Law and Legal
Law360 (May 18, 2020) – “The Federal Circuit on Monday suspended in-person arguments “until further notice” because of the COVID-19 pandemic, abandoning its month-by-month approach to extending remote oral arguments. Chief Circuit Judge Sharon Prost’s new administrative order removes the expiration date from a March order limiting access to the courthouse and calling for hearings to be held over the phone. She said the move was made “in the interest of providing greater predictability” to attorneys, given complications rising from the court’s national jurisdiction. “Counsel appearing in cases before this court are currently subject to various approaches to, and timeframes for, community recovery and reopening, which may impact their ability to travel for argument,” Judge Prost wrote. The Federal Circuit had been deciding each month whether oral arguments could be held in person. Arguments were held over the phone in April for the first time ever and they were virtual again in May. The court had announced last week that June arguments would be virtual as well. Attorneys who argued during the first set of phone hearings had said the process was technically smooth, even if it couldn’t fully replicate the experience of being in a courtroom with the judges deciding their clients’ fates…”
Law360 (May 18, 2020) – “Cravath Swaine & Moore LLP’s offices soar over Manhattan’s Central Park like a 600,000-square-foot palace within a skyscraper, replete with marble floors, mahogany-paneled walls, paintings and other such stately furnishings. The storied law firm pays $54 million a year for the space. Kirkland & Ellis LLP’s New York office spans over 500,000 square feet in a Midtown building, though it is dwarfed by the firm’s 675,000-square-foot Chicago headquarters that fills more than half of an entire office tower. Latham & Watkins LLP leases 407,000 square feet spread over 10 floors of a Rockefeller Center skyscraper. Right now, these offices are missing just one crucial thing: people. The COVID-19 pandemic has forced BigLaw firms to abandon their most opulent offices and transform their lawyers into remote workers, revealing to many firm leaders that their enormous real estate costs might not be as justifiable as they had been in decades past. Experts say the pandemic is sure to accelerate a trend among law firms to cut back on the kind of real estate typified by Cravath’s current offices. Real estate, after all, is usually firms’ highest expense after salaries. Firms have already been experimenting with ideas like shared offices and remote work, and the austerity that may be required to make it through the oncoming downturn is likely to budge even the most change-averse firms…”
Slate – We should take comfort in hating this. “…My internal alien has identified the lack of normal eye contact as one central pitfall of the video-chat experience. Talk to someone over FaceTime or Zoom, and they’ll never quite meet your eyes. They’ll spend the call looking at their screen, a few inches below or to the side of their camera, giving you the perpetual feeling of trying to get the attention of someone who’s ever so slightly preoccupied. Once, on a Skype call many years ago, a friend looked directly into her camera to say something heartfelt to me with the approximation of true eye contact. The effect was jarring: I didn’t fully realize that we hadn’t been making eye contact until she was suddenly staring straight into my soul from inside my screen. She was gazing at her computer’s eye, not mine, and could actually see less of my face than when she was looking at her screen, yet I felt strangely, uncomfortably exposed. When I recently tried it on a video call with my niece and nephew in an attempt to make them laugh, it gave me the unsettling impression of carrying on a conversation with HAL 9000, who’d been watching me watch the kids throughout our call. (FaceTime, perhaps even more eerily, has a new feature that attempts “eye contact correction” to make it appear you’re looking directly at each other, even when you’re not.)…”
“The American Bar Association Commission on Law and Aging has released its May-June 2020 issue of BIFOCAL, a “Special Coronavirus Edition,” which features articles and resources to support the elder law community in these unprecedented times. Articles include information about legal delivery tools, pandemic rules guardians should know, legal documents that lag in a digital world and the fight for older prison inmates. The May-June issue is a collection of articles written by some of the country’s foremost law and aging experts who are available for interviews to media outlets seeking sources. Some experts and their articles include:
- 5 Tips to Help Elder Law Practitioners in the Age of COVID-19, by Rajiv Nagaich, an elder law attorney in the Seattle area and a fellow of the National Academy of Elder Law Attorneys
- Working Remotely? Legal Delivery Tools You Need Now, by Hilary Dalin, director of the Office of Elder Justice and Adult Protective Services at the Administration for Community Living in Washington, D.C.; Sarah Galvan, senior staff attorney at Justice in Aging and who works on the National Center on Law and Elder Rights (NCLER); and Liz Keith, program director at Pro Bono Net
- Ready, Set, Pause: The Digital World Waits for Legal Planning Docs to Catch Up, by Charles Sabatino, director of the ABA Commission on Law and Aging
- New Pandemic Rules Guardians Need to Know Now, by the ABA Commission on Law and Aging, The National Guardianship Association, and the National Center for State Courts
- Notarizing Docs Amid Stay-in-Place Orders: The Evolving Status of State Laws, by Rebecca Salido, intern, ABA Commission on Law and Aging
- Inside Vermont’s Prison System: Fighting for Older Inmates as Outbreaks Spread, by Annie Manhardt, staff attorney at the Prisoners’ Rights Office in Montpelier, Vt.
