at Harvard Law School. Challengers are likely to target the new rule as an “arbitrary and capricious” change to Obama-era standards that provided more environmental stringency and regulatory clarity for automakers. “What [challengers will] need to try to do is show that the agencies improperly ignored evidence in the record,” McCoy said, adding that the Trump administration’s changes will need to stand up against analysis done by Obama officials.

An article by Dustin Lewis and Naz Modirzadeh: A debate is emerging slowly at the United Nations headquarters: Can and should a counterterrorism body authoritatively and authentically interpret and assess compliance with international humanitarian law (IHL), the principal body of law regulating armed conflicts? At first glance, that debate might seem merely niche or technocratic—one fast-tracked to the annals of international law pedantry. But when viewed in its proper context, the debate raises several concerns that may have cascading effects of great significance. Indeed, how it is ultimately resolved may entail consequences for safeguards for populations ravaged by armed conflict as well as the integrity and coherence of the system of legal protection in war. Along with our co-author, Jessica S. Burniske, we examine these issues in a new briefing for the Harvard Law School Program on International Law and Armed Conflict.

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

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

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

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

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

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

We have heard the excuses for voter-ID requirements, opposition to vote-by-mail and voting-roll purges. It’s about voter fraud, you see. That is bunk, as President Trump essentially admitted Monday morning. He was referring to the $400 million included in the stimulus package to help fund voting-by-mail on the understandable assumption that, in a covid-19 environment, voters may not be willing to risk their health to vote in person. Before getting to Trump’s main assertion that high turnout — i.e., robust democracy — is injurious to Republicans, we should underscore that without voting-by-mail, Republican voters (who skew older) will likely be just as affected by the pandemic as Democrats...Constitutional scholar Laurence Tribe tells me that Trump’s comment “amounts to a confession that these Republicans at least, know they rule by ignorance, fear and withdrawal from political participation and not by popular consent.” He points out, “It’s more than slightly terrifying to hear Trump and his enablers admit that their opposition to voting by mail and other efforts to reconcile political participation with pandemic-induced physical separation isn’t any concern about hacking or any other source of potential manipulation of voting processes but simply the fear of an empowered and awakened public.” He adds, “The sick irony of a populism that fears the people and overtly relies on voter suppression for its survival seems to be lost on that bunch.”

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

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

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

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

An article by Todd Carney '21: Over the last few years, the need for corporate legal jobs has consistently declined, despite overall job growth in America. At the same time, there has continues to be a pressing need for more lawyers. Right, it doesn’t make sense. Even though Big Law firms  — which handle major corporate issues  — are using more technology and other resources to cut back on attorneys, there is still a shortage of legal services for one key population. That would be for low-income people. Lawyers who can’t crack that top tier are scrambling to land jobs – even lower-paying ones – because many can’t afford not to. Law school debt, anyone? But they can’t manage to offer lower-cost services to the needy because it doesn’t pan out for them or their smaller firms financially. While some believe the government should be providing free legal services for all civil disputes, securing funding for such an endeavor is difficult. As a result, there have been many solutions proposed to make legal services cheaper. The state of Washington’s answer to this problem has been a novel one.

An article by Daniel Pessar '20: There is something fun about watching how the built environment improves over time. Updates to historic buildings, maintenance of hiking trails, and the construction of indoor skydiving venues can all offer a sense of excitement and variety. But some sites attract little investment and attention, lying vacant for years. Sometimes this can happen when there is a contamination concern at the site. The property might be a “brownfield,” the name for "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." Environmental hazards at a property can represent increased costs, project delays, and liability for developers, making the property less attractive for development. Further complicating the possibility of investment is the difficulty involved in assessing the extent of the hazard. Learning more about site remediation needs, if any, may require boring, scraping, and drilling in order to test what is beneath soil, concrete, or building materials. And the cost involved in this determination could rise to tens of thousands of dollars or more—just to find out if the project is worth all of the necessary effort and expense.