North America
CanadaUnited States of America
Canada
Abbas, Muhammad Zaheer, ‘Revisiting Canada’s Access to Medicines Regime in Response to COVID-19: A Review of the Legislation and Its Underlying Objectives’ (2022) 34(2) Intellectual Property Journal 147–180 [link to pre-print on SSRN] Abstract: The current COVID-19 pandemic has highlighted the significance of the export-oriented compulsory licensing mechanism for countries lacking domestic manufacturing capacity. Article 31bis, the first amendment to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), is aimed at giving effect to the WTO General Council Decision 2003, which waived the domestic market requirement of compulsory licensing. In 2005, Canada became the first country to amend its patent laws to provide for Canada’s Access to Medicines Regime (CAMR) as enabling legislation to implement the WTO General Council Decision 2003. Canada clearly described its regime as a humanitarian initiative aimed at helping least-developed countries and many developing countries that lack sufficient drug and/or vaccine manufacturing capacity of their own and rely upon imports to address their public health problems. The legislation got compromised by the conflicting goals of protecting the corporate interests of patentee corporations. This research paper argues that the CAMR system is not capable of delivering what was promised. This research paper maintains that Canada unnecessarily added extra layers of complication, restrictions, and regulatory requirements on top of what was required under Article 31bis, which is itself too onerous to invoke for resource-poor countries. This research paper also evaluates Canada’s efforts to reform CAMR and suggests overhauling of export-oriented compulsory licensing mechanism to provide a functional and expeditious one-licence solution workable for importing countries and acceptable to generic drug companies.
Adeel, Abdul Basit et al, 'COVID-19 Policy Response and the Rise of the Sub-National Governments' (2020) 4(46) Canadian Public Policy 565-584 Abstract: We examine the roles of sub-national and national governments in Canada and the United States vis-à-vis the protective public health response in the onset phase of the global coronavirus disease 2019 (COVID-19) pandemic. This period was characterized in both countries by incomplete information as well as by uncertainty regarding which level of government should be responsible for which policies. The crisis represents an opportunity to study how national and sub-national governments respond to such policy challenges. In this article, we present a unique dataset that catalogues the policy responses of US states and Canadian provinces as well as those of the respective federal governments: the Protective Policy Index (PPI). We then compare the United States and Canada along several dimensions, including the absolute values of sub-national levels of the index relative to the total protections enjoyed by citizens, the relationship between early threat (as measured by the mortality rate near the start of the public health crisis) and the evolution of the PPI, and finally the institutional and legislative origins of the protective health policies. We find that the sub-national contribution to policy is more important for both the United States and Canada than are their national-level policies, and it is unrelated in scope to our early threat measure. We also show that the institutional origin of the policies as evidenced by the COVID-19 response differs greatly between the two countries and has implications for the evolution of federalism in each.
Akrong, Kevin; Henderson, Gail E, 'COVID-19 and the Regulation of Alternative Financial Services' (2021) 2(46) Queen's Law Journal 357-371 Abstract: This article explores how the COVID-19 pandemic has exposed and exacerbated existing inequalities with respect to access to basic financial services in Canada. The authors examine changes made to the regulation of financial products in the wake of the pandemic in order to expose the need to ensure that these regulations protect the ability of all Canadians to meet their needs and financial obligations. Part IA compares the regulation of government cheques cashed at banks and alternative service providers. Part IB analyzes Ontario's changes to the regulation of institutions providing payday loans and warns that the current regulatory scheme leaves a gap in the regulation of installment loans. Part II provides an overview of voluntary credit relief programs offered in response to the pandemic and discusses how taking advantage of these programs may impact a borrower's credit score. Part III cautions that financial stress as a result of the pandemic may lead to those with poor or no credit history to turn to so called "credit repair loans". The authors conclude by expressing their hope that the pandemic will generate the political will to work towards a regulatory system for financial produces that meets the needs of all Canadians.
Alschner, Wolfgang and Yazhi Zheng, ‘Court, Judges and the Pandemic: Computational Legal Insights from the Ontario Court of Appeal Corpus 2008-2021’ (2024) 15(2) Western Journal of Legal Studies 1–30 Abstract: Appellate courts occupy a unique position. They are the final instance for most litigants guiding lower courts but they are also a gateway to the Supreme Court. This dual role calls for special scrutiny and analysis. Yet, data and analysis of appeal courts remains scarce especially compared to apex courts. This article fills part of this gap relating to the Ontario Court of Appeal. It introduces a new dataset of its decisions between 2008-2021 consisting of both metadata, such as outcomes per decision, and the decision full text, which can be mined through natural language processing techniques. Aside from presenting the dataset, the paper uses novel data science approaches to trace the practice of the Court over time, to dissect the decision patterns of its judges, and to assess how the pandemic shock impacted the Court. It finds, amongst others, that the Court has been stable in its decision patterns, but that decisions have grown longer; it also shows that some judges render harsher decisions than others, and it illustrates how the pandemic created instant precedent. We hope that the new dataset and corpus will spur further research on the Ontario Court of Appeal.
Arbel, Efrat and Molly Joeck, 'Immigration Detention in the Age of COVID-19' in Catherine Dauvergne (ed), Research Handbook on the Law and Politics of Migration' (Edward Elgar, forthcoming, 2020) Abstract: In this chapter, we analyze Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. We focus on decisions released by the Immigration Division (ID) of the Immigration and Refugee Board, the quasi-judicial administrative tribunal tasked with detention-related decision-making in Canada. Writing in the four months after pandemic measures were first introduced in Canada, our analysis is by necessity provisional, and focuses on seventeen ID decisions released between mid-March and mid-May 2020, at the height of the pandemic in Canada. Our analysis of this dataset reveals an identifiable shift in ID practice: prior to the outbreak of COVID-19, ID members generally refused to hear arguments related to conditions of detention, and rarely ordered release on that basis. With the onset of the pandemic, however, ID members have not only entertained arguments identifying COVID-19 as a condition of detention, but more significantly, have explicitly relied on this condition as a basis for release. We argue that this shift in ID practice is significant. Legally, it allows detainees to argue the conditions of their own confinement before the administrative body tasked with overseeing their detention. This renders those conditions actionable, and therefore legally meaningful. Materially, this shift empowers detainees, allowing them to more effectively advocate for their own release, while lessening the violence inherent to the detention review process. Conceptually, the decisions suggest a shift in the paradigm within which legal decisions governing detention are made. Before COVID-19, the release assessment was firmly entrenched in the familiar “us/them” paradigm that characterizes the disciplinarity of immigration detention. The post COVID-19 decisions suggest that this paradigm may have shifted temporarily: the line distinguishing us from them has blurred in the shadow of a common threat, and the location of risk has shifted in relation to that line. Rather unexpectedly, the previous conception of the inherent riskiness of migrants has been displaced by the disruptive, risky, pandemic – a change that was surely buttressed by the closure of the Canadian border, in particular to asylum seekers. Reflecting on the broader implications of this shift in ID conduct, we suggest that the onset of COVID-19 has revealed the ways in which the containment and confinement of noncitizens can be reconfigured in Canadian law. Mindful of the potentially limited nature of this shift, we identify the progressive possibilities hidden in that reconfiguration, and urge for it to continue even as the worse of the pandemic begins to pass.
Attaran, Amir, 'The Failing Federation: Why Canada Is Ineffective at COVID-19' (2020) 1(11) Journal of National Security Law & Policy 229-246 Abstract: In exploring how Canada’s Constitution has affected its response to COVID-19, Amir Attaran explains how the legal and political contours of Canadian federalism have become a brake on the country’s response to the pandemic. Unlike what Canadians may believe, the black letter law of their Constitution is not the cause of the problem, it is the federalism and the struggles between the federal government and provinces that has caused issues. Worries about inflaming provinces and secession coupled with a federal government that only rarely seeks to assert its full constitutional authority has led to an ineffective response that is arguably the greatest cause of lives lost during the pandemic. The problem is not the constitution, but rather the self-neutering political disinclination of the federal government to act. Attaran therefore identifies reforms that could be put into place and highlights Australia, Germany, and Switzerland as models for consideration.
Attaran, Amir; and Adam R Houston, 'Pandemic data sharing: How the Canadian Constitution has turned into a suicide pact' in Colleen Flood et al (eds), Vulnerable: The law, policy and ethics of COVID-19 (University of Ottawa Press, 2020) Abstract: For decades, public health professionals, scholars, and on multiple occasions, the Auditor General of Canada have raised warnings about Canada’s dysfunctional system of public health data sharing. Current, timely, and complete epidemiological data are an absolutely necessary, but not sufficient, precursor to developing an effective response to the pandemic. Nonetheless, it remains true that nearly two decades after data sharing proved a catastrophic failure in the 2003 SARS epidemic, epidemiological data still are not shared between the provinces and the federal government. This is largely due to a baseless and erroneous belief that health falls purely within the jurisdiction of the provinces, despite the Supreme Court of Canada’s clear conclusions to the contrary, which has misled Canada to rely on voluntary data sharing agreements with the provinces that are not merely ineffective, but actually inhibit data sharing. As outlined in this chapter, there is no reason for this to be the case, since Canada already possesses statutory powers, under the Statistics Act and the Public Health Agency of Canada Act, to oblige provinces to share critical epidemiological data in a timely manner. It must exercise those powers, both in response to COVID-19 and against the foreseeable certainty of even more serious public health emergencies in the future.
Atwood, Judge Del, 'COVID-19 Impacts on Courts in Canada' (2021) 3(60) Judges' Journal 24-25 Abstract: The SARS-CoV-2 novel corona-virus and its disease consequent, COVID-19, have had a transformative -- and sometimes disruptive -- effect on court operations in Canada. Much as with the pandemic itself, the impacts have been uneven, borne most heavily by provinces that have experienced the highest levels of infection and transmissibility. Some of the initial procedural and structural changes implemented by the judiciary worked well in protecting the health and safety of court-service users but posed barriers to accessibility and transparency, leading to delays in the timely adjudication of cases. However, through effective collaboration with justice stakeholders, many of those early-onset problems have been resolved. The courts in Canada have developed innovative means of delivering just outcomes; some of these changes are likely to remain in the future as we learn to live with a new sense of normal.
Austin, Lisa M et al, 'Test, Trace, and Isolate: COVID-19 and the Canadian Constitution' (Osgoode Legal Studies Research Paper No , 22 January 2020) Abstract: Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen COVID-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s “test, trace, and isolate” strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to COVID-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider how the privacy impacts of contact tracing apps could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests. We argue that so long as apps are carefully constructed and the information they reveal is appropriately safeguarded, tracing apps may have a role to play in the response of a free and democratic society to the Covid 19 pandemic.
Bales, Richard A., ''COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis'' (2021) 1(37) Ohio State Journal on Dispute Resolution (forthcoming) Abstract: The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.
Beatty, David M, ‘Covid, Courts, Communists and Common Sense’ (2022) 31(1) Constitutional Forum / Forum Constitutionnel 1–6 Extract: The Supreme Court of Canada has never been asked for its opinion about compulsory vaccinations. When courts have the final say in deciding the best way to fight Covid-19, it is difficult for members of the public to participate in a meaningful way because the manner in which judges talk and justify their decisions effectively excludes them from the conversation. They need lawyers to represent them and arguments are made and judgments are written in a style and language that makes them difficult to understand except by a professional elite. Critically, they consistently fail to connect with the people who end up losing their case and who feel their concerns have been depreciated or ignored.
Behro, Ayaka and Michael Smart, ‘Finances of the Nation: The Impact of Covid-19 on Provincial and Local Government Finances’ (2022) 70(3) Canadian Tax Journal / Revue Fiscale Canadienne 643–657 Abstract: In this article, Ayaka Behro and Michael Smart explore the impact of COVID-19 on provincial government finances. While spending rose in all provinces in the 2020-21 fiscal year, so did revenues in many provinces, cushioning the impact on deficits. While grants and income tax revenues rose in many provinces, largely owing to federal policies, consumption tax and natural resource revenues fell sharply. Comparing provinces, higher COVID-19 caseloads were associated with higher health spending and lower consumption tax revenues. These findings suggest that COVID-19 has had a more damaging impact on provincial finances than initial forecasts had suggested.
Bello, Temitayo and Tolulope Adeosun, ‘Arbital Proceedings Configuration and COVID-19 Pandemic; Evaluation of Success and Shortcomings: Europe, USA and Canada’ (SSRN Scholarly Paper, 15 June 2022) Abstract: Arbitration serves as a dispute resolution mechanism for commercial disputes. The COVID-19 pandemic seriously affected the arbitration proceedings thereby making the proceedings to be done virtually. The work is based on the relative arrangement of the arbitral proceedings and COVID-10 pandemic evaluation of the success and shortcomings using USA, Europe and Canada as case study. This article reflects on the shortcomings and successes of arbitral proceedings during and post-COVID. The article discovers that without remote and virtual proceedings, arbitration would have been wrecked by the COVID-19 pandemic if not for the usage of modern technology. Virtual proceedings were successful globally with usage of various applications of software which navigates the proceedings and brings parties togetherIt concludes that various arbitration institutions in many jurisdictions adopted very fast and efficient methods of resolving arbitration proceedings virtually. The effect of COVID-19 had led to a quicker and more efficient way of resolving arbitration, although with some shortcomings. It therefore recommends that usage of technology via virtual process and proceedings should be more solidified.
Ben-Ishai, Stephanie, 'Consumer Bankruptcy in the Wake of COVID-19: The Calm Before the Storm' (2021) 3(57) Osgoode Hall Law Journal 637-664 Abstract: The crisis created by the spread of COVID-19 seems likely to permanently change the structure of economic activity moving forward—more people are working from home, taking fewer business trips, and gravitating towards online spending. In the short-term, Canada has done well to provide temporary economic support to those temporarily or permanently affected by the virus. This unprecedented level of government support, together with the unparalleled level of voluntary creditor forbearance for late payments, has led to a remarkable drop in consumer bankruptcy filings in April and May 2020. However, a significant surge in the need for debt relief and bankruptcy filings is predicted for the near future. This article concerns the effect of COVID-19 on the household debt carried by Canadian families and on the debt relief measures that are available to them. How, if at all, will the socio-economic composition of those with serious debt problems change? Are the debt relief measures currently available through the Bankruptcy and Insolvency Act adequate to the task? What changes to the system of credit regulation might help those affected by the virus?
Bird, Brian, ‘COVID-19 and Religious Freedom in Canada’ (2022) 64(4) Journal of Church and State 621–640 Abstract: In Canada, constitutional litigation arising from restrictions on worship and religious gatherings during the COVID-19 pandemic has yielded vindication for state authorities. To date, religious claimants in Canada have lost in every case where they have challenged the constitutionality of restrictions on these activities under the Canadian Charter of Rights and Freedoms.1 This result invites closer scrutiny. The Canadian provinces in which court rulings have been issued on this matter featured differing public health rules for worship and religious gatherings. While most provinces went no further than altering capacity limits and requiring physical distancing and masks, British Columbia prohibited in-person worship for several months across the province. Even among the provinces where capacity limits were the standard approach, there has been much variety when it comes to the size of permitted gatherings. Some of these provinces have opted for rules that apply throughout the province. Other provinces have opted for a region-by-region approach. This article will pay particular attention to the situation in British Columbia given that it was the most severe restriction on religious freedom in the country, both in nature and duration, and because litigation arising from this restriction is ongoing.2 It also seems intuitive to say that religious claimants should stand the best chance of success in court in this case. If the claimants in British Columbia fail, it is hard to imagine similar claimants faring better in other parts of Canada.
Brock, Cathy et al, 'The Impact of COVID-19 on the Future of Governance in Canada' (Queen’s University, School of Policy Studies, Covid-19 Governance Working Group, White Paper No , 08 January 2020) Abstract: In this paper, the authors explore the implications of COVID-19 on different aspects of governance across Canada, with a particular focus on the federal government, the operations of parliament, and the cabinet. The ability of the public service to create new pathways to governance is investigated. The important role of provinces and cities are also covered through case studies, and the implications for future laws are described.
