Media Mentions

A podcast by Noah Feldman: Dr. Louise Ivers, the executive director of the Massachusetts General Hospital Center for Global Health, explains why states like Massachusetts are investing in a strategy called contact tracing to stop the spread of the novel coronavirus.

An article by Noah Feldman: Attorney General William Barr has issued a memo threatening to sue states if they infringe on people’s freedoms during the coronavirus pandemic — and encouraging U.S. attorneys to look for cases to bring against the states. Not to put too fine a point on it, but what in the world does Bill Barr think he’s doing? As the memo itself acknowledges, restrictions on movement are necessary public health measures legitimately carried out by states. It’s hard to know for sure, and the memo is so vague and equivocal that it reads almost like some sort of secret code. One interpretation is that Barr is trying to harness the power of the Department of Justice to contribute to Donald Trump’s rhetorical, electioneering efforts to urge the rapid reopening of state economies. Trump has been making life harder for governors by encouraging public protests against their stay-home orders. Barr’s memo now threatens those governors with legal enforcement measures. If and when the states reopen, Trump (and Barr) can then try to take credit for state governors’ decisions by claiming to have forced them into it.

As the novel coronavirus began to spread, school districts quickly shut down, closing facilities and shifting classes online. As a result, many parents suddenly found themselves thrust into a new role: teacher. With more than 50,000 coronavirus deaths in the U.S., state governments have issued social distancing measures and orders to stay at home. Some government officials have proclaimed that schools won't reopen this spring while some colleges have already moved summer classes online and are looking ahead to the possibility of remote instruction for the fall. Despite the pandemic, the need for an education at all levels continues...Some critics worry about both the safety and efficacy of homeschooling. "Kids are falling through the cracks," says Elizabeth Bartholet, a law professor and faculty director and founder of the Child Advocacy Program at Harvard University in Massachusetts. Bartholet is concerned about homeschool children being abused and neglected. Her concern is prompted by the regulatory patchwork that governs homeschooling in the U.S. Even among states with more stringent rules on homeschooling, she says, there is potential for harm to children because state laws often lack oversight of home environments. "Many jurisdictions don't even require homeschoolers to register. And if they do require them to register, they don't enforce the requirements," Bartholet says. "It's really hard to study the overall population."

An article by Laurence Tribe: In times as dark as these, it can be tempting to wonder whether the American experiment has failed. New York digs mass graves as though out of Boccaccio’s most ashen imaginings; the president of the United States just recommended we all inject cleaning solvent. More than a crisis of the times, this episode feels like a calamitous failure of government. How is it that our national stockpiles were left to languish, our Centers for Disease Control and Prevention was slashed and left to ossify, and our experts’ wise counsel ignored, our alarm bells silenced? For some, this is symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18-century dream more papier-mâché than proper governance. As Kreitner bewails, “Neither the paralyzed, sclerotic central government” nor our “arbitrarily determined States” have been able to tackle the crisis laid at our feet. He recommends a radical overhaul of the system — disintegration into loosely cooperative regional networks à la the failed Articles of Confederation — and, in effect, its abandonment altogether. Such radical solutions might be mere doomsayings, but their premise simply isn’t true. To misconstrue this moment as the death knell of federalism dangerously misunderstands how the pandemic has showcased federalism’s versatility, resilience, and strength. As these endless months have stretched on, American federalism has flexed its institutional muscles not in a hapless rendering of Trump’s ego projects, but squarely in the common defense.

Arizona officials in multiple agencies are unlawfully withholding data, statistics, and information regarding COVID-19 outbreaks and abusing health privacy laws, according to top experts in public information and health privacy. The experts said one of the most notable violations involves Governor Doug Ducey, Arizona Department of Health Services Director Dr. Cara Christ, and Maricopa County Health Department Director Dr. Rebecca Sunenshine. All three are refusing to release the names and locations of long-term care facilities with positive coronavirus cases. ABC15 interviewed Marsh and three other experts for this report. They include: David Bodney, a prominent First Amendment attorney based in Phoenix; Dan Barr, another Phoenix attorney with a long history of fighting for public access and records; and I. Glenn Cohen, a Harvard Law professor who studies health law and privacy...For weeks, reporters have requested statistics and locations regarding long-term health facilities... “Truthfully, I think it erodes the public trust,” Cohen said. “Anybody who has a loved one in these nursing facilities has a lot of questions and probably deserves some answers.” Cohen cited the example of a New Jersey nursing home where more than 70 people have died. Some of the residents found deceased in their rooms.

Attorney General William Barr on Monday directed federal prosecutors to “be on the lookout” for public health measures put in place amid the coronavirus pandemic that might be running afoul of constitutional rights. In a two-page memorandum to the 93 U.S. attorneys, Barr cautioned that some state and local directives could be infringing on protected religious, speech and economic rights. “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote...The Supreme Court has long held that constitutional rights can be lawfully restricted when emergency public health measures are in place, though the precise scope of government public health power is not clearly defined. Legal experts caution that governments can be prone to overreach amid exigent circumstances. “In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” Harvard Law professor Glenn Cohen previously told The Hill.

Hull’s David Maglio says he began to feel ill on April 2, shortly after being transferred from a prison in Massachusetts to the Donald W. Wyatt Detention Facility. He put in sick slips, but his complaints went unanswered, he says...On April 21, Maglio, of Hull, became the first Wyatt detainee to test positive for COVID-19, the illness caused by the novel coronavirus. At the time, Maglio was one of three inmates tested for the potentially deadly virus out of about 580 being held at the quasi-public prison. Since then, seven others -- one a 43-year-old Mexican national in U.S. Customs and Enforcement custody -- have tested positive. So far, no staff been found to be positive for COVID-19...Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard Law School, was aghast by the prison’s treatment of Maglio. “Taking care of business now is like closing the barn door after the horses escaped,” Gertner said Monday. “Eight inmates is an outbreak. ... It’s clear they didn’t do the things they needed to do before an outbreak.” Prisons face the unique challenges of confronting the virus while housing a vulnerable population with acute health risks who cannot socially distance with medical care that is often not up to snuff, she said. An additional obstacle is that inmates may be reluctant to report symptoms due to the punitive nature of isolation; there must be incentives, she said. She urged that reducing Wyatt’s numbers is the only way to ensure that detainees can socially distance, as has been seen at prisons elsewhere. Wyatt is now at 75% capacity.

Georgia lost a close U.S. Supreme Court case over the state’s ability to copyright its annotated legal code, in a ruling heralded by public access advocates over dissent that lamented its disruptive impact on states’ existing business arrangements. Copyright protection doesn’t extend to annotations in the state’s official annotated code, Chief Justice John Roberts wrote for a 5-4 majority on Monday that crossed ideological lines. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined Roberts. The high court clarified the scope of the “government edicts doctrine,” which had previously barred copyright in materials created by judges. The doctrine’s logic also applies to materials created by legislatures, Roberts wrote. Because Georgia’s annotations are authored by an arm of the legislature in the course of its official duties, the doctrine bars copyright here, too...The decision is “great news for those who want to publish, comment on, or build on the law,” added Kendra Albert, clinical instructor at the Harvard Cyberlaw Clinic, which also supported Public Resource in a high court brief, on behalf of Caselaw Access Project. “The Supreme Court’s adoption of a bright line rule that the legislators’ works are uncopyrightable will help ensure that the law is accessible in a variety of formats and mediums.”

An article by Dustin Lewis: I am grateful for the invitation to contribute to this online symposium. The preservation of international legal responsibility and agency concerning the employment of artificial-intelligence techniques and methods in relation to situations of armed conflict presents an array of pressing challenges and opportunities. In this post, I will seek to use one of the many useful framings in the ICRC’s 2019 “Challenges” report’s section on AI to widen the aperture further in order to identify or amplify four areas of concern: detention, humanitarian services, uninhabited military maritime systems, and legal advice. While it remains critical to place sufficient focus on weapons and, indeed, on the conduct of hostilities more widely, we ought to consider other (sometimes-related) areas of concern as well. Drawing on research from an ongoing Harvard Law School Program on International Law and Armed Conflict project that utilizes the analytical concept of “war algorithms,” I will sidestep questions concerning the definitional parameters of what should and should not be labeled “AI.” (A “war algorithm” is defined in the project as an algorithm that is expressed in computer code, that is effectuated through a constructed system, and that is capable of operating in relation to armed conflict.) Instead, I will assume a wide understanding that encompasses methods and techniques derived from, or otherwise related to, AI science broadly conceived.

