Media Mentions

A survey by Crystal Yang and Marcella Alsan: A collaboration between Harvard University researchers and the National Commission on Correctional Health Care has yielded the first detailed survey on the effects of the coronavirus pandemic on correctional facilities in the United States. The ongoing survey has so far collected data from more than 320 facilities housing approximately 10 percent of the country’s inmates across 47 states. While not necessarily representative of all correctional institutions, the results nonetheless are vital for policymakers responding to the pandemic in their own states and communities. Among the key findings: Correctional officers, like the general population, are at risk for contracting of COVID-19 infection, with a higher infection rate than inmates. Many protocols call for screening inmates and staff for COVID-19 on a regular basis, but a significant fraction of facilities still lack access to lab testing. The nationwide shortage of PPE as well as ancillary supplies (such as cleaning products and thermometer probes) is also a problem for correctional health care operations.

Law school clinics and programs have pivoted in recent weeks to focus on legal matters involving COVID-19—even as their own operations have transformed from in-person to online formats. Their efforts involve advocating to protect the health of prison inmates, ensuring access to food amid a pandemic, executing wills remotely, helping small businesses buffeted by the crisis and much more...The closure of universities, restaurants, and many other businesses due to social distancing requirements means that a lot of excess food isn’t getting into the hands of those who most need it. Enter Harvard’s Food Law and Policy Clinic, which is working to find ways to redirect that excess food to food banks; is seeking to inform public policy to ensure that government programs such as the Supplemental Nutrition Assistance Program can facilitate food delivery; and is working to get government aid to food producers. It’s the type of work the clinic has been doing for years, but the pandemic has created a tsunami of food-related issues that need immediate attention...The clinic has produced a handout designed to help organizations donate their excess food. It has also produced a briefing for state and federal agencies on how to implement food delivery through existing nutritional assistance programs. And the clinic has also worked with a national agriculture advocacy group to help get appropriated funding into the hands of farmers and other food producers.

A New York investment firm pitched wealthy investors in recent days on a way to make returns of 22 percent to 175 percent using US government programs designed to help Americans keep their jobs and boost the coronavirus-stricken economy, according to a marketing document seen by Reuters. Following questions posed by Reuters, Arcadia Investment Partners, which has about $1 billion under management, said it had put its plans on hold. The idea was in “formative stages” and the firm was not “presently moving forward with this strategy given reasons that include uncertainty surrounding the regulations,” Dahlia Loeb, managing director at Arcadia, told Reuters in an e-mail on Wednesday. She did not elaborate further...Had Arcadia proceeded with its plan, its investors would have profited handsomely from a virtually risk-free investment. Arcadia typically generates returns to investors of between 8 percent and 12 percent, depending on the type of investment, according to a March regulatory filing. The potential returns would also be far above other options available to investors. The US 10-year Treasury note, for example, currently yields around 0.77 percent. Lucian Bebchuk, a corporate governance expert at Harvard Law School who reviewed key assumptions of Arcadia’s pitch for Reuters, said that the potential returns, assuming they are estimated correctly, “suggests a design flaw on the part of the government’s program.”

An article by Sean Quirk '21: Washington and Beijing are using their militaries to signal that neither is letting down its guard on Taiwan and the South China Sea during the coronavirus pandemic. Soon after Taiwan’s Vice President-Elect William Lai Ching-te visited the United States in early February, People’s Republic of China (PRC) military aircraft crossed the dividing line in the Taiwan Strait into Taiwan’s airspace two days in a row. The incursions included Chinese H-6 bombers, J-11 fighter jets and KJ-500 early warning aircraft. Taiwan responded by scrambling F-16s to shadow the Chinese aircraft out of Taiwan’s airspace. On March 19, both USS Barry (DDG 52) and USS Shiloh (CG 67) launched SM-2 missiles for a live-fire exercise in the Philippine Sea. Some Chinese military analysts deemed the exercise to be an uncommon “warning to the People’s Liberation Army [PLA].” Then, on March 25, USS McCampbell (DDG 25) conducted a Taiwan Strait transit—the third such transit by a U.S. warship in 2020. In response to McCampbell’s transit, the spokesman for China’s Ministry of National Defense called U.S. actions “a serious violation of international laws on freedom of navigation.” However, there is little legal grounding for this assertion.