Buhler, Sarah, 'Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies' (2021) 1(35) Journal of Law and Social Policy 68-99 Abstract: On 11 March 2020, the World Health Organization declared a global pandemic due to the COVID-19 virus. Saskatchewan’s first COVID-19 case was detected the next day, and the Premier declared a provincial state of emergency a few days later. On March 26, the Government of Saskatchewan imposed a partial eviction moratorium, directing the Office of Residential Tenancies (“the ORT,” Saskatchewan’s housing law tribunal) to cease processing eviction applications for all but urgent situations involving risk to health or property. Saskatchewan’s partial eviction moratorium was in place until 4 August 2020. On the day the partial moratorium was lifted, active COVID-19 cases were declining in Saskatchewan. However, the worst of the pandemic was still ahead: case numbers started rising in October, and COVID-19 cases, hospitalizations, and deaths in the province reached their peak for the year in mid-December. Thus, eviction applications for all reasons were being processed by the ORT during the most serious and deadly phase of the pandemic. Between 1 January and 31 December 2020, over 1800 eviction cases were heard by the ORT. This study sought to understand the patterns and themes in these decisions and to answer several key questions including the following: What happened during the partial eviction moratorium and after it was lifted? Did the rising case numbers in the late fall of 2020 (after the partial moratorium was lifted) affect outcomes of eviction decisions made by the ORT? What other themes or patterns emerge in the decisions? The study included decisions from January, February, and March 2020 to help provide a “pre-pandemic” comparator data set for its findings, and to be able to assess one entire calendar year of cases.
Burningham, Sarah, 'Reflections on COVID-19 And Criminal Law: How Does Judicial Doctrine Function in A Crisis?' (2022) 3(59) Alberta Law Review 587-587 Abstract: This article reviews the impact of COVID-19 on judicial decision-making in certain areas of criminal law. Reviewing decisions from the areas of bail, sentencing, and trial within a reasonable time, the author analyzes how COVID-19 has been integrated into legal doctrine. The author concludes that doctrines are flexible enough to accommodate COVID-19 concerns. At the same time, doctrine is firmly entrenched, meaning the pandemic has not presented the opportunity for judges to rethink incarceration as some had hoped.
Caparelli, Christopher, 'COVID-19's impact on the US judiciary and litigation' (2020) (1) _Emerging Areas of Practice Series - COVID-19 (Coronavirus)_ Introduction: Due to the COVID-19 outbreak and escalating restrictions on Americans to stay at home as much as possible, U.S. courts at the state and federal levels are implementing emergency procedures in recognition of social distancing. Because the U.S. judiciary is decentralized, no single contingency plan applies and each court is responsible for its own practices and procedures. As a result, the adjustments are varied and include restrictions on courthouse access, hearing and trial adjournments, deadline extensions, and allowance of remote appearances. It is important for litigants and their counsel to stay attuned to developments that are changing frequently by checking court websites, dockets and contacting the court as necessary.
Cappe, Mel, 'Good governance: Institutions, processes, and people' in Colleen Flood et al (eds), Vulnerable: The law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: There are several determinants of success in managing a pandemic, but good governance is key. In this short chapter, I elaborate on why good governance matters in a pandemic. I underscore the key attributes of good governance, focusing on strong institutions, robust processes of decision-making, and the right people making those decisions. In this pandemic, Canadian institutions have displayed some of their weaknesses and inadequacies, but on the whole have performed relatively resiliently. Processes of decision-making have been adapted to improve performance, and the people in leadership jobs have largely risen to the challenges they faced. As to institutions, processes, and people, we have been relatively well served.
Catalano, Michael and Aaron Chan, ‘Common Law Systems and COVID-19 Policy Response: Protective Public Health Policy in the United States, Canada, New Zealand, and Australia’ (Conference Paper, 2022 APSA Annual Meeting: Rethink, Restructure, and Reconnect) Abstract: The Covid-19 pandemic affected the United States, Canada, New Zealand, and Australia in 2020 all pretty similarly. Knowing that that these four countries produce similar types of policies, and all follow the common law judicial system, it was necessary to analyze how the highest court of each land influenced political actors when responding to the first Covid-19 outbreak. More specifically, we determine the party affiliation of each Justice/judge, calculated the composition of the Courts and proceeded with determining how each of the four Courts ruled on protective public health policy responses. While this is new data during the beginning of the pandemic, we see similarities between 2020 Court opinions and come to conclude that more research on years following 2020 is significant to finding stronger correlations.
Caxaj, C, Amy Cohen and Carlos Colindres, ‘More of the Same? Migrant Agricultural Workers’ Health, Safety, and Legal Rights in the COVID-19 Context’ (2022) 11(3) Journal of Agriculture, Food Systems, and Community Development 139–156 Abstract: In this paper, we report on research findings from a cross-sectional survey with 143 primarily Mexican migrant agricultural worker respondents in British Columbia (BC), Canada. Participants reported high rates of experiences of threats and violence by employers, limited faith in the follow-through of both Canadian and country-of-origin authorities when reporting concerns, and a unanimous lack of knowledge in how to file a claim of a legal matter (e.g., housing, human rights violation). Most participants also reported that they believed they would receive poorer health care in relation to their Canadian counterparts and that their privacy would not be protected. While certain indicators, such as knowledge of resources for transportation, translation, and legal advocacy were higher than previous research would suggest, most participants did not feel confident that more serious issues would be addressed if they sought help. Our results suggest migrant workers in BC report similar, or even higher, rates of experiences and expectations of poor social support, legal protection, and health care in comparison to prior research in this region and elsewhere. While further research would be required to confirm this hypothesis, the impact of COVID-19 on this population is undeniable. Our findings highlight the need for greater regional and provincial commitments to fund targeted services for migrant agricultural workers that address the unique barriers they face. Additionally, greater attention and funding must be dedicated to supporting this population to navigate and access services that already exist. Together, dedicated initiatives could make a major difference for this workforce. Federal investments in support services of this nature would ensure the sustainability of such efforts. In addition, reforms to temporary migrant agricultural programs, such as open work permits and immediate access to permanent residence, would better afford workers opportunities to access the rights and protections that are currently out of reach for many.
Charbonneau, Étienne; Doberstein, Carey, 'An Empirical Assessment of the Intrusiveness and Reasonableness of Emerging Work Surveillance Technologies in the Public Sector' (2020) 5(80) Public Administration Review 780-791 Abstract: As public sector work environments continue to embrace the digital governance revolution, questions of work surveillance practices and its relationship to performance management continue to evolve, but even more dramatically in the contemporary period of many public servants being forced to shift to remote work from home in response to the COVID-19 pandemic. This article presents the results of three surveys, two of them population-based survey experiments, all conducted during the onset of the COVID-19 pandemic in Canada that compare public servant (n = 346) and citizen (n = 1,008 phone; n = 2,001 web) attitudes to various cutting-edge—though no doubt controversial among some—digital surveillance tools that can be used in the public sector to monitor employee work patterns, often targeted toward remote working conditions. The findings represent data that can help governments and public service associations navigate difficult questions of reasonable privacy intrusions in an increasing digitally connected workforce. Evidence for Practice New work surveillance technologies are available to use within the public sector and will present acceptability challenges to public managers as they contemplate the introduction of these technologies. Multimodal survey data from Canada reveals that public servants and citizens find these emerging work surveillance technologies to be quite intrusive and unreasonable but show relatively more tolerance for digital surveillance over physical surveillance practices. Understanding surveillance anxieties among targeted employees will be key to finding a balance between employee privacy rights and employer desires to manage employees in a remote or digital environment.
Chartrand, Vicki, 'Abolition in the land known as Canada in the wake of COVID-19' (2021) 1(33) Current Issues in Criminal Justice 138-143 Abstract: In 2020, while states worldwide were instituting large scale lockdowns and physical distancing in response to the COVID-19 pandemic, those in penal and detention systems remained one of the most invisible and vulnerable populations to its spread. With limited resources and support, exposure for incarcerated and detained persons is heightened within confined spaces, lack of access to protective and sanitizing equipment, and grossly inadequate healthcare. Amid the pandemic, abolition groups and individuals emerged as a community of advocacy, resource, and support for those confined behind the walls. This contemporary comment shares some of the important organizing of abolitionists and anti-carceral groups throughout the land now known as Canada during the pandemic. These initiatives and activities included solidarity strikes and actions, twitter and social media campaigns, fundraising initiatives, news releases, conferencing and interviews, videos and online speaker panels, educational awareness and tools, caravans and rallies, and legal interventions among many others.
Chaufan, Claudia; Mohamed, Faisal, 'How the Politics of Big Pharma Is Undermining COVID-19 Public Health Policy in Canada' (SSRN Scholarly Paper No ID 3875637, 22 January 2021) Abstract: In December 2020 a former NATO commander in Iraq appointed to lead vaccination logistics in the Public Health Agency of Canada announced that the country would adopt a “whole-of-nation” approach to achieve the goal of vaccinating all Canadians by the summer. Two months away from the summer, four into the announcement, and with 400 million doses procured to vaccinate 38 million people several times over, less than 3% of Canadians have received two doses of the leading, authorized products. A range of explanations have been proffered for the delay, including that the Liberal Trudeau Government is treating Big Pharma unfairly, thus causing unnecessary barriers to vaccine supplies. We argue that the assertion does not stand up to scrutiny. As our analysis will show, Canadian pharmaceutical policy is extremely corporate friendly and has been so for decades. This has led to both a predictably rocky vaccine effort and to the continuing failure by the government to guarantee equitable access to medically necessary drugs, prior to, during, and beyond the COVID-19 pandemic.
Chen, YY Brandon, ‘Beyond the Rhetoric of Essentiality: Canada’s Neoliberal Migrant Worker Policy during the COVID-19 Pandemic’ in Sabrina Germain and Adrienne Yong (eds), Beyond the Virus: Multidisciplinary and International Perspectives on Inequalities Raised by COVID-19 (Bristol University Press, forthcoming 2024)
Chen, Y Y Brandon, 'Migrant Health in a Time of Pandemic: Fallacies of Us-Versus-Them'' in Flood, Colleen M; MacDonnell, Vanessa; Thériault, Sophie; Venkatapuram, Sridhar; Philpott, Jane (eds), Vulnerable: the law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: International migrants—including, among others, immigrants, refugees, asylum seekers, foreign workers, and international students— are at greater risk of being affected by COVID-19. However, following the onset of the pandemic, many of them continue to be denied publicly funded health care and income supports in Canada. For migrants who are granted entitlement to these government programs, significant access barriers exist. These exclusionary policies underscore a dynamic of us-versus-them, in which migrants are portrayed as a threat to public health and undeserving of the Canadian society’s help. This process of “othering” fails to adequately appreciate migrants’ belonging in and contributions to Canada. It runs counter to the principles of equality and reciprocity that are central to our legal order, and it also risks compromising our collective pursuit of public health. An effective response to the current pandemic requires solidarity among all members of society instead of insistent line drawing between citizens and migrants who are similarly situated.
Chen, Y. Y. Brandon, 'Fortress World: Refugee Protection during (and after) the COVID-19 Pandemic' in Denis, Jean-Louis, Catherine Régis and Daniel Weinstock (eds), Pandemic Societies (McGill-Queen's University Press, 2021) Abstract: The COVID-19 pandemic has laid bare the fragility of the international refugee protection system. It turns out that on account of public health concerns, many high-income countries, Canada included, are quick to abandon their legal duties with respect to the right of asylum and non-refoulement, as well as their commitment to responsibility sharing in the context of refugee resettlement. This has led to an immobility crisis among asylum seekers and refugees, exacting a heavy toll on this already-marginalized group.This paper explores such impact of COVID-19 related travel restrictions on international refugee protection. It begins by providing a bird’s-eye view of the global situation before zeroing on the Canadian context. It shows that as the global demand for asylum persists, travel restrictions either trap asylum seekers and refugees in precarious circumstances or force them to attempt more dangerous routes to arrive at intended destinations. Leaning on international law as well as Thomas Pogge’s theory of global justice, this paper argues that affluent countries have a duty to ameliorate these harms perpetrated against one of the world’s most vulnerable populations.
Chiodo, Suzanne, 'Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?' (2021) 3(57) Osgoode Hall Law Journal 801-833 Abstract: On 17 March 2020, Ontario’s courthouses shut their doors as the civil justice system locked down with the rest of the province. Regular court operations were suspended due to the state of emergency caused by the COVID-19 pandemic. This was followed by a flurry of activity as courts drew up plans to resume operations as soon as possible. The “new normal” became virtual hearings, either by video conference, in writing, or by telephone. As Attorney General Douglas Downey said, “We’ve modernized the legal system by about 25 years in 25 days.” Has the revolution arrived? Will the changes made in response to the pandemic become permanent? Will they be sufficient to address the problems of cost and delay that plague the civil justice system? This article will posit that many of these changes are likely to become permanent. However, the extent and effectiveness of change will depend on the ability of “policy entrepreneurs” to use this moment of crisis to overcome institutional inertia in the Ministry of the Attorney General (MAG) and professional resistance in the Bar. This is not the first time that “dramatic innovation[s]” have been made in response to a crisis in the civil justice system, as evidenced by the history of reform in that area. Lasting change will not come easily. Furthermore, while these changes are welcome, they are insufficient to address the crippling backlog facing the courts. A functioning civil justice system is essential to a functioning democracy, and Ontario’s civil justice system is fundamentally broken. The “paradigm shift” needs to go further. We need to entirely change our conception of how courts work, the nature of procedural justice, and our understanding of access to justice and how to facilitate it. The answer I propose, as Richard Susskind and others have, is a system of online courts, where human judges hear evidence and arguments and render decisions by way of an online platform, all within a public dispute resolution (court or tribunal) system. British Columbia’s Civil Resolution Tribunal (BC CRT) is an excellent example. I argue that, as in BC, online courts could be initiated incrementally, alongside the current system, and thereby bypass and address many of the issues facing the current court system. I conclude with some thoughts for the future. Much has been written on the subject of online courts, and the COVID-19 crisis in Ontario has precipitated numerous blogs and online articles. However, no-one has yet conducted a deep analysis of the changes in Ontario and what they mean for our court system. More importantly, my article fills a gap in the literature on online courts in general, none of which has considered the history of civil justice reform and the nature of institutional change.
Couture-Ménard, Marie-Eve et al, 'Answering in Emergency: The Law and Accountability in Canada’s Pandemic Response' (2021) (72) University of New Brunswick Law Journal 1-46 Abstract: To achieve and protect public health, collective action is essential, especially through government intervention. In combating the COVID-19 pandemic, societies across the globe have allowed governments to exercise extensive emergency powers, which has led to unprecedented measures and responses, including significant restrictions on citizens' rights. These measures have often been taken swiftly, with little (and sometimes no) input from the electorate or from civil society. This paper describes the breadth of Canadian public authorities’ emergency powers to manage a pandemic, and provides an overview of emergency powers included in public health legislation. It then assesses avenues for accountability through law – specifically through private, criminal and constitutional law. It argues that accountability through private law litigation is the wrong avenue to pursue in the context of the COVID-19 pandemic and that criminal law safeguards and constitutional rights litigation only offer limited accountability. Finally, it presents an argument in favour of enhancing public accountability to parliaments and citizens through public health legislation.
Couture-Ménard, Marie-Ève et al ‘Mitigating Social Inequities in Quebec: Governance Law to the Rescue?’ in Sabrina Germain and Adrienne Yong (eds), Beyond the Virus: Multidisciplinary and International Perspectives on Inequalities Raised by COVID-19 (Bristol University Press, forthcoming 2024)
Craft, Aimée, Deborah McGregor and Jeffery Hewitt, 'COVID-19 and First Nations’ Responses' in Colleen Flood et al (eds), Vulnerable: the law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: This chapter considers the federal government’s fettering of jurisdiction through inaction in the areas of clean water and housing. We consider a small sample of First Nations’ responses, taken on the basis of their assertions of jurisdiction and responses to the particular needs and circumstances of their communities. We conclude that First Nations are best positioned to make policy and law in response to COVID-19, and that the federal government can and must work with First Nations communities on resourcing their plans for wellness and emergency preparedness in relation to the pandemic, in accordance with a sui generis application of the constitutional principle of subsidiarity in conjunction with other constitutional obligations such as the fiduciary duty of the Crown and its duty to act honourably. This chapter is contextualized by the theme of self-determination in Indigenous health, s. 35 of the Constitution Act, and the United Nations Declaration on the Rights of Indigenous Peoples.
