Law and Legal
strategy + business – Powerful modes of reflection are crucial for leaders and their teams, especially when dealing with a crisis: “Reflection for seasoned leaders has always been a personal process. Step back. Regroup. Look in the mirror. Push the pause button. There is often an intuitive belief that reflection carries restorative powers and can even be transformational. In theory, it goes like this: On top of a mountain, a leader retreats to ask him or herself a set of questions about life, stress, and sacrifice, capturing the answers in a beautifully bound notebook. The questions don’t vary much. Where are you going? How are you living your values? What gives you meaning, purpose, or fulfillment? Are all the components of your life managed as you need them to be managed: career, family, friends, finances, health, and spiritual growth? The power of this reflection comes from digging deep and being in touch with your core. It is very much an affair of the heart. With the insights from this exercise, you come back to your role renewed, focused on what matters to you and clearer about how you will lead this year. Although this kind of deep reflection (on an imagined mountaintop) is a useful process, it may not be enough to tackle the range of problems a business encounters in the course of a year because it focuses solely on the leader. In our experience working together and independently coaching leaders, we find that they and their teams benefit from four ways of more targeted reflection that help refocus and reframe challenges (see “The four kinds of reflection”). This is particularly true when the world as we knew it has so dramatically changed and the challenges we face will be of a new kind.
In our experience, the leadership health check should be done twice a year. Its purpose is to refine how you lead in order to elicit better performance, engagement, or commitment from those around you. Rather than a look at yourself in a mirror, you distill the views of others concerning your words and actions. Informally or formally, you gather the answers to the following questions from people you trust, such as a coach, colleagues, and mentors. And you collect the perspectives of key critics…”
The New York Times – “The coronavirus still has a long way to go. That’s the message from a crop of new studies across the world that are trying to quantify how many people have been infected. Official case counts often substantially underestimate the number of coronavirus infections. But in new studies that test the population more broadly, the percentage of people who have been infected so far is still in the single digits. The numbers are a fraction of the threshold known as herd immunity, at which the virus can no longer spread widely. The precise herd immunity threshold for the novel coronavirus is not yet clear; but several experts said they believed it would be higher than 60 percent. Even in some of the hardest-hit cities in the world, the studies suggest, the vast majority of people still remain vulnerable to the virus…”
Interview with James K. Galbraith via New York Magazine: “…Why do you think a mass debt forgiveness is going to be necessary to facilitate recovery after the pandemic? There’s a certain presumption that what can be shut down can be reopened—that the natural course of events is a rapid economic recovery. And that’s what I’m taking issue with. Every business and household has assets and liabilities. And what’s happened is that their assets have been diminished but their liabilities have not. Unless the liabilities are somehow taken care of, they’re going to be burdened by their debts for a long time to come. At best, that debt burden will slow recovery, even assuming the best conditions. But I’m inclined to think things will be considerably worse than that. This is similar to what happened after 1929. There’s very little economic activity. And the reason for that is that once certain kinds of activity go down, investment in the durable goods necessary for those activities falls to zero. Take aircraft. Why would anyone buy a new one? Half of all the existing airplanes are sitting on the ground someplace. Who needs a new aircraft? Now you can think of ways you could destroy the existing ones in order to keep the aircraft producers going, but that’s probably not going to happen…”
“New criminal prosecutions dropped by 80 percent between February and April — from 13,843 during February 2020, before federal shutdowns to control the spread of COVID-19 began, to just 2,824 in April 2020. This means that only one-fifth the usual prosecutions took place. Two major factors contributed to this precipitous decline. First, referrals to federal prosecutors from all the major investigative agencies fell sharply. In February 2020 federal prosecutors recorded receiving roughly 17,600 criminal referrals. These dropped to just under 8,000 during April. But this alone does not explain the extent of the collapse. Prosecutors also filed suit on relatively few of the referrals they did receive. Convictions fell less precipitously. Federal attorneys handling prosecutions already underway were able to strike many plea agreements and thus procured 6,638 new convictions. That was more than twice the number of new prosecutions (2,824) recorded in April. Regardless of the kinds of cases involved, there was a marked decline in prosecutions during April compared with the average of the first five months of FY 2020 (October 2019 through February 2020). Declines were higher than average among cases involving civil rights (down 92%) and immigration (down 86%), while terrorism cases – always few in number – declined the least (29%). The Federal Bureau of Investigation was least successful in having its criminal referrals result in federal attorneys deciding to prosecute.”