A subsidiary of a JPMorgan-linked investment fund is purchasing Xcel Energy's 720 MW gas-fired power plant, which will again raise questions for federal regulators about the investment bank's legal affiliation to the fund. Southwest Generation, the buyer of the Mankato Energy Center (MEC), is owned by Infrastructure Investments Fund (IIF), a $12 billion investment fund advised and managed by JPMorgan Chase & Co. The Federal Energy Regulatory Commission declined to rule on whether JPMorgan is legally affiliated with IIF in its April approval of the fund's acquisition of El Paso Electric, but Tyson Slocum, director of Public Citizen's Energy Program, says he plans to raise the issue again...The argument that FERC's failure to define the relationship may open a loophole for market manipulation is "plausible," Ari Peskoe, director of the Electricity Law Initiative at Harvard told Utility Dive in an email, though he's not sure how real and present that threat may be. "The concern is that since utilities typically recover costs of power [purchases] from captive ratepayers, the parent company could profit by having an affiliate sign un-competitive above-market PPAs with the utility," he said. "A utility could potentially enter into uncompetitive contracts [with] affiliates and would not have to follow [FERC's] rules since FERC wouldn't know that they are affiliates." But at the same time, FERC has specific rules in place around this sort of market abuse, he added. In 2016, for example, Ohio utilities filed for a waiver of these restrictions asking FERC to subsidize the utilities' merchant generation, which FERC rejected, Peskoe pointed out.

An article by Cass Sunstein: It has been almost a week since the Trump administration recommended that all Americans wear masks, or some face coverings, in public to protect against the spread of coronavirus. But the president himself is still not following that advice. As he put it, “Wearing a face mask as I greet presidents, prime ministers, dictators, kings, queens — I just don't see it." Why doesn’t he “see it”? To answer that question, let’s ask another one. If you pass a neighbor on the street or in a grocery store, and if he’s wearing a mask, what do you think? Here are some possibilities: 1. He has coronavirus. 2. He is far more frightened than he should be. 3. He looks weird. 4. He is being prudent. 5. He is simply following the government’s recent recommendations. All over the country, people who wear masks are still producing reactions 1, 2 or 3. To be sure, those reasons were more common a few weeks ago than they are now -- but they continue to be widespread. Here’s the problem: If you know you’re going to produce one of the first three reactions, you’re less likely to wear a mask, even if it’s a sensible thing to do.

An article by Noah Feldman: Mail-in voting is the best way to ensure that the November 2020 election can proceed safely despite the coronavirus pandemic. It’s all too likely we’ll still be dealing with outbreaks then, and it’s well before we’ll have a vaccine. The U.S. needs to start making plans for mail-in ballots now; and yet President Donald Trump has begun to make it clear he intends to stymie any large-scale vote-by-mail efforts. Mail-in voting will become the key battleground because it’s essentially the only realistic option for holding an election during a pandemic. Donald Trump can’t delay the November 3 vote — that’s beyond his constitutional power. In fact, the Constitution doesn’t provide any option for suspending or delaying a presidential or congressional election. Congress “may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” according to the Constitution, but precedent makes it pretty certain that Congress won’t delay the presidential election either; it didn’t even do so in 1864, when the Civil War was in full swing.

In a growing number of cities and states, local governments are collecting the addresses of people who test positive for the coronavirus and sharing the lists with police and first responders...But some public health experts and privacy advocates have raised concerns about police departments maintaining a list of addresses of confirmed coronavirus cases. They say that it could make people reluctant to seek medical care or get tested for COVID-19, the disease caused by the coronavirus, because of a fear of profiling by law enforcement. "With any infectious disease, there's going to be stigma and discrimination about who has it," Robert Greenwald, a professor and the director of the Center for Health Law and Policy Innovation at Harvard Law School, said. "If you're in a situation now where the word starts to get out that if you get screened then your address goes on a list that goes to first responders, it discourages screening for people who don't want to be on this list." Greenwald and three other public health experts also questioned the usefulness of a list of addresses with confirmed cases, noting that since the coronavirus has spread so widely, first responders ought to assume anyone they encounter could be infected. Still, police officials and officers said this information is a helpful reminder to exercise extra caution in the field, beyond the usual safety measures.

Senate Democrats are urging the Trump administration to pause non-critical work like overhauling environmental policies during the coronavirus pandemic. But the proposal is dead on arrival with the Trump administration, which said the crisis highlights the need for regulatory reform to cut red tape holding back businesses across the economy. It also comes as the administration enters a critical window -- just weeks remain to formalize rules that cannot be easily overturned by Democrats, should they prevail in November's elections. By late May or early June, there is no guarantee, legal experts say...From the date a regulation is formalized, Congress has 60 legislative days when it can vote to overturn the regulation, and then seek a presidential signature or veto. Because of breaks, weekends, and other days Congress is not in session, experts say the Congress that assembles next year could reach back as far as June or late May. This scenario does not become a factor if Trump wins reelection, or Republicans control at least one chamber of Congress. The administration does not have time at this point to propose an entirely new rule, perform the required formal steps and avoid the possibility it is rejected by incoming Democrats, according to Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. Her team is tracking the Trump administration's regulatory changes and says the administration may have time to finalize several of its environmental priorities before the deadline.

With COVID-19 cases yet to peak locally, health care workers on the front lines of the growing outbreak face the possibility of having to make excruciating decisions about who gets care and who doesn’t. And in Missouri at least, doctors, nurses and others working under these crisis conditions currently lack any legal protections for such life-and-death decisions, worrying health experts and bioethicists. "When [health care workers] are making these decisions ... we do not want them thinking about medical malpractice or criminal liability. We want them to know ‘we have your back,’” Harvard Law Professor I. Glenn Cohen told KCUR in an email...“Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support,” a recent opinion piece in the Journal of the American Medical Association declared. The piece, by Harvard's Cohen, another Harvard law professor and a doctor at the University of Pittsburgh, says that even though the risks of legal liability in such crisis circumstances are low, “even a small chance of a serious lawsuit could push physicians toward a less ethical and less efficacious first-come, first-serve allocation system for ventilators, leading to a major loss of lives.” Cohen told KCUR that while the risk of getting sued is small, it’s “non-trivial.” “We are asking people to act heroically, to engage in some of the most difficult decisions and actions any physician will undertake – withdrawing a ventilator from someone who will benefit against their wishes,’” Cohen said in an email.

During the Great Plague of London in 1665, houses where the infection appeared were painted with a red cross and sealed, condemning the occupants to death. Now the idea of visibly identifying the infected is being turned on its head as governments around the world look at how to reopen economies shattered by the coronavirus crisis. With hundreds of millions forced to stay home to stop the spread of the virus, politicians and public-health experts are searching for safe mechanisms to allow people to return to work without sparking a second wave of infections. Officials and scientists in Italy, Germany, and other countries are considering giving certificates to people who’ve recovered from Covid-19, the illness caused by the coronavirus...Wearing a bracelet or waving a piece of paper to show your immune status might sound like the plot of a dystopian novel, and scientists and public-policy experts are warning the prospect of “immunity passports” could make the current crisis worse. For one, they worry it could create a two-tiered workforce and perverse incentives for people to try to contract the virus, particularly millennials who might feel their chances of surviving it are high. “Like the ‘chickenpox parties’ of old, some workers will want to get infected,” says I. Glenn Cohen, a bioethics expert at Harvard Law School, referring to when parents deliberately exposed children to others with chickenpox at a young age, when symptoms tend to be milder. “That sounds crazy, but if having the antibodies becomes the cost of entering the job market and thus feeding your family, there may be workers who feel pressured into it.”

From the Bubonic plague in the Middle Ages to the 1918 flu epidemic, pandemics in the past have wreaked havoc on — and restructured — how society treats its workers. With pressure on mega-retailers like Amazon to deliver essential goods to people stuck at home — coupled with increased scrutiny over labor practices and a long-simmering labor movement that has been nipping at the heels of these huge suppliers — could this coronavirus pandemic bring about the labor reckoning that activists have been seeking? “It should,” said Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “I certainly hope that one of the lessons we’ll learn from this horrible experience is how important so many low-wage workers are, and how precarious their positions are.” ...Still, it seems like labor pressure may be building elsewhere. A group of warehouse workers in Chicago staged a demonstration on March 30 as well. Workers in Detroit did the same two days later, and Amazon quickly announced thereafter that they would provide masks and temperature checks in warehouses, the Verge reported. But Block told Digital Trends she was unsure if the labor movement can successfully leverage this moment to have its demands met. “Part of recovering from this nightmare will be giving workers the tools they need to have the voice they’re demanding,” Block said. A post-coronavirus world could offer opportunities for workers to snatch more rights for themselves.

An article by Noah Feldman: In the shadow of the coronavirus pandemic, President Donald Trump is taking ever bolder steps to gut the government structures designed to ensure the rule of law in the United States. In the last week alone, he’s fired two prominent inspectors general: the intelligence community inspector general who received the whistleblower complaint that sparked Trump’s impeachment; and the Defense Department inspector general who had just been named by a group of other inspectors general to oversee the coronavirus bailout effort. Technically, firing IGs is within the president’s constitutional ambit. They’re executive officials appointed by the president and confirmed by the Senate. Yet these firings fundamentally undercut the constitutional idea that the president and his appointees are governed by the law, not above it. The purpose of the 70-odd federal inspectors general is to provide rigorous scrutiny and oversight for federal agencies. That’s why the IGs are typically embedded in the agencies they supervise. It’s also why more than two dozen of the most important IGs, like those for defense and the intelligence community, aren’t hired and fired by the heads of the departments or agencies they oversee. Direct presidential appointment is supposed to make them more independent of the agency hierarchy than they otherwise would be.

A podcast by Noah Feldman: To mark the start of Passover, Idan Dershowitz, a biblical scholar and junior fellow at the Harvard Society of Fellows, discusses the ten plagues of Egypt in the context of the coronavirus pandemic.

An article by Noah Feldman: The Supreme Court’s decision in the Wisconsin election case isn’t exactly the shot heard round the world. In a narrow, 5 to 4 decision, the court’s conservatives held that a federal district court shouldn’t have granted a coronavirus-inspired emergency extension for mailing in absentee ballots. But the Supreme Court’s ruling nevertheless matters a lot. It’s the opening salvo in what is likely to be a seven-month long series of legal battles about how the 2020 elections will be accomplished with Covid-19 disrupting the voting process. So it’s highly unfortunate that the justices split along partisan lines in this first case, a case with relatively low stakes. The nation badly needs the court to avoid a scenario reminiscent of the 2000 Bush v. Gore case, in which the justices were perceived to have decided the election for Bush along roughly ideological lines. The takeaway for states, and for democracy, is clear: Plan now, plan well, and don’t rely on the courts to resolve controversial questions about mail-in voting and deadlines — especially at the last minute.

An article by Zeynep Tufekci: Across the world, from Zurich to St. Louis, authorities are closing down public parks and outdoor spaces—with many citing overcrowding, which they fear will fuel coronavirus infections. In one notable and much-discussed example, officials in London just announced in a scolding tweet that they were closing down Brockwell Park, after they claimed that about 3,000 people took to the park to enjoy the good weather. In the short run, closing parks may seem prudent, when our hospitals are overrun and we are trying so hard to curb the spread of COVID-19. But in the medium to long run, it will turn out to be a mistake that backfires at every level. While it’s imperative that people comply with social-distancing and other guidelines to fight this pandemic, shutting down all parks and trails is unsustainable, counterproductive, and even harmful. To start with, the park crackdown has an authoritarian vibe. In closing Brockwell Park, for example, pictures showed two police officers approaching a lone sunbather, who was nowhere near anyone else—well, except the police, who probably had something better to do. Such heavy-handedness might even make things worse, as it may well shift the voluntary compliance we see today into resistance.

A statement co-written by Charles Fried: Not even a global public health crisis has kept the president from his continuous assault on the rule of law. Last week, President Trump notified Congress that he is firing the intelligence community inspector general, Michael Atkinson. Mr. Atkinson performed an important public service, as required by his official duties, in advancing the whistleblower complaint to Congress, which launched impeachment proceedings. Although the Senate ultimately voted not to convict and remove the president from office, the impeachment hearings included extensive witness testimony from current and former senior government officials that corroborated the accuracy of the initial whistleblower complaint. Throughout those proceedings, Mr. Atkinson conducted himself professionally and in accordance with his responsibilities. Mr. Atkinson has released a public statement regarding his dismissal, explaining that “it is hard not to think that the President’s loss of confidence” in him is directly derived from his “having faithfully discharged [his] legal obligations as an independent and impartial Inspector General[.]”  As he points out, protecting whistleblowers is, necessarily, and legally, a nonpartisan responsibility. Department of Justice Inspector General and Chair of the Council of the Inspectors General on Integrity and Efficiency Michael Horowitz has stated that Mr. Atkinson “is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight.” We too stand with Mr. Atkinson.