- Seniors Facing Foreclosure Get Temporary Reprieve, by Odette Williamson, an attorney with the National Consumer Law Center who focuses on housing sustainability, issues impacting older adults, and directs the Racial Justice and Equal Economic Opportunity initiative
- Consequences Can be Enormous for Seniors Without Internet, by Jeremiah Underhill, legal director at Disability Rights of West Virginia, and a co-coordinator for Working Interdisciplinary Network of Guardianship Stakeholders (WINGS) in West Virginia
- Remembering Lori Stiegel: An Unwavering Elder Justice Advocate (1957-2020), by Erica Wood, former assistant director at the ABA Commission on Law and Aging…”
LC CRS Reports – Legal Issues Related to the COVID-19 Outbreak: An Overview Updated May 18, 2020: “The COVID-19 outbreak has rapidly shifted the congressional agenda in recent weeks, while altering the daily lives of millions of American residents. Alongside the many medical, economic, social, and public policy questions raised by the pandemic are a range of legal issues. These include both short-term legal questions related to the unfolding outbreak as well as longer-term legal issues that are anticipated to persist in the wake of the crisis. Among the most immediate questions are those related to the scope of state and federal authorities concerning quarantine measures, travel and entry restrictions, the movement of medical goods, health care coverage, and the like. Of more ongoing concern may be legal issues ranging from those related to the development of vaccines, testing, treatments, and other medical countermeasures, to postponing national elections, to civil liability for COVID-19 exposure, to criminal actions related to hoarding and price gouging, to providing economic assistance to individuals and businesses,to foreclosure, eviction, and debt collection moratoria. This Legal Sidebar provides a list of legal resources discussing these and other legal topics related to the COVID-19 pandemic. It will be updated intermittently as additional legal issues emerge.”
Medium – Fair Use, First Sale, and the Fallacy of Licensing Culture: “Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing. And, many of us have watched as librarians, educators, parents, and students have questioned (and battled) over to right to read books aloud online to schoolchildren or to stream movies or music for our new online “classroom” environment. We have also heard about resistance to emergency or temporary digital libraries to increase access to the materials needed for education and research during this pandemic. The answer to these questions coming from vendors, publishers, and now, the U.S. Copyright Office, appears to be singular: more licensing. This answer threatens the purpose, values, and mission of libraries and archives in the United States. It undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large…”
TechCrunch: “Congress will allow remote voting for the first time in its history, after the U.S. House approved Resolution 965 late Friday in response to the coronavirus pandemic. The measure — sponsored by Massachusetts Representative Jim McGovern — authorizes proxy voting by members for renewable periods of 45 days and allows for remote participation in committee hearings. H.R. 965 could also permanently alter the way Congress operates through a provision that establishes a bi-partisan process to explore digital voting away from Capitol Hill. Per the directive, “The chair of the Committee on House Administration, in consultation with the ranking minority member, shall study the feasibility of using technology to conduct remote voting in the House, and shall provide certification…that operable and secure technology exists.” Previous House rules required in person voting only. The Senate still makes decisions by recording verbal “Yeas” and “Nays” on a tally sheet…”
Reclaim the Net – “We recently did a deep-dive for members about how the DMCA and copyright claims are one of the greatest growing threats to free speech online. Now, an investigation has revealed that Google has fallen victim to fake copyright notices and is taking down several legitimate news articles and similar search results. Google, much like any other search engine, is mandated to comply with the DMCA guidelines, according to which copyrighted content cannot be returned in search results. Leveraging this loophole, several unscrupulous individuals or organizations, have filed anywhere near four billion fake copyright complaints to take down links to news pieces that showed a particular political figure or an individual in a negative light. In the recent past, for instance, Google returned the result of an article that covered the movements of two coronavirus-infected Brits who were in Vietnam and thereby warned others to take precautions when coming in contact with tourists who have been to international destinations. But now, the article does not appear in search results anymore. What could be the reason? A copyright claim….”
BuzzFeedNews: A quarantine reading list courtesy of Glennon Doyle, Veronica Roth, Julia Alvarez, and more. ” Powell’s Books recently asked some of its favorite authors to share which books they’re reading and recommending during quarantine. Here’s what they had to say…”
Make Use Of: “Which book should you read next? These websites will find the best book for your tastes and recommend titles by experts and famous people. No matter how cooped up or bogged down you feel, books can be your escape. You can dive into a world that takes you away from harsh reality. And if fiction isn’t what you seek, you can learn more through engaged reading than any other media. After all, successful and intelligent people don’t talk about the TV series they’re binge-watching, they talk about the books they are reading. These websites take different routes to suggest books to read. Some work like multiple-choice apps, while others take the effort to ask experts what they think you should be reading. But whichever path you take, at the end of it, you’ll have a new book to enjoy…”
Penn State University video – “CIDD’s Dr. Beth McGraw explains the concept of “clean hand, dirty hand,” a useful tactic that can help you keep potential contaminants away from your clean personal areas. To see more coronavirus questions answered by experts at the Center for Infectious Disease Dynamics, submit a question of your own, or learn how you can do your part to #flattenthecurve, visit http://askcidd.psu.edu.” [Very good advice – thank you Pete Weiss]
The Marshall Project – Opposition to stay-at-home orders is the latest example of a history of powerful sheriffs, which stretches back to the end of slavery and the settling of the frontier. “…Mike Herrington [Chaves County NM] is one of at least 60 sheriffs nationwide, spread across more than a dozen states, who are publicly opposing restrictions issued by governors, according to a Marshall Project analysis of news reports and official statements. There are likely many more quietly declining to enforce them. All law enforcement officers have a great deal of discretion, but the power of sheriffs in particular stretches deep into American history, to the end of the Civil War and the settling of the frontier. This history can help us make sense of their increasingly central role in partisan battles about public health and economic recovery, as they clash with governors through viral Facebook posts and media appearances. While police chiefs are appointed and thus insulated from politics, sheriffs are elected and many have built their reputations by defying state and federal laws in areas ranging from immigration to gun control. The best known sheriffs in America in recent years, Joe Arpaio of Arizona and David Clarke of Wisconsin, used racially charged criticism of President Obama to become high-profile allies of President Trump…” [YGTBFKM – Wear a face mask, wash your hands – folks we know and love have died!]
Derek Thomson – The Atlantic – Don’t think of that number as “big” or “bold.” Just think of it as the appropriate dosage for a once-in-a-century economic affliction: “Last week, House Democrats unveiled their latest pandemic-relief package. The bill combines aid for families, a bailout for struggling cities and states, and additional funds for testing, tracing, and hospitals. The price tag is about $3 trillion—and it comes just weeks after the president signed an economic-relief package worth about $2 trillion. Republicans have assailed the bill as a profligate wish list. Even Americans who are suffering from the health and economic ravages of the pandemic may feel a bit stunned by the dollar amount. Does the government really have to spend $5 trillion in three months? Can the United States afford to dump such unfathomable amounts of money into the economy? The answers to those questions are yes and absolutely yes. Small-business activity has plunged nationwide by nearly 50 percent. Hundreds of thousands of companies have already failed. Big retailers such as J.Crew and Neiman Marcus have filed for bankruptcy, while others, including Macy’s, are teetering. By some measures, scarcely one-third of Americans say they are working. Next month’s jobs report will likely show that, for the first time since World War II, a majority of Americans aren’t officially employed…” [The numbers are astounding.]
Questions About the CARES Act’s $500 Billion Emergency Economic Stabilization Funds – The First Report of the Congressional Oversight Commission, May 18, 2020. Commission Members: U.S. Representative French Hill, Bharat Ramamurti, U.S. Representative Donna Shalala, U.S. Senator Pat Toomey. May 18, 2020. “Please find enclosed a copy of the first report of the Congressional Oversight Commission (the “Commission”). The Commission was created by the CARES Act to conduct oversight of the Treasury Department (the “Treasury”) and the Federal Reserve’s implementation of Division A, Title IV, Subtitle A of the CARES Act (“Subtitle A”). Subtitle A provided $500 billion to the Treasury to help support and stabilize the economy by lending and providing liquidity to businesses and state and local governments. Of this amount, $46 billion is set aside for the Treasury to provide loans or loan guarantees to the airline industry and businesses critical to maintaining national security. Any unused portions of this $46 billion, and the remaining $454 billion, may be used to support emergency lending facilities established by the Federal Reserve. This report reviews actions by the Treasury and the Federal Reserve implementing Subtitle A to date, including designing lending programs and facilities. It also outlines some preliminary questions based on those actions that we intend to examine. These questions are not meant to be comprehensive and will not prevent the Commission from reviewing other matters in the future…”
See also Washington Post – $500 billion Treasury fund meant for coronavirus relief has lent barely any money so far, oversight commission finds – A Congressional Oversight Commission created by the Cares Act issued its first report even though it still doesn’t have a chair.
Brookings – “States across the U.S. are considering paths to re-opening following months of stay-at-home orders and a widespread shuttering of the economy in response to the threat of COVID-19. Policymakers now face the task of crafting strategies that will allow resumption of activity without producing additional waves of infection that could do even more damage to health and economies. Looking to successful examples from around the world, many of these strategies involve widespread testing, coupled with contact tracing and selective quarantine. Yet many questions that are important in designing such policies remain difficult to answer. Getting the answers “right” may be the difference between successful containment or a damaging resurgence of infection. Some of these questions include:
- How effective can a test-and-trace policy really be in containing future waves of infection? Is such an approach feasible in the United States?
- How much testing capacity is needed for effective containment? How much capacity to trace contacts will be needed?
- How accurate must tests be?
- What is the most efficient way to use limited testing capacity?
- How might success depend on still-uncertain assumptions about the spread of the disease itself?
- What social distancing measures might still be needed to enhance containment?…”
“Fortune 500 – Call it the ultimate business scorecard. This marks the 66th edition of our ranking of America’s largest companies. The 500 that made this year’s list represent two-thirds of the U.S. economy, with $14.2 trillion in revenue. Explore the list for a full breakdown of who’s up, who’s down, and why.”
Economist data journalist James Tozer via Twitter – “NEW, FREE DATA: We have just published the code and data behind our excess mortality tracker on Github. We believe this is the first public resource to provide this information, and we hope academics and journalists can use it for their research https://github.com/TheEconomist/covid-19-excess-deaths-tracker. For several weeks @martgnz and myself have been cleaning, analysing and presenting this data on our tracking page @TheEconomist, which provides interactive charts and is free to read. Excess deaths are now being widely used to analyse the covid-19 pandemic, as the most comparable measure across countries. But as @MaxCRoser pointed out yesterday, none of this data has been turned into a public resource yet. Eagle-eyed readers might note that we have several countries in our Github repo that are not included yet on the tracking article page @TheEconomist. We are redesigning the page and will be launching it next week. I will be keeping this repository updated throughout the pandemic. If you have any suggestions, either for things to change or countries to add, please email me: email@example.com.” [ht/ Sharon Machlis]
Facebook AI Blog: “…In order for AI to become a more effective tool for detecting hate speech, it must be able to understand content the way people do: holistically. When viewing a meme, for example, we don’t think about the words and photo independently of each other; we understand the combined meaning together. This is extremely challenging for machines, however, because it means they can’t just analyze the text and the image separately. They must combine these different modalities and understand how the meaning changes when they are presented together. To catalyze research in this area, Facebook AI has created a data set to help build systems that better understand multimodal hate speech. Today, we are releasing this Hateful Memes data set to the broader research community and launching an associated competition, hosted by DrivenData with a $100,000 prize pool. The challenges of harmful content affect the entire tech industry and society at large. As with our work on initiatives like the Deepfake Detection Challenge and the Reproducibility Challenge, Facebook AI believes the best solutions will come from open collaboration by experts across the AI community…”
Via LLRX – Pete Recommends Weekly highlights on cyber security issues May 16, 2020 – Privacy and security issues impact every aspect of our lives – home, work, travel, education, health and medical records – to name but a few. On a weekly basis Pete Weiss highlights articles and information that focus on the increasingly complex and wide ranging ways technology is used to compromise and diminish our privacy and security, often without our situational awareness. Four highlights from this week: Zoom bolsters policy and engineering teams as it courts government; The lack of women in cybersecurity leaves the online world at greater risk; How to Set Your Facebook, Twitter, and Instagram to Control Who Sees What; and UK accidentally leaves contact-tracing app plans on open Google Drive.
Consumer Reports – How to choose the right platform for work-from-home meetings or more casual virtual get-togethers: “For many of us, videoconferencing has morphed from an occasionally used tool into part of our daily routine, for both work and staying in touch with family, doctors, teachers, and friends. When we were in the office, the decision about which platform to use was often made by the IT department. Now, increasingly, it’s our call. The first step to picking a service is to get real about how you want to use it. If you’re just holding small, simple group meetings, try a consumer-grade video chat app, such as Apple FaceTime, Google Duo, or Facebook’s new Messenger rooms. But if you’re hosting larger meetings that require presentation features like document-sharing or whiteboarding, the next step up is a free version of the major business-oriented platforms, such as Cisco Webex, Google Meet (a replacement for Hangouts), Microsoft Teams (which will replace the company’s Skype), or Zoom. The host (or the host’s organization) is the only one who needs to register with a service and pay, if there’s a fee. We discuss the pros and cons of major services below, but you shouldn’t discount the importance of familiarity. If you’re used to a particular platform from the office, it’s likely to work for you at home, too…” [h/t Pete Weiss]