Reuters: “U.S. President Donald Trump is expected to order a review of a law that has long protected Twitter, Facebook and Alphabet’s Google from being responsible for the material posted by their users, according to a draft executive order and a source familiar with the situation. News of the order comes after Trump threatened to shut down websites he accused of stifling conservative voices following a dispute with Twitter after the company decided to tag Trump’s tweets about unsubstantiated claims [note – this link references news on this incident posted by beSpacific] of fraud in mail-in voting with a warning prompting readers to fact-check the posts. The order, a draft copy of which was seen by Reuters, could change before it is finalized. On Wednesday, officials said Trump will sign an executive order on social media companies on Thursday.
The executive order would require the Federal Communications Commission (FCC) to propose and clarify regulations under Section 230 of the Communications Decency Act, a federal law largely exempting online platforms from legal liability for the material their users post. Such changes could expose tech companies to more lawsuits. The order asks the FCC to examine whether actions related to the editing of content by social media companies should potentially lead to the platform forfeiting its protections under section 230…The draft order also states that the White House Office of Digital Strategy will re-establish a tool to help citizens report cases of online censorship. Called the White House Tech Bias Reporting Tool, it will collect complaints of online censorship and submit them to the Department of Justice and the Federal Trade Commission (FTC)…”
Via LLRX – How Law Firms Are Responding to COVID-19 [Survey Results] – On an individual level, lawyers and legal professionals are experiencing a mix of productivity challenges in a new and potentially permanently changed legal landscape. Martin Cogburn discusses the top productivity challenges individuals are facing, the tools they’re adopting, and their thoughts on the long term effects of COVID-19 on the legal industry.
Via LLRX – Biological Informatics 2020 – We can and do depend upon Marcus P. Zillman’s ability to consistently provide LLRX readers with timely, informative and actionable subject matter resource guides. This month he provides an extensive bibliography on bioinformatics – “an interdisciplinary field that develops methods and software tools for understanding biological data, in particular when the data sets are large and complex.” This subject matter is especially important important for researchers as the COVID-19 pandemic remains an active threat throughout America and around the world.
Via LLRX – How not to fall for coronavirus BS: avoid the 7 deadly sins of thought – Luke Zaphir, Researcher for the University of Queensland Critical Thinking Project, posits that amid the panicked flurry of the pandemic, employing concepts from the field of critical thinking called vice epistemology can be demonstrably useful. This theory argues our thinking habits and intellectual character traits cause poor reasoning. Zaphr targets for discussion 7 “intellectual sins” of which we should be mindful in these challenging times.
