Media Mentions

When health officials in southwest Missouri announced earlier this month that another resident had contracted the coronavirus, they released details about where the person had been in recent days. The patient had shopped at a Walmart Neighborhood Market in Springfield on the morning of March 17. The day before, the person had lunch at a local Mexican restaurant and then went to another Walmart. On March 15, the patient had gone to a comedy club after dinner. Anyone who might have been at those same places — with specific locations identified — around those same times knew to more closely monitor their own health...A government should release as much “aggregate information” as possible as long as it doesn’t identify a patient, stigmatize vulnerable groups and induce additional panic, said I. Glenn Cohen, a bioethics expert at Harvard Law School, in an email to The Star. “Government always owes us transparency in general, but especially in a pandemic crisis when it is asking Americans to completely upend their daily lives and make sacrifices, sharing accurate information is necessary to maintain trust and make sure people continue to be willing to make those sacrifices,” he said. “So the default should be sharing information unless there is a very good reason not to."

The Department of Justice has begun to investigate controversial stock trades by members of the Senate after receiving non-public briefings about the impending coronavirus pandemic, according to a new report. CNN reported that the Federal Bureau of Investigation (FBI), which is coordinating its probe the Securities and Exchange Commission (SEC), has reached out to at least one member of Congress: Sen. Richard Burr, R-N.C... "Senator Burr's stock transactions raise more than a little suspicion," Harvard Law professor Laurence Tribe told Salon by email. "They have the whiff of insider trading and of betrayal of the public trust — not to mention the public's health. Let's hope the FBI-SEC investigation into the details is fair and thorough and keep our fingers crossed that it won't be a whitewash of the sort I wouldn't be surprised to see from our highly-partisan attorney general."

An article by Adrian Vermeule: In recent years, allegiance to the constitutional theory known as originalism has become all but mandatory for American legal conservatives. Every justice and almost every judge nominated by recent Republican administrations has pledged adherence to the faith. At the Federalist Society, the influential association of legal conservatives, speakers talk and think of little else. Even some luminaries of the left-liberal legal academy have moved away from speaking about “living constitutionalism,” “fundamental fairness,” and “evolving standards of decency,” and have instead justified their views in originalist terms. One often hears the catchphrase “We are all originalists now.” Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

An article by Noah Feldman: This weekend, President Donald Trump did a rapid about-face, pulling back from his suggestion that he might try to quarantine New York, New Jersey and Connecticut. It marked a significant moment in his response to the coronavirus pandemic. It symbolizes Trump’s fairly consistent choice thus far in the Covid-19 crisis to reject the impulse to grab power. There’s a script for populist autocrats in emergencies: maximize executive power, restrict civil liberties, delay or suspend elections. Trump has pretty consistently done the opposite during this crisis. Trump has even held back from exercising the substantial presidential power afforded him by existing law. Rather than encouraging or promoting restrictions on movement — a key civil liberty — Trump has so far repeatedly discouraged lockdowns. And notwithstanding lots of nervous speculation by Democrats, Trump so far has said not a word about delaying the 2020 election, which in any case he lacks the constitutional power to do.

When the first case of the coronavirus in Silicon Valley was discovered in late January, health officials were faced with a barrage of questions: What city did the patient live in? Whom had he come in contact with? Which health clinic had he visited before he knew he was infected? Dr. Sara Cody, the chief health officer for Santa Clara County, which has a population of two million across 15 cities, declined to give details...As the coronavirus spreads across the United States the limited disclosure of data by officials would seem to be a footnote to the suffering and economic disruptions that the disease is causing...I. Glenn Cohen, an expert in bioethics at Harvard Law School, says the guiding principle during this crisis should be sharing more rather than less. “Public health depends a lot on public trust,” he said. “If the public feels as though they are being misled or misinformed their willingness to make sacrifices — in this case social distancing — is reduced...That’s a strong argument for sharing as much information as you can,” he said.

A podcast by Sharon Block and Benjamin Sachs: Why would it take an Amazon worker, employed full time, more than a million years to earn what its CEO, Jeff Bezos now possesses? Why do the richest 400 Americans own more wealth than all African-American households combined? And how are these examples of extreme income inequality linked to the political disenfranchisement of the lower- and middle-income classes? The established “solutions” for restoring balance to economic and political power in the United States have been tax increases on the rich, on the one hand, and campaign-finance reform on the other. But in this episode, we’ll explore the idea that retooling labor laws for the modern economy may be the most effective way to address both these issues. Harvard Law School’s Kestnbaum professor of labor and industry Benjamin Sachs, together with Sharon Block, executive director of the school’s Labor and Worklife Program, explain.