Crosby, Andrew and Morgan Nordstrom, ‘Socio-Spatial Insights into Evictions Governance and Tenant Movements During the Covid-19 Pandemic’ (SSRN Scholarly Paper No 4542352, 23 August 2023) Abstract: The COVID-19 pandemic and related economic effects have served to thrust rental housing insecurity into the public spotlight. Documenting the extent of pandemic displacement in the City of Ottawa and province of Ontario, Canada, this article provides insight on evictions governance, urban marginality, and social struggle. The socio-legal developments surrounding pandemic evictions offer a compelling case in which to analyze the governance of urban marginality in its various intricacies. During the pandemic, the Ontario government passed legislation to protect tenants from eviction, yet also passed legislation that criminalized tenants organizing against evictions. Tenants engaged in informal actions to stop evictions were met with the threat of formal legal sanctions; evictions moratoria—as a mechanism of care—were coupled with punitive forms of urban marginality governance, such as through evictions tribunals and the criminalization of dissent. Using a mixed-methods approach, we temporally and spatially map the scale and measure the impact of pre- and post-pandemic evictions—documenting that evictions tend to occur in areas with high core housing need and racialized neighbourhoods. We also examine the emergence of new social movements to fight displacement and assess the varied government and landlord responses—including evictions moratoria, tribunal eviction blocks, and the criminalization of tenant organizing.
Cui, Wei, 'Policy Forum: Non-Standard Employment and Canada's Initial Pandemic Response' (2021) 2(69) Canadian Tax Journal 475-486 Abstract: Despite public attention to gig workers and their potential mis-classification as independent contractors, much flexible work already takes place in the sphere of formal employment. The impact of the COVID-19 pandemic on the labour market suggests that non-standard employees may be even more vulnerable than the self-employed. This article suggests that traditional employment insurance and related programs inadequately serve flexible employees, and policies targeted at the intensive margins of employment are needed to help precarious workers.
Da Silva, Michael and Maxime St-Hilaire, 'Towards a New Intergovernmental Agreement on Early Pandemic Management' (2021) COVID-19 Special Issue National Journal of Constitutional Law (forthcoming) Abstract: The Canadian response to COVID-19 produced several problems that are at least partially attributable to a lack of coordination between the federal and provincial governments. The federal government has not taken on a strong coordinating role. Many provinces have ‘gone their own way’ even where uniform standards are necessary to minimize public health threats. While some believe the federal government should use its existing powers to coordinate a response, the federal government alone cannot address all possible concerns and there are strong political incentives for federal government not to unilaterally take a stronger role in pandemic management. This article accordingly motivates an intergovernmental agreement on pandemic preparedness and early pandemic responsiveness (viz., early pandemic management). An intergovernmental agreement is a more promising tool for securing the coordination necessary for good pandemic management than unilateral federal action or the status quo. A detailed agreement that clearly sets out who will do what when a pandemic is imminent/when a pandemic begins will clarify expectations in early pandemic management and incentivize compliance therewith, helping to secure much-needed coordination. Developing it in non-pandemic conditions should also ensure a more rational approach to pandemic management that improves health outcomes and better fulfills Canada’s moral and international legal obligations.
Daly, Paul, 'Governmental Power and COVID-19: The Limits of Judicial Review' in Colleen Flood et al (eds), Vulnerable: The law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: The goal of this Chapter is to explain why those hoping for a high level of judicial engagement with the forms of power being used to combat the cultural, economic, medical, social and other fallout from the current pandemic are likely to be disappointed. In Part I, I explain the different forms of power being used in Canada, at the federal and provincial levels, to respond to the pandemic: imperium (general norms with the force of law), dominium (government contracting and distribution of resources) and suasion (information provided to the citizenry). I go on in Part II to explain why judges are unlikely to enforce public law principles, such as reasonableness, procedural fairness and compliance with the Constitution of Canada, including the Charter of Rights and Freedoms, on the uses of these different forms of power. As to imperium, any judicial engagement is likely to be at the margins and as to dominium and suasion there is a long tradition of judges refusing to extend the judicial review jurisdiction to encompass contractual decisions and the provision of non-binding guidance. Those concerned about the difficulty of holding Canadian governments to account in these trying times would be better advised to look to improving the channels of political accountability than trying to navigate those of legal accountability
Daly, Paul, ‘COVID-19 in Canada: The Legal Framework’ in Arianna Vedaschi (ed), Governmental Policies to Fight Pandemic: The Boundaries of Legitimate Limitations on Fundamental Freedoms (Brill, 2024) 369–389 [unpublished version of chapter available on CanLII] Abstract: With successive waves of COVID-19 sweeping into Canada and over the popu- lation, the political and legal systems struggled to respond. My goal is to set out the general framework Canada’s political and legal systems have used to respond to the pandemic, illuminating the framework by examples drawn from various points in time. I use as my touchstone the three forms of governmental power – imperium, dominium and suasion.
de Beer, Jeremy and E Richard Gold, 'International Trade, Intellectual Property, and Innovation Policy: Lessons from a Pandemic' in Colleen Flood et al (eds), Vulnerable: the law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: This chapter addresses intersections among international trade law, intellectual property rights, and domestic innovation policies to prevent, detect, and treat pandemics. Structural issues with Canada’s innovation system affected preparedness for this pandemic and, unless remedied, will impede responses to future crises. In this chapter, we suggest aligning domestic and international policy measures to nuance Canada’s approach to intellectual property and accelerate Canada’s global contributions through open science.
Edmonds, Sterling et al, 'Transparency too little, too late? Why and how Health Canada should make clinical data and regulatory decision-making open to scrutiny in the face of COVID-19' (2020) 1(7) Journal of Law and the Biosciences Article lsaa083 Abstract: Hard-won gains in the transparency of therapeutic product data in recent years1 have occurred alongside growing reliance by regulators upon expedited review processes.2 The concurrence of these two trends raises fundamental questions for the future of pharmaceutical regulation about whether the institutionalization of transparency will foster improved oversight of drugs, biologics, vaccines, and other interventions, or else, provide cover for a relaxing of regulatory standards of safety, effectiveness, and quality.3 The urgency of the COVID-19 pandemic, however, has brought this tension into immediate and sharp relief. During the course of the global health crisis, regulatory bodies have markedly expanded the number and use of expedited review processes for COVID-19 therapies, and at the same time, the proliferation of misinformation about any potential SARS-CoV-2 intervention4 reveals the limitations of recently implemented transparency measures.
Evans, Jessica and Linda Mussell, ‘Governing Risk Through Forced Confinement: Clawback of Pre-Pandemic Reforms’ (2023) 38(2) Canadian Journal of Law and Society / La Revue Canadienne Droit et Société 223–244 Abstract: We examine the use of forced confinement and isolation to limit the spread of COVID-19 in Ontario prisons and jails. Drawing on interview data, we illustrate how a reliance on forced confinement and isolation has exacerbated harms experienced by prisoners in relation to physical, mental, and social health. Through discourse analysis of grey literature, we then discuss the politics and governance of carceral institutions during the pandemic, focusing on how practices of isolation were legitimized during the pandemic, despite recent rulings establishing isolation and segregation as torture. We close by arguing that the case of isolation during the pandemic is one example which highlights the systemic and ongoing nature of rights violations in Canadian prisons and jails. To address these harms, we must shift focus away from reform and towards decarceration.
Farha, Leilani and Kaitlin Schwan, 'The Front line Defence: Housing and Human Rights in the Time of COVID-19' in Colleen Flood et al (eds), Vulnerable: the law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: COVID-19 has laid bare the failure of Canadian governments to effectively implement the right to housing. In this chapter, we argue the pandemic presents Canada with the opportunity to correct the structural weaknesses of our housing system to ensure housing for all and reposition housing as a social good rather than a commodity. We explore how housing status has been determinative of outcomes for three vulnerable populations during the pandemic—people experiencing homelessness, survivors of intimate partner violence, and low-income renters. Their experiences demonstrate the urgent need for a rights-based approach to housing, highlighting the importance of breathing life into the National Housing Strategy and the National Housing Strategy Act. We argue that Canadian governments must act before this opportunity passes them by; otherwise they will find that though the pandemic itself is over, housing inequality has only worsened.
Fehr, Colton, ‘Mandatory COVID-19 Vaccinations and the Charter’ (2022) 31(1) Constitutional Forum Constitutionnel 7–18 Abstract: This article considers whether mandatory COVID-19 vaccinations would survive constitutional scrutiny. I maintain that at various junctures throughout the pandemic, such a policy would comply with the Charter so long as the punishments for any violation of such a law did not include imprisonment.
Fernandes, Eugene J, 'Immunizing Canada from Pandemic Populism: How to Uphold Equality, The Rule of Law, Trustworthy Institutions, and Civil Order' Abstract: In Canada, are individual citizens ends in themselves, or are they “simply tools of collective national policy” as in China? This philosophical question is brought into sharp focus when we analyze the rights and freedoms that unvaccinated Canadians are denied. Contrary to popular belief, vaccine passports do not clearly violate a citizen’s rights because the government does not mandate him to do or not do anything. 1 Instead, the government mandates that businesses ensure that their guests be vaccinated. The Canadian Charter of Rights and Freedoms protects individual rights more than business rights, so this essay will focus on vaccine mandates where a governmental body imposes an obligation to be vaccinated on an individual, in violation of a right. I will argue that the law should not give the vaccinated more rights than the unvaccinated. We otherwise become a segregated and unethical nation with partial and illiberal institutions.
Fierlbeck, Katherine and Lorian Hardcastle, 'Have the post-SARS reforms prepared us for COVID-19? Mapping the institutional landscape' in Colleen Flood et al (eds), Vulnerable: The law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Effective pandemic management requires a clear and straightforward structure of communication and accountability. Yet the political realities of Canadian federalism preclude this. The fundamental theme of pandemic management in Canada is thus the tension between the need to make clear, coherent, and timely decisions, on the one hand, and the need to involve an exceptionally large array of political actors across different levels of government, on the other. The sudden outbreak of SARS in 2003 exposed several problems in coordinating the public health system. This led to a major restructuring of public health institutions in Canada. The 2009 H1N1 pandemic tested these reforms and identified new issues underlying the coordination of governmental actors. This chapter presents the legal and institutional context within which COVID-19 has emerged, and identifies both lessons learned from the past and the challenges that remain.
Fisher, Roger S, ‘Travel Restrictions and Border Security Measures on the Canada–US Border During the COVID-19 Pandemic: Does Law Matter in a Crisis?’ in Stanley D Brunn and Donna Gilbreath (eds), COVID-19 and a World of Ad Hoc Geographies (Springer, 2022) 379–398 Abstract: Limited travel restrictions and border controls may be justified on a short-term emergency basis in the early stages of an outbreak of infectious disease even though such measures, if applied broadly, may not conform to the principles of ethical public health practices and almost certainly infringe on constitutionally protected rights and freedoms. Although the broad travel restrictions and border controls on the Canada-U.S. border raise a number of novel legal and public policy issues in terms of their necessity, efficacy, and constitutionality, a tradition of judicial deference in cases involving public health measures during a pandemic suggests that the courts may uphold the travel restrictions and border control measures as a necessary and reasonable limit on constitutionally protected rights and freedoms.
Flood, Colleen M and Bryan Thomas, ‘Canada: Legal Response to Covid-19’ in Jeff King and Octávio Luiz Motta Ferraz (eds), The Oxford Compendium of National Legal Responses to Covid-19 (Oxford University Press, 2021) Abstract: The Covid-19 pandemic did not change the basic constitutional division of powers in Canada. Canada has not declared a national state of emergency due to Covid-19, and no constitutional provisions have been suspended. Triggering the federal emergency powers might have had some advantages, eg, by allowing cohesive standards and making use of the federal government’s spending powers. However, the downside includes operational challenges stemming from the disparate impact Covid-19 has had across the country, the fact that provinces are more experienced in the delivery of health care, and opposition by provincial governments.
Flood, Colleen M and Bryan Thomas, 'The Federal Emergencies Act: A hollow promise in the face of COVID-19?' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Throughout March and April 2020, as the COVID-19 pandemic unfolded in Canada, Prime Minister Trudeau was repeatedly asked in his daily news conferences whether or not he would invoke the Emergencies Act. His response was that health care is a provincial matter, and the federal government would play a support role to the provinces. Rightly, the Act can only be triggered when a province has not been able to respond appropriately to a public health emergency, jeopardizing not only the health of people within a province but also other Canadians. However, there are other significant limitations within the Act such that even when a matter has risen to a level requiring a federal response, the Act may prevent the federal government from intervening or at least leave its powers unclear. We test three case-scenarios in the context of COVID-19 where arguably provincial steps have been insufficient, thus triggering the need for a national response. In so doing, we demonstrate the limitations of the Emergencies Act and suggest, post-COVID-19, there must be a discussion on whether the Act is fit for purpose.
Flynn, Alexandra et al 'Municipal power and democratic legitimacy in the time of COVID-19' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local “main street” businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the Constitution, they are considered to be nothing more than “creatures of the province.” However, courts have decided in many cases that local decisions are often considered governmental and given deference. This chapter focuses on the tensions in this contradictory role when it comes to municipal responses to COVID-19, particularly when those responses take the form of closure of public spaces, increased policing by by-law officers, and fines. I conclude that municipalities serve an important role in pandemic responses, alongside provincial and federal governments. Provincial law should be amended to capture the important role of municipalities in Canadian federalism, especially in the area of municipal finance.
Flynn, Alexandra and Amelia Thorpe, 'Pandemic Pop-Ups and the Performance of Legality' (UNSW Law Research Paper No 21-44, 21 2021) Abstract: Cities around the world have rushed to respond to the coronavirus pandemic by regulating public space to promote social distancing and stimulate economic recovery. The resulting decisions are what we term ‘pandemic pop-ups’ - hasty, real-time, and temporary changes to the use and regulation of public space. Focusing on Toronto, Canada and Sydney, Australia, we argue that pandemic pop-ups extend beyond immediate infrastructure needs to how cities govern generally. Pop-ups may replace cars with bikes or extend restaurants into streets, and for this they have been celebrated: for saving jobs, and for making streets safer and more enjoyable. Pandemic pop-ups are not universally positive, however. They also remove tent encampments, make racialized residents more vulnerable to sanctions, and rush through controversial infrastructure projects. As we consider pandemic and post-pandemic cities, the governance of pop-ups demands critical scrutiny. The laws that regulate urban space are always open to multiple interpretations (Cover, 1983). The force of law depends on its social context, on the ability of legal actors to give effect to their preferred interpretations and the lack (or inability) of others to challenge those interpretations. Through pop-ups, cities enact a particular form of legality – by which we mean not just legal texts, but the range of rules, practices and understandings through which those texts take effect in the world – that weakens democratic oversight and participatory processes. With an emphasis on speed over process, pop-ups have invariably been deployed without oversight or engagement, and rarely involving the voices of racialized or vulnerable people. We recognize the value that pop-ups can bring to cities – socially, economically and environmentally – as well as the urgent challenges that make pandemic pop-ups critical. In this paper, however, we focus on more troubling aspects that have often been overlooked. To do this we challenge two features that are conventionally associated with pop-ups: their irregularity and their scope. First, most accounts describe pop-up planning as exceptional, a deviation from usual practices of decision-making. Yet in the time of COVID-19, pop-ups are the ‘new normal’. Second, we argue that pop-up infrastructure is broader than previously acknowledged, extending beyond bike lanes and patios to homeless encampments and policy proposals. Since pandemic pop-ups re-shape public space and the regulations through which it is governed, decisions must be made within a framework of inclusive and participatory decision-making.
