Media Mentions

An article by Cass Sunstein: As part of the war on coronavirus, U.S. regulators are taking aggressive steps against “sludge” – paperwork burdens and bureaucratic obstacles. This new battle front is aimed at eliminating frictions, or administrative barriers, that have been badly hurting doctors, nurses, hospitals, patients, and beneficiaries of essential public and private programs. Increasingly used in behavioral science, the term sludge refers to everything from form-filling requirements to time spent waiting in line to rules mandating in-person interviews imposed by both private and public sectors. Sometimes those burdens are justified – as, for example, when the Social Security Administration takes steps to ensure that those who receive benefits actually qualify for them. But far too often, sludge is imposed with little thought about its potentially devastating impact. The coronavirus pandemic is concentrating the bureaucratic mind – and leading to impressive and brisk reforms. Consider a few examples.

Professors Robert Tsai and Glenn Cohen discuss the concepts of federalism and states’ rights in the context of the ongoing COVID-19 crisis.

When a Boys and Girls Club employee in Bremen tested positive for the coronavirus last month, the local school superintendent quickly decided to make a public announcement about the case...As the number of COVID-19 infections climbs throughout the Midwest and the rest of the nation, state and county health officials are typically releasing broad information and statistics on infections, despite a hunger from residents for more details on the spread of the virus in their communities, or even their neighborhoods. In Illinois, Indiana, Kentucky, Michigan and Ohio, health officials are releasing little more than limited data on gender, age ranges and county of residence. Health officials and some experts argue that the conservative approach is justified by medical privacy rights...But while HIPAA allows doctors to share some data with public health authorities, it offers little guidance on what types of information those health officials can release to the public, even during epidemics. That leaves local health departments to decide how much data about COVID-19 cases they ought to share with the public. I. Glenn Cohen, a Harvard Law School professor who focuses on bioethics, said public health officials must make judgment calls about the details they can provide without identifying patients. “There’s a lot of leeway here, but what they ought to be thinking about is, ‘How can I be transparent and open with the population and share the most information we can without risking the identification of individual patients,’” Cohen said.

From the perspective of the liberal policy establishment, Donald Trump has launched an aggressive and unprecedented assault on workers’ rights and the labor movement. From the perspective of the right, Trump has governed on labor almost exactly as any other Republican president might have...One way Trump has taken aim at unions is through the National Labor Relations Board, or NLRB, which is the federal agency tasked with protecting the rights of private-sector workers and encouraging collective bargaining. Private-sector workers are barred from bringing workplace grievances through the courts themselves, so filing complaints with the NLRB—which has more than two dozen regional offices spread across the country—is how employees can seek redress if they feel their rights have been violated...The decisions already issued by Trump’s NLRB could weaken the impact of California’s new labor law by confusing workers and deterring other states from moving forward with their own solutions. “I think it is probably very confusing to hear that you are not an employee and don’t have a right to collectively bargain under federal law, but that you are an employee for the purposes of California law,” said Sharon Block, an Obama Labor Department official and now a labor expert at Harvard Law School. “When labor rights are more complicated it makes it less likely that they will be invoked. It’s good lawmakers are moving forward in California, but this counter-signal from the federal government could have a chilling effect on workers who might otherwise assert their rights.”

An article by Michelle A. Williams, Bizu Gelaye and Emily M. Broad Leib: Over the past few weeks, our urban centers have scrambled to mobilize in response to the mounting covid-19 cases. But be forewarned: It’s only a matter of time before the virus attacks small, often forgotten towns and rural counties. And that’s where this disease will hit hardest. Covid-19 is infiltrating more of the country with each passing day. Colorado, Utah and Idaho are grappling with sudden clusters in counties popular with out-of-state tourists. Cases are also skyrocketing in Southern states such as Georgia, Florida and Louisiana. So far, sparsely populated communities have been better insulated from the spread. But since no place in the United States is truly isolated, there’s simply no outrunning this virus. Every community is at imminent risk. Rural communities could fare far worse than their urban and suburban counterparts. Rural populations are older on average, with more than 20 percent above the age of 65. Rural populations also tend to have poorer overall health, suffering from higher rates of chronic illnesses such as heart disease, diabetes and lung conditions, all of which put them at greater risk of becoming severely ill — or even dying — should they become infected.

A book review by Cass Sunstein: As a teenager, I fell for Ayn Rand. More precisely, I fell for her novels. Reading The Fountainhead at the age of fourteen, I was overwhelmed by the intensity and passion of Rand’s heroic characters. Who could forget the indomitable Howard Roark? His face was like a law of nature—a thing one could not question, alter or implore. It had high cheekbones over gaunt, hollow cheeks; gray eyes, cold and steady; a contemptuous mouth, shut tight, the mouth of an executioner or a saint. Roark was defined by his fierce independence: “I do not recognize anyone’s right to one minute of my life,” he says in the novel. “Nor to any part of my energy. Nor to any achievement of mine. No matter who makes the claim, how large their number or how great their need.” Like countless teenage boys, I aspired to be like Roark. And I found Rand’s heroine, Dominique Francon, irresistible.