Lifehacker: “Your web browser is full of secrets. I typically spend my time poring over new features I can unlock via pages like chrome://flags and about:config, but it’s also nice to take a little break and play the hidden games that come packed into the most popular browsers. Yes, your desktop browser is filled with hidden games. Don’t crack your knuckles and expect to hunker down for a Civilization VI-like session—they’re not that great. They are fun little time-wasters, though. If nothing else, they’re great to send to your friends if you’re looking to impress them with your technical know-how…”
TechCrunch: “Google is introducing a new “quick settings” menu in Gmail aimed at helping users browse, discover and use different themes and settings to customize their Gmail experience. These options include the ability to change the density of text, select from different inbox types and add reading panes and options to theme your inbox. They are not new features, but before had been buried in Gmail’s settings. Many users may have not even known the options existed, unless they went digging. From the new Quick Settings menu, Gmail will pop up these various options on the right side of the inbox for easier access. And as you make a selection, you can see your inbox update with the change immediately, allowing you to try out new settings and themes before making a commitment…”
TechCrunch: “The same day Donald Trump took to Twitter to threaten to regulate or shut down social media sites, the U.S. appeals court in Washington, D.C. dismissed a lawsuit accusing top tech companies of silencing conservative voices. Filed in 2018 by nonprofit Freedom Watch and right-wing gadfly Laura Loomer, the suit accused Apple, Facebook, Twitter and Google of stifling First Amendment rights. The suit alleged that four of tech’s biggest names “have engaged in a conspiracy to intentionally and willfully suppress politically conservative content.” It specifically cited Loomer’s ban from Twitter and Facebook, following a tweet about Congresswoman Ilhan Omar. Also noted is her inability to grow an audience base and revenue on Google’s YouTube, suggesting that after Trump’s election “growth on these platforms has come to a complete halt, and its audience base and revenue generated has either plateaued or diminished.” Apple’s alleged role is less clear. In the ruling, District Judge Trevor McFadden notes that Freedom Watch and Loomer failed to back up a claim that the companies were “state actors,” involved with the regulation of free speech.
“The Plaintiffs do not show how the Platforms’ alleged conduct may fairly be treated as actions taken by the government itself,” the judge writes. “Facebook and Twitter, for example, are private businesses that do not become ‘state actors’ based solely on the provision of their social media networks to the public.” In other words, the companies cannot violate the first amendment, because banning users doesn’t constitute government abridgment of free speech. Per the decision, “Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim.”…
POGO – Where Are All the Watchdogs? “Offices of Inspectors General (OIG) serve as independent watchdogs within federal agencies and are essential to a well-functioning federal government. They conduct audits and investigations that identify wasteful government practices, fraud by individuals and government contractors, and other sorts of government misconduct, even including torture. Congress and the public rely on OIG reports to hold agencies and individuals accountable for wrongdoing, identify a need for legislation, and evaluate the effectiveness of government programs and policies. Unfortunately, many OIGs across the government do not have permanent leadership. POGO’s vacancy tracker monitors how long Inspector General positions across the government have been left vacant…”
- COVID-19: Resources for Tracking Federal Spending May 27, 2020: “Congress has responded to the Coronavirus Disease 2019 (COVID-19) pandemic with various legislation providing relief to individuals and families, state and local governments, businesses, healthcare providers, and other entities. This CRS Insight provides information on selected sources for tracking COVID-19 relief funding provided through these bills. For general information on resources for tracking federal funds, see CRS Report R44027, Tracking Federal Awards: USAspending.gov and Other Data Sources, by Jennifer Teefy.” (cited below)