Fortin, Marie-France, 'Liability of the crown in times of pandemic' in Colleen Flood et al (eds), Vulnerable: The law, policy and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: While both federal and provincial governments are accountable before the courts for violations of individuals’ rights and freedoms constitutionally protected in the Canadian Charter of Rights and Freedoms, their civil liability in tort for damages is a different matter. This chapter addresses the issue of the suitability of these actions in light of the immunity from suit that the federal and provincial governments (“the Crown”) enjoy. In the first section of this chapter, the state of the law and recent developments in relation to the Crown’s liability in Canada are discussed. The meaning and consequences of the Supreme Court of Canada’s most recent decisions in relation to the Crown’s liability in the context of the COVID-19 pandemic—including for the acts of its departments, servants, agents, corporations, and independent contractors—are discussed in the second section.
Gahwi, Lena and Margaret Walton-Roberts, 'Migrant Care Labour, Covid-19, and the Long-Term Care Crisis: Achieving Solidarity for Care Providers and Recipients' in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception' (Springer International Publishing, 2022) Abstract: Globally there is a care crisis in terms of the quantity of care needed for an aging population and the quality of both the care provided and work conditions of those providing this care. The COVID-19 pandemic has exposed and heighted this crisis of care. In this chapter we review the issue with a particular focus on long-term care (LTC) facilities and the type and skill mix of labour, including the degree to which immigrant workers are over-represented in this sector. We offer some conceptual reflections on elder care as a matter of social justice and ethics in terms of those needing and providing care. These concerns take on a specific global dimension when we understand the transnationalisation of care, or the care provisioning function of what are termed global care chains. We contextualise how this migrant labour is positioned within this sector through international comparisons of funding models for LTC, which also allows us to understand the structural conditions within which this globally-sourced workforce is positioned. We then highlight two significant contributing factors to the current LTC crisis that were intensified and exposed during the COVID-19 pandemic using Ontario, Canada, as an example: the role of the private sector and the unsustainable extraction of profits from this service, and the gendered and racialised devaluing of migrant labour so essential to the sector.
Ghezelbash, Daniel and Nikolas Feith Tan, 'The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection' (Robert Schuman Centre for Advanced Studies Research Paper No RSCAS 2020/55, 20 2020) Abstract: The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross-borders to seek protection. As a result, the early months of 2020 saw an effective extinguishment of the right to seek asylum. This working paper examines how this played out in Australia, Canada, Europe and the United States. National and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum. Finally, this working paper explores strategies for restoring and protecting the right to seek asylum beyond the pandemic.
Goodday, Victoria, 'Environmental Regulation and the COVID-19 Pandemic: A Review of Regulator Response in Canada' (University of Calgary, School of Public Policy Publications, SPP Briefing Paper No 14:10, 22 January 2021) Abstract: Governments worldwide weakened environmental protection in response to the COVID-19 pandemic, including federal and provincial government agencies across Canada. In this briefing paper, I review and analyze these actions, comparing the types of rules changed, types of changes, rationale and sectors impacted. Results show that Canadian regulators took one of two approaches: enforcement discretion or pre-emptive rule adjustment. Industry, government and public stakeholders all benefited from relaxed rules. Most of the rules relaxed, however, were specific to certain industrial sectors: the oil, gas and coal; mining; fisheries and water sectors. Regulators’ main reason for adjusting environmental rules was to address capacity constraints faced by regulated entities, with limited detail provided to justify the changes in most cases. Over a third of the changes were indefinite with no set end date. I discuss implications of these actions, including increased risk of harm to the environment and human health, budgetary impacts, noncompliance enforcement and considerations for regulatory design moving forward.
Gorman, Wayne K., 'Judging in the Time of a Pandemic: The Impact of COVID-19 on Bail and Sentencing in Canada' (2021) 1(57) Court Review 22-32 Abstract: The article explores how the COVID-19 pandemic has affected decisions by judges in Canada in the area of sentencing and judicial interim release. Topics covered include collateral consequences in determining sentence, the Parole Board's determination of whether the prison environment is unsafe, and the requirement of a factual foundation. Several court decisions are discussed including the Ontario Court of Appeals in R. v. J. A., and the Nunavut Court of Justice in R. v. Pangon.
Goudge, Amy, 'Balancing Legality and Legitimacy in Canada's COVID-19 Response' (2020) (41) National Journal of Constitutional Law 153-183 Abstract: The COVID-19 pandemic has delivered an impossible balancing act for democracies. As a public health crisis that demands exceptional measures to contain, the pandemic has forced democratic governments to reconcile competing obligations to legality, political legitimacy, and emergency response. In Canada, we have seen provincial governments impose emergency orders that severely curtail civil liberties. Meanwhile, the federal government has assumed enormous spending powers for crisis relief. While these measures may be necessary to mitigate the pandemic’s worst effects, they also threaten the country’s fundamental commitments to democracy, constitutionalism, and the Rule of Law. This paper analyzes how political and legal controls have operated to ensure that emergency measures strike an appropriate balance between legal rights, democratic norms, and crisis response. While a conclusive assessment of Canada’s COVID-19 response would be premature, I find an emerging picture of a measured approach that is responsive to political and legal controls – not only preserving legality and legitimacy, but sustaining the public trust that is essential to resolving a crisis like COVID-19.
Gruben, Vanessa and Louise Bélanger-Hardy, 'Risking It All: Providing Patient Care and Whistleblowing During a Pandemic' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: In this chapter, we discuss the rights and responsibilities of health care workers during the COVID-19 pandemic, both as care providers (part I) and as whistleblowers (part II). Health care providers have a duty to provide care to patients during a pandemic. However, this duty may be limited by the type of practice, the implied consent to risks, the strength of competing duties such as family obligations, and the need to weigh benefits to patients and potential harm to caregivers. The duty to care of regulated health professionals such as doctors and nurses is framed by the standards of their respective professions. In contrast, personal care workers (PSWs) are not self-regulated. This group forms a large part of the workforce in long-term care homes where most deaths have occurred. We believe it may be time to consider whether PSWs should be self-regulating, as this could offer both greater clarity about the standard of care to be provided to patients during pandemics and clear disclosure standards to guide those who wish to denounce the practices they witness. As for health care providers as whistleblowers, after noting that whistleblower protection across Canada is piecemeal at best, we recommend a comprehensive approach where statutory instruments would be complemented by professional guidelines and codes of ethics issued by regulatory bodies and by professional associations.
Guest, Lara, 'How to reduce exposure associated with pandemic-related corporate misconduct' (2020) (2) _Emerging Areas of Practice Series - COVID-19 (Coronavirus)_ Abstract: Introduction: The economic and workplace upheaval associated with the COVID-19 pandemic has placed unique and intense pressures on businesses and market sectors. History has taught us that the more downward pressures there are on businesses, the more likely that bad employee and business partner behavior will occur. This kind of conduct can give rise to class action and regulatory liability. At the same time, work-from-home protocols, travel restrictions and shifting demands within workplaces can put a strain on investigative priorities. However, proactive, focused and remedial internal review and investigation at the first sign of questionable behavior should continue to be prioritized as a powerful tool to mitigate and neutralize the pernicious effects of misconduct. This article highlights issues that business leaders should be on the watch for, and how they should mobilize to address them in our changed and challenged workplaces.
Habermacher, Adrien, 'Online Legal Education in Canada' (SSRN Scholarly Paper No ID 3979034, 08 January 2021) Abstract: This report compares the development of online legal education in Canada prior to and during the COVID-19 pandemic. It is pan-Canadian in scope and encompasses both the university legal education (qualifying education) and continuing education for already-qualified lawyers in the country’s common law and mixed civil/common law jurisdictions. The pre-pandemic achievements in online legal education were very limited despite the general availability of adequate technology to experiment in the field. Reluctance has been the strongest at the qualifying education stage. Structural factors (e.g. education requirements, limited competition among institutions, funding regimes) seem to explain this dire lack of innovation; this state of affairs left Canadian legal educators generally unprepared to face the sudden transition to online education forced upon them by the pandemic in early 2020. This report offers a first look at the lessons learned from the universal experience with online legal education. It also points to likely future developments, considering students' and instructors' changing preferences as well as the social aspects of certain law schools’ missions.
Habermacher, Adrien and Sulaimon Giwa, ‘Learning in Lockdown: Assessing the Impact of Online Legal Education on the Development of Professional Competencies and Identity’ (2024) 47(2) Dalhousie Law Journal 1–43 Abstract: We administered a survey to law students at three Canadian law schools in the Atlantic region at the end of the Fall 2020 term. The survey asked students to compare their learning of each of the Federation of Law Societies of Canada (FLSC)-mandated competencies, as well as several others taken from the Law Society of New Brunswick (LSNB) competency profile, in the Fall 2020 (online) term versus previous terms of study. The survey also solicited testimonies on students’ socialization into the legal community during their unexpected online law school experience. Our data sheds lights on which competencies, among those deemed essential for law school graduates, are less likely to be adequately developed in an online instruction environment. Our analysis shows that online learning is not demonstrably less effective at fostering the FLSC-mandated competencies. Socialization into the legal community was the aspect of the typical law school experience most hindered by the online modality of instruction. While the Fall 2020 term was a difficult experience for many students, we also found that a sizeable minority of students thrived in the online environment, even with the temporary and emergency nature of the online law school experience in Fall 2020 and the pandemic-related public health restrictions during this period. Our findings are consistent with other studies conducted on law students during and before the pandemic outside of Canada.
Haigh, Richard and Bruce Preston, 'The Court System in a Time of Crisis: COVID-19 and Issues in Court Administration' (2021) 3(57) Osgoode Hall Law Journal 869-904 Abstract: Canadian courts, in many ways, are neither efficient nor effective. This has been clear for many years. This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration. In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis. Like most organizations, courts have developed plans – business contingency (BCPs) in Canada and continuity of operation (COOPs) in the United States—laying out policies and processes to follow in an emergency. Yet none of the various disaster plans created by courts in both Canada and the United States highlight the role and importance technology would play. Despite the increasing use of remote access for hearings—there has been a great deal of success in scheduling appeal hearings remotely—most courts have been unable to operate at pre-pandemic levels. In fact, most courts have postponed the majority of their hearings and have had to push dockets forward. Postponing a large portion of the courts’ hearings will undoubtedly add to a backlog of cases and increase the administrative burden on operations once physical distancing is removed. But the change in attitude that has taken place over the past few months is arguably greater than the sum of all changes made over the last forty years since Carl Baar’s reference to courts being “horse-and-buggy” organizations. The pandemic has provided a perfect occasion—no doubt forced but relatively low-risk—to try new things. Our position is that steps need to be taken to ensure that an increased reliance on “privileged access to technology” during COVID-19 does not lead to an “exacerbation of denial of access to justice.”
Harmon, Shawn and David Faour, 'Immunization Governance Challenges Exposed by Covid-19: Missing Standards in Vacccine Surveillance and Adverse Events Following Immunization (AEFIs)' (2021) 3(49) Georgia Journal of International & Comparative Law 533-562 Abstract: Extract from Introduction: We begin by briefly outlining the vaccine development and safety ecosystem in Canada, identifying its key stages and mechanisms. We then explore in more detail two elements of that ecosystem. First, we examine the market authorization stage, focusing on how it was used in response to COVID-19. We argue that the manner in which it has functioned, both generally and throughout the COVID-19 pandemic, exhibits a systemic operational weakness, being a lack of sufficient and appropriate transparency. Second, we explore the post-deployment or clinical surveillance stage, arguing that its mechanisms aimed at identifying and reporting ‘adverse events following immunization’ (AEFIs) are characterized by an improper absence of standards, signifying design shortcomings. These shortcomings have been accentuated by the COVID-19 pandemic, and could, in turn, undermine actions taken in response to the COVID-19 pandemic.
Hastings, Colin et al, 'Intersections of Treatment, Surveillance, and Criminal Law Responses to HIV and COVID-19' (2021) American Journal of Public Health (advance article, published 10 June 2021) Abstract: Public health institutions are playing an increasingly central role in everyday life as part of the response to the COVID-19 pandemic (e.g., through stay-at-home orders, contact tracing, and the enforcement of disease control measures by law enforcement). In light of this, we consider how COVID-19 disparities and disease control practices intersect with the response to the more longstanding epidemic of HIV infection in Canada and the United States.
Henry, L. A., 'Community Legal Clinics and Clinical Education in the COVID Era: Resilience, Innovation, and Gaps' (2021) (72) University of New Brunswick Law Journal 114-131 Abstract: In Canada and throughout the commonwealth countries, access to justice depends upon free legal clinics to fill gaps. While provinces vary in the amount they invest in Legal Aid Services for lower income citizens, it is generally recognized that the majority of lower-middle-class people simply cannot afford to pay the retainer fee for a private lawyer. Legal clinics provide, at bare minimum, summary advice to self-represented litigants, and in some cases full carriage of the file including representation in court. In Canada, almost all university law faculties have legal clinics as part of their curriculum, or are partnered with independent legal clinics that offer students clinical experience. This creates a win-win situation: students receive an invaluable opportunity to do hands-on work under the supervision of clinic lawyers, and clients who cannot afford to hire a lawyer receive legal support.
Hoffman, Steven J and Patrick Fafard, 'Border Closures: A Pandemic of Symbolic Acts in the Time of COVID-19' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: COVID-19 provoked unprecedented national border closures. Some countries stopped travel from particular regions, despite evidence that such closures are ineffective and illegal under the International Health Regulations (IHRs). Even more countries banned all incoming travel by non-citizens. It has been suggested that these more restrictive total border closures are theoretically effective and arguably permissible under international law. Yet a closer analysis reveals that total border closures are probably still illegal given the IHRs require countries to adopt less restrictive alternatives when possible, such as a 14-day quarantine order for incoming travellers. If border closures are largely ineffective and illegal, then why have at least 142 countries implemented them? The answer lies in the realities of politics. Even if governments know the science and law of border closures, they still feel compelled to enact them because of intense domestic pressure and to avoid blame for not acting. Therefore, border closures are best regarded as powerful symbolic acts that help governments show they are acting forcefully, even if these actions are not epidemiologically helpful and even if they breach international law. As a result, citizens should be critical of border closures when these symbolic acts are motivated by political advantage without regard to immense collateral damage.
Holland, Kerri, 'Canada's Food Security During the COVID-19 Pandemic' (University of Calgary School of Public Policy Research Paper No 13:13, 09 January 2020) Abstract: The COVID-19 pandemic has drawn public attention to Canada’s food security. Access to a safe, stable and high-quality food supply is often taken for granted by many citizens, but providing it is one of the key roles that our agricultural industry serves and underlines why it is designated an essential service.Despite the federal government’s assurance that our nation’s food supply remains stable, concerns have been mounting from both consumers and the agricultural industry that disruptions in the food supply chain will cause food insecurity and severe economic distress. As a whole, Canada’s agri-food industry is well-positioned to adapt to the present crisis and continue supplying domestic and export markets. However, this does not mean that our food system is impermeable to disruption. In fact, challenges caused by COVID-19 have highlighted vulnerabilities in the food supply chain. Labour shortages, major shifts in consumer demand, and the slowdowns/closures at processing plants have already exacerbated food insecurity among Canadians and increased financial pressure on primary producers. As the foundation of the food supply chain, Canadian farmers are key to its stability. As many farms were experiencing severe economic hardship prior to the pandemic, the challenges of market uncertainty and increased production costs put these operations at greater financial risk. Policy action will be key to ensure the short and long-term viability of our primary industry and maintain the capacity to meet domestic and export market demands. Canada is still in the early stages of crisis management but government support of Canadian agriculture has so far been largely inadequate in alleviating the financial impact on farmers. The Canadian government should take additional steps to alleviate the financial burden on primary producers, ensure export markets remain open and free from trade barriers, and commit to establishing a long-term agri-food strategy and action plan.
Houston, Claire et al, 'Ontario family justice in “lockdown”: Early pandemic cases and professional experience' (2022) () Family Court Review (advance article, published 8 March 2022) Abstract: The COVID-19 pandemic has profoundly affected families and children involved in Ontario's family justice system as well as family justice professionals in the province. In a span of two years, Ontario's family justice system has been fundamentally transformed, from a paper-based, in-person system to a paperless system in which many services, including judicial proceedings, continue to be largely delivered remotely. We report on the findings of two studies on the impact of the COVID-19 pandemic on Ontario family justice: (1) an analysis of early pandemic court decisions; and (2) a survey of family justice professionals about their experiences during the early pandemic. We describe how the pandemic has exacerbated access to justice issues for certain groups, including families experiencing high conflict, victims of intimate partner violence, families involved in child welfare proceedings, and self-represented litigants, while improving access to justice for others by improving efficiency and reducing legal costs. As Ontario moves past the pandemic, the family justice system will need to ensure that technological advances improve access to justice for all court-involved families.