Breaking Up Is Hard To Do: Utilities interested in ditching the power markets may find it harder than they would like, according to a new memo by utility attorney Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. FERC's order last year to PJM Interconnection setting a minimum offer price in its capacity auction, an effort to nullify state subsidies to renewable and nuclear generators that Peskoe opposed, triggered several statewide efforts to consider leaving either PJM or ISO-New England. Peskoe examines recent cases and finds that FERC may have the ability to review — and reject — a utility request to leave its market. "I conclude that withdrawal is legally plausible, but FERC could block withdrawal, and it might be more inclined to do so in response to a protest filed by an ISO-NE transmission owner," he writes.

An article by Samantha Power: Close to 370,000 infections and nearly 11,000 deaths in the United States. Nearly 10 million Americans filing unemployment claims. Unimaginable heartbreak and hardship, with worse to come. Given this still-developing emergency, and the fatal inadequacy of the U.S. government’s domestic preparedness and response so far, it is very hard to focus on the devastation that is about to strike the world’s poorest and most vulnerable. But if President Trump doesn’t overcome his go-it-alone mind-set and take immediate steps to mobilize a global coalition to combat the Covid-19 pandemic, its spread will cause a catastrophic loss of life and make it impossible to restore normalcy in the United States in the foreseeable future. Covid-19 is poised to tear through poor, displaced and conflict-affected communities around the world. Three billion people are unable to wash their hands at home, making it impossible to follow sanitation protocols. Because clinics in these communities have few or no gloves, masks, coronavirus tests, ventilators (the entire country of South Sudan has four) or ability to isolate infected patients, the contagion will be exponentially more lethal than in the developed countries it is currently ravaging.

Even if there’s a baseball season this summer, Red Sox fans won’t see left-hander Chris Sale pitch. He underwent Tommy John surgery on March 30 and talked about the rehab process in a teleconference on Tuesday. “It’s going to be nine to 14 months of just getting after it and being able to get my body back in shape,” Sale said. “And I’m gonna have a better elbow than I did before.” But Sale’s elbow ligament reconstruction — and that of two other Major League Baseball pitchers — drew attention to a different timeline. They all happened after the American College of Surgeons recommended that elective procedures be minimized, postponed or canceled because of the coronavirus. And they raised new ethical issues for the sports world...But for bioethicists, there’s a dangerous ripple effect when high-profile, non-essential surgeries take place during a pandemic. “We have a message that we're all in it together, sink or swim together,” said I. Glenn Cohen, a Harvard Law School professor who’s an expert in health law and bioethics. “And when we see people who are not sinking or swimming together, but swimming to the top, it's very disheartening and really erodes some of that solidarity.” Cohen also noted that it highlights inequities in the American health care system. Professional athletes can draw even more attention to those inequities. That happened when NBA players gained quick and easy access to coronavirus tests when most people had to wait.

The EPA overcorrected when it scrapped an entire Obama-era climate regulation in response to a court order focused on just part of the rule, the D.C. Circuit said. The Tuesday ruling is a win for the Natural Resources Defense Council and a coalition of states that challenged the Environmental Protection Agency’s decision to eliminate Obama-era restrictions on hydrofluorocarbons. One state called it “an important victory in the fight against climate change.” The U.S. Court of Appeals for the District of Columbia Circuit agreed with the challengers that the EPA shouldn’t have fully tossed the 2015 restrictions on HFCs, powerful greenhouse gases that are used in air conditioning, refrigeration, and other products...Caitlin McCoy, an attorney for Harvard Law School’s Environmental and Energy Law Program, said the ruling will block the EPA from trying to use court decisions as cover for broader policy moves in other contexts. “The D.C. Circuit has made it clear that EPA cannot say it is merely implementing a court decision and use that as a backdoor to finalize additional changes without providing public notice and an opportunity to comment,” she said. “This is an important decision at an important time as the agency faces a lot of litigation that it may implement through rules as decisions come down in the near future,” McCoy added.