Truck drivers and warehouse workers at Cort Furniture Rental in New Jersey had spent months trying to unionize in the hopes of securing higher wages and better benefits. By early this year, they thought they were on the cusp of success. But when the coronavirus arrived, Cort, which is owned by Warren Buffett’s Berkshire Hathaway, laid off its truck drivers and replaced them with contractors, workers said. The union-organizing plans were dashed. “They fired us because we tried to start a union,” said Julio Perez, who worked in Cort’s warehouse in North Bergen, N.J. As American companies lay off millions of workers, some appear to be taking advantage of the coronavirus crisis to target workers who are in or hope to join unions, according to interviews with more than two dozen workers, labor activists and employment lawyers...The pattern is playing out across the American business landscape. “This is a continuation of behavior that has become all too common, of employers being willing to use increasingly aggressive tactics to stop unionizing,” said Sharon Block, a former National Labor Relations Board member appointed by former President Barack Obama. “The pandemic has given them another tool in their toolbox.”

An article by Noah Feldman: Whenever we’re ready to re-open Covid-closed businesses, we’ll have to resolve some important questions about how to do so safely. One of them: what kind of measures should businesses take to keep employees and customers safe, and how should business owners be held accountable if they play fast and loose with others’ health? This debate over limiting liability has just begun, and it’s already taken a partisan turn. That’s unfortunate, because there’s a straightforward middle-ground solution available. Republicans have called for federal legislation to render businesses immune from lawsuits; Democrats are skeptical of the whole idea. Both sides are on to something important. The risk of being sued — and having to pay outsize damages if people become sick — is real. But so is the risk that complete immunity from lawsuits would lead to lax safety standards that endanger public health. Congress should direct the CDC to issue a specific protocol designed to keep workers and customers safe. Businesses that follow these federal rules should have a safe harbor from liability, even if some people get sick on their premises. Those who break the rules should be able to be sued for breaches that lead to infection.

The U.S. Environmental Protection Agency opened a Pandora's box for utilities with an about-face on the justification underpinning an Obama-era rule limiting coal-fired power plants' mercury emissions, including the potential that ratepayers will try to claw back what they paid for utilities to comply with the rule. Experts say that at best, the EPA's finalized cost-benefit analysis of its Mercury and Air Toxics Standards rule is an empty gesture to utilities. The EPA said it's not "appropriate or necessary" to regulate hazardous air pollutants from coal and oil-fired plants under Section 112 of the Clean Air Act, but the rule remains in place and utilities have already spent billions to comply with it. At worst, the EPA's move could spark renewed legal challenges to overturn the MATS rule in its entirety...Experts say the EPA could have really cut the legs out from under the MATS rule by also removing power plants from the list of pollution source categories subject to regulation under Section 112, but ultimately decided not to. "Although there is still some chance that the coal industry will challenge the standards on the grounds that the appropriate and necessary finding is gone, their prospects for success are dimmer now," said Joseph Goffman, an Obama-era EPA official who is now the executive director of Harvard Law School's Environmental and Energy Law Program. Still, if a court were to enjoin the MATS rule, utilities might not only have spent billions of dollars on pollution controls in vain, but could also face attempts from consumer groups to convince state utility regulators that utilities can't recover the costs of installing those pollution controls from ratepayers.

An article by Louis Kaplow: We are flying blind in the fight against Covid-19. The number of cases is surely much greater than what we see and what is being relied on to provide direction for devising and implementing policy. But is the true number two to three times higher, as some experts say? More like 10 times, as other analysts calculate? Or perhaps as much as 50 to 100 times higher, as indicated by early random testing in Iceland; a population study of Vò, Italy; and some recent results in California? Every day, national leaders, governors, mayors and public health officials are making decisions that are among the most consequential of our lives, with the agony compounded by the magnitude of the unknowns. If we knew more, we could markedly improve health resource allocation and decisions about where, when and how we can safely reopen parts of the economy. Random population testing is the key to unlocking the mysteries surrounding Covid-19. The quantity of current testing still does not tell us what we need to know. Think about it this way: No one would rely on a poll of the Trump-Biden race, even of a large number of individuals, if everyone was queried at a Trump rally. With the coronavirus, most current testing is skewed toward the symptomatic and the sickest — those who show up in E.R.s or otherwise seek tests, a group significantly, perhaps wildly, unrepresentative of the population.

An article by Elizabeth Bartholet: The US Department of Health and Human Services recently announced that social workers need not see children being monitored in foster care in person, as required by federal law, but can instead use video conferences to reduce the risk of COVID-19. It’s more troubling that social workers are making increasing use of video conferences for children living with the parents who have subjected them to maltreatment, resulting in heightened danger for children. The risk of repeat maltreatment at home is higher today, with the near-universal closing of schools, widespread stay-at-home orders, and the related isolation of families. Child abuse thrives in isolation and in the situations of financial and emotional stress that are part of the fallout from the coronavirus pandemic. In-home visits would allow child welfare workers to identify signs of abuse or neglect. Homeschooling deprives children of one of their best protections against maltreatment: signs of abuse observed by teachers and other school personnel, who are mandated reporters and responsible for the largest number of reports to state departments of child protective services. Prior to this crisis, there was evidence that homeschooled children were at greater risk for abuse than children attending regular schools. For example, child abuse pediatricians published studies that show a high percentage of seriously abused children were homeschooled.

An article by Jack Goldsmith and Andrew Keane Woods: Covid-19 has emboldened American tech platforms to emerge from their defensive crouch. Before the pandemic, they were targets of public outrage over life under their dominion. Today, the platforms are proudly collaborating with one another, and following government guidance, to censor harmful information related to the coronavirus. And they are using their prodigious data-collection capacities, in coordination with federal and state governments, to improve contact tracing, quarantine enforcement, and other health measures. As Facebook’s Mark Zuckerberg recently boasted, “The world has faced pandemics before, but this time we have a new superpower: the ability to gather and share data for good.” Civil-rights groups are tolerating these measures—emergency times call for emergency measures—but are also urging a swift return to normal when the virus ebbs. We need “to make sure that, when we’ve made it past this crisis, our country isn’t transformed into a place we don’t want to live,” warns the American Civil Liberties Union’s Jay Stanley. “Any extraordinary measures used to manage a specific crisis must not become permanent fixtures in the landscape of government intrusions into daily life,” declares the Electronic Frontier Foundation, a digital-rights group. These are real worries, since, as the foundation notes, “life-saving programs such as these, and their intrusions on digital liberties, [tend] to outlive their urgency.”

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

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

Last week, images of MAGA-hat wearing protestors, unmasked and tightly packed together on street corners, ricocheted across the internet...Depending on your politics — and perhaps your trust in epidemiologists — the attendees were either brave freedom-fighters resisting government overreach or reckless ideologues, risking public health to produce a moment of media spectacle. On Monday, Recode reported that Facebook, after consulting with state governments, had removed certain event pages for in-person rallies against coronavirus lockdowns in California, New Jersey, and Nebraska. The decision was met with immediate backlash...The move raises serious questions about the role of social platforms during the pandemic — and not just among those sympathetic to anti-quarantine rallies. Social distancing has eliminated many of the traditional methods for effectively leveraging political energy against decision-makers...Due to a dearth of human content moderators, Facebook is relying more heavily on its AI algorithms to flag unacceptable speech. “The platforms are churning out new rules by the day and being unapologetic about it,” said Evelyn Douek, a doctoral student at Harvard Law School who focuses on social platforms and digital constitutionalism. To an extent, Douek said, that makes sense. “Emergency powers are good when there’s an emergency.” False or deliberately harmful information about Covid-19 could endanger millions of lives.

An article by Daniel Pessar '20: In response to the COVID-19 pandemic, countless government agencies at the federal, state, and local levels are working to relax certain rules to help industry operate and respond to the needs of the public. For example, the U.S. Food and Drug Administration has issued a host of temporary policies to facilitate increased production of hand sanitizer, sterilization of respirators, and increased availability of shell eggs for retail sale. This last effort impacts countless Americans and will be the focus of this post. Just as the FDA has an interest in helping medical supplies manufacturers and users to have enough inventory on hand, it seeks to respond to the changes in supply and demand in food markets, such as the current trends in the market for shell eggs. Shell eggs are the eggs many of us purchase in supermarkets, as distinguished from the processed egg products—available in liquid, frozen, or dried form—sold to restaurants and prepared foods manufacturers. Because of the pandemic, there are more people buying more shell eggs and fewer people eating in restaurants. As a result, the egg industry asked the FDA to help make it easier for them to direct more eggs to meet shell egg demand, rather than being sent for further processing.

Joe Biden warned his supporters Thursday night that President Trump will try to delay the November election. “Mark my words,” the former vice president said, “I think he is gonna try to kick back the election somehow, come up with some rationale why it can’t be held.” Even if Biden is right and Trump wanted to postpone the election — Trump’s campaign flatly denied the president has any desire to do so — the president has no power over when America votes. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country...But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.

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