The director of the federal health department’s civil rights office said on Saturday that his office was opening a series of civil rights investigations to ensure that states did not allow medical providers to discriminate on the basis of disabilities, race, age or certain other factors when deciding who would receive lifesaving medical care during the coronavirus emergency. The office released a new bulletin on civil rights during the coronavirus crisis, days after disability rights advocates filed complaints arguing that protocols to ration lifesaving medical care adopted by Alabama and Washington State were discriminatory...The bulletin “represents an important first step in protecting the rights of people with disabilities in the current crisis,” said Ari Ne’eman, a visiting scholar at the Lurie Institute for Disability Policy at Brandeis University and a senior research associate at the Harvard Law School Project on Disability. He said there was an “urgent need for comprehensive guidance.”

Rhode Island authorities on Saturday began searching for New Yorkers defying mandated self-quarantine as the state’s governor said the epidemic’s danger outweighed the appearance of persecution. The state’s National Guard said it was working with the police and health agencies to go door-to-door in coastal communities to identify New York residents and collect information on them. Those who defy the self-quarantine order face fines or jail, said Governor Gina Raimondo...Laurence Tribe, a professor of constitutional law at Harvard University, said Saturday that states aren’t required to ignore contagious diseases, but neither can they ignore America’s founding principles. Raimondo’s order “raises red flags,” he said in an email. The order doesn’t cover people arriving from hot spots besides New York, he said. “We need to be on the alert for discrimination against outsiders, including not just foreigners but Americans from other states, that isn’t strictly and objectively warranted by the facts,” he said. “As the Supreme Court put it in one famous case, our Constitution was founded on the philosophy that we must sink or swim together.”

An article by Sharon Block: By now, almost every worker in America has been affected by the coronavirus. As grocery stores ramp up, restaurants close, flights get canceled, and hospitals get swamped with patients, workers are on the front lines of dealing with the consequences of this crisis. For too many American workers, this crisis is happening to them, not with them. With only approximately 6 percent of the American private-sector workforce in unions, the vast majority of workers have no voice in the decisions that businesses are making in response to the pandemic. Our laws fail to ensure that workers have an adequate voice in important decisions that affect their lives. The current crisis highlights the ways that our labor law leaves workers out of these critical conversations.

An article by Ashley Nunes: The numbers are staggering. Delta Air Lines is parking at least 50% of its entire fleet. United Airlines reports passenger bookings are down 70%. And 75% of American Airlines’ international flights are to be cut. Across the pond, Virgin Atlantic is offering staff eight weeks of unpaid leave, Norwegian Air is furloughing 90% of its workforce, and Austrian Airlines has suspended flights altogether. The culprit for all this is COVID-19. The rapid spread of the virus — coupled with government-imposed flying restrictions — has caused travel demand to plummet. Airline execs liken the situation to the 9/11 attacks. The comparison has some merit. In the aftermath of those attacks, bookings dropped, and airlines were left reeling. In their desperation, free market loving airline execs turned to governments for help. Governments obliged, forking out billions in taxpayer cash to keep airlines afloat. With COVID-19, expect more of the same.

A cadre of right-wing news sites pulled from the fringes in recent years through repeated mention by President Donald Trump is now taking aim at Anthony Fauci, the nation's top infectious diseases expert, who has given interviews in which he has tempered praise for the president with doubts about his pronouncements. Although both men are seeking to tamp down the appearance of tension - "Great job," Trump commended the doctor during the White House's briefing on Tuesday - the president is increasingly chafing against medical consensus. He has found support from a chorus of conservative commentators who have cheered his promise to get the U.S. economy going again as well as his decision to tout possible coronavirus treatments not yet approved by the U.S. Food and Drug Administration...Over the weekend, Matt Whitlock, a senior adviser to the National Republican Senatorial Committee, wrote on Twitter, "Shouldn't need to be said, but I personally couldn't care less if Dr. Fauci said nice things to say about Hillary Clinton." The "politicization of public health" means it very much does need to be said, according to Robert Faris, the research director at Harvard's Berkman Klein Center for Internet and Society. "Having Trump and Fauci on the same public stage at the same time is an untenable position for right-wing media," he said. "Something's got to give, and I don't know what it is."