Iftene, Adelina, 'COVID-19 in Canadian prisons: Policies, practices and concerns' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Correctional Service of Canada and the provincial prison systems have a duty to provide incarcerated individuals with health services that are comparable to those in the community, but they have failed to do so during the COVID-19 pandemic. There are inherent practical difficulties to implementing health care in prisons. In addition, prison demographics include a higher proportion of populations that are vulnerable to disease. These factors together mean that the prison response to COVID-19 must involve depopulation and the implementation of guidelines provided by public health agencies in all institutions. So far, the measures taken have been insufficient, as is evidenced by the rapid rates of spread of COVID-19 within prisons compared to the community. An overreliance on segregation of incarcerated individuals as a preventive measure raises concerns under s. 7 of the Charter of Rights and Freedoms (the Charter) and international human rights. There are also equality concerns under s. 15 of the Charter, given the high proportion of Indigenous people in prison. Ultimately, some prison systems’
Jackman, Martha, 'Fault Lines: COVID-19, the Charter, and Long-term Care' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: COVID-19 has underscored the crucial role of the single-payer health care system in ensuring access to care based on need, consistent with the Canadian Charter of Rights and Freedoms (the Charter) and international human rights guarantees. But significant fault lines were exposed when health authorities across the country concentrated their pandemic readiness efforts on maximizing hospitals’ capacity to deal with the anticipated surge of COVID-19 patients, without considering the potentially disastrous consequences for an already struggling long-term care system. COVID-19 laid bare the reality that barriers to care continue to exist as a function of who patients are and where they are being treated. Focussing on COVID-19 hospital transfer decisions and their impact on the life, liberty, and security of the person and the equality rights of long-term care residents, this chapter argues that governments and health care decision makers in Canada must recognize that access to a comprehensive range of care is a fundamental right, and that human rights–based accountability is urgently needed in the battle against COVID-19, and beyond.
Jochelson, Richard et al, ‘Virtually Similar? Considering the Potential for Virtual Jury Trials in Canada During and After the Pandemic’ (2024) 46(3) Manitoba Law Journal (advance article) Abstract: What challenges face jury work in a post-COVID justice landscape, one where the use of technology will likely lead to important questions about justice efficiency and the benefits of digital innovation in the criminal justice process? Before engaging in these analyses, we briefly touch upon the importance of jury work in criminal law in Canada. Because jury work is less frequently used in Canada than jurisdictions like the United States of America, sometimes readers wonder about its importance in the Canadian context as a topic of study. After providing some context as to the fundaments of the necessity and import of jury work in the Canadian context, we explain the methods we used in this paper, before ultimately discussing our findings and concerns about the future of Canadian criminal jury work. Ultimately, the use of videoconferencing technology for jury trials raises promising opportunities for service and representativeness, but the conception of jury trials being held through these means raises numerous concerns which represent significant barriers to an immediate videoconferencing revolution.
Kaushal, Asha, Bethany Hastie and Devin Eeg, ‘Bordering the Pandemic: COVID-19, Immigration, and Emergency’ (2020) 41(2) National Journal of Constitutional Law 1–29 Abstract: In March 2020, the COVID-19 pandemic led to the closure of Canada’s international borders. This closure was not absolute; it was marked by several exceptions. Those exceptions were contained in a series of Orders-in-Council (OiCs) which became the Canadian governments mechanism of choice for governing the border. OiCs are swift, efficient, and flexible legal instruments, which makes them well-suited to a public health emergency. In this article, we explore the nature, function and impact of regulating Canadas borders through OiCs. Focusing on both the procedural and substantive dimensions of OiCs, we interrogate their potential political, legal, and social consequences. We draw on the theory of the emergency to unpack and illustrate how this unfolds, and to explain why it creates serious challenges for longer-term immigration regulation. We demonstrate how the use and content of the pandemic OiCs with respect to the border has reignited reliance on status-based distinctions in immigration regulation, and we consider the ways in which this may produce discriminatory effects at and within Canada’s borders.
Keyes, John Mark, ‘Judicial Review of COVID-19 Legislation: How Have the Courts Performed?’ (2023) 30(2) Australian Journal of Administrative Law 115 [pre-published version available on SSRN] Abstract: This paper considers judicial responses to challenges to legislative action taken to address the COVID-19 pandemic, how these responses were affected by emergency conditions and the implications for judicial review generally and its role in society. The paper begins by outlining the types of legislative measures taken and then considers in very general terms the rule of law and judicial review, including hurdles to judicial review arising in many of the challenges to COVID-19 legislation, which in turn go some distance towards explaining the failure of most challenges.The paper looks next at the principal grounds advanced for challenging COVID-19 legislation in terms of the matters it addressed and the bases for the challenges. The bases for challenge are grouped under three headings: 1. constitutional law limits on law-making authority, 2. administrative law limits on delegated authority, 3. fundamental human rights and rights of Indigenous peoples. This survey is by no means exhaustive. Its aim is to add to the growing body of commentary on emergency legislation by focusing on a limited number of cases, mainly from Canada with a few from the UK, New Zealand and Australia.
Keyes, John Mark, 'Parliamentary scrutiny of the quality of legislation in Canada' (2021) 2(9) The Theory and Practice of Legislation 203-226 Abstract: This paper looks at how legislative quality is addressed in Canada by private (non-Executive) members of the two legislative chambers forming part of the federal Parliament (the Senate and the House of Commons). It considers legislative quality from three perspectives (1. Policy and Politics, 2. Legality, 3. Accessibility / Intelligibility) and reviews the resources and mechanisms parliamentarians have at their disposal to assess and improve the quality of legislation. The paper concludes that, while there is some potential for considerable parliamentary contribution to legislative quality, it is in fact relatively limited. This largely results from the dominant role the Executive plays in the development and enactment of legislation. The paper suggests the current pandemic crisis might provide an opportunity to re-evaluate this dominance and approaches to addressing legislative quality in Canada.
Knutsen, Erik S., 'The COVID-19 Pandemic and Insurance Coverage for Business Interruption in Canada' (2021) 2(46) Queen's Law Journal 431-444 Abstract: This article explores the impact of the COVID-19 pandemic on the insurance industry and analyzes whether most Canadian businesses are insured for business interruptions and losses caused by the pandemic. The author suggests that pandemic-related losses are insurable. Insurers have had sufficient time and experience to prepare and model their policies to account for events such as the COVID-19 pandemic. Insurance policies typically protect against risks which are triggered only where a business suffers “direct physical loss of, or damage to” property. Ultimately, whether Canadian businesses are insured against COVID-19 business interruptions will depend on how the courts interpret “direct physical loss of, or damage to, property” in the context of pandemic-related losses. The author cautions against engaging in a literalist or dictionary-focused interpretation of insurance policies. Instead, the author argues that equitable and predictable insurance coverage determinations requires a contextual assessment grounded in the role of insurance as a risk-based financial instrument.
Koshan, Jennifer, Janet Eaton Mosher and Anne Wanda Wiegers, 'COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence' (2021) 3(57) Osgoode Hall Law Journal 739-799 Abstract: The COVID-19 pandemic has co-existed alongside a far less visible “shadow pandemic” of violence against women, with COVID-19 impacting the number and complexity of domestic violence cases and enabling new tactics for coercive control. This article provides a preliminary assessment of the extent to which Canada’s responses to the COVID-19 pandemic have prioritized the safety of women and children, with a focus on the courts and women’s access to justice. We examine court directives and judicial decisions triaging which cases would be heard as “urgent,” as well as courts’ decisions on the merits in cases involving domestic violence and COVID-19, spanning the areas of family, child welfare, criminal law, and civil protection orders. In the sixty-seven reported decisions in our sample, we find very little awareness overall of the heightened risks for survivors during COVID-19, in keeping with the pre-pandemic tendency of decision makers to focus on incident-based physical violence instead of patterns of coercive control. Our analysis also suggests that survivors’ ability to prove domestic violence and secure court orders that would help to ensure their safety was hampered not only by procedural complexity but also by the reduced availability of a range of services—health, counselling, housing, and supervised access centres, for example— as a result of COVID-19. The cases further reveal significant differences in judicial interpretation of the risks of COVID-19 relative to the risks of domestic violence, often depending on the area of law in question. This again aligns with observations of the judicial treatment of domestic violence prior to the COVID-19 pandemic, with different and sometimes conflicting norms and assumptions prevailing in different legal contexts. We conclude that despite some positive government responses and judicial decisions, COVID-19 has further exposed many of the gaps in knowledge about domestic violence and in the supports and resources necessary to make women and children safe that long pre-dated COVID-19. In addressing the ongoing pandemic of violence against women, we offer some suggestions of measures to improve access to justice during this and future disasters.
Kwan, Martin, ‘Remote vs. In-Person Testimony in Hong Kong Courts’ [2021] Northwestern University Law Review of Note (20 June 2021) Abstract: Should the pursuit of effective scrutiny of witnesses override public health considerations and the witness’s right to health? This article explores the debate on whether a witness can choose to give evidence via video-conferencing facilities (VCF) during the COVID-19 pandemic. It explores the practices adopted in a number of jurisdictions, such as the UK, Hong Kong, Australia and Canada.
Kyle, Mikaela, 'COVID-19 in Ontario: An Opportunity to Degrade Environmental Law and Policy' (York University, MES Major Papers No , 21 2021) Abstract: This paper identifies and evaluates the early responses to the COVID-19 pandemic within Ontario. The concept of policy windows is used in this paper to articulate how the pandemic created opportunities for policy and legal changes within Ontario. The Ford government was presented with two potential paths in confronting the unprecedented health and economic crises that were unfolding. These paths were to double down on supporting existing economic actors including entrenched businesses and industries while continuing pre-pandemic trajectories, or to make significant economic changes by putting Ontario on a path towards green business and in doing so spurring new economic activity. This paper demonstrates that the former path was taken, doubling down on pre-existing paths while also degrading and reverting existing environmental protections. To demonstrate this policy window and the path that was selected, this paper compiles all the decisions and changes made by the Ford government in the first months of the pandemic which relate to or have impacts on environmental laws and policy. This paper compares these decisions to the Ford government’s pre-existing pathways to assess how the pandemic did or did not change trajectories. This paper concludes that these pathways were not significantly altered. Many of the decisions that were made during these initial months were decisions that were already on the government’s agenda. However, this paper does see an increased hostility towards environmental policies, laws and protections that may indicate further degradations in the future – especially in the areas of public participation and consultation, particularly with respect to land use development issues.
Le Bouthillier, Yves and Delphine Nakache, 'The Right of Citizens Abroad to Return During a Pandemic' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: To prevent the spread of COVID-19 Canada has, like most other states, temporarily limited access to its territory. It has, as requested by international law, allowed the return of its own citizens. However, in contrast to other countries, Canada has opted for a more restrictive approach by requesting air carriers to deny boarding to any passengers abroad, citizen or not, with symptoms suggestive of COVID-19. In this article, we assess the legality of Canada’s approach regarding the return of citizens, both under international human rights law and Canadian constitutional law.
Lessard, Michaël, 'Coronavirus: développements récents en droit de la famille concernant la garde et l’accès durant la pandémie de la COVID-19 (Recent Developments in Québec Family Law Regarding Custody and Access During the COVID-19 Pandemic)' (2020) (April) Repères 2983 Abstract: The author describes the recent developments in Québec family law regarding the exercise of custody and access rights during the coronavirus pandemic (COVID-19). The developments discussed here are those that occurred between March 13 and April 13, 2020.
Levesque, Anne and Sophie Thériault, 'Systemic Discrimination in Government Services and Programs and Its Impact on First Nations Peoples During the COVID-19 Pandemic' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Historic and contemporary forms of colonialism predispose First Nations peoples to higher risk for COVID-19. This chapter argues that the health disparities faced by First Nations communities are directly attributable to the underfunding and discrimination in public services, especially on reserves. The first part of the chapter canvasses the inequities in government services and programs that impede the capacity of First Nations communities to effectively prevent and manage public health crises, such as the COVID-19 pandemic, in accordance with their own priorities, circumstances, and needs. The second part proposes Caring Society v Canada, a precedent-setting decision of the Canadian Human Rights Tribunal (CHRT), as establishing the legal standard for Canada when designing and funding its response to the COVID-19 pandemic for First Nations communities. We argue that if the Government of Canada does not immediately and comprehensively address the systemic inequities in its services and programs to First Nations peoples, as required under the Canadian Human Rights Act, measures aimed at managing the COVID-19 pandemic and potential future health crises will inevitably fail to produce equitable outcomes in these communities.
Lexchin, Joel et al, 'Regulators, Pivotal Clinical Trials, and Drug Regulation in the Age of COVID-19' (2021) 1(51) International Journal of Health Services 5-13 Abstract: Medicine regulators rely on pivotal clinical trials to make decisions about approving a new drug, but little is known about how they judge whether pivotal trials justify the approval of new drugs. We explore this issue by looking at the positions of 3 major regulators: the European Medicines Agency, Food and Drug Administration, and Health Canada. Here we report their views and the implications of those views for the approval process. On various points, the 3 regulators are ambiguous, consistent, and demonstrate flexibility. The range of views may well reflect different regulatory cultures. Although clinical trial information from pivotal trials is becoming more available, regulators are still reluctant to provide detailed information about how that information is interpreted. As medicines and vaccines come up for approval for treatment of COVID-19, transparency in how pivotal trials are interpreted will be critical in determining how these treatments should be used.
Lippel, Katherine, 'Occupational Health and Safety and COVID-19: Whose Rights Come First in a Pandemic?' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: This chapter explores the occupational health and safety of Canadian workers during the COVID-19 pandemic. Analysis of information in the media shows that workers in various sectors, including health care, meat packing, warehousing, and other essential services, have contracted COVID-19 at work. Many were denied protections required by the occupational health and safety regulatory frameworks governing the prevention of occupational illness and disease. Benefits under workers’ compensation legislation are theoretically available for those who contract the illness out of and in the course of their employment, but preliminary figures from Ontario and Quebec suggest that underreporting of work-related COVID-19 is prevalent and that access to compensation is not provided in a timely manner to those affected. The chapter sheds light on violations of the right to personal protective equipment and on transmission of the virus attributable to extensive use of workers employed by temporary employment agencies. It finds that unions and professional associations have contributed to improvement of the effectiveness of OHS legislation by accessing the media and the courts. It also provides suggestions for policy going into the deconfinement period in order to ensure that the most vulnerable to COVID19 are not forced to return to work against their will.
MacDonnell, Vanessa, 'Ensuring executive and legislative accountability in a pandemic' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Holding the executive and the legislature to account is a perennial challenge in an emergency. Even by emergency standards, however, COVID-19 has presented serious accountability challenges. The current situation raises questions about how we ensure that the executive and Parliament are held accountable in a public health crisis like the one COVID-19 has precipitated. I explore some of these questions in this chapter. In doing so, I attempt a fair assessment of the challenges the executive and Parliament face in such a crisis, and suggest ways that nodes of accountability might be found both within and outside the political branches when they are not operating as usual.
Mack, Dallas, 'COVID-19' (2020) 6() _Mack's Criminal Law Bulletin_ Abstract: This issue reviews recent cases that have considered the COVID-19 pandemic; in particular, this issue looks at the impact of this pandemic on bail and sentencing.
Macklin, Audrey, '(In)Essential Bordering: Canada, COVID, and Mobility' (2020) (2) Frontiers in Human Dynamics Article 609694 Abstract: The global migration of COVID-19 not only disrupted transborder movement. In many (if not most) states, statis and closure became the default norm at and within borders. This, in turn, generated exceptions organized around an idea of ‘essential’ entry. The category of ‘essential’ was produced, revised, and represented through the interaction of pandemic-driven exigencies and nationally specific articulations of the legal, political, and economic constraints in play. To understand how the admission into Canada of certain people was accepted as legally, economically and/or politically essential, one must take account of Canada’s character as a settler society, its economic integration with the United States, and its growing dependence on migrant workers and international students to subsidize food production and higher education for nationals.
