Media Mentions

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.

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. Law enforcement officials say this information sharing — which is underway in Massachusetts, Alabama and Florida, and in select areas of North Carolina — will help keep officers and EMTs safe as they respond to calls at the homes of people who have been infected. The first responders can take additional precautions in those cases to avoid being exposed to the virus, state health departments and local police officials say...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."

An article by Sharon Block and Terri Gerstein: An unprecedented 10 million people applied for unemployment insurance across the country over the last two weeks with more likely to come. Many employers are responding to shutdown orders, lack of cash flow, and the crisis by laying people off. Leaders have enacted measures to encourage employers to avoid more layoffs, such as conditioning business loans on maintaining payroll and providing tax credits for payroll expenses. There is a little known program within our existing unemployment system, however, that would enable us to avert more layoffs. Most companies and workers have not heard of it, but work sharing, also known as “short time compensation” is a way to avoid layoffs and keep people employed while reducing payroll. It was widely used during the Great Recession. In the book “Policies to Address Poverty in America,” Melissa Kearney and Ben Harris noted that work sharing programs “played a substantial role in ameliorating the rise in unemployment in many countries” when the Great Recession hit hard. Rhode Island has made good use of work sharing, with claims accounting for a sixth of state unemployment claims in 2009. This proven approach should be getting far more attention right now.

As the world scrambles to respond to the coronavirus pandemic, Harvard experts across the University are trying to help one of the most vulnerable populations survive the crisis. More than 75 faculty members from the Harvard T.H. Chan School of Public Health and Harvard Medical School sent a letter Tuesday to Massachusetts Gov. Charlie Baker urging him to reduce the state’s incarcerated population, a group that could be particularly subject to the rapid spread of COVID-19...On Tuesday, the Massachusetts Supreme Judicial Court heard arguments in a petition by the state’s public defenders, various district attorneys, and the ACLU of Massachusetts, among others, seeking the release of vulnerable inmates and pretrial detainees. Add to those voices that of Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, who supports the release of certain inmates and says that the current crisis reflects the history of the nation’s unfair treatment of those too long considered “outcasts.” “There was no sense that they needed to be treated humanely, no guarantee of safe, sanitary conditions, or adequate medical care under the law until the 1960s, in the context of Civil Rights and prisoners’ rights movements,” said Brown-Nagin, who is also the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School. “It was only in ’60s that the Supreme Court and then the lower courts determined that prisoners do not lose their constitutional rights when they enter these institutions.”

A podcast by Noah Feldman: Lydia Dugdale, the Director of the Center for Clinical Medical Ethics at Columbia University, discusses how medical supplies will likely be allocated if there are shortages.

In the scramble to contain the coronavirus financial fallout, U.S. policy makers have embraced an ambitious big-government agenda—from new worker protections to a guaranteed minimum income—that could redefine Washington’s role in the economy. The evolving emergency response playbook, adopted by the White House and congressional leaders from both parties, draws from key elements of the liberal activist platform honed over the past decade...Organized labor has also won new protections. One new rule says that larger corporate aid recipients are required to honor existing collective bargaining agreements for the duration of their federal loans and two years beyond. That provision flows from the lingering political fallout from the bailouts during the 2008 financial crisis. “Companies that took bailout money said, ‘Let’s share the sacrifice, we have to renegotiate our agreements,’” said Sharon Block, executive director of the labor and worklife program at Harvard Law School. “Then shareholders benefited quickly during the recovery, while it took workers—especially auto workers—a long time to get back to where they were before,” said Ms. Block, who was a labor adviser in the Obama White House.

Like millions of other US workers, Charlie Burke and Mutwaly Hamid were used to getting up in the morning and putting in long days on the job. But when the coronavirus pandemic shut down huge parts of the economy, they weren’t just left out of work, they were left on their own. As two of the nearly 9 million US workers considered self-employed or independent contractors, Burke and Hamid had no claim on unemployment benefits and quickly found themselves in an economic free fall. Burke, who runs seminars for sales agents and brokers in the real estate industry, says his income is poised to drop by 90 percent this month. For Hamid, the $1,000 or so a week he was making by driving up to 60 hours for Uber and Lyft has gone overnight to zero, leaving him unable to pay his rent for April. The pandemic has exposed big holes in the country’s social safety net, openings that millions of people are now falling through. With nearly 10 million people filing unemployment claims in the past two weeks alone, the federal government is mounting an unprecedented emergency expansion of that safety net for workers. The $2.2 trillion emergency CARES Act approved 10 days ago includes a $350 billion loan program for businesses and extends unemployment pay to self-employed workers, independent contractors, and others not usually eligible for such benefits. Unlike most workers, who are covered by basic protections including unemployment insurance, these people “operate a high wire act with no safety net,” said Mark Erlich, the former head of the New England Regional Council of Carpenters, who is currently a fellow at the Labor and Worklife Program at Harvard Law School.

Like most Americans, Jenny Korn, a Research Affiliate at the Berkman Klein Center for Internet and Society at Harvard University, is doing her best to adjust to the “new normal.” Sheltered in place in Chicago, she is living, working, eating and sleeping at home, communicating remotely with her team in Cambridge, Massachusetts. “I used to understand what ‘okay’ meant,” Korn says, “but now, I'm not so sure. Everything feels so unsafe and in flux. I feel every day is a battle between working hard and hardly working.” At the end of the day, Korn admits, “Life is abnormal, and I feel subpar.” In addition to her not-so-normal life, Korn also worries about her aging parents, who live too far to visit, and the anti-Asian racism that is spreading alongside the COVID-19 pandemic. “As an Asian woman, I have been more vigilant about going out in public because I know anti-Asian sentiment and racism are real,” says Korn, “so I worry more now about my physical safety. While COVID-19 continues to wreak havoc on our bodies and health care system, a new poll by the Kaiser Family Foundation, published on April 2, shows the psychological toll the pandemic is taking on many Americans.

The coronavirus crisis has upended American life, and fresh ideas are needed for dealing with the problems it’s creating. Here is a collection of smart solutions... "House mild cases in hotels" by Jeremy Samuel Faust and Cass Sunstein: One of the toughest decisions facing physicians and public health officials is where to send patients who test positive for the covid-19 coronavirus. For the small but significant proportion with severe or critical illness, the decision to hospitalize is trivial. But where to send the apparently large majority of cases that are mild or even symptom-free? These patients, often young, need to be isolated to reduce spread. But using a hospital bed for isolation alone takes up capacity, puts others at risk and chews through protective equipment that doctors, nurses and other staff desperately need. A natural alternative is to send people home, with clear instructions to self-isolate. But in some cases that is not feasible, and it poses evident risks. The World Health Organization recommends placing mildly ill patients in dedicated covid-19 facilities as the gold standard for isolation. While countries such as China have the logistical capability to erect new hospitals for this purpose in a matter of days, most places cannot achieve that. Fortunately, there is a potential answer: America’s prodigious hotel industry. And in case you haven’t noticed, there is plenty of room at the inn.

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.