The coronavirus pandemic has put on indefinite hold a major portion of the U.S. Supreme Court’s docket, including a multibillion-dollar clash between software giants Google and Oracle Corp. and cases that could affect President Donald Trump’s re-election chances. What was supposed to have been a drama-filled spring at the high court has instead become a season of waiting, especially for the lawyers and litigants in 20 arguments that had been scheduled for March and April. The court has postponed 11 of those cases and could do the same soon for the remaining nine...Similarly, the court had been aiming to resolve clashes over the Electoral College, the body that will formally select the next president, before any election controversies may arise. At issue in cases scheduled for argument April 28 is whether states can stop “faithless electors” who try to cast a vote for someone other the candidate who won their state’s balloting. “We’ve gotten no indication about whether it’s going forward,” said Lawrence Lessig, a Harvard Law School professor and the lawyer for two groups of electors who say they have the right to vote as they please. But “we’re preparing as if it is.”

A podcast by Noah Feldman: Laurie Santos, a Professor of Psychology at Yale, shares tips for dealing with coronavirus-induced anxiety. For further listening, check out Laurie’s podcast “The Happiness Lab,” also from Pushkin Industries.

An article by Cass Sunstein: I have long been an enthusiastic defender of quantitative cost-benefit analysis, and recently wrote a book about it. I have also long been a critic of the precautionary principle, which calls for potentially expensive precautions against bad outcomes in the face of scientific uncertainty. In the context of the coronavirus pandemic, it’s unusually challenging to engage in quantitative cost-benefit analysis. But the best available estimates, released within the last few days, suggest that the U.S. should continue with expensive precautions, even if they take a major economic toll. Back to normal by Easter, as President Donald Trump suggested? The new estimates show that that would be reckless. To adapt Patrick Henry, “Give me precautions, or give me death.” It should be acknowledged that Trump, and many others, have been right to emphasize the importance of balancing a range of considerations, and not focusing only on one. Some people in the public-health community like to look only at one side of the ledger. But a zero-risk mentality makes no sense.

Today on “Food Talk with Dani Nierenberg,” Dani interviews Emily Broad Leib, Clinical Professor at Harvard Law School & Director of Harvard Law School’s Food Law & Policy Clinic, about protecting and promoting better wages for food workers in the COVID-19 crisis. “If part of what comes from this is that we realize all the people who are handling the food from the beginning on the farm to the end of the chain are really vital. We need to treat them better, pay them better, give them benefits,” says Broad Leib.

Food waste experts are slowly assessing the short and long-term impacts of the new coronavirus, which remain murky. With the fallout likely stretching into coming months, some are worried about supply chain impacts — including food recovery for donation — as well as a future uptick in waste amid dramatic lifestyle alterations. Initial volume shifts are unclear at the moment, but a major surge in grocery purchases appears to be driving a decline in food waste associated with retail. Higher education and entertainment venue closures, however, are generating greater amounts than usual, while the shuttering of farmer's markets is also expected to drive an increase in discarded products. One concern is public demand for food may lead to an uptick in waste, not only through organics, but through packaging as people shift to takeout and delivery. "I think waste is very low priority [for people right now], but food is very high priority," Dana Gunders, executive director of ReFED, told Waste Dive. Her organization and the Harvard Law School Food Law and Policy Clinic (FLPC) are sharing resources aimed at connecting those issues.

They say if you do a thing for 14 days, it will become a habit. If they’re right, a lot more of us are washing our hands and keeping them out of our faces. That’s a good thing...The questions that linger for me, at least, are will this new way of doing things last and, more importantly, how will it impact our relationships with one another long term? Whatever happens, David Weinberger, a senior researcher at Harvard’s Berkman Klein Center and a pioneering thought leader about the internet’s effect on our lives, businesses and ideas, told me this is going to be a clarifying moment for many fields that, no doubt, will soon discover that the price we pay for physical proximity is higher than we thought, and the deprivations we assumed intrinsic to digital social interactions are lower than we thought. This, he said, is not entirely unlike what email did to business meetings in the 1990s. “We thought we all had to get in the same room to work through issues and coordinate our efforts,” Weinberger said. “But as soon as email became common throughout organizations, the cost of having to get everyone in the same room became clear: The flow of work was put on hold until everybody had an open time and was in the same place.” At meetings, for instance, he said everyone had to pay attention to conversations that merited the time of only some. Anybody remember those days?

