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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The coronavirus pandemic has upended the country, posing challenges to

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Speaker 1: the laws that govern our social, political, and economic lines.

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Speaker 1: So the law professors at Columbia Law School have put

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Speaker 1: together a free e book with insights into some of

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Speaker 1: the most pressing legal issues the pandemic has raised, ranging

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Speaker 1: from privacy to bankruptcy. It's entitled Law in the Time

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Speaker 1: of COVID nineteen. The book is the brainchild the professor

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Speaker 1: Katerina Pistor and she joins me, now start by telling

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Speaker 1: us why you decided to write this book. Now in

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Speaker 1: the middle of the pandemic, I am on social media

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Speaker 1: and I saw that a group of economists published an

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Speaker 1: e book on economics in the Time of COVID nineteen

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Speaker 1: with thought pieces about what might happen to the economy

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Speaker 1: with me what to do about it? And I just

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Speaker 1: felt lawyers should do something similar, because our lives are

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Speaker 1: so deeply coded in legal arrangements, and we are all

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Speaker 1: so much affected by how law governs us. We don't

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Speaker 1: realize there's a normal times, but in the midst of

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Speaker 1: the crisis, everybody is trying to find solutions to their predicaments.

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Speaker 1: And I just felt an urgent need to help people

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Speaker 1: understand what rights they have, for options they have, how

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Speaker 1: the law is changing right now, and I wanted to

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Speaker 1: make sure that we make this really available to a

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Speaker 1: broad audience. UM. That was the basic idea. So how

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Speaker 1: did you put it together so fast? How did it

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Speaker 1: all come together with all these professors writing on their

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Speaker 1: specific topics? You know, I just looked this up again. UM.

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Speaker 1: I sent an email on the twentieth of March to

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Speaker 1: my faculty, and on the twentieth of April we published it.

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Speaker 1: And I think this is unprecedented, but I made the

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Speaker 1: case and I said, we need to get our act together.

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Speaker 1: We have to do this. UM. And I just asked

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Speaker 1: for faculty to respond. I had given them a list

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Speaker 1: of issues that I thought were relevant, and then basically, UM,

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Speaker 1: they responded and said, I'm happy to write on this,

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Speaker 1: and I would be happy to write on that. And

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Speaker 1: then I went back to some who had not responded,

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Speaker 1: said would you mind writing on this because I think

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Speaker 1: it's really pressing. Of course, one or two colleagues said,

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Speaker 1: we are so deeply involved in actually advising, specifically engaging

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Speaker 1: our students on that and us don't have the time

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Speaker 1: to write. They send us resources which we put into

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Speaker 1: the appendix, so these resources are available as well. But

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Speaker 1: that's basically how we did. This was a huge commitment

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Speaker 1: from our faculty. We also got two non faculty members

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Speaker 1: who were either referred or had sort of seen the

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Speaker 1: announcement and volunteered, and we brought them in as well.

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Speaker 1: It's amazing to get it together so quickly. So let's

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Speaker 1: talk about some of the topics. And as you say,

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Speaker 1: they just run the gamut. So one that interests me

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Speaker 1: all the time is privacy. And you know, we're hearing

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Speaker 1: from federal and state authorities that they want to track

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Speaker 1: people track their cell phones in order to contain the

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Speaker 1: spread of the virus. But you don't hear much outrage

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Speaker 1: from the public or concern from the public about this

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Speaker 1: because of the public health emergency. Yeah, so I colleague

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Speaker 1: Clarissa Long wrote about this, and I think she points

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Speaker 1: out that there is a real danger that we accept

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Speaker 1: intrusions into our private life because we want to deal

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Speaker 1: with the public health pandemic. So there's a real, you know,

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Speaker 1: origin task now to balance what we are willing to

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Speaker 1: give away and question ourselves whether we can take it

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Speaker 1: back once the pandemic is over. So there are two

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Speaker 1: important sources or kinds of data that she's talking about.

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Speaker 1: Personally identifiable information such as location data, which the phone

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Speaker 1: company is already keeping, but which the government could collect

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Speaker 1: only with the warrant, but the phone companies have kept

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Speaker 1: it in. The New York Times had a great investigation

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Speaker 1: report in December of last year showing that when you

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Speaker 1: have access to the data, you can actually trace people,

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Speaker 1: and you can probably even identify many of them. And

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Speaker 1: of course, if you want to say contact trace bin

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Speaker 1: is critical information. If the government directly has access to it,

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Speaker 1: it could trace our movements on a much lower scale.