Macklin, Audrey, '(In)Essential Bordering: Canada, COVID, and Mobility' in Triandafyllidou, Anna (eds), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception' (Springer International Publishing, 2022) Abstract: The global spread of Covid-19 not only disrupted transborder movement. In many (if not most) states, stasis and closure became the default norm at and within borders. This, in turn, generated exceptions organised around an idea of ‘essential’ entry. The category of ‘essential’ was produced, revised, and represented through the interaction of pandemic-driven exigencies and nationally-specific articulations of the legal, political, and economic priorities and constraints in play. To understand how the admission into Canada of certain people was accepted as legally, economically, and/or politically essential, one must take account of Canada’s character as a settler society and its economic integration with the United States. Other relevant considerations are the growing dependence on migrant workers to subsidise the cost of food production for Canadian agribusiness, and on international students to subsidize the cost of higher education for nationals.
Mathen, Carissima, 'Resisting the siren's call: Emergency powers, federalism and public policy' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: Virtually everyone in Canada would describe the COVID-19 pandemic as an emergency. The federal government’s decisions—to close borders and order Canadians into quarantine—suggest that it shares this view. Yet it has neither declared an emergency nor triggered the federal Emergencies Act. The lack of such action has been criticized. At the same time, there has been less focus on the emergency powers available to Parliament under the “peace, order and good government” clause in s. 91 of the Constitution Act 1867. In this chapter, I explore three demands that would require emergency branch legislation: regulating long-term care; providing relief to persons under residential and commercial tenancies; and instituting nation-wide testing. Examining the emergency branch’s benefits and drawbacks, I argue that emergency powers must be approached with continual caution, with due appreciation for the operational and political complexities inherent in a federal state. While a national, “top-down” approach may be effective in some situations, in others it is preferable to encourage regional responses and inter-governmental cooperation.
Matyas, David, Peter Wills and Barry Dewitt, 'Imagining Resilient Courts: From COVID to the Future of Canada's Judicial System' (SSRN Scholarly Paper No ID 3778869, 03 January 2021) Abstract: The novel coronavirus disease (COVID) pandemic has challenged an array of democratic institutions in complex, unexpected and unprecedented ways. Little academic work, however, has considered the pandemic’s impact on Canada’s judicial institutions. This paper aims to fill that gap by exploring the Canadian judicial system’s response to COVID and the prospects for administering justice amidst disasters, all through the lens of resilience. After taking a forensic look at how the judicial system has managed the challenges brought on by COVID, we argue that features of resilience like self-organization, preparedness and planning, learning, and reflexive decision-making can significantly contribute to the administration of justice during future shocks. Further, we argue that methodologies from policy analysis, such as benefit-cost analysis (BCA), are useful tools for improving the court’s reflexive decision-making to stresses and shocks. We propose that the business of judging during shocks can become more integral to the “business as usual” of judicial systems. Imagining such a resilient court can be a way to step from COVID to the future of Canada’s judicial system.
McGuire, Michaela, ‘“We Can Do Our Own Thing Here on Haida Gwaii”: The Haida Nation’s Response to COVID-19’ (2023) 14(3) The International Indigenous Policy Journal 1–25 Abstract: The Council of the Haida Nation (CHN) is the National government of all Haida citizens—and their response to the COVID-19 pandemic on Haida Gwaii—is the central focus of this study. The CHN’s response is contextualized through an analysis of governance structures, consideration of previous epidemics, diseases, and health inequalities. The research questions for this project include: (1) How did the CHN’s role shift during the COVID-19 emergency response on Haida Gwaii; (2) What lessons can be garnered from the CHN’s response to inform future Haida Nation governance? To explore these research questions I conducted semi-structured, in-depth interviews with a sample of seven people who were living on Haida Gwaii during the pandemic and had some involvement with the CHN. Following an iterative process of data analysis, four main themes emerged from the data. These themes encompassed the inclusive approach taken by the CHN, the tireless work a small group of people did, and the importance of jurisdiction and self-determination while also considering lessons learned and capacity. The findings demonstrated the importance of continued pushes for self-determination as well as the ability of the CHN to expand its governance role.
Mercier, Elise and Sean Rehaag, 'The Right to Seek Asylum in Canada (During a Global Pandemic)' (2021) 3(57) Osgoode Hall Law Journal 705-738 Abstract: This article analyzes the effect that the Canadian Government’s use of emergency powers during the COVID-19 global pandemic has had on the right to seek asylum in Canada. The article suggests that that the federal government has taken advantage of a public health crisis to make a contentious political problem—the entry of asylum seekers between land ports of entry (such as at Roxham Road)—go away. It details how the Quarantine Act and various Orders in Council have been used to temporarily extend the Safe Third Country Agreement between Canada and the United States (STCA) across the entire length of the Canada-US border. It then details how this de facto extension of the STCA, which previously applied only at official land ports of entry, violates international refugee law and overviews several ways in which the global pandemic has made the United States even less “safe” for refugees. The article concludes by urging the federal government to champion asylum seekers’ rights by suspending the STCA and by recognizing that crossing the border to seek asylum is amongst the most “essential” forms of international travel that there is.
Migone, Andrea Riccardo, 'Trust, but customize: federalism’s impact on the Canadian COVID-19 response' (2020) 3(39) Policy and Society 382-402 Abstract: This article explores how Canadian federalism, with its complex mix of competencies, and the country’s punctuated gradualism policy style interface with urgent, complex decision-making like the COVID-19 pandemic. We find that while punctuated gradualism favors tailored responses to pandemic management it is weaker when coordination and resourcing are to be undertaken during non-crisis situations and that, while the level of cooperation among Canadian jurisdictions has progressively increased over the years, policy is still almost exclusively handled at the federal, provincial and territorial levels. Furthermore, the model appears to have critical ‘blind spots’ in terms of vulnerable communities that do not emerge as such until after a crisis hits.
Mihailovich, Pooja, 'Post pandemic: The new normal for tax litigation' (2020) June() Toronto Law Journal 1-2 Abstract: With the closure of the Tax Court of Canada due to the COVID-19 pandemic, the progress of most proceedings slowed, while others were brought to a halt. Although other Canadian courts had similarly restricted operations during this time, some resorted to the use of technology to address outstanding matters, including through video and teleconferencing. The Tax Court did not take such measures. The Tax Court was not viewed as providing essential services and did not have the technological capability to operate remotely. As a result, it was closed for business in all respects. On June 25, 2020, Chief Justice Rossiter and Associate Chief Justice Lamarre provided an update on the reopening of the Court and outlined new procedures that the Court intends to implement to address the backlog created by the pandemic.
Moradinejad, Reza, 'Relevance of Contract Law Solutions Under a Pandemic' (2020) Special Issue - Impact of Coronavirus Emergency on Contract Law() Opinio Juris in Comparatione 1-26 Abstract: Table of contents1. Force Majeure: A Plausible Solution1.1. Characteristics of Force Majeure1.2. Effects of Force Majeure2. Revision of Contract for Imprévision: An Impossible Solution2.1. Imprévision under the Civil Code of Lower Canada2.2. Evolution of Quebec Contract Law: More Place for Equity2.3. Civil Law Reform Project2.4. Imprévision Under the Civil Code of Quebec3. Duty of Good Faith: A Marginal Solution3.1. The relational Contract Theory in Quebec Law3.2. Scope of Obligation of Cooperation in Relational Contracts4. Extraordinary Governmental Programs: An Out-of-the-Box Solution5. Conclusion
Murchison, Melanie et al, ‘Remote Learning in Law School during the Pandemic: A Canadian Survey’ (2022) 8 Canadian Journal of Comparative and Contemporary Law 148–191 Abstract: The COVID-19 pandemic has reshaped the Canadian debate regarding best practices in incorporating technology into legal education. Canadian educators have now had the chance to reflect on online pedagogy and look beyond the pandemic when we consider how technology will continue to shape legal pedagogy in the future. To this end, the authors conducted a national survey of law students aimed at better understanding the online learning experience, overall satisfaction levels with their legal education, and to thoroughly assess whether students are satisfied with an online legal education. This article presents the result of that survey. The data show that interactivity matters to students and the overall preference is for in-person learning. Analyzing the various delivery models, our study further suggests that students prefer weekly uploaded video lectures over audio only content, and power points were felt to be essential to online learning. We further learned that videoconferencing was the preferred mode of remote learning, with Zoom being the preferred platform.
Mykhalovskiy, Eric et al, 'Human rights, public health and COVID-19 in Canada' (2020) 6(111) Canadian Journal of Public Health 975-979 Abstract: Faced with the extraordinary global public health crisis of COVID-19, governments across Canada must decide, often with limited and imperfect evidence, how to implement measures to reduce its spread. Drawing on a health and human rights framework, this commentary explores several features of the Canadian response to date that raise human rights concerns. Our discussion focuses on criminal law, fines, data collection, and so-called snitch lines. We argue that the approach of governmental and public health authorities must be grounded in the best available scientific evidence and align with human rights standards. Our aim is to encourage dialogue within the public health community in Canada about the importance of human rights-based responses to COVID-19.
Neilson, Hugh, 'Policy Forum: Improving the Canada Revenue Agency’s Delivery of Social Benefits—A Practitioner’s Perspective' (2021) 2(69) Canadian Tax Journal 115-129 Abstract: In Canada, the tax system has become closely intertwined with the income support system; many key income support benefits are delivered through the tax system. Other authors have identified problematic elements of the use of the tax system as a benefit administration tool, and concerns about the role of the Canada Revenue Agency (CRA) as a social benefits agency, in addition to its essential role as a tax collector, stemming in part from issues arising from Canada’s response to the COVID-19 pandemic. Suggestions to enhance the tax system’s ability to deliver benefits include pre-filled tax forms and real-time reporting. I suggest that, while some reforms are practical even in the short term, others require a long-term perspective, or even a shift in the philosophy of our tax system, to implement changes such as reducing the volume of deductions and credits, and accepting standard claims rather than precise calculations supported by receipts and other documentation. Additionally, given that we live in a specialized society, I suggest that these goals would be better achieved by the CRA acting in collaboration with other groups, within and outside the government, to better reach vulnerable populations and deliver the benefits that they are entitled to receive. [ABSTRACT FROM AUTHOR]
Nottage, Luke R and Makoto Ibusuki, ‘Comparing Online Legal Education World-Wide: An Overview Before and after the Pandemic’ in Luke R Nottage and Makoto Ibusuki (eds), Comparing Online Legal Education: Past, Present and Future (Intersentia, 2023) [draft chapter] Abstract: This draft General Report for the October 2022 IACL conference (and for introductory and concluding chapters in a related Intersentia series co-edited book) compares the global development of online legal education before and after the COVID-19 pandemic, particularly in universities but also through professional bodies. As significant background factors, it posits the nature of each jurisdiction’s legal system and profession, resourcing of universities, ICT infrastructure, and evolving pandemic impact. It then compares highlights and lowlights from 13 diverse jurisdictions: eight in the Asia-Pacific region and four elsewhere. The General Report concludes with a discussion of common trends and issues, as well as some intriguing divergences and contingencies, and an overall prognosis given the pros and cons revealed by the pandemic-induced shift towards more online legal education.
Nottage, Luke R and Makoto Ibusuki (eds), Comparing Online Legal Education (Intersentia, 2023) Link to book page on publisher website
Book summary: This pioneering work by leading comparative lawyers examines developments in online legal education, particularly in universities but also in professional associations, before and especially after the COVID-19 pandemic. The book posits and largely confirms that transformations are linked to the extent and scope of respective legal professions (often, but not always, correlating to common versus civil law traditions), funding and other aspects of university-level education, and information and communications technology infrastructure in each jurisdiction. It charts the dramatic shift to online legal education in almost all jurisdictions even with different levels of COVID-19 infections and deaths, or mobility restrictions imposed by law and/or social norms. It also details how law teachers and students adapted to the challenges and opportunities of new technologies and practices, sometimes benefitting from serendipitous earlier events supporting online legal education, and a considerable ‘reversion to the mean’ as the pandemic has abated. The special reports incorporate extensive empirical data, including surveys on online legal education experiences. They cover 13 jurisdictions across the Asia-Pacific region (Australia, Canada, Brunei, Malaysia, Singapore, Hong Kong, Macao, Japan and Pakistan), Europe and beyond (Croatia, Cyprus, Italy and Seychelles), ranging from micro-states to very large economies, at various stages of economic development and from different legal traditions. Comparing Online Legal Education provides rich resources and lessons for legal academics and professionals, as well as those involved in education policy.
Ogbuefi, Nnubia, ‘Contact Tracing and Its Approach to Privacy Under Europe and Canada’s Privacy Laws’ (SSRN Scholarly Paper No 4248282, 18 January 2021) Abstract: 2020 can be described as COVID-19, given that the entire year was spent battling and trying to contain the spread of this new strain of the SARS virus, a situation declared as a pandemic by the World Health Organization. News about the discovery and effectiveness of the COVID vaccine emerged this month, bringing some hope to the end of the pandemic. Before the vaccine discovery, control measures such as prevention, testing, and tracing were adopted to control the spread of the virus. This paper discusses privacy and data protection concerns surrounding contact tracing and the impact of the adoption of immunity certificates on marginalized and vulnerable communities.
Outerbridge, David, Sylvie Rodrigue and David WR Wawro, 'Litigation risk in COVID-19 environment: Big changes' (2020) (2) _Emerging Areas of Practice Series - COVID-19 (Coronavirus), Westlaw Canada_ Abstract: Litigation risks are materially different today, under COVID-19, than at the start of 2020 when the threat of a world-changing global pandemic was barely an idea. The economic and strategic considerations affecting organizations' litigation decisions are shifting. This article examines that shift and explores the consequences for litigants going forward as they seek to resolve disputes in the pandemic environment--both existing legal disputes and new litigation arising from COVID-19.
Paciocco, Palma, 'Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19' (2021) 3(57) Osgoode Hall Law Journal 835-867 Abstract: Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time. Although COVID-19 appears to be a straightforward example of an “exceptional circumstance” under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework—what this article calls “discrete systemwide events.” Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature. Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively on the steps available in an individual case, while systemic delay is addressed indirectly through presumptive ceilings. Because the presumptive ceilings were not calibrated with COVID-19 in mind, they cannot account for COVID delay. Nor can systemic responses to COVID delay be assessed as part of the general exceptional circumstances analysis: Such an approach would require judges to adjudicate the reasonableness of myriad institutional policies, giving rise to problems ranging from a lack of data to separation of powers issues. This conundrum points towards one of two extremes: discount COVID delay without a full Jordan analysis, thereby partially relieving the Crown of its burden to justify presumptively unreasonable delay and leaving accused persons to bear the cost; or effectively prevent Crowns from justifying COVID delay as an exceptional circumstance, thereby risking thousands of stayed criminal charges flowing from the pandemic. This article suggests an alternative approach that navigates between these extremes: In some instances, delay caused by a discrete systemwide event like COVID-19 should be remedied by a sentencing reduction, authorized either by the Charter or by the sentencing process set out in the Criminal Code. This solution, while imperfect, achieves a more palatable result while adding minimal complexity to the section 11(b) analysis. If adopted, it could save accused persons from disproportionately bearing the costs of COVID delay, which would be the likely outcome were the Jordan framework applied straightforwardly.
Pal, Michael, 'A Pandemic Federal Election: Democracy Under Conditions of Emergency' (2022) 1(53) Ottawa Law Review 35-69 Abstract: The challenge of administering free and fair elections in the midst of a pandemic where any mass event raises obvious risks of transmission of the virus has generated considerable controversy around the globe. Jurisdictions have adopted diverse strategies in their attempt to balance the need for elections and public health and safety. This article assesses the main legal issues raised by the prospect of conducting a federal election in Canada during the pandemic. In sum, I argue for new measures at polling stations to ensure public health, expanded advance voting, and, where ballots are mailed-in, accepting all that are postmarked by election day. Implementing some of these reforms would require legislative amendment. Passing amendments in a timely fashion may be a challenge, however, in a minority Parliament that is justifiably occupied with urgent matters related to the pandemic and with limited sitting hours in the midst of an experiment with virtual proceedings. Parliament should urgently turn its mind, however, to the likelihood of a pandemic election and what reforms are needed. Section II discusses the legal framework for conducting elections during an emergency. In sum, the regular rules in the Canada Elections Act largely continue to apply and are not displaced by either emergency legislation or special provisions in the Act itself. Section III summarizes and analyzes the current options for casting a ballot in federal elections, in light of the likely constraints and threats posed by the pandemic. Section IV takes a deep dive into in person voting during a pandemic. It discusses in particular changes within polling stations to adapt to the pandemic and the expansion of early voting opportunities. Section V analyzes the pressing topic of mail-in voting. I argue that the existing system for voting by mail appears likely to be inadequate if used on a much wider scale than in previous elections, when few votes were cast in that fashion. Voter education should be a priority in response to some of the features of voting by mail. Legislative reforms are also needed, however, to ensure that all votes cast by election day and received within a reasonable timeframe are properly counted. (English)
Panah, Nazanin, 'Proceed with Caution: Complicating Artificial Intelligence as a Future Decision-Maker in Canadian Law' (SSRN Scholarly Paper No ID 4010199, 21 January 2021) Abstract: Artificial Intelligence [‘AI’] decision-making has been raised by practitioners, media, and even the Canadian government, as a solution to the many legal issues plaguing the legal system including costs, delays, and even bias. AI is increasingly being adapted by state organizations for decision-making purposes and in light of the COVID-19 pandemic, such use is anticipated to increase. However, I argue that in light of research discovering bias embedded in AI decision-making, such implementation is premature and could further deepen institutional inequalities. Furthermore, science is publicly perceived and branded by state actors as neutral and a marker of efficiency, thus identifying and eradicating such inequalities will be increasingly difficult as the layers of obscure AI decision-making and the legitimization of the neutrality of science compound. My paper uses recent changes in Canadian immigration law as a case study to demonstrate how a state can legitimize the use of technology with markers of efficiency and modernity while incorporating AI decision-making without transparency or in-depth consideration of the real risk and consequences of embedded bias. Immigration law is a fruitful example of the role that AI decision-making can play in entrenching inequality because it is a field of law that is directly engaged with maintaining borders and nation-building. Technology, and the manner in and purpose for which technology is used, reflects state values and state missions when it comes to race and society. My paper calls for a more cautious approach to AI decision-making that prioritizes transparency and accountability in order for AI decision-making to be a true investment in the future of the legal system.
Paquet, Mireille et al, 'Sanctuary Cities and Covid-19: The Case of Canada' in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception' (Springer International Publishing, 2022) Abstract: In Canada, urban centres have been especially hit by the Covid-19 pandemic and this public health crisis has generated particular risks for non-status and precarious migrants. Using official data and published research, this chapter explores how city sanctuary policies in Canada have addressed these pandemic risks and, more broadly, the future for Canadian sanctuary policies in the post-Covid-19 recovery. We highlight the specificities of sanctuary policies in the Canadian context and document that while cities have not rescinded these interventions during the pandemic, they also have not built on them when developing COVID-19 responses for urban residents. We propose that this demonstrates the need to maintain pressure for reforms that increase the resources and capacities of cities in Canada so that they can be in a better position to implement and institutionalise policies for non-status and precarious migrants.
Peihani, Maziar, 'From (No) Bail-outs to Bail-in: A Comparative Assessment of Canada’s Bank Recapitalization Regime' (SSRN Scholarly Paper No ID 3850982, 21 January 2021) Abstract: Bail-in within resolution has been at the forefront of the regulatory agenda to end too-big-to fail. The article examines Canada’s recently introduced bail-in framework through a comparative lens, in the backdrop of the COVID-19 pandemic. It argues that Canada embraces a less stringent approach than its international counterparts in applying the bail-in tool and permitting use of public funds. This flexible approach is preferable as it can help the stabilization of the bailed-in bank by facilitating its access to liquidity. Yet, the administration of the bail-in tool will not be without difficulties in Canada. The extensive administrative discretion and opaqueness embedded in the regime come at the expense of rule of law and creditor protection. Further challenges arise from the country’s highly concentrated financial system and interdependencies among the large banks which can also result in a reluctance to turn to bail-in if systemic solvency concerns are present.
Peihani, Maziar, 'Regulation of Cyber Risk in the Banking Sector: A Canadian Case Study' (SSRN Scholarly Paper No ID 3880115, 04 January 2021) Abstract: Cyber risk is one of the greatest threats facing any modern financial system, a result of increasing dependence on technology and the appeal of troves of personal data to well-equipped hackers. This article examines the governance of cyber risk in the Canadian banking system in the backdrop of the COVID-19 Crisis which has led to a surge in cyber attacks. It argues that the existing operational risk framework, developed by the Basel Accords, is unfit to handle the unique challenges posed by cyber risk. Cyber incidents are unlike traditional operational disruptions in both their dynamism and impact, and are not adequately captured by backward-looking proxies, such as historical losses. There is also a mismatch between the traditional risk-based supervision, which relies on annual risk rating of banks, and the quickly changing cyber profile of regulated entities. The article calls for a paradigm shift in banking regulation such that cyber resilience is set as an explicit regulatory objective for both individual firms and the system as a whole. It outlines a number of strategies which can help banks and regulators navigate and adapt to the ever-changing cyber landscape.
Petit, Gillian et al, 'Policy Forum: Re-Envisaging the Canada Revenue Agency—From Tax Collector to Benefit Delivery Agent' (2021) 2(69) Canadian Tax Journal 99-114 Abstract: In Canada, the tax system is not used just to raise revenue; it is also an important instrument for achieving various social policy objectives. As a result, the tax system has become closely intertwined with the income support system; it now serves as the delivery mechanism for many key income support benefits. As a benefit administration tool, the tax system has advantages, but it is also problematic. First, it relies on self-assessment, which means that the onus is on individual taxfilers to provide complete and accurate information to the government on the income taxes that they owe. However, persons who have no tax liability are not legally required to file tax returns, and therefore many may not do so. In the context of benefit delivery, the reliance on self-assessment risks missing many individuals who are eligible to receive income benefits. Second, individuals generally file a self-assessed tax return only once a year. As a result, the tax system could not respond to the dramatic in-year income shocks that occurred during the COVID-19 pandemic. We identify ways to modernize Canada’s tax system and make it more responsive and streamlined for the purposes of benefit delivery. Reforms such as pre-filled tax forms and real-time reporting could greatly improve the ability of the Canada Revenue Agency to deliver income benefits, and the ability of the federal and provincial governments to meet social objectives, including those set out in Canada’s and the provinces’ poverty reduction strategies. [ABSTRACT FROM AUTHOR]
Piché, Justin and Kevin Walby, ‘Flooding the Zone, Challenging State Secrecy: Newsmaking Criminology in Pandemic Times’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 107–122 Abstract: During the COVID-19 pandemic, Canadian jurisdictions have varied in terms of their reporting of COVID-19 cases among prisoners and prison staff. Engaging with literatures on the policing of criminological knowledge and prison opacity, this chapter examines how multiple approaches to newsmaking criminology including blog posts, op-ed writing, report publishing, and expert commentary can challenge state secrecy in ways that help generate proactive disclosure of additional information about the impact and management of the coronavirus behind prison walls. The analysis in this study reveals how a newsmaking criminology approach can help researchers access previously unpublished information from Canadian prison authorities that is crucial to understanding prison policy, practice, and outcomes related to COVID-19.
Popovic-Montag, Suzana and Nick Esterbauer, 'Maintaining a Wills and Estates Practice During COVID-19' (2020) April Toronto Law Journal 1-4 Abstract: As a result of COVID-19, lawyers across the country have had to temporarily alter their practices. In a profession where in-person meetings are expected by clients and/or necessary to see to the proper execution of legal documents, social distancing has forced the legal system to rapidly adapt to allow us to continue serving our clients in these unprecedented circumstances. This has posed a challenge for members of the Estates Bar in particular, as client meetings, will signings, hearings, and mediations have all been affected. During this time, however, it remains crucial that estate lawyers continue to help clients in creating or amending estate plans and in moving estate litigation matters forward. Familiarizing ourselves with the tools that have recently become available can be of great assistance in this regard.
Rehaag, Sean, Janet Song and Alexander Toope, 'Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers' (2020) (2) Frontiers in Human Dynamics Article 588961 Abstract: This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for refugees onto the US. In the first case, Canada took advantage of US preoccupations with border security shortly after 9/11 to persuade the US to sign the Canada-US Safe Third Country Agreement (“STCA") – an agreement that allows Canada to direct back asylum seekers who present themselves at ports-of-entry on the Canada-US border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the US to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada’s successful use of these moments of crisis to persuade the US to take on additional responsibilities for refugees for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the US without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the US to take on additional responsibility for refugees – and moments of crisis will be important drivers for those efforts.
Robitaille, David, 'COVID-19 in Canada: The division of powers over quarantine and borders' National Journal of Constitutional Law (forthcoming 2020-2021) Abstract: The Canadian Constitution rests on the principle of federalism and its underlying principles of coordinated interpretation, balance between the powers of Parliament and those of the provinces, and the conciliation of diversity with unity. These principles continue to apply in a time of health emergency, like the COVID-19 pandemic. This crisis raised some new issues regarding which order of governments, or both, can regulate and make decisions over matters such like quarantine and interprovincial borders. We will argue that, according to the principles of federalism, those powers must be shared between the federal and the provinces based on their international, interprovincial and local impacts. Our analysis will essentially be prospective since there is no Supreme Court of Canada’s decision on those specific head of powers.
Robson, Jennifer and Saul Schwartz, 'Policy Forum: Should the Canada Revenue Agency Also Be a Social Benefits Agency?' (2021) 1(69) Canadian Tax Journal 87-98 Abstract: The Canada Revenue Agency (CRA) plays an important role in the delivery of benefits to Canadians, but should that role be expanded? The speed and ease with which several new income benefits were launched by the CRA during the COVID-19 pandemic have prompted the question of whether the agency should take on a much larger role as a social benefits agency, in addition to tax collector. We review the arguments for and against, noting important weaknesses that already impair the CRA’s current role in benefit delivery and that would be exacerbated in an expanded role. On balance, we conclude that an expanded role is not the better choice. We suggest that the CRA might instead enhance one of its strengths—collecting and sharing information—so that other agencies can more effectively administer benefits not directly tied to the tax system.
Rozell, Mark J and Clyde Wilcox, 'Federalism in a Time of Plague: How Federal Systems Cope With Pandemic' (2020) 6-7(50) The American Review of Public Administration 519-525 Abstract: This article compares and contrasts the responses of Australia, Canada, Germany, and the United States to the COVID-19 outbreak and spread. The pandemic has posed special challenges to these federal systems. Although federal systems typically have many advantages—they can adapt policies to local conditions, for example, and experiment with different solutions to problems—pandemics and people cross regional borders, and controlling contagion requires a great deal of national coordination and intergovernmental cooperation., The four federal systems vary in their relative distribution of powers between regional and national governments, in the way that health care is administered, and in the variation in policies across regions. We focus on the early responses to COVID-19, from January through early May 2020. Three of these countries—Australia, Canada, and Germany—have done well in the crisis. They have acted quickly, done extensive testing and contact tracing, and had a relatively uniform set of policies across the country. The United States, in contrast, has had a disastrous response, wasting months at the start of the virus outbreak, with limited testing, poor intergovernmental cooperation, and widely divergent policies across the states and even within some states. The article seeks to explain both the relative uniform responses of these three very different federal systems, and the sharply divergent response of the United States.
Saint-Girons, Marie et al, 'Equity Concerns in the Context of COVID-19: A Focus on First Nations, Inuit, and Métis Communities in Canada' (Canadian Child Welfare Research Portal, Research Brief No , 07 January 2020) Abstract: Introduction: COVID-19 and the quarantine measures put in place to stop its spread have had a devastating and far-reaching impact around the world. Since it was first detected, the virus has infected and killed people from all backgrounds, prompting some to refer to it as “the great equalizer”. Yet, similar to previous pandemics, the effects of this disease and related containment strategies magnify inequities, exerting a disproportionate impact on disadvantaged groups such as Indigenous peoples, visible minorities, and people of lower socioeconomic status. Inequity predisposes people to the pre-existing conditions that are co-morbid with the worst cases of COVID-19 and prevents the timeliness and quality of pandemic response. While this research brief addresses the broad inequities exacerbated by COVID-19, it focuses more specifically on their potential impact on First Nations, Métis and Inuit peoples and communities in Canada , recognizing that current realities are shaped by racial discrimination and the ongoing legacy of colonialism. In this sheet we explore health inequities underlying COVID-19’s spread, the uneven socioeconomic burden it places on communities, and the need to adequately prepare and respond using a social justice lens.
Samuel, Chistopher, 'All Dressed up With Nowhere to Moot' (2020) 4(25) Lex Electronica 25-29 Abstract: In the wake of the COVID-19 pandemic, all law students and instructors were forced to rapidly adapt to a new online-learning environment. With varying degrees of turbulence, students and instructors made the necessary changes and finished the year to the best of their collective abilities. However, at the University of Alberta Faculty of Law, there was one unique law school experience that did not survive the transition: the mandatory first-year moot courtroom exercise. (As a point of terminology, when I use the term “moot court” below I am referring only to the oral courtroom presentation and not the associated written factum assignment.)
Sandomierski, David, John Bliss and Tayzia Colesso, ‘Pass for Some, Fail for Others: Law School Grading Changes in the Early COVID-19 Pandemic’ (2023) 56(2) UBC Law Review 605–664 Abstract: This article asks how historically under-represented groups experience one of the key features of legal education: grading. We examine this issue by exploring the singular moment in the history of the modern JD program when law schools across North America almost uniformly set aside curved grading in favour of Pass/Fail schemes at the onset of the COVID-19 pandemic in spring 2020. . The paper begins with a review of existing literature on equity and grading in legal education (Part I), along with a discussion of the motivations and design of our survey (Part II). We then report our data in detail, beginning with high-level findings from the study as a whole (Part III), and then delving into our quantitative analysis of equity considerations (Part IV). These statistical findings are then explored through the lens of students’ first-person accounts in response to open-ended questions (Part V). We conclude with policy recommendations for continued experimentation in grading schemes, and for leveling the playing field by bolstering support for students in their lives outside of the classroom (Part VI).
Shoor, Sahil, 'COVID-19: What happens if your contract in Canada (excluding Quebec) does not have a force majeure clause.' (2020) Lawyer (Online Edition) 1 Abstract: The article offers information on the health challenges faced by the coronavirus outbreak in the Canada. It discusses the declaration of the coronavirus outbreak as a global pandemic by the World Health Organization. It mentions the role of the force Majeure clauses protect the person in times of extreme events, such as Coronavirus outbreak in the Canada.
Skolnik, Terry, 'Criminal Law During (and After) COVID-19' (2020) 4(43) Manitoba Law Journal 145-180 Abstract: In response to the COVID-19 pandemic, governments across the globe are implementing drastic physical distancing measures with wide-ranging implications. Courts are increasingly confronted with novel pandemic-related issues that are significantly altering the criminal justice system. This article explores the current and potential impacts of COVID-19 on three specific areas of the criminal law: the scope of certain crimes, bail, and punishment. It advances three core arguments. First, the pandemic creates a risk that courts will expand the breadth of crimes such as assault and aggravated assault for conduct such as coughing. It provides compelling reasons why courts must limit the scope of these criminal offences and why judges should not extend the legal framework that applies to HIV non-disclosure to COVID-19 transmissions. Second, the pandemic is changing the bail process. Due to COVID-19 outbreaks in detention centres, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. More than ever, judges consider the interests of defendants and detainees when interpreting the concept of “public confidence” – a positive change that limits recourse to pre-trial custody. Third, the pandemic is impacting sentencing as judges move away from custodial punishments. COVID-19 highlights why incarceration and financial penalties disparately impact defendants, which raises concerns regarding proportionality and retributive justifications for punishment both during and beyond the pandemic. Ultimately, this article shows why judges, policy makers, and justice system actors should seize on this unique opportunity to generate lasting positive changes to the criminal justice system that are taking place during the pandemic.
Skolnik, Terry, 'The Punitive Impact of Physical Distancing Laws on Homeless People' in Colleen Flood et al (eds), Vulnerable: The law, policy, and ethics of COVID-19' (University of Ottawa Press, 2020) Abstract: One of the hallmarks of COVID-19 is that it disproportionately impacts vulnerable individuals and groups. The State’s punitive legal responses to the pandemic are no different. This chapter shows why coercive physical distancing laws disparately impact homeless people. It argues that harsh financial penalties for violating these laws can constitute cruel and unusual punishments that contravene s. 12 of the Canadian Charter of Rights and Freedoms. It challenges prevailing s. 12 Charter jurisprudence and demonstrates why expensive fines amount to cruel and unusual punishments even when judges have discretion to modify their severity. After situating the regulation of homelessness within its historical context, it concludes by setting out why homeless people are uniquely vulnerable to over-policing. Ultimately, this chapter elucidates why a public health approach to both COVID-19 and homelessness are necessary and why neither can be punished out of existence.
Slinn, Sara J, 'Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19' (2021) 3(57) Osgoode Hall Law Journal 605-635 Abstract: During the pandemic employees in the US have engaged in a wave of strikes, protests and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system.
Smit, Anneke, 'State of emergency: Decision-making and participatory governance in Canadian municipalities during COVID-19' (09 January 2020) Extract from Executive Summary: Against a backdrop of the provincial legislative frameworks enabling municipal states of emergency across the country, this study presents a scan of municipal decision-making practice during the early weeks of the 2020 pandemic. While responses were as varied as the underlying governance cultures of Canadian municipalities, some patterns emerged: the exercise of unilateral mayoral powers, the cancellation of council and committee meetings, and deep limitations on public participation in all levels of municipal decision-making. The study also highlights some encouraging signs, including some municipalities that managed to continue robust public consultation and participatory decision-making even at the beginning of the pandemic, and some new practices which will continue to improve municipal governance when the pandemic recedes. The study concludes with recommendations for reform of provincial state of emergency legislation as well as changes to municipal governance practice, to ensure that Canada’s local governments are better prepared for the next emergency — whether another wave of COVID-19 or something new.
Stacey, Jocelyn, ‘Confronting Modern Disaster? British Columbia’s New Emergency and Disaster Management Act’ (2024) University of British Columbia Law Review (forthcoming) Abstract: British Columbia’s Emergency and Disaster Management Act (EDMA) was enacted in the fall of 2023 on the heels of the COVID-19 pandemic and the worst wildfire season on record. EDMA attempts to confront some of the most significant challenges of our time. It is BC’s first land-based legislation that seeks to align with the UN Declaration on the Rights of Indigenous Peoples, and the first emergency legislation in Canada to implement the international Sendai Framework on Disaster Risk Reduction and to incorporate climate change. Through four core questions at the heart of emergency governance, this legislative comment examines whether EDMA has managed to shed old assumptions about emergencies and their governance. We will see that, while EDMA contains some positive developments that reflect the scale and complexity of emergency and disaster governance in BC, it still clings to old assumptions about emergencies and emergency powers. Its straddling of old and new assumptions leaves many unanswered questions about what emergency management in BC will look like going forward.
Syed, Iffath U, ‘Canada’s Fight Against COVID-19: Constitutionalism, Laws, and the Global Pandemic’ in Nadav Morag (ed), Impacts of the Covid-19 Pandemic (Wiley, 2022) 339–357 Abstract: Canada consists of a federal system, with a unique separation of powers. For example, the federal government’s role in health has been traditionally to fund and support the provincial and territorial health services, among other things. However, there is also centralization of particular policies, such as during public health crises, consisting of collaboration with provincial governments, whereas the federal government maintains control over things such as travel, entry and exit, and border control. From the perspective of the separation of powers, there is a clear tendency for provincial governments to be enumerated authority in many areas in health and social policy, together with local authority, although for the most part, it is greatly restricted. For example, Toronto Public Health often follows the mandates of the province of Ontario. Decisions of local restrictions, such as the closure of retail spaces, cinemas/movie theaters, malls, and other facilities, as well as the push against mass gatherings in local parks during the coronavirus (COVID-19) pandemic were, at times, advocated by the local governments and municipalities to the provincial government, in which the former claimed some power and authority. At another point in time, the province of Ontario had expressed that the police would have powers to ask motorists questions about where they were going; however, the Toronto Police Services refused to follow this mandate as it could lead to bias and adverse racial tensions or experiences. It led to the provincial government to formally issue an apology. Meanwhile, many different approaches to public health that were implemented by the federal government also affected local governments, which had resulted in restrictions, such as in travel, yet they resulted in positive changes in terms of epidemic containment. While Canada’s case count was low compared to the United States and other countries, Canada was slow in its approach to immunizations during the first half of 2021. As of writing this chapter, the number of cases of COVID-19 was 1,460,175, with total deaths of 26,761 (Government of Canada).
Tahiri, Ryan, 'Legal and Ethical Implications of U.S. and Canadian Vaccine Contracts: The Impact of Vaccine Nationalism on the Global Pandemic Response' (2021) 1(53) University of Miami Inter-American Law Review 231-266 Abstract: This note explores the COVID-19 vaccine contracts between the U.S. and Canada and the impact of these types of agreements on the global pandemic response. These “pre-purchases,” many of which were executed before the development of a vaccine, have afforded a select few nations the opportunity to stockpile vaccines, while other nations with fewer resources are unable to secure any doses. An effective method to counter the effects of the pandemic is the creation of a global vaccine network that provides equitable access to vaccine doses for nations in need. COVAX was launched to ensure that lower and middle-income nations have the opportunity to purchase vaccine doses at reduced costs for their respective populations. This initiative offers a realistic solution to shortening the timeline of the COVID-19 pandemic and bringing the global population closer to herd immunity.
Tassonyi, Almos T, ‘Financing Local Government and Development in Canada in the Aftermath of a Global Pandemic: Continuity and Change’ (2022) 70(Supp) Canadian Tax Journal 97–132 Abstract: In the post-pandemic environment, local governments must confront a challenging fiscal environment. Drawing on insights provided over the years by Richard Bird, the author re-examines certain pervasive themes found in discussions and analysis of municipal finance, such as the merits of benefits-based taxation at the local level, the hierarchical constraints on municipal fiscal decision making, and the reality of a perpetual fiscal crisis at the local level. The underlying issue of having to finance a broad set of expenditures on public services from a narrow revenue base has resulted in intergovernmental tensions and continuing debate over the capacity of the property tax base to meet the demands placed on it. Financing local government can be described in terms of borrowing, spending, and taxing. Each of these areas of municipal fiscal decision making was affected by the COVID-19 pandemic. Borrowing rules remained hierarchically constrained, pressure to increase expenditures grew, and tax and fee-based revenues were adversely affected. Further, it seems likely that the municipal fiscal base will be narrowed given the controversy around development charges. The author uses data from Ontario to illustrate the impact of the pandemic on municipal fiscal health. In addition, the paper includes the Richard Bird Urban Fiscal Health Dashboard to illustrate aspects of the long-run fiscal health of Ontario’s local governments. Throughout the paper, the author raises questions that merit further research informed by the perspective that Richard Bird brought to our understanding of the mechanics and implications of local fiscal decision making.
Thomas, Bryan et al, ‘Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine Passports’ (C.D. Howe Institute working paper, 13 July 2021) Abstract: In this report five leading experts in health law and medicine at the University of Ottawa examine vaccine passports in the context of Charter rights, privacy rights, and implementation. The paper first explores whether a vaccine passport regime would infringe Charter rights, including mobility rights, rights to liberty and security of the person, freedom of religion and conscience, and rights to equality and non-discrimination. Broadly speaking, the authors conclude that a well-designed vaccine passport regime, backed by an equitable vaccine distribution scheme, will likely withstand a Charter challenge. The paper then turns to an in-depth discussion of privacy issues, first exploring key aspects of privacy compliance in the design of vaccine passports before turning to an analysis of their use conditions. Again, the paper’s broad contention is that privacy issues raised by vaccine passports can be adequately addressed through careful design and regulation. The authors then discuss potential avenues for the implementation of vaccine passports, within the framework of Canadian federalism and its fragmented jurisdiction over healthcare and public health. As part of this discussion, we suggest some broad principles for the design of a vaccine passport regime, arguing that passport gating should be limited to non-essential services, and that wherever feasible, the unvaccinated should be accommodated with rapid testing.
Tremblay-Huet, Sabrina et al, 'The Impact of the COVID-19 Pandemic on Medical Assistance in Dying in Canada and the Relationship of Public Health Laws to Private Understandings of the Legal Order' (2020) 1(7) Journal of Law and the Biosciences 1-17 Abstract: Drawing on interviews we conducted with fifteen MAiD providers from across Canada, we examine how physicians and nurse practitioners reconcile respect for the new, changing rules brought upon by the COVID-19 pandemic, along with their existing legal obligations and ethical commitments as health care professionals and MAiD providers. Our respondents reported situations where they did not follow or did not insist on others following the applicable public health rules. We identify a variety of techniques that they deployed either to minimize, rationalize, justify or excuse deviations from the relevant public health rules. They implicitly invoked the exceptionality and emotionality of the MAiD context, especially in the time of COVID, when offering their accounts and explanations. What respondents relate about their experiences providing MAiD during the COVID pandemic offers occasion to reflect on the role actors themselves play in giving meaning (if not coherence) to the potentially conflicting normative expectations to which they are subject.
Tsuji, Stephen RJ, ‘Economic Recovery in Response to Worldwide Crises: Fiduciary Responsibility and the Legislative Consultative Process with Respect to Bill 150 (Green Energy and Green Economy Act, 2009) and Bill 197 (COVID-19 Economic Recovery Act, 2020) in Ontario, Canada’ (2022) 13(3) The International Indigenous Policy Journal 1–40 Abstract: The Green Energy and Green Economy Act (2009) was an omnibus bill that affected a number of other acts. Due to the breadth of its effects, it should have seen a rigorous consultation and review process; this is especially true given how it would impact First Nations and its explicit mention in the Bill. However, it took less than three months for it to receive Royal Assent and become an act. This timeline is extremely short, even among similar bills within the same context. One of the core reasons for this swift transition is due to its labeling as green energy, which has benign connotations. This effectively allowed the bill to be expedited through the consultation process. The consultation process had many hurdles of its own that inhibited meaningful consultation including its timeframe, location of hearings, accessibility, and other factors. The term green energy was also never defined within the Act, meaning it only served as a form of signaling. This raises many questions with respect to the Government of Ontario’s conduct in the situation and how they handled their legal duty to consult with Indigenous people of Ontario, Canada. There are many voices that have raised issues with this process. If nothing else, this example serves the purpose of demonstrating the dangers of green-labelling, especially to Indigenous people of Canada and other Indigenous groups worldwide.
Tucker, Eric, Leah Vosko and Sarah Marsden, 'What We Owe Workers as a Matter of Common Humanity: Sickness and Caregiving Leaves and Pay in the Age of Pandemics' (2021) 3(57) Osgoode Hall Law Journal 665-704 Abstract: Workers commodifying their time in labour markets are liable to become temporarily incapable of doing so because of sickness or caregiving responsibilities. While the risk is universal, it will be experienced very differently depending on social conditions and arrangements and social locations, such as gender, among others. In a society in which the vast majority of people are dependent on labour market incomes to survive, the consequences of being off work are severe, unless some protection and benefits are provided. Over time, Canada has developed a number leave and income-replacement schemes, but the COVID-19 pandemic revealed, in dramatic fashion, their limitations, leading to the adoption of temporary measures to address the crisis. This article, written from a feminist political economy perspective, provides an overview of the historical development of sickness and caregiving leave and pay arrangements set against the background of changing social and economic reproduction regimes. It then examines more closely the slow development of Canada’s welfare state model of sickness and caregiving leaves and benefits since the 1970s, focusing on the federal government’s enactment of special employment insurance benefits and statutory leave rights in British Columbia and Ontario. Next, it critically examines the limitations of that statutory regime, as it existed immediately prior to the outbreak of the COVID-19 pandemic in Canada, and then considers the expansion of sick and caregiving leave and pay provisions, enacted in response to the pandemic. The article then elaborates four principles to guide the future development of the sick and caregiving entitlements suggests ways of bringing the existing regime more into line with those principles. Finally, it sets out a few directions towards imagining a different regime that truly provides workers with what we conceive they are owed as a matter of common humanity.
Viola, Pasquale, 'Climate and environmental approaches in the United States and Canada at the outbreak of the 2020 pandemic' (2020) Opinio Juris in Comparatione (pre-print) Abstract: The essay deals with the issues triggered by environmental policies and Covid-19 pandemic in the United States and Canada. The analysis starts with an outline of the environmental law systems and the main responses to the pandemic, then emphasizing the focal legal concerns about the emergency measures and environmental policies. The last section draws critical conclusions that show some current patterns and the way forward in the entanglement environmental law/pandemic.
Vural, Ipek Eren, Matthew Herder and Janice E Graham, 'From Sandbox to Pandemic: Agile Reform of Canadian Drug Regulation' (2021) () Health Policy (Article pre-proof, published 15 May 2021) Abstract: Public health urgency for emerging COVID-19 treatments and vaccines challenges regulators worldwide to ensure safety and efficacy while expediting approval. In Canada, legislative amendments by 2019 Omnibus Bill C-97 created a new "agile" licensing framework known as the "Advanced Therapeutic Pathway" (ATPathway) and modernized the regulation of clinical trials of drugs, vaccines, and medical devices. Bill C-97′s amendments are worthy of attention in Canada and globally, as health product regulation bends to COVID-19. The amendments follow reforms elsewhere to accommodate health product innovation, however, the Canadian ATPathway is broader and more flexible than its counterparts in other jurisdictions. In addition, Bill C-97 informed Canada's COVID- 19 response in important ways, particularly in relation to clinical trials. The measures adopted by the drug regulatory authority, Health Canada (HC) during COVID-19 may become the new norm in Canadian regulatory practice insofar as they help achieve the amendments introduced by Bill C-97. Finally, despite government rhetoric of transparency, the agenda-setting, formulation, and implementation of the amendments have occurred with little opportunity for scrutiny or public engagement.
Wright, Cornell, 'Governance considerations for boards of directors during the COVID-19 crisis' (2020) _Emerging Areas of Practice Series - COVID-19 (Coronavirus)_ Abstract: We are now weeks into the unfolding COVID-19 crisis and all indications are that it will persist for many more weeks. Companies have activated their business continuity plans and organized themselves to cope with the restrictions issued by governments and public health authorities. Depending on the organization, this will mean everything from shutting down operations to continuing operations with some or all employees working remotely.
Wu, Cary et al, 'Anti-Asian Racism during COVID-19: How Have Native-Born Asians and Foreign-Born Asians Fared Differently?' (SSRN Scholarly Paper No ID 3935761, 04 January 2021) Abstract: Not everyone experiences discrimination to the same degree. In this article, we consider differences in how native-born Asians and foreign-born Asians may have experienced rising anti-Asian attacks during the COVID-19 pandemic. We analyze Canadian data from a nationally representative survey (two waves conducted in April and December 2020) that includes a subsample of 464 Asians (native-born=178; foreign-born=286). Results from negative binomial regressions suggest that perception of anti-Asian racism is highly conditioned by nativity. Specifically, native-born Asians are significantly more likely than foreign-born Asians to report having encountered instances of acute discrimination during the pandemic. To explain the perceived discrimination gap, we test whether a stronger sense of cultural belonging and ethnic pride among native-born Asians contributes to their greater sensitivity to discrimination and thereby higher perceptions of discrimination. We measure sense of cultural belonging and ethnic pride using in-group trust (ethnic trust in Asian people). Although we do find native-born Asians show greater in-group trust, it does not seem to explain the higher levels of discrimination perceived by native-born Asians.
