Media Mentions

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."

It's clearly not time now, but a big question on everyone's minds, including the President Donald Trump's, is how and when the country reopens. President Trump claimed Monday night he has "total authority" over the decision, but two groups of state governors, including a seven-state coalition with Massachusetts, say they'll make that call. We discuss with WBUR Senior Political Reporter Anthony Brooks and WBUR Legal Analyst Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

The Environmental Protection Agency (EPA) proposed to make no changes to certain air quality standards even though members of its staff raised questions about whether one of the standards is adequate. The agency on Tuesday proposed keeping the maximum acceptable levels of both fine and coarse forms of a pollutant known as particulate matter at Obama-era levels. Assessments have linked long-term exposure to fine particulate matter to as many as 52,100 premature deaths and suggested that stricter standards could save thousands of lives...The announcement comes on the heels of a Harvard study that determined that people who lived in areas with more exposure to fine particulate matter are more likely to die from the coronavirus pandemic...Critics also raised procedural objections, namely the EPA’s 2018 decision to fire scientists that helped the agency review its air quality standards. “It’s not just a bad result, it’s a fouled process that led to the result,” said Joseph Goffman, an Obama administration EPA official who is now the executive director of Harvard Law’s Environmental and Energy Law Program.

President Trump’s claim that he wielded “total” authority in the pandemic crisis prompted rebellion not just from governors. Legal scholars across the ideological spectrum on Tuesday rejected his declaration that ultimately he, not state leaders, will decide when to risk lifting social distancing limits in order to reopen businesses. “When somebody’s the president of the United States, the authority is total,” Mr. Trump asserted at a raucous press briefing on Monday evening. “And that’s the way it’s got to be.” But neither the Constitution nor any federal law bestows that power upon Mr. Trump, a range of legal scholars and government officials said...For Mr. Trump, the legal emptiness of his assertion fits with a larger pattern in his handling of the pandemic and more. Where President Theodore Roosevelt liked to invoke an African proverb to describe his approach to wielding executive power — “speak softly and carry a big stick” — Mr. Trump sometimes talks as if he has a big stick but with little to back it up. Despite his “extreme, proud rhetoric about how he can do whatever he wants,” said Jack Goldsmith, a Harvard law professor and senior Justice Department official in the George W. Bush administration, the story of the Trump presidency has been, with few exceptions, “talking a big game, but not in fact exercising executive power successfully.”

Here's the Radio Boston rundown for April 14. Tiziana Dearing is our host. President Donald Trump says he has the authority re-open the country for business. But Gov. Charlie Baker has joined the east coast states making their own plan. WBUR's Anthony Brooks and WBUR legal analyst Nancy Gertner break down the tension. We take listener calls and speak with people who are struggling to care for people at home during the coronavirus pandemic and what support they need most.

A podcast by Noah Feldman: Former Treasury Secretary Larry Summers helped get us through the 2008 financial crisis. He has some ideas about what to do to get through this one.

An article by Omeed Alerasool '22 and Ryen Bani-Hashemi '22: The coronavirus pandemic is straining healthcare systems and economies around the world. A failure to coordinate an effective global response and aid struggling countries at this early stage will only intensify an already dire reality. The quick spread of the virus since last December highlights the nature of contagion in a globalized world. One country’s inability to manage an epidemic can rapidly metastasize into a global pandemic. To defeat this historic pandemic, the United States must rise to the challenge and provide aid and support to all countries—allies and foes. And success in responding to this global crisis requires coordination with one of the hardest-hit countries, Iran. Alarming forecasts from Sharif University in Tehran predict a scenario of up to 3.5 million Iranians, nearly 5% of the population, dying from COVID-19 by the end of May. Continued sanctions and animosity create a nearly insurmountable obstacle in the way of Iran’s pandemic response, and, by extension, only hamper efforts to rid the world of the coronavirus. Global coordination is necessary to address the coronavirus pandemic.

An article by Noah Feldman: Yesterday, six governors from a string of contiguous eastern seaboard states stretching from Rhode Island to Delaware announced that they would form a working group to cooperate on reopening businesses in the region. This kind of state-level coordination is much needed. The federal government hasn’t taken the lead in ordering coronavirus lockdowns, and so it won’t take the lead in reopening economies. But the composition of the working group is also a little worrisome — because it reveals the potential effects of partisan politics in efforts to fight Covid-19. The original group included Connecticut, New York, New Jersey and Pennsylvania in addition to Rhode Island and Delaware. But why weren’t Massachusetts and New Hampshire to the immediate north initially included, or Maryland to the immediate south? What about Vermont, which adjoins New York, or Ohio and West Virginia, which adjoin Pennsylvania? It’s not because they don’t share common challenges and interests in fighting the coronavirus. It’s hard to avoid the conclusion that it’s because the initially excluded states all have Republican governors. The six states in the original working group all have Democratic governors.

An article by Cass Sunstein: It is alarming, to say the least, that people are even asking this question: Does President Donald Trump have the legal authority to postpone or cancel the 2020 presidential election? The answer is entirely clear: He does not. Start with the Constitution itself: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” The founding document reflects an unambiguous judgment that Congress, and not a potentially self-interested president, gets to decide when the leader of the United States shall be chosen. If the president could set the time of his own election, he could specify a date that is favorable to him – or postpone a specified date until the conditions are just right. Congress has exercised the authority that the Constitution gives it. A law enacted in 1948 says this: "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." A finicky reader might respond: Those provisions are about selection of members of the Electoral College. What does that have to do with the popular vote? The answer is that the two are inextricably intertwined.

An article by Laurence Tribe: I am not one to underestimate the unspeakable pain that COVID-19 has already inflicted on the American people, with nearly half a million of us infected by the disease, with a death toll passing 20,000, and with the untold suffering that putting the economy into an induced coma has inflicted on all but the wealthiest among us. But the impact of this epidemic is going to spread beyond matters of health and economics. And one of the downstream effects is going to be an assault on constitutional democracy and its foundations. This assault is being obscured by the progress of the virus so that the contours of it have only just begun to emerge. But it now seems possible that when it flowers fully, it will threaten to end our centuries-long experiment with self-government. And what is clear already is that the institutions we have inherited to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves. Only we can save them.

Disregarding an emerging scientific link between dirty air and Covid-19 death rates, the Trump administration will decline to tighten a regulation on industrial soot emissions that came up for review ahead of the coronavirus pandemic. Andrew R. Wheeler, the head of the Environmental Protection Agency, is expected to say on Tuesday morning that his agency will not impose stricter controls on the tiny, lung-damaging industrial particles, known as PM 2.5, a regulatory action that has been in the works for months...Just last week, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates. The study found that a person living for decades in a county with high levels of fine particulate matter is 15 percent more likely to die from the coronavirus than someone in a region with one unit less of the fine particulate pollution. “The timing of this is unbelievable,” said Richard Lazarus, a professor of environmental law at Harvard. “There’s this big study that just came out linking this pollutant to Covid. This seems like a colossal mistake on the administration’s part.” ...Mr. Lazarus, the Harvard lawyer, said that he expected that E.P.A. would be legally required to incorporate the findings of the Harvard study into the rationale for the rule before it is made final, likely later this year. “It will eventually be part of the legal record,” he said. “Historically, Harvard’s public health studies have been central to E.P.A. public health rules.”

The Supreme Court, breaking with longstanding tradition because of the coronavirus pandemic, said Monday it will hear oral arguments by teleconference in May, including in cases about the potential disclosure of President Trump’s financial records. “In keeping with public-health guidance in response to Covid-19, the Justices and counsel will all participate remotely,” the court said in a written statement, adding that it will share more details “as they become available.” The court for the first time will transmit a live audio feed of its sessions, allowing the public to hear the arguments as they unfold...Lawrence Lessig, a Harvard law professor who will argue on behalf of so-called faithless electors from the 2016 election, said the teleconference format would present challenges. “It’s difficult to do an argument like this without the opportunity to have eye-to-eye contact with justices,” he said. “The most important thing in an oral argument is to understand where they’re getting what you’re saying, and where they’re not getting what you’re saying,” something advocates pick up from facial expressions and body language. “We’re going to be thinking through the strategy of what the right response to that is—do you package your points more concisely, or more comprehensively?” Mr. Lessig said.

The Supreme Court’s plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said. “We’re in a new frontier here,” said Colorado Attorney General Phil Weiser, who will argue remotely in an election case on behalf of the state. While lawyers are thankful that the court is showing historic flexibility amid the coronavirus pandemic and moving forward with their cases beginning May 4, they wonder how things will ultimately work via phone... “The Court’s decision to allow argument via teleconference in some of its more time-sensitive cases” like these “perhaps reflects an awareness that it could be important to decide some of these issues before the next election cycle,” said Bryan Cave partner Barbara Smith, who clerked for Justice Samuel Alito in the court’s 2015 term...Perhaps the justices cherry-picked the cases they thought would be easier to decide, said Harvard law professor Lawrence Lessig, who will be arguing one of the faithless elector cases. And while telephone arguments are a first in the Supreme Court, some advocates have experience working remotely. Weiser noted that his office has been conducting virtual meetings during the Covid-19 outbreak, and Lessig said he’s gotten more comfortable with remote working by teaching remotely for the past three weeks.

An article by J. Mauricio Gaona: As the world speeds toward an unprecedented economic recession with billions of people and businesses across the planet under some form of lockdown — for weeks or months — amid one of the worst pandemics on record, counting more than 1.8 million people infected and more than 100,000 dead so far, the novel coronavirus will likely produce a yet more enduring change in a post-COVID-19 world: the replacement of humans as factor of production. Prior to COVID-19, the often-contested race between human productivity options and machine productivity advantages appeared less definite. In the last two decades and with aim of making humans highly productive, promoting general wellbeing and increasing business competitiveness, several ideas gained traction — namely, telecommuting, remote work, and co-working spaces. In fact, billions of dollars have been invested around the world in real estate (“co-working spaces”) to enable people to commute to their workplace by either just taking an elevator or walking a few blocks from home. Yet the very nature of the COVID-19 virus imposing social distancing as precautionary measure has made remote work our last available option to move on with our lives.

Off Their Plate, a national effort to get meals to health care workers on the front line of the Covid-19 crisis and keep restaurant workers paid and working, has started a Chicago operation. The nonprofit will deliver 175 meals today to the Lawndale Christian Health Center. The group plans to deliver 500 additional meals to hospitals on the North and West Sides by the end of this week and more than 1,000 next week. The Chicago effort is headed by Adam Smith '20, a Harvard Law student who most recently served as campaign manager to Cook County Circuit Court Judge Jack Hagerty. Other team members include Stephen Brokaw and Saralena Barry, who worked as presidential candidate Pete Buttigieg's national political director and special assistant, respectively; and Daniel Egel-Weiss '20, also a Harvard Law student and former chief of staff to state Sen. Sara Feigenholtz during her time in the state House.

A TED Talk by Jeannie Suk Gersen: To understand what makes marriages work, we need to talk about why they sometimes end, says family law professor Jeannie Suk Gersen. Follow along as she lays out three ways that thinking about marital decisions through the lens of divorce can help you better navigate togetherness from the beginning.

Harvard Law School will be hosting a “homeschooling summit” to discuss the “child maltreatment” and “educational deprivation” that happens when parents choose to homeschool their children. The invite-only “Homeschooling Summit: Problems, Politics, and Prospects for Reform” is scheduled to take place June 18-19 and will host speakers from education and child welfare policy backgrounds, as well as academics, policy advocates, and legislators to discuss the “problems of educational deprivation and child maltreatment that too often occur under the guise of homeschooling, in a legal environment of minimal or not oversight.” “Experts will lead conversations about the available empirical evidence, the current regulatory environment, proposals for legal reform, and strategies for effecting such reform,” the event page reads. Among the features speakers is Harvard Law’s Elizabeth Bartholet, a co-organizer of the event, who has written extensively about the “rapidly growing homeschool phenomena,” which she describes in the abstract for her 2019 essay — a recommended reading material for the event — “as a “threat” to “children and society.”  “Many homeschool precisely because they want to isolate their children from ideas and values central to public education and to our democracy. Many promote racial segregation and female subservience. Many question science. Many are determined to keep their children from exposure to views that might enable autonomous choice about their future lives,” she writes.

Across the country and the world, communities are working feverishly to measure the coronavirus pandemic’s impact — struggling with shortages of tests and depleted health care capabilities to gauge the numbers of the infected, the sick, and the dead. Accurate data is the first vital step in understanding the scope of the problem and developing and calibrating the best response. But, as the world moves to lockdown and social isolation, what is happening to the approximately 2.3 million people behind bars in the United States and to the tens of thousands who work in those facilities — line officers, administrators, nurses, therapists, doctors? Harvard Kennedy School Professor of Public Policy Marcella Alsan and Harvard Law School Professor of Law Crystal Yang have teamed up with the National Commission on Correctional Health Care (NCCHC) to conduct the first detailed survey on the coronavirus pandemic’s impact on the country’s prisons, jails, and juvenile detention facilities. HKS discusses their groundbreaking work, what it tells us about the spread and treatment of the disease among some of the most vulnerable populations, and how this valuable data can guide practitioners and policymakers.

To prevent the spread of the deadly coronavirus that’s killed more than 20,000 Americans, at least 316 million people across the country have been urged — and in some cases, ordered — to stay home. While most have voluntarily complied in an effort to protect themselves and others from COVID-19, scofflaws put police in a pickle: How do you enforce public health directives at a time when jails and prisons incubate the very disease you’re trying to suppress? “There’s the dilemma — you don’t want to put anyone in prison,” said Judge Nancy Gertner, a professor at Harvard Law School. “Detention facilities are petri dishes. You send someone to jail, it could be a death sentence.” Jail as capital punishment is no hyperbole: Cook County Jail in Illinois is the hardest-hit per-capita COVID-19 site in the country, with more than 350 cases and at least two inmate deaths. Rikers Island in New York City has had over 700 cases between inmates, staff and health care workers, including seven jail employee deaths and two inmate deaths.