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Speaker 1: The second kind of data that are important are protected

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Speaker 1: health information, basically our health data. And if we want

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Speaker 1: to have a pass support basically that we might now

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Speaker 1: be immune against the COVID nineteen virus, we would need

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Speaker 1: to be able to prove that, and this would require

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Speaker 1: building a huge database with that kind of information as well,

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Speaker 1: so people who had the pass but could be double

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Speaker 1: checked against that. Again, we're giving away a lot of information.

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Speaker 1: I don't think we have really good solutions yet. There

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Speaker 1: are some technological solutions that might be able to keep

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Speaker 1: some of the information more private or allow us to

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Speaker 1: opt in, but we have to be really I think

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Speaker 1: careful for how long one gives away these data and

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Speaker 1: what happens once the databases have been created about our privacy.

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Speaker 1: And that's basically these are the big issues that the

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Speaker 1: Professor Long discusses in her contribution here. Our privacy seems

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Speaker 1: to be vanishing even before the pandemic, so one questions

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Speaker 1: what will happen after the pandemic when right now everyone

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Speaker 1: is so willing to give up privacy in order to

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Speaker 1: fight a public health crisis. So it's quite concerning, I agree,

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Speaker 1: and that's that's exactly the point is, because everybody wants

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Speaker 1: to get the economy back moving and wants to move out,

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Speaker 1: and we're willing to trade privacy for it without thinking

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Speaker 1: what the long term concerns might be. And we know

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Speaker 1: that countries like Korea, Hong Kong, and it looked like

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Speaker 1: Singapore that they have a little bit of a backlash.

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Speaker 1: Taiwan in China has been really successful in contact tracing

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Speaker 1: people and have been have been able to contain the

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Speaker 1: virus and that fashion so that is as attractive, but

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Speaker 1: the downside is that we give the government enormous power

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Speaker 1: over our lives, and I think, what's the guineas out

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Speaker 1: of the bottle as usual, it's very hard to put

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Speaker 1: it back in. So how to structure this and how

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Speaker 1: to make sure that we still have control of our

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Speaker 1: most private data, special health data, I think is of

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Speaker 1: great concern here. Something that's been in the news a

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Speaker 1: lot lately are the problems that small businesses are having.

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Speaker 1: Obviously with most of them shuddered right now, and the

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Speaker 1: three D fifty billion dollar rescue package didn't go to

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Speaker 1: tens of thousands of small businesses because of different hitches

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Speaker 1: and problems with the administration of it. You have a

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Speaker 1: chapter called how to help Small Businesses Survive? So what's

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Speaker 1: the main takeaway from that? Yes, Professor Catherine Judge and

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Speaker 1: Todd Baker, who teaches at Columbia Law School as well,

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Speaker 1: they wrote about this and they pointed out that small

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Speaker 1: businesses actually don't necessarily have direct contact to banks always,

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Speaker 1: but they might borrow from other sources such as syntac

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Speaker 1: like online platforms these days, if you channel the money

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Speaker 1: through banks, and that was part of the glitches. I

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Speaker 1: think that we saw that many of these businesses don't

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Speaker 1: have an account necessarily with the bank, so then the

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Speaker 1: banks can't easily give the money because they haven't vetted

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Speaker 1: them yet. For all these rules that we have in

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Speaker 1: place for banks that they have to know their customers

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Speaker 1: when they lend to them to protect the banks from

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Speaker 1: engaging with you know, sort of organized crime and money

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Speaker 1: laundering and and and all these kind of issues and

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Speaker 1: under terrorism protection. So they can't just lend to just anybody, um.

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Speaker 1: And so they would then lend to their own customers,

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Speaker 1: and those who were in customers couldn't get the money. Um.

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Speaker 1: So what the point that they're making Todd Baker and

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Speaker 1: Catherine Judge in their contribution is to suggest that the

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Speaker 1: government has to help these online lenders to master the

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Speaker 1: boat sort of right now, sort of just channeling the

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Speaker 1: money to the businesses in need. But also they need

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Speaker 1: to make sure that they protect them themselves from bankruptcy

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Speaker 1: because they might be going under right now since they

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Speaker 1: can't continue their business as usual. So this is an

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Speaker 1: important intermediary now in our economy. So the question is

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Speaker 1: how to deal with them so that the small businesses

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Speaker 1: don't lose access to credit and don't forego the option

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Speaker 1: to get access to government funding right now. Do you

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Speaker 1: know if the government is doing anything with the next

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Speaker 1: bailout to ensure that the money does read small businesses.

