Media Mentions

Debate over efforts to head off a disastrous coronavirus outbreak inside Massachusetts prisons and jails intensified Tuesday, as several attorneys for and against the wide release of inmates presented arguments in a four-hour telephone hearing, the first in the history of the state’s supreme court. With the rate of coronavirus infection rising, and most of the state relegated to working in isolation, justices and attorneys appeared via phone to debate a petition, filed last week, for inmates’ release. The coalition, which includes the Committee for Public Counsel Services (CPCS), the American Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers, says that crowded and unsanitary conditions make COVID-19 “virtually impossible” to stop in prisons and county jails...To some observers, keeping people in cramped, possibly unsanitary conditions could amount to a death sentence. “These people were sentenced, but not sentenced to death,” a retired federal judge, Nancy Gertner, said in an interview. “This is a tragedy in the making.” So far, the department’s efforts to prevent a wide outbreak of the virus have mostly worked. Only 17 of the estimated 8,000 inmates in state custody have turned up infected with the virus, all of them housed at the Massachusetts Treatment Center in Bridgewater. Five Department of Correction staff have tested positive.

A podcast by Noah Feldman: Paul Romer, a Nobel Prize-winning economist at New York University, argues that we can keep the economy from tanking during the coronavirus pandemic without risking people's health. We just need many, many more tests.

An article by Todd Carney '21: Over the last few years, the need for corporate legal jobs has consistently declined, despite overall job growth in America. At the same time, there has continues to be a pressing need for more lawyers. Right, it doesn’t make sense. Even though Big Law firms  — which handle major corporate issues  — are using more technology and other resources to cut back on attorneys, there is still a shortage of legal services for one key population. That would be for low-income people. Lawyers who can’t crack that top tier are scrambling to land jobs – even lower-paying ones – because many can’t afford not to. Law school debt, anyone? But they can’t manage to offer lower-cost services to the needy because it doesn’t pan out for them or their smaller firms financially. While some believe the government should be providing free legal services for all civil disputes, securing funding for such an endeavor is difficult. As a result, there have been many solutions proposed to make legal services cheaper. The state of Washington’s answer to this problem has been a novel one.

An article by Daniel Pessar '20: There is something fun about watching how the built environment improves over time. Updates to historic buildings, maintenance of hiking trails, and the construction of indoor skydiving venues can all offer a sense of excitement and variety. But some sites attract little investment and attention, lying vacant for years. Sometimes this can happen when there is a contamination concern at the site. The property might be a “brownfield,” the name for "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." Environmental hazards at a property can represent increased costs, project delays, and liability for developers, making the property less attractive for development. Further complicating the possibility of investment is the difficulty involved in assessing the extent of the hazard. Learning more about site remediation needs, if any, may require boring, scraping, and drilling in order to test what is beneath soil, concrete, or building materials. And the cost involved in this determination could rise to tens of thousands of dollars or more—just to find out if the project is worth all of the necessary effort and expense.

When health officials in southwest Missouri announced earlier this month that another resident had contracted the coronavirus, they released details about where the person had been in recent days. The patient had shopped at a Walmart Neighborhood Market in Springfield on the morning of March 17. The day before, the person had lunch at a local Mexican restaurant and then went to another Walmart. On March 15, the patient had gone to a comedy club after dinner. Anyone who might have been at those same places — with specific locations identified — around those same times knew to more closely monitor their own health...A government should release as much “aggregate information” as possible as long as it doesn’t identify a patient, stigmatize vulnerable groups and induce additional panic, said I. Glenn Cohen, a bioethics expert at Harvard Law School, in an email to The Star. “Government always owes us transparency in general, but especially in a pandemic crisis when it is asking Americans to completely upend their daily lives and make sacrifices, sharing accurate information is necessary to maintain trust and make sure people continue to be willing to make those sacrifices,” he said. “So the default should be sharing information unless there is a very good reason not to."

The Department of Justice has begun to investigate controversial stock trades by members of the Senate after receiving non-public briefings about the impending coronavirus pandemic, according to a new report. CNN reported that the Federal Bureau of Investigation (FBI), which is coordinating its probe the Securities and Exchange Commission (SEC), has reached out to at least one member of Congress: Sen. Richard Burr, R-N.C... "Senator Burr's stock transactions raise more than a little suspicion," Harvard Law professor Laurence Tribe told Salon by email. "They have the whiff of insider trading and of betrayal of the public trust — not to mention the public's health. Let's hope the FBI-SEC investigation into the details is fair and thorough and keep our fingers crossed that it won't be a whitewash of the sort I wouldn't be surprised to see from our highly-partisan attorney general."

An article by Adrian Vermeule: In recent years, allegiance to the constitutional theory known as originalism has become all but mandatory for American legal conservatives. Every justice and almost every judge nominated by recent Republican administrations has pledged adherence to the faith. At the Federalist Society, the influential association of legal conservatives, speakers talk and think of little else. Even some luminaries of the left-liberal legal academy have moved away from speaking about “living constitutionalism,” “fundamental fairness,” and “evolving standards of decency,” and have instead justified their views in originalist terms. One often hears the catchphrase “We are all originalists now.” Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

An article by Noah Feldman: This weekend, President Donald Trump did a rapid about-face, pulling back from his suggestion that he might try to quarantine New York, New Jersey and Connecticut. It marked a significant moment in his response to the coronavirus pandemic. It symbolizes Trump’s fairly consistent choice thus far in the Covid-19 crisis to reject the impulse to grab power. There’s a script for populist autocrats in emergencies: maximize executive power, restrict civil liberties, delay or suspend elections. Trump has pretty consistently done the opposite during this crisis. Trump has even held back from exercising the substantial presidential power afforded him by existing law. Rather than encouraging or promoting restrictions on movement — a key civil liberty — Trump has so far repeatedly discouraged lockdowns. And notwithstanding lots of nervous speculation by Democrats, Trump so far has said not a word about delaying the 2020 election, which in any case he lacks the constitutional power to do.

When the first case of the coronavirus in Silicon Valley was discovered in late January, health officials were faced with a barrage of questions: What city did the patient live in? Whom had he come in contact with? Which health clinic had he visited before he knew he was infected? Dr. Sara Cody, the chief health officer for Santa Clara County, which has a population of two million across 15 cities, declined to give details...As the coronavirus spreads across the United States the limited disclosure of data by officials would seem to be a footnote to the suffering and economic disruptions that the disease is causing...I. Glenn Cohen, an expert in bioethics at Harvard Law School, says the guiding principle during this crisis should be sharing more rather than less. “Public health depends a lot on public trust,” he said. “If the public feels as though they are being misled or misinformed their willingness to make sacrifices — in this case social distancing — is reduced...That’s a strong argument for sharing as much information as you can,” he said.

A podcast by Sharon Block and Benjamin Sachs: Why would it take an Amazon worker, employed full time, more than a million years to earn what its CEO, Jeff Bezos now possesses? Why do the richest 400 Americans own more wealth than all African-American households combined? And how are these examples of extreme income inequality linked to the political disenfranchisement of the lower- and middle-income classes? The established “solutions” for restoring balance to economic and political power in the United States have been tax increases on the rich, on the one hand, and campaign-finance reform on the other. But in this episode, we’ll explore the idea that retooling labor laws for the modern economy may be the most effective way to address both these issues. Harvard Law School’s Kestnbaum professor of labor and industry Benjamin Sachs, together with Sharon Block, executive director of the school’s Labor and Worklife Program, explain.

The director of the federal health department’s civil rights office said on Saturday that his office was opening a series of civil rights investigations to ensure that states did not allow medical providers to discriminate on the basis of disabilities, race, age or certain other factors when deciding who would receive lifesaving medical care during the coronavirus emergency. The office released a new bulletin on civil rights during the coronavirus crisis, days after disability rights advocates filed complaints arguing that protocols to ration lifesaving medical care adopted by Alabama and Washington State were discriminatory...The bulletin “represents an important first step in protecting the rights of people with disabilities in the current crisis,” said Ari Ne’eman, a visiting scholar at the Lurie Institute for Disability Policy at Brandeis University and a senior research associate at the Harvard Law School Project on Disability. He said there was an “urgent need for comprehensive guidance.”

Rhode Island authorities on Saturday began searching for New Yorkers defying mandated self-quarantine as the state’s governor said the epidemic’s danger outweighed the appearance of persecution. The state’s National Guard said it was working with the police and health agencies to go door-to-door in coastal communities to identify New York residents and collect information on them. Those who defy the self-quarantine order face fines or jail, said Governor Gina Raimondo...Laurence Tribe, a professor of constitutional law at Harvard University, said Saturday that states aren’t required to ignore contagious diseases, but neither can they ignore America’s founding principles. Raimondo’s order “raises red flags,” he said in an email. The order doesn’t cover people arriving from hot spots besides New York, he said. “We need to be on the alert for discrimination against outsiders, including not just foreigners but Americans from other states, that isn’t strictly and objectively warranted by the facts,” he said. “As the Supreme Court put it in one famous case, our Constitution was founded on the philosophy that we must sink or swim together.”

An article by Sharon Block: By now, almost every worker in America has been affected by the coronavirus. As grocery stores ramp up, restaurants close, flights get canceled, and hospitals get swamped with patients, workers are on the front lines of dealing with the consequences of this crisis. For too many American workers, this crisis is happening to them, not with them. With only approximately 6 percent of the American private-sector workforce in unions, the vast majority of workers have no voice in the decisions that businesses are making in response to the pandemic. Our laws fail to ensure that workers have an adequate voice in important decisions that affect their lives. The current crisis highlights the ways that our labor law leaves workers out of these critical conversations.

An article by Ashley Nunes: The numbers are staggering. Delta Air Lines is parking at least 50% of its entire fleet. United Airlines reports passenger bookings are down 70%. And 75% of American Airlines’ international flights are to be cut. Across the pond, Virgin Atlantic is offering staff eight weeks of unpaid leave, Norwegian Air is furloughing 90% of its workforce, and Austrian Airlines has suspended flights altogether. The culprit for all this is COVID-19. The rapid spread of the virus — coupled with government-imposed flying restrictions — has caused travel demand to plummet. Airline execs liken the situation to the 9/11 attacks. The comparison has some merit. In the aftermath of those attacks, bookings dropped, and airlines were left reeling. In their desperation, free market loving airline execs turned to governments for help. Governments obliged, forking out billions in taxpayer cash to keep airlines afloat. With COVID-19, expect more of the same.

A cadre of right-wing news sites pulled from the fringes in recent years through repeated mention by President Donald Trump is now taking aim at Anthony Fauci, the nation's top infectious diseases expert, who has given interviews in which he has tempered praise for the president with doubts about his pronouncements. Although both men are seeking to tamp down the appearance of tension - "Great job," Trump commended the doctor during the White House's briefing on Tuesday - the president is increasingly chafing against medical consensus. He has found support from a chorus of conservative commentators who have cheered his promise to get the U.S. economy going again as well as his decision to tout possible coronavirus treatments not yet approved by the U.S. Food and Drug Administration...Over the weekend, Matt Whitlock, a senior adviser to the National Republican Senatorial Committee, wrote on Twitter, "Shouldn't need to be said, but I personally couldn't care less if Dr. Fauci said nice things to say about Hillary Clinton." The "politicization of public health" means it very much does need to be said, according to Robert Faris, the research director at Harvard's Berkman Klein Center for Internet and Society. "Having Trump and Fauci on the same public stage at the same time is an untenable position for right-wing media," he said. "Something's got to give, and I don't know what it is."

The coronavirus pandemic has put on indefinite hold a major portion of the U.S. Supreme Court’s docket, including a multibillion-dollar clash between software giants Google and Oracle Corp. and cases that could affect President Donald Trump’s re-election chances. What was supposed to have been a drama-filled spring at the high court has instead become a season of waiting, especially for the lawyers and litigants in 20 arguments that had been scheduled for March and April. The court has postponed 11 of those cases and could do the same soon for the remaining nine...Similarly, the court had been aiming to resolve clashes over the Electoral College, the body that will formally select the next president, before any election controversies may arise. At issue in cases scheduled for argument April 28 is whether states can stop “faithless electors” who try to cast a vote for someone other the candidate who won their state’s balloting. “We’ve gotten no indication about whether it’s going forward,” said Lawrence Lessig, a Harvard Law School professor and the lawyer for two groups of electors who say they have the right to vote as they please. But “we’re preparing as if it is.”

A podcast by Noah Feldman: Laurie Santos, a Professor of Psychology at Yale, shares tips for dealing with coronavirus-induced anxiety. For further listening, check out Laurie’s podcast “The Happiness Lab,” also from Pushkin Industries.

An article by Cass Sunstein: I have long been an enthusiastic defender of quantitative cost-benefit analysis, and recently wrote a book about it. I have also long been a critic of the precautionary principle, which calls for potentially expensive precautions against bad outcomes in the face of scientific uncertainty. In the context of the coronavirus pandemic, it’s unusually challenging to engage in quantitative cost-benefit analysis. But the best available estimates, released within the last few days, suggest that the U.S. should continue with expensive precautions, even if they take a major economic toll. Back to normal by Easter, as President Donald Trump suggested? The new estimates show that that would be reckless. To adapt Patrick Henry, “Give me precautions, or give me death.” It should be acknowledged that Trump, and many others, have been right to emphasize the importance of balancing a range of considerations, and not focusing only on one. Some people in the public-health community like to look only at one side of the ledger. But a zero-risk mentality makes no sense.

Today on “Food Talk with Dani Nierenberg,” Dani interviews Emily Broad Leib, Clinical Professor at Harvard Law School & Director of Harvard Law School’s Food Law & Policy Clinic, about protecting and promoting better wages for food workers in the COVID-19 crisis. “If part of what comes from this is that we realize all the people who are handling the food from the beginning on the farm to the end of the chain are really vital. We need to treat them better, pay them better, give them benefits,” says Broad Leib.

Food waste experts are slowly assessing the short and long-term impacts of the new coronavirus, which remain murky. With the fallout likely stretching into coming months, some are worried about supply chain impacts — including food recovery for donation — as well as a future uptick in waste amid dramatic lifestyle alterations. Initial volume shifts are unclear at the moment, but a major surge in grocery purchases appears to be driving a decline in food waste associated with retail. Higher education and entertainment venue closures, however, are generating greater amounts than usual, while the shuttering of farmer's markets is also expected to drive an increase in discarded products. One concern is public demand for food may lead to an uptick in waste, not only through organics, but through packaging as people shift to takeout and delivery. "I think waste is very low priority [for people right now], but food is very high priority," Dana Gunders, executive director of ReFED, told Waste Dive. Her organization and the Harvard Law School Food Law and Policy Clinic (FLPC) are sharing resources aimed at connecting those issues.

They say if you do a thing for 14 days, it will become a habit. If they’re right, a lot more of us are washing our hands and keeping them out of our faces. That’s a good thing...The questions that linger for me, at least, are will this new way of doing things last and, more importantly, how will it impact our relationships with one another long term? Whatever happens, David Weinberger, a senior researcher at Harvard’s Berkman Klein Center and a pioneering thought leader about the internet’s effect on our lives, businesses and ideas, told me this is going to be a clarifying moment for many fields that, no doubt, will soon discover that the price we pay for physical proximity is higher than we thought, and the deprivations we assumed intrinsic to digital social interactions are lower than we thought. This, he said, is not entirely unlike what email did to business meetings in the 1990s. “We thought we all had to get in the same room to work through issues and coordinate our efforts,” Weinberger said. “But as soon as email became common throughout organizations, the cost of having to get everyone in the same room became clear: The flow of work was put on hold until everybody had an open time and was in the same place.” At meetings, for instance, he said everyone had to pay attention to conversations that merited the time of only some. Anybody remember those days?