Media Mentions

Monday marks the tenth anniversary of the signing of President Barack Obama’s signature healthcare bill, the Affordable Care Act, and the 10-year anniversary of the first lawsuits seeking to strike it down. Back then, U.S. Representatives Mike Pence, Mick Mulvaney and 120 other Republican lawmakers criticized the Obama Justice Department for its willingness to defend the controversial Obamacare, while choosing to abandon the Defense of Marriage Act signed into law by another Democrat, Bill Clinton. The “Department of Justice is vigorously defending in numerous federal courts across the country President Obama’s signature health care reform law” even though it “barely passed both chambers of Congress on party line votes,” they said in a House Resolution, after two federal trial courts ruled parts of the ACA were unconstitutional...In deciding not to defend Obamacare, the administration is stretching its power, said Harvard Law School Professor Charles Fried, who served as solicitor general from 1985 to 1989 under President Ronald Reagan. Fortunately, Fried said, other parties often step in, as they did here, to defend the laws the government chooses not to, but “the Justice Department kind of loses some of its credibility.” “When it says we’re not going to defend it, it no longer means because it’s indefensible or no reasonable person could defend it,” he said. “It just means we don’t like it. The Justice Department is supposed to have weightier reasons than that.”

As millions of Americans shut their doors to the threat of coronavirus, those who venture out — whether to seek necessities or in ignorance of new guidelines — face a rapidly changing world. Businesses have shuttered or limited their hours. Health care facilities have changed their intake procedures. And places that do remain open have refused service to customers for reasons that just weeks ago would have seemed unreasonable: because they wore scrubs, talked about recent travel abroad or had a coughing fit. Scores of affected Americans have taken to social media to complain, with some even asking whether it’s legal for businesses to boot coughing customers. The short answer to that question is, yes...Under the Civil Rights Act, a business can’t deny goods or services based on race, color, religion, or national origin. Under current circumstances, that means a business can’t deny service to a customer from a specific country, even if it’s seen an uptick in coronavirus cases. The same goes for people with impairments, who are guaranteed accommodations under the Americans with Disabilities Act. But the law does not require businesses to serve those who pose “a direct threat to the health and safety of others,” said Joseph Singer, a law professor at Harvard Law School. Nor does a coronavirus diagnosis qualify as a disability under the law, added Stacey Lee, a business law expert at Johns Hopkins University.

Momentum appears to be building for a national shutdown to confront the coronavirus crisis, raising the prospect that President Trump could issue an order requiring people to stay at home. Such an order would be unprecedented in American history, but some of Trump's top advisers have said publicly they would be open to it. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said Sunday he had raised the prospect of such a dramatic step with the administration...What such an order at the federal level might look like — and even whether Trump has the authority to issue an order — is unclear, because no president had ever tried it before. “I don’t think Congress has ever authorized the president to issue a curfew or a shelter-in-place order,” said Michael Klarman, a constitutional law expert at Harvard Law School. “I’m sure the Trump people will think Trump can do whatever he thinks is necessary to protect the nation’s health. I have a hard time imagining this Supreme Court ruling otherwise. And I have little doubt Trump would violate a court order anyway if he thought he could get away with it.”

An article by Noah Feldman: California Governor Gavin Newsom’s stay-at-home order may well be necessary as a matter of public health in the face of the new coronavirus — I will leave that to epidemiologists to determine. But viewed as a legal declaration, it’s a total mess. Most worrisome, the order fails to create an exception to the stay-at-home requirement for the free press to function — an exemption that is certainly mandated by the First Amendment. Instead, the order creates exceptions by referring to a federal list of 16 “critical infrastructure sectors” — a list that itself fails to say that a free press is a constitutionally specified form of critical infrastructure, without which we cannot hope to cope with a pandemic like Covid-19. The order is also drafted so badly that it creates contradictions with the state’s own website explaining it; with the governor’s own speech rolling it out; and with common sense. As written, the order does not say clearly that Californians can leave their homes to buy food or medicine or other necessities. It doesn’t say whether they can go out to help family members or friends who are themselves vulnerable or otherwise in need. It is silent on going out for exercise. Although context suggests all these may be permitted, the formal legal implication of the text would be that all are prohibited.