- Tracking Federal Awards in States and Congressional Districts Using USAspending.gov, May 11, 2020: “USAspending.gov, available to the public at https://www.USAspending.gov, is a government source for data on federal awards by state, congressional district (CD), zip code,city,and county. The awards data in USAspending.gov is provided by federal agencies and represents grants, contracts, loans, and other financial assistance. Grant awards include money the federal government commits for projects in states, local jurisdictions, regions, territories, and tribal reservations, as well as payments for eligible needs to help individuals and families. Contract awards refer to bids and agreements the federal government makes for specific goods and services. USAspending.gov does not include data on actual spending by recipients. USAspending.gov also provides tools for examining the broader picture of federal spending obligations within the categories of budget function, agency, and object class. Budget function refers to the major purpose that the spending serves, such as Social Security, Medicare, and national defense. Object class refers to the type of item or service purchased by the federal government, such as grants, contracts, and personnel compensation and benefits. The COVID-19 pandemic has spurred multiple pieces of legislation providing relief to individuals and families, state and local governments, businesses, and healthcare providers. According to an Office of Management and Budget memorandum from April 10, 2020, there are plans to identify COVID-19-related federal awards in USAspending.gov effective for the June 2020 reporting period. Using USAspending.gov to locate and compile accurate data on federal awards presents challenges, in part, because of continued data quality issues that have been identified by the U.S. Government Accountability Office (GAO). Researchers need to be aware that search results may be incomplete or contain inaccuracies…”
MIT Technology Review – Our Covid Tracing Tracker project will document them. “…When we began comparing apps around the world, we realized there was no central repository of information; just incomplete, constantly changing data spread across a wide range of sources. Nor was there a single, standard approach being taken by developers and policymakers: citizens of different countries were seeing radically different levels of surveillance and transparency. So to help monitor this fast-evolving situation, we’re gathering the information into a single place for the first time with our Covid Tracing Tracker—a database to capture details of every significant automated contact tracing effort around the world. We’ve been working with a range of experts to understand what we need to look at, pulling sources including government documents, announcements, and media reports, as well as talking directly to those who are making these apps to understand the technologies and policies involved…So far we have documented 25 individual, significant automated contact tracing efforts globally, including details on what they are, how they work, and what policies and processes have been put in place around them…The most accessible version of the database exists on the page you are reading right now, and on Flourish, a data visualization service. A public version of the underlying data is kept in this read-only spreadsheet, which we update once a day at 6 p.m. US Eastern Time…”
UNDARK: Researchers behind habitat restoration and wildlife protection groups are struggling to continue work amid the pandemic. “..Across North America, Africa, and elsewhere, conservation efforts that keep delicate ecosystems in check are struggling as the Covid-19 pandemic keeps many people confined to their homes. There are no tourists, who help fund a range of projects. Volunteers and employees aren’t able to plant trees or remove invasive species, while wildlife rehabilitation centers struggle to keep their doors open. Some programs require large crews that can’t practice social distancing on the job, while many others, like the Platte River restoration, rely on the money brought in from tourism or activity fees to function. Conservation efforts have long had to contend with occasional booms and busts in the industry, but unlike any other event before it, the pandemic has laid bare the weaknesses of the economic cogs that support certain ecosystems. “We’ve kind of got a perfect storm,” said Catherine Semcer, a research fellow for both the U.S.-based Property and Environmental Research Center and the African Wildlife Economy Institute. Since the beginning of the pandemic, Semcer has followed the ways that the global shut down has affected conservation, particularly in Africa.
For many conservation efforts, the sudden loss in income will be a major setback for the coming year. Other groups say that the pandemic could cause permanent damage. As for Rowe Sanctuary, Taddicken still isn’t sure what the pandemic’s final impact will be. The sanctuary may have to cut back on some of their river clearing work this year, but his big worry is losing the incremental progress built into the habitat over decades. It would only take a few years without habitat management for the carefully managed river channels and meadows to revert to a state unsuitable for cranes. “You definitely don’t want to go backwards in maintaining the river,” he said. “And if it gets too bad and we don’t get the work we need to get done, we could go backwards.”