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Speaker 1: So I think are making great attempts, and part of

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Speaker 1: that is also to make sure that it doesn't have

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Speaker 1: to go all through the bank, so that some of

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Speaker 1: the more reputable, larger online lending platforms of payment systems

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Speaker 1: can be tapped as well for for for channeling these resources.

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Speaker 1: So I think they realized that something didn't work last

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Speaker 1: time around, and so we're hoping that it will work

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Speaker 1: better for the next packages that is in the making.

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Speaker 1: That brings us to the topic of bankruptcy. And in

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Speaker 1: the in the section on bankruptcy, there's an argument that

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Speaker 1: the Treasury should make bankruptcy a precondition for receiving government

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Speaker 1: backed financing. How would that work? So I think the

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Speaker 1: broader point that my colleague at Morrison and Andrea Servida

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Speaker 1: are making in their in their paper is that the

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Speaker 1: bankruptcy mechanism works well for you know, for the large

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Speaker 1: companies that are in distress um and it works also

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Speaker 1: if we have a relatively small number of companies going

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Speaker 1: through the process. Because the system is not equipped to

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Speaker 1: deal with everybody, so they're not suggesting that everybody should

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Speaker 1: go through bankruptcy. In fact, there are arguing that smaller

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Speaker 1: businesses UM for them, it's not a good option to

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Speaker 1: go through bankruptcy UM and for them you need basically

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Speaker 1: liquidity provisioning right now UM and through the Care Act

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Speaker 1: and and perhaps other facilities to make sure that they survive.

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Speaker 1: Whereas for the larger firms that are really facing an

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Speaker 1: insolvency event, bankruptcy might be an option for them, constraining

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Speaker 1: access to additional UM government funding by saying just go

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Speaker 1: through bankruptcy and sort of clean cleaning a slight basically

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Speaker 1: use of mechanisms that we have and re emerge from

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Speaker 1: that and ideally with the employment force intact. That's of

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Speaker 1: course a risk, but you can protect employee employers and

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Speaker 1: you can allow the company to re emerge from bankruptcy

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Speaker 1: and function again and then maybe get an additional funding

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Speaker 1: from the government. So there's a stigma of bankruptcy despite

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Speaker 1: the fact that lots of business is used Chapter eleven

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Speaker 1: to come back, So there's still that stigma. How would

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Speaker 1: the government decide who gets the funding and who has

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Speaker 1: to go through bankruptcy. Well, I think what they're suggesting

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Speaker 1: is the make of size cut, which is a credatively

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Speaker 1: neutral cut, right, And they're not sort of giving us

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Speaker 1: an exact number. But but Professor Morrison and and his

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Speaker 1: core author Andrea Savidra basically arguing for the large companies,

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Speaker 1: sort of push them into bankruptcy, and then for the

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Speaker 1: smaller ones, make sure that you help them now. Um,

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Speaker 1: so that amongst the small larger groups, I think the

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Speaker 1: question would be the same question that we're asking another

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Speaker 1: context as well, Is it true that you cannot get

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Speaker 1: funding anywhere else? How to verify that? Of course it's

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Speaker 1: it's a difficult process, right, So they would have to

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Speaker 1: find some reliable indicators to make sure that they can

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Speaker 1: differentiate amongst different firms. You have a book out called

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Speaker 1: The Code of Capital, How the law creates wealth and

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Speaker 1: inequality And as far as the pandemic goes, my quest

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Speaker 1: gin has been throughout this is the pandemic creating even

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Speaker 1: more inequality, so that when we're through this on the

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Speaker 1: other side, we're going to have a greater wealth gap. Yeah.

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Speaker 1: I fear this is almost certainly going to be the case,

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Speaker 1: because the stress in such a situation, we just put

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Speaker 1: the entire economy on hold, and we've done this globally.

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Speaker 1: The stress is most severe on the periphery of the system,

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Speaker 1: where people just have no resilience, they don't have a

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Speaker 1: buffer of some savings that can get them through it.