In 2011, Nancy Schwartzman started developing a mobile application to move the psychology of bystander intervention into an increasingly online world. Technology aimed at preventing rape had long put the onus on the individual, but what if an entire community could take responsibility for preventing sexual assault? By 2012, she had created Circle of 6, an app in which users enter six of their most trusted contacts. Should a risky situation arise, users can tap an icon to send a text saying, “Call and pretend you need me. I need an interruption.” ...Callisto, a nonprofit that has expanded rapidly in the past few years to help college students document assault, is set to double the number of campuses where it operates by fall 2020. The program allows students to create a report of their assault, with the app connecting survivors of the same assailant through their Title IX office—even if the assaults occur years apart... “#MeToo has shown, in a disturbing way, that women are frequently not believed unless two or 10 or 60 of them come forward together,” says Sejal Singh '20, a Harvard Law student and former policy coordinator for Know Your IX, a national campaign to end gender-based violence in schools. Singh has advocated for Callisto in her work with universities, saying, “Callisto enables people to come forward together and to have each other’s back.”

An article by Noah Feldman: One of the weirdest things in this weird historical moment is the hodgepodge nature of the coronavirus responses from different state, county, and local governments throughout the United States. In essentially every other country on earth, central government authorities are directing and running the response to Covid-19. If Italy shuts down, it’s the Italian government that decides to do it. If Germany chooses to end hotel stays, it’s Chancellor Angela Merkel who makes the call. But in the U.S., separate Bay Area counties can go one way, the mayor of New York another, and the governor of Massachusetts yet a third. There’s little if any national coordination. It hardly seems like an optimal arrangement during a global pandemic. The explanation for this bizarre diversity of uncoordinated responses can’t be laid solely at the feet of President Donald Trump, despite his alarming lack of leadership. The deeper explanation is the distinctive, peculiar system of U.S. federalism.

The White House’s nascent effort to bail out oil and gas producers struggling with plunging oil prices could become a political boondoggle, legal and industry experts say, given the difficulty of finding congressional support for offering federal dollars to an industry plagued by reckless financing and devastating effects on the climate. The price war that broke out between Saudi Arabia and Russia on Sunday pushed the price of crude into its steepest single-day nosedive since 1991. Both producers vowed to continue oversupplying the market even as the panic over the coronavirus pandemic grounded planes and shuttered factories, significantly reducing demand... "The industry has gotten quite a few things off its wish list from this administration. Yet the administration is still willing to do more. It’s just, like, when will it ever end?" Caitlin McCoy, environmental and energy fellow at Harvard Law School. The industry carries important symbolism for the Trump administration, which cast its efforts to deregulate and expand the industry as vital to its nationalist agenda.

A podcast by Noah Feldman: With restaurants and bars across the country temporarily closing down due to concerns about the novel coronavirus, many of us are finding ourselves cooking for the first time in a long time. So today, Deep Background is taking a quick break from covering the spread of COVID-19 to share this conversation with Mark Bittman, the food writer who taught so many of us how to cook. The author of best-selling cookbooks like How to Cook Everything and Vegan Before 6, Bittman offers some tips on how to cook fish and reflects on what he has learned from over two decades of writing about food.

A podcast by Noah Feldman: Dr. Rebecca Berman, program director for UCSF’s Internal Medicine Residency, discusses the signs and symptoms of COVID-19, what to do if you feel sick, and tips for self isolating safely. Plus, hospital readiness, and the situation on the ground in San Francisco.

1000's of individuals in the USA have examined optimistic for COVID-19, and the dying toll around the globe has surpassed 6,000. Italy is below lockdown and in New York Metropolis the federal government is demanding companies together with bars, eating places and film theaters be closed in an effort to stem the unfold of the virus. After draconian measures have been applied in China to halt the fast an infection charge of the virus, together with motion restrictions, massive scale surveillance and compelled isolation, it appears such measures are working, with new instances in China declining...Beneath laws from the Occupational Security and Well being Administration plus legal guidelines together with the People with Disabilities Act (ADA), HIPAA, and the Genetic Info Nondiscrimination Act (GINA), amongst others, employers should respect employees privateness and different rights. With coronavirus, that will preclude administering any form of well being testing or straight inquiring about an worker’s well being situation or medical prognosis, says Elizabeth M. Renieris, a lawyer and a fellow at Harvard College’s Berkman Klein Center for Web and Society... “This isn't a time for employers to opportunistically accumulate further details about their staff or to introduce worker surveillance measures,” says Renieris. “Staff don't give up all of their privateness rights in a disaster.”