An article by Rangin Pallav Tripathy: I recently completed 14 days of quarantine at my residence in Cuttack, Odisha, after I returned from my Fulbright post-doctoral research fellowshsip at Harvard Law School. Enforcing home-quarantine of foreign returnees has been a challenge for state governments across the country. There have been many examples of people violating their quarantine, putting others at risk. While Odisha has not been without incidents of administrative lapses and willful negligence, the state government has done a far better job of monitoring the quarantine situation than most of its counterparts. Even though the bureaucratic inefficiencies are still glaringly visible, the state machinery has done a rather commendable job so far. One of the astute measures the Naveen Patnaik government took was to start an online portal and a helpline number where foreign returnees are required to register themselves. While lack of registration will trigger criminal penalties, the government has also incentivised the process by offering Rs 15,000 to all individuals who register themselves and complete the 14-day quarantine. The online form requires a foreign returnee to provide details of recent travel history and also local residential details along with contact information. There were, however, two shortcomings in the implementation that I noticed from my experience.

It is difficult to focus on anything other than Covid-19 in our current news environment, but spare a moment for President Trump’s new fuel economy standards, announced in final form on Tuesday. They replace the Obama administration’s standards, which would have pushed the US auto fleet to an average efficiency of 54.5 mpg by 2025, with standards that would reach only 40 mpg (a goal the industry expects to exceed even without a rule). By the Trump administration’s calculations, the change will result in almost a billion more tons of greenhouse gases emitted over the next five years. In one stroke, the best thing Obama ever did for climate change —addressing the most carbon-intensive sector of the US economy — has become the worst thing Trump has done for climate change...On March 31, the administration released phase two, the Safe Affordable Fuel-Efficient (SAFE) rule. SAFE no longer freezes standards in place. Instead, it requires fuel efficiency to rise a mild 1.5 percent a year, reaching 40 mpg in 2025. That is almost certainly a slower pace of improvement than the industry will achieve on its own, with no prompting... “But when we look at the numbers,” Caitlin McCoy, a staff attorney at Harvard’s Environmental & Energy Law Program, wrote in an analysis of the rule, “the vehicle purchase price would be reduced by $977 to $1,083 relative to the Obama rules, but the increased price at the pump of driving less fuel-efficient vehicles would be $1,423 to $1,461 (at 3% discount rate).” Even at a higher 7 percent discount rate, increased fuel costs outweigh vehicles savings in the most optimistic scenario.

An article by I. Glenn Cohen, Andrew M. Crespo, and Douglas B. White: Our health care system is on the cusp of a crisis not seen before. A ventilator shortage is coming, if it’s not already here. Hospitals, physicians and nurses are likely to face a terrible choice: Should they withdraw or withhold ventilators from some patients so that others with better odds of survival might benefit from the machines? Doctors are used to discontinuing ventilator treatment if it doesn’t achieve a patient’s goals or is inconsistent with a patient’s wishes. But Covid-19 presents an altogether different issue: Denying some patients short-term ventilation, against their wishes, will probably cause them to die when they might have gone on to live long and healthy lives with the treatment. But it will also make limited numbers of ventilators available to other patients who are more likely to survive. Facing this dilemma, doctors and medical ethicists have designed model triage protocols that ration and reallocate scarce ventilators among patients, with a goal of saving the most lives. But some doctors, nurses and other health care professionals are already wondering whether following those protocols will put them at risk of being sued or even prosecuted.

An article by Noah Feldman: It’s not only factories that can’t retool overnight to meet the Covid-19 pandemic. Our brains can’t, either. The way we think and the things we think about follow patterns that are capable of evolution and change — just not that fast. You can see this phenomenon all around you right now: whatever we cared about before, we’re now using as our lens to think about the novel coronavirus. And subject matter experts, the people we need most in a crisis, are also the most likely to keep thinking as they have, because their thinking is so strongly shaped (or deformed) by professional training and strong collective values. I could give you lots of examples. If you usually think about workplace diversity, now you’re likely to be focused on the disparate impacts of the virus on workers based on sex, race and class. If you’re focused on reforming incarceration, you’re probably among those warning of the pandemic’s impact on the prison population. But perhaps the most important two examples of experts following their training and beliefs are the two disciplines whose knowledge is most central to the current crisis: epidemiologists and economists.

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.