Washington Post – “There’s a good chance the coronavirus will never go away. Even after a vaccine is discovered and deployed, the coronavirus will likely remain for decades to come, circulating among the world’s population. Experts call such diseases endemic — stubbornly resisting efforts to stamp them out. Think measles, HIV, chickenpox. It is a daunting proposition — a coronavirus-tinged world without a foreseeable end. But experts in epidemiology, disaster planning and vaccine development say embracing that reality is crucial to the next phase of America’s pandemic response. The long-term nature of covid-19, they say, should serve as a call to arms for the public, a road map for the trillions of dollars Congress is spending and a fixed navigational point for the nation’s current, chaotic state-by-state patchwork strategy…”
NPR – That Could Mean A Nightmare For Democracy: “America’s new socially distant reality has warped the landscape of the 2020 election. Candidates aren’t out knocking on doors, and U.S. election officials are bracing for a record surge in mail ballots. But another subtler shift is also occurring — inside people’s brains. Four years after Russia’s expansive influence operation, which touched the feeds of more than 100 million users on Facebook alone, Americans’ usage of social media has only increased — and drastically so, as a result of the pandemic. More people are more online right now than at any point in human history, and experts say the Internet has gotten only more flooded since 2016 with bad information. “It’s far, far worse in terms of quantity,” says Steven Brill, a former journalist and now the CEO of NewsGuard, a browser extension that helps users discern the quality of what they’re reading online….A study out last week from researchers at Carnegie Mellon University found that nearly half of the Twitter accounts spreading messages about the coronavirus pandemic are likely bots — automated accounts designed to make it appear that more humans are acting a certain way than truly are…”
Via LLRX – Small Kicks, Big Waves – Serving Justice for Expectant Mothers in the Business World – Karina Bihar is student of Professor Dennis Kennedy at Michigan State College of Law. I am pleased to publish her timely and significant article. Bihar states: “…a higher number of mothers are entering the workforce than ever before…according the U.S. Department of Labor, 71.5% of mothers in the United States are working. However, there has been very little advancement made in society to help mothers maintain their working status. As a result, many mothers are forced into choosing lower paying jobs, part-time work, or leaving the workforce to care for young children, causing loss of earnings, gender pay gaps, and loss of valuable workers in the market.” Her struggles as an expectant mother in law school gave her greater awareness of the problems that career mothers need addressed and her article provides an actionable, innovative and well documented solution that merits the attention and tangible support of the legal education and professional communities.
“Leading global experts contributed to the report, which offers clear guidance and recommendations on ethics and governance as digital technologies are developed to fight the pandemic: “Johns Hopkins University today released a comprehensive report to help government, technology developers, businesses, institutional leaders, and the public make responsible decisions around use of digital contact tracing technology, including smartphone apps and other tools, to fight COVID-19. Digital Contact Tracing for Pandemic Response—a report led by JHU’s Berman Institute for Bioethics in collaboration with the Center for Health Security at Johns Hopkins, as well as leading experts worldwide—highlights the ethical, legal, policy, and governance issues that must be addressed as digital contact tracing technologies, or DCTT, are developed and implemented. The report’s primary conclusions and recommendations advise that:
- Privacy should not outweigh public health goals and other values
- Big technology companies should not unilaterally set terms when such broad public interests are at stake
- Decisions about the technology and its uses will have to be constantly updated as new information becomes available
As officials in many countries strive to find a balance between respecting civil liberties and controlling the pandemic, the report offers clear, well-supported guidance for leaders as they consider deployment and use of these technologies, as well as the data they collect, store and share. Johns Hopkins will host a web briefing on the report and the broader conversation around testing and contact tracing at 2 p.m. on Wednesday, May 27, at https://coronavirus.jhu.edu/live…”
“Workplace health and safety is more important now, than ever. Since the beginning of the COVID-19 pandemic, essential workers—whether unionized or not—have fought employers to ensure that workers and the public are protected. One tool available to workers: complaints made to the Occupational Safety and Health Administration, or OSHA. We’ve compiled an interactive map of COVID-19 complaints made nationwide including the names of employers, narrative descriptions of their offenses, and an overall breakdown of complaints by industry.
Data comes from OSHA’s releases of Closed and Open complaints related to COVID-19. Complaints were geolocated using geocodio in the case of Closed complaints; Open complaints were added to industry totals and will be added to the map as employer information is released. Industries were identified using the “Primary NAICS” code in the original data. Data is available from OSHA through May 17th. NAICS codes were matched against NAICS codebooks from 2007, 2012, and 2017. For codes that were still not found (28 in total) they were marked as ‘NOT FOUND’. A spot check found some of these missing ones as Canadian NAICS codes (example). We’ve emailed OSHA for more information…”