President Trump's aggressive timeline for reopening the economy could set the White House on a collision course with governors and mayors who seem intent on maintaining social distancing policies beyond the president’s Easter target date if necessary. Trump's proposal on Tuesday to ease restrictions by mid-April came as a number of state and local governments have moved in the opposite direction, heeding the advice of public health officials to implement stay-at-home orders and close non-essential businesses to stem the rising number of coronavirus infections...While the president has clear authority to rescind or alter federal health guidelines, legal experts say state and local officials are not required to follow them if their jurisdiction's health situation warrants stricter measures. Analysts believe that if federal and local governments begin to move in dramatically different directions in response to the outbreak, it could trigger a political fight, or perhaps a legal standoff, with implications for the fall elections. A majority of Americans, 58 percent are optimistic that the economy will recover quickly after the coronavirus abates. But if economic reality fails to match the rosier predictions, Trump could blame the weak recovery on state and local governments’ more stringent public health restrictions. “I think his biggest leverage is going to be political, to say ‘these people are ruining your local economy for no reason and I tried to stop them,’ ” said Harvard Law professor Glenn Cohen.

Olivia Warren’s testimony before the House Judiciary’s courts subcommittee was kept under wraps until the last moment. It wasn’t until minutes before the 8:30 a.m. hearing that her name appeared on the list of witnesses and her testimony was made available. That testimony revealed bombshell allegations of sexual harassment by the late Judge Stephen Reinhardt, who Warren clerked for on the U.S. Court of Appeals for the Ninth Circuit. But she made it clear she was not primarily there to make her claims about Reinhardt. Instead, she wanted to draw attention to the issues she had in reporting the revered judge’s conduct...Student group leaders who spoke with The National Law Journal raised concerns about what situations they could face if they chose to enter the judiciary, through a clerkship or otherwise, and how exactly they could go about reporting the issues. And they’re pushing for reforms to be implemented now. They drew particular attention to the possibility of retaliation if they file a complaint against a prominent judge or staffer in their circuit, and the lasting impact that could have on their careers. “The person responsible for investigating their complaint is the chief judge of their circuit, who is inevitably going to have a close and professional relationship with whoever the accused judge is,” said Emma Janger '20, a Harvard Law School student and co-founder of the People’s Parity Project, a nonprofit that pushes for more protections for judiciary staff.

An article by Noah Feldman: One of the noteworthy aspects of our current coronavirus moment is the rapid proliferation of self-appointed data analysts. These armchair epidemiologists seem to believe they can project the trajectory of Covid-19 better than actual epidemiologists who have spent their whole careers studying the spread of disease. You know who I’m talking about: It’s not just the guy on Medium whose post gets 35 million pageviews. It’s your uncle and your co-worker (funnily enough, many of them are men) who are trying their hand at beating the pros. And of course, it includes our president. Donald Trump has said in his daily press conferences that he’s “a smart guy” who “feel[s] good about” his own predictions and has “been right a lot.” There are several possible explanations for why so many of us are trying to make our own predictions. What they all have in common is that they are based on conceptual errors. As anyone with any kind of subject matter expertise — whether in construction or constitutional law — knows, there’s a difference between actually knowing what you’re talking about and winging it.

An article by Urs Gasser: As the coronavirus disease (COVID-19) epidemic worsens, understanding the effectiveness of public messaging and large-scale social distancing interventions is critical. The research and public health response communities can and should use population mobility data collected by private companies, with appropriate legal, organizational, and computational safeguards in place. When aggregated, these data can help refine interventions by providing near real-time information about changes in patterns of human movement. Research groups and nonprofit humanitarian agencies have refined data use agreements to stipulate clear guidelines that ensure responsible data practices (1). Tools for specifying different levels of privacy for different users, such as the OpenDP platform (2), can effectively manage data access, and aggregation steps have been carefully reviewed on a legal and methodological basis to ensure that the analyses follow ethical guidelines for human participants (3). To monitor social distancing interventions, for example, rather than showing individual travel or behavior patterns, information from multiple devices is aggregated in space and time, so that the data reflects an approximation of population-level mobility (4).