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Speaker 1: And those who don't have employment um and lose it

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Speaker 1: because they can't do their work. You know, some of

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Speaker 1: us are you know, have the luxury like I, I

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Speaker 1: teach from home, I teach by zoom. I haven't lost

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Speaker 1: my salary, right, but many others basically do not have

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Speaker 1: a job in their inflow of cash of course is gone.

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Speaker 1: That simply gone. But they have many other commitments, right,

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Speaker 1: they have to pay their rent, their mortgages, etcetera, etcetera,

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Speaker 1: So they face severe financial hardship. So do many of

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Speaker 1: the small businesses that have shuttered their doors. Even before

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Speaker 1: the government was able to get the bills out of

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Speaker 1: the door, the act out of the door. As fast

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Speaker 1: as this was, it wasn't fast enough for the UM

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Speaker 1: crisis as it has unfolded. And once you have many

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Speaker 1: many businesses shuttered and people unemployed, it's very hard to

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Speaker 1: you've had. So I think my my greatest fears that

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Speaker 1: this is reinforcing it and and I think, um, on

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Speaker 1: the positive spin, you know, maybe we can think about

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Speaker 1: how to you know, code code rights and and and

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Speaker 1: interests in a different ways to help people to get

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Speaker 1: back on their feet, to make it easier for them

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Speaker 1: to access loans or financing funding to rebuild their businesses

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Speaker 1: once we're through this. An issue that has been in

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Speaker 1: the news repeatedly is the prisoners who are being held

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Speaker 1: in prisons that have been described as petri dishes for

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Speaker 1: the virus. Yeah, and it seems as if every step

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Speaker 1: that government takes is criticized because people say that they're

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Speaker 1: afraid that the wrong people are getting out. Is there

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Speaker 1: any rational solution to this, Well, I think they're you know,

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Speaker 1: they're different solutions that are discussed also in this book.

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Speaker 1: So there's one contribution by my colleague Bernard Harcourt with

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Speaker 1: a group of students, and they basically looked at litigation

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Speaker 1: strategies for prison mates who might be litigating on the

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Speaker 1: basis of UH the Eighth Amendment, basically saying that they're

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Speaker 1: under cruel unusual circumstances because they're exposed to the virus

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Speaker 1: under conditions where they might not have access to soap,

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Speaker 1: where water is racitioned, where they're very in very close

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Speaker 1: proximity to others who might be infected already. So litigation strategies,

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Speaker 1: of course, one on one strategy that's not a national solution.

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Speaker 1: More broad based solutions, of course that are being discussed

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Speaker 1: some states have started to implement them. Is to release prisoners,

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Speaker 1: especial we prisoners who have only a few more months

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Speaker 1: to go anyhow, who are not particularly dangerous, who might

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Speaker 1: have been incarcerated on relatively minor charges. Um so, so

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Speaker 1: I think one of course has to differentiate to some extent,

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Speaker 1: but those who don't pose a major threat to society

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Speaker 1: right now. Um I think the concerns that are expressed

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Speaker 1: in the article by Bernard Hartwood but also in a

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Speaker 1: related article by my colleagues Susan Sterm again with a

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Speaker 1: couple of students who helped her with this, is how

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Speaker 1: to think about how deeply our lives are all linked.

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Speaker 1: Our fates are linked, including with our citizens who have

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Speaker 1: been incarcerated for obvious wrongdoings. But nonetheless if they if

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Speaker 1: they are math in fact, that this will have still

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Speaker 1: a right effect to us again as well. Finally tell

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Speaker 1: us how people can get a hold of this book.

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Speaker 1: So the book is online on our library web page

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Speaker 1: and can be downloaded from there. They have been over

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Speaker 1: three thousand, three hundred downloads since we posted it on

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Speaker 1: on the twenties, so the just been enormous demand for it.

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Speaker 1: We have blasted it on on social media. The link directly,

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Speaker 1: I'm sure if you go to Columbia Law in the

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Speaker 1: Time of COVID nineteen you will find the link and

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Speaker 1: then you can downlod donald it directly from that website.

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Speaker 1: Thanks for being on the Bloomberg Law Show. Katarina. That's

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Speaker 1: Katerina Pisto, professor at Columbia Law School, and the book

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Speaker 1: we've been talking about is called Law in the Time

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Speaker 1: of COVID nineteen. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast,

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Speaker 1: SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg