Media Mentions

An article by Glenn Hubbard and Hal Scott: The U.S. economy is in free fall. Leading economic forecasters predict as much as an 11% year-over-year decline in second-quarter gross domestic product. Small businesses—those with under 500 employees, which constitute 50% of the workforce and 44% of GDP—have closed their doors and are teetering from illiquidity to insolvency. Depression is around the corner. The priority should be to get funds to these firms to avoid disaster. Unfortunately, the Main Street Expanded Loan Facility, designed by the Treasury and Federal Reserve, will fail to do so. It wrongfully prioritizes preventing losses over rescuing the economy. The Treasury needs to allocate much more than $75 billion to this program if it is to succeed. The Main Street Facility is an essential expansion of the $349 billion Congress initially provided to small business through the Cares Act’s Paycheck Protection Program—money that ran out Thursday. Lawmakers rightly prioritized saving small business over the substantial cost involved. Most of the PPP loans won’t be repaid, because the program forgives loans if borrowers spend 75% on retaining employees. Congress is expected to allot another $250 billion to PPP.

An article by Cass Sunstein: Since Jan. 30, 2017, the Trump administration’s approach to federal regulation has been defined by a simple requirement: “one in, two out.” The basic idea, set out in one of President Trump’s first executive orders, is that whenever a federal agency issues one regulation, it has to take at least two regulations away — and produce an incremental cost, on the private sector, of zero. The idea was absurd from the very start. It was profoundly demoralizing to experts in federal agencies, who know a lot about science and who have plenty of good ideas about how to protect public health and safety. But its absurdity has been put in a whole new light by the Covid-19 pandemic, which demonstrates that the regulatory state is no enemy of the people — and that smart safeguards, designed by specialists, save lives. It is true that to many people, the one-in, two-out idea has a lot of intuitive appeal. For one thing, it instructs regulators — at the Environmental Protection Agency, the Department of Transportation, the Department of Health and Human Services and elsewhere — to get rid of outmoded or dumb regulations. If we want to free up the private sector from regulations that do more harm than good, it might make sense to insist: If you want to do something new, you had better get rid of something old. But there is a subtler point. Mr. Trump clearly wanted to slow the issuance of new regulations. The one-in, two-out principle is well suited to achieving that goal.

An article by Carol Rose and Robert Greenwald: During the 1918 influenza pandemic, local governments in the United States placed special placards on the doors of homes where sick people were subject to quarantine. The measure was an attempt to contain the spread of a virus that ultimately killed nearly 700,000 people in the United States alone. Sadly, this well-intentioned move backfired: Many doctors chose not to report cases in order to prevent homes from being quarantined. Families of sick people sought to evade the stigma of a placard on their homes by not seeking medical attention. In light of today’s coronavirus crisis, it’s useful to recall this history and to avoid repeating the mistakes of the past. Yet in an executive order dated March 18, the administration of Governor Charlie Baker directed local boards of health to submit to first responders the home addresses of people who have tested positive for the virus. The idea is that police, fire services, and EMTs should know which homes have COVID-19 cases so that responders can adequately protect themselves. Protecting the health of first responders is certainly an important priority that the state needs to address; however, some public health experts have noted that disclosing addresses does not ensure a first responder would be safe from exposure from asymptomatic people or from those who are infected but remain untested. It may seem counterintuitive, but this order could indeed do more harm than good.

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work. Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states. The powerful lobby argues the sheer number of lawsuits could overwhelm businesses. Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die...It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing. “The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

While all tax attorneys face challenges representing clients during the COVID-19 pandemic, tax practitioners fear that IRS Appeals cases face particular setbacks due to a lack of face-to-face meetings with Appeals employees and the office's resource constraints. Successfully working cases before the Internal Revenue Service's Independent Office of Appeals depends particularly on the relationship between the tax practitioner and Appeals officers. That rapport can be difficult to maintain when all meetings are conducted over the phone or via teleconference while IRS employees are under a work-at-home order...Attorneys involved in lower-tiered disputes that don't involve complex portions of the tax code or large case files may not be affected that much, according to T. Keith Fogg, law professor and director of the Federal Tax Clinic at Harvard Law School's Legal Services Center. “For most of my clients, because they're low income, Appeals doesn't want to have a face-to-face conference to begin with,” Fogg told Law360. “We don't normally push for one either. So it's not a big deal for us.”

The federal judge overseeing the criminal case against Roger J. Stone Jr. refused on Thursday to grant him a new trial, rejecting the defense’s argument of juror misconduct that President Trump has also repeatedly trumpeted. Judge Amy Berman Jackson of the United States District Court in Washington ordered Mr. Stone to surrender to the federal Bureau of Prisons as soon as he is notified to do so. She also released him and his lawyers from a gag order she imposed months ago. The judge’s decision appears to end one of the most politically fraught federal criminal cases in recent years. In a last-ditch effort to keep their client out of prison, Mr. Stone’s lawyers had claimed that the jury forewoman had improperly concealed a bias against Mr. Stone, justifying a new trial...Prosecutors argued that the defense motion for a new trial was “nothing more than an attempt to fuel its public campaign to undermine the jury’s verdict through a frivolous juror misconduct claim.” Nonetheless, in an unusual move, Judge Jackson held a four-hour hearing on the motion, summoning a dozen jurors back to the courtroom in February, three months after they had rendered a verdict. Nancy Gertner, a retired federal judge who now teaches at Harvard Law School, said she believed the judge was being especially careful because the case had been so high-profile, not because the president was “breathing down her neck.” “I would have done what she did,” she said.

The Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers. The court said that it will hear 10 arguments over the first two weeks in May, including blockbuster disputes over the Electoral College and whether President Donald Trump can keep his tax records shielded from investigators. The issues are weighty, whether they are discussed in a basement office over a cell phone or inside the Supreme Court’s historical Corinthian building. But lawyers who will be arguing before the court are still adjusting...In interviews, lawyers expressed overwhelming relief that the court was moving forward with arguments, even as some worried about kids and dogs being overheard on the phone. The most pressing concern, unanimously, was about how to gauge the justices’ reactions without body language cues. “The opportunity to see people, and how they are understanding or not understanding what you’re saying, is very important,” said Lawrence Lessig, the Harvard Law School professor and 2016 Democratic presidential candidate, who will represent Electoral College voters next month in a dispute over whether they may disregard their state’s popular vote. Lessig said he had already been doing moot courts, or rehearsals, over the videoconferencing platform Zoom. Now, he will “definitely” be doing moots by phone, he said.

On the perpetual campaign trail, Donald Trump likes to brag that his regulatory rollbacks will save Americans from having to depend on the latest energy-saving light bulbs. (“To me, most importantly, the light’s no good. I always look orange.”) He promises to get rid of water-efficiency standards because toilets require too much flushing. (“Ten times, right?… Not me. But you. Him.”) The aim is to find a homey way to put across the message that regulations — especially environmental regulations — inconvenience the average American. They hurt the economy. They cost jobs...The move to discredit benefits began as a result of the Clean Air Act Amendments of 1990 targeting acid rain emissions from coal-burning power plants, mostly located in the Midwest...At the time, the paradigm was that “like politics, all pollution is local,” says Joseph Goffman, executive director of Harvard’s Environmental and Energy Law Program, who helped write the original legislation as an attorney for the Environmental Defense Fund. The soot and other pollution that made a difference for human health was thought to come from nearby sources...The Trump administration has tried multiple tactics to skew cost-benefit calculations back in favor of deregulation. Caitlin McCoy, also an attorney in the Environmental and Energy Law Program, lists a few such tactics.

Lila Fenwick ’56 was a student at Harvard Law School in 1954 when the Supreme Court decision in Brown v.  Board of Education came down. “I was delirious,” recalled Fenwick, one of only a handful of women students at HLS at the time and the only black woman among them. She went on to a career in the United Nations and in private practice. “I knew I was going to be a lawyer when I was a little girl,” she said. “It never occurred to me that there were going to be any obstacles.” With that determination, Fenwick, who died on April 4, helped tear down obstacles for generations of others.

Environmental groups said they are prepared to sue EPA over its proposal to leave national soot standards unchanged, a move that conflicts with scientific evidence and career staff calls for stronger restrictions on fine particulate matter. The agency's draft rule preserving limits set on those particles, known as PM2.5, in 2012 tees up unusual legal questions of whether EPA can override recommendations from its staff and some of its scientific experts to strengthen those standards...Once the proposed rule appears in the Federal Register, interested parties will have 60 days to comment on EPA's plan. The agency is expected to finalize the rule later this year, which would trigger litigation. Joe Goffman, an Obama-era EPA official who is now at Harvard Law School, said he expects the comments to include lots of scientific research demonstrating the need for tighter restrictions on PM2.5. "The record is the one thing that the administrator can't rig a priori," he said. "Ultimately, challengers are going to be able to bring to the D.C. Circuit a very strong record, notwithstanding what's in the proposal."

As the world continues to fight against Covid-19 with lockdowns and social distancing, the notion of antibody screening—using data from serology tests to determine who is eligible to participate in society—is gaining traction...The concept has its issues—but already, there’s an app for that. Bizagi, a UK-based tech company whose normal business is helping companies like Adidas and Occidental Petroleum digitize their operations, today released “CoronaPass,” an app that will use an encrypted database to store information about users’ immune status, based on antibody test results provided by the user’s hospital or other healthcare provider...In any case, the more relevant law in the US is likely the Americans with Disabilities Act, said Glenn Cohen, a bioethics expert at Harvard Law School. ADA normally prevents employers from asking questions about an employee’s health that could be used to discriminate against them. But in the context of the Covid-19 pandemic, the US Equal Employment Opportunity Commission has loosened some ADA restrictions, including allowing employers to ask employees about relevant symptoms and take their temperature. “It pretty clearly signals the direction they are going,” Cohen said, “which is that [requesting antibody test results] will be deemed permissible, but they haven’t quite said that yet.”

With life-and-death issues of health and medicine foremost in our minds, ethics can get short shrift. To bring them to the public eye, the Edmond J. Safra Center for Ethics has issued the COVID-19 Rapid Response Impact Initiative, a series of white papers from some 40 thinkers on issues of justice, values, and civil liberties designed to inform policymakers during the crisis... “You have to make sure that with any tactics that you pursue to secure public health, you also look at the impact on our liberties,” said Allen, the James Bryant Conant University Professor and lead author on that first white paper. That paper — co-authored with Assistant Professor of Philosophy Lucas Stanczyk; James A. Attwood and Leslie Williams Professor of Law I. Glenn Cohen; Executive Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Carmel Shachar; Columbia University Professor of Economics Rajiv Sethi; Microsoft economist Glen Weyl; and Georgetown Law Professor Rosa Brooks — says: “The goal is not to defeat the adversary at any cost but to preserve one’s society.”

An article by Jonathan Zittrain and John Bowers: Earlier this year, the public learned that a tiny start-up called Clearview AI was offering a big service. Clearview subscribers could give the company a photo of someone they had just taken and get links to other photos of the same person, often revealing information like who they are and where they live. A little tweaking and the service might simply identify people over any live feed aimed at any street, hallway or classroom. Though it has been marketed as a one-stop warrantless law enforcement tool, Clearview’s client list is also reported to include casinos, gyms, supermarkets, sporting leagues and wealthy parents curious about their kids’ dates. The upshot? The fundamental comfort — and liberty — of being able to walk down a street or enter a supermarket or stadium without the authorities, or fellow strangers, immediately knowing who you are is about to evaporate without any public debate about whether that’s okay. It’s as if someone invented glasses that could see through walls, sold them to a select few, and everyone else inexplicably shrugged. Now, the Wall Street Journal reports that Clearview AI is “in discussions with state agencies about using its technology to track patients infected by the coronavirus, according to people familiar with the matter.” It’s a savvy move, aimed at turning a rogue actor into a hero.

President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.

An article by Noah Feldman: As everyone but President Donald Trump seems to understand, the Constitution doesn’t give the president any inherent authority to shut down or open up the economy in an emergency like the coronavirus pandemic. But Congress could lawfully give that authority to the executive branch. And there’s good reason to think that Congress should do exactly that, not for Trump, who has shown himself to be entirely unworthy of congressional trust, but for future presidents, who will almost certainly be better. A truly national crisis in fact demands a truly national response. That response should be centralized and based on expertise, not partisanship. The patchwork of coronavirus responses that we’ve seen across the states has been harmful and irrational. As soon as this crisis is over, we need new legislation that will guide future executives — legislation that will both empower future presidents to act decisively and also constrain them so that they must act on the basis of reasoned, expert judgment, not political gain.

A podcast by Noah Feldman: Carl Bergstrom, a computational biologist at the University of Washington and co-author of the forthcoming book "Calling Bullshit: The Art of Skepticism in a Data-Driven World," explains how to make sense of all the different coronavirus models and discusses the impact of misinformation on public health.

While discussing whether he or the nation's governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, "When somebody’s president of the United States, the authority is total." The president's unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority...Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump's claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive. Fried said the 10th Amendment was a "bogus concern" in this instance and anyone making that argument is "barking up the wrong tree" or is a "10th Amendment nut." "People like Cheney just want to bring federalism into everything, but it's not a federalism problem," Fried told USA TODAY. Fried said the problem was really in the fact that Congress hadn't given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution. "And that's why I don't like referring to the 10th Amendment. It's not really a 10th Amendment issue. It's a rule of law issue," Fried said. "The president can't just say, 'I am the boss.'"

With many millions of Americans working or attending virtual school from home during the coronavirus pandemic, the longstanding gap between those who have reliable, affordable internet and those who don’t has never been so clear. Susan Crawford, a Harvard Law School professor, has said for years that America’s internet system is broken. She advocates government intervention to help finance and oversee online pipelines, as happened previously for essential services like telephone lines and electricity. Susan’s critics say she’s proposing an unviable government overreach. But it’s clear the status quo isn’t working, so I talked to Susan about her proposed solutions. How big is the problem, exactly? No one really knows, Susan says. Microsoft estimates that 157 million Americans — about half the population — aren’t using relatively fast internet connections. The government, using different counting methods, says more than 21 million Americans, mostly in rural areas, don’t have access to fast internet. Either way, a lot of people are being left behind. In rural and suburban areas, people may have the choice of only a modern version of dial-up internet. In cities where fast internet is widespread, many lower-income people can’t afford it. Americans pay more for worse service than our counterparts in many affluent countries.

During his April 10 announcement of the extension of the movement control order (MCO) to April 28, Prime Minister Tan Sri Muhyiddin Yassin used the phrase “the new normal." He wants people to accept that what was usually done before can no longer be done, citing examples such as shaking hands. However, whether the true meaning of “the new normal” is comprehended by many remains to be seen. Addressing the concerns of many parents, the PM also mentioned “home-based learning." I believe this does not refer to conventional homeschooling. Homeschooling was suggested as an alternative to conventional education by American educationalists John Holt and Raymond Moore. For parents who doubted educational reforms, homeschooling became an option. Elizabeth Bartholet, in an article that appeared in a law review journal and titled “Homeschooling: Parent Rights Absolutism Vs. Child Rights To Education and Protection," describes homeschooling as a realm of near-absolute parental power. Misuse of it could be detrimental to a child and the nation too.

An article by Samantha Power: Speaking before the U.N. in 1987, President Ronald Reagan said, “Perhaps we need some outside universal threat to make us recognize [our] common bond. I occasionally think how quickly our differences worldwide would vanish if we were facing an alien threat from outside this world.” Reagan’s focus was avoiding conflict between countries rather than within them, but the coronavirus must do the work of that alien invader, inspiring cooperation both across borders and across the aisle. History shows us that seismic events have the potential to unite even politically divided Americans behind common cause. In the U.S., the COVID-19 pandemic has already taken more than seven times the number of lives as terrorists did in the 9/11 attacks, but the outpouring of solidarity Americans have shown for one another has so far not translated into more unity over government’s proper role at home or America’s proper role abroad. Indeed, the virus struck in an era of the most virulent polarization ever recorded—an unprecedented 82-percentage point divide between Republicans’ and Democrats’ average job-approval ratings of President Trump. And so far that gap appears only to be widening, while internationally, political leaders are trading recriminations rather than coordinating the procurement of medical supplies.

Price gouging on face masks during a pandemic is pretty crummy behavior, but is it a violation of federal trademark law? 3M, the country's largest producer of crucial N95 masks, certainly thinks so. The consumer goods giant filed a lawsuit Friday accusing a New Jersey company called Performance Supply LLC of violating federal trademark law by trying to resell millions of the company's N95s to New York City at drastically increased prices. Later that day, 3M filed a nearly identical lawsuit against a Utah company for similar behavior. According to 3M, both companies were selling the masks at more than four times the list price...According to Rebecca Tushnet, a professor at Harvard Law School, 3M's claim that defendants illegally held themselves out to be "authorized vendors" is something of a stretch, supported by little discussion of what separates such an endorsed distributor from a plain-old vendor. "The vendor-authorized vendor issue is a really important distinction that companies would like to ignore so that they can kill the first-sale doctrine," Tushnet said. "But first sale provides important benefits to consumers and to competition." Those concerns aside, the protections of the first-sale doctrine do have limits, and experts like Tushnet say the defendants may have crossed them by holding themselves out as actually connected to 3M. For instance, in the New York City lawsuit, 3M says the defendant company misleadingly warned the city that "acceptance of the purchase order is at the full discretion of 3M." "3M doesn't need to kill first sale," Tushnet said. "It can go after the actual falsities alleged here, and N.Y.'s attorney general is ready, willing and able to enforce the anti-price gouging statute."