The United States government wants tech companies to tell it where you’ve been as part of its effort to fight the Covid-19 coronavirus pandemic, according to the Washington Post. And while that sounds invasive on its face, it is possible for the government to do this and preserve our digital civil rights — as long as the correct safeguards are put in place first. The Post reported on Tuesday that the US government is in “active talks” with tech companies including Facebook and Google about using location data they collect from users to map the spread of the virus or predict future outbreak areas. The government has yet to confirm the report, but the details we have suggest that this plan is in its early stages...David O’Brien, a senior researcher and assistant research director for privacy and security at the Berkman Klein Center for Internet & Society, told Recode that the American government will have to walk a fine line if it wants to get useful information while still preserving citizens’ privacy rights. “It is possible to do this and to provide some privacy,” O’Brien said. “But I think that the trade-off has always been you want to very carefully match any types of privacy measures you put in place against what is it that you ultimately want to learn from the data.”

The economic fallout is here. As a result of the coronavirus pandemic, Americans are losing their jobs, watching small businesses around them close up shop, and fretting about their retirement savings. It’s a bleak scenario that has lawmakers scrambling to soften the blow: Yesterday, Congress passed a relief package that temporarily mandates paid sick and family leave for some workers, expands unemployment insurance, and increases funding for food stamps and Medicaid—and that could be only the beginning of the government’s response...More recently, the same dynamic played out with the Affordable Care Act. Though the law was fairly unpopular when it first passed, it drew more support from Americans over time. In fact, while the GOP ran on repealing the law for the better part of a decade after its passage in 2010, Republicans quickly changed their message from “repeal” to “repeal and replace” when it became clear that most Americans didn’t want the law to go away—a tacit acknowledgement that the country would not be returning to a pre-ACA era. Even when Republicans controlled the White House and both chambers of Congress at the start of Donald Trump’s presidency, they repeatedly failed to overturn the ACA—though the administration has undermined the law in other ways.“The attempt to delegitimize the Affordable Care Act is to delegitimize the idea that government can actually do things to help the lives of citizens,” Kenneth W. Mack, a Harvard University law professor, told me.

Ohio Gov. Mike DeWine has done an excellent job proactively addressing the coronavirus pandemic. Closing schools, restaurants and bars was absolutely the right call for someone unwilling to engage in pandemic denial. However, the Republican governor’s action to delay the primary election was a mistake. (The other three states that vote on Tuesday all affirmed they would proceed with the elections.)...In a chaotic interval between the governor’s announcement and the scheduled opening of the polls at 6:30 a.m., the state supreme court weighed in to side with the governor. Four justices — two Democrats and two Republicans — agreed to delay the primary. Constitutional scholar Laurence Tribe warns, “Postponing elections could become dangerously easy. The temptation is one worth trying hard to resist.”

An article by Noah Feldman: A “shelter in place” order has been issued for seven counties around San Francisco, and New York Mayor Bill de Blasio is considering issuing one for New York. Leaving aside the degree of public health necessity, the obvious question is: How can and will such orders be enforced? The first point to note is that the Bay Area order doesn’t — at present — contain any criminal sanction for violation. It is, in effect, firm guidance rather than government command backed by the threat of criminal penalties. Some European countries are imposing monetary fines for breaking such orders. The San Francisco order doesn’t do that. The order does “request” that the police “ensure compliance with and enforce this order.” And it declares that violation of the order “constitutes an immediate threat and creates an immediate menace to public health.” But if the police chose to arrest violators, this language would probably not be enough to sustain a criminal conviction. The order is simply too vague, and the punishment for constituting a threat or a public health menace would have to come from some existing statute or ordinance.

Every now and then, an idea comes along about how businesses should be run. And right now, the idea in vogue is “stakeholderism”. Basically, it’s a response to the bashing business leaders have taken for the downsides of modern shareholder capitalism: whether the excessive pay of chief executives and fund managers, or the spillover effects from heedless shareholder-focused entities that can hurt communities by squeezing wages, closing factories or polluting the environment...But is there much more to all this gush than an urge for self preservation? Not according to a new working paper from the academics Lucian Bebchuk and Roberto Tallarita. They claim the public declarations are little more than PR releases. And thank goodness, say the authors, because real stakeholder capitalism would not benefit those it purports to help. Their analysis divides stakeholderism into two categories. First, there’s the halfway house of “enlightened shareholder value” where directors still work for shareholders, but are supposed to “take into account” other interests. (This is the sort of “directors’ duties” regime the UK’s Companies Act prescribes). The authors regard it as being mainly wallpaper, with almost no direct effect.

Each of our stakeholders is essential.” Those words were part of a declaration signed last August by 181 bosses of big American companies belonging to the Business Roundtable (BRT), an eminent lobby group. It seemed to represent quite a u-turn—nothing short of a repudiation of America Inc’s shareholder-first orthodoxy. As investors pour billions into funds promoting environmental, social and governance objectives beyond profitability, a vision of a cuddlier capitalism has taken hold. Or has it? In a new paper Lucian Bebchuk and Roberto Tallarita of Harvard Law School pore over data from the companies of some of the brt signatories and find little evidence (so far) that the declaration has altered corporate behaviour. For example, they found that only three of the 20 companies whose ceos sit on the brt’s board—Boeing, Stryker and Marriott—have amended their corporate-governance guidelines in any way since the declaration. And none of the amendments had anything to do with stakeholder welfare, the authors say.

A podcast by Noah Feldman: Stefanie Stantcheva, Professor of Economics at Harvard, discusses the economic harms of COVID-19 and measures governments can take to soften the blow of a recession.

An article by Todd Carney '21: Though most of the headlines regarding disputed territory in Eastern Europe focus on Crimea and Kosovo, there is another region in Eastern Europe that continues to be in question, Transnistria. This blog has been one of the few outlets to consistently pay attention to the conflict. While the conflict has remained cold for quite some time, there are still uncertainties that could impact Moldova’s chance to join the EU. This piece evaluates whether international law can realistically resolve the dispute between Transnistria and Moldova.

The late-night decision Monday by Ohio Gov. Mike DeWine (R) to close the polls in his state due to the “unprecedented public health crisis” surrounding the coronavirus pandemic created a wave of confusion and drew criticism from voting advocates. “We have a constitutional crisis now in Ohio,” tweeted state Rep. Jon Cross, a Republican who vowed to keep the polling locations open in his district in northwest Ohio. He added, “...the Ohio Department of Health can not shut down an election.” ... “Treating court orders as options would be the beginning of the end,” wrote Harvard Law School professor Laurence Tribe. “Ohio mustn’t become the graveyard for the rule of law.” Tribe’s sentiment was echoed by voting advocates nationwide, including Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Clarke wrote that she was “ASTOUNDED” by the cryptic messaging DeWine had put out beforehand.

A podcast by Noah Feldman: Richard Lazarus, a law professor at Harvard and a leading Supreme Court advocate, discusses where public health stops and our individual liberties begin. Plus, what does it mean that the Supreme Court has postponed oral arguments?

Six counties in the San Francisco metro area made headlines when they announced Monday they were ordering all their residents to “shelter in place” in response to the novel coronavirus. The sweeping proclamation is the most striking example to date of state and local governments in the United States taking sweeping action to halt the spread of the novel coronavirus and to limit the impact of the disease it causes, Covid-19. While the Bay Area is the first region in the U.S. to issue such an order, a number of states have mandated school and business closures and vastly curtailed nearly all major events... “The good news [is] there are a number of cases on public health needs, the constitution, and the so-called state ‘police power.’ The bad news is they are quite old, mostly turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area,” said Glenn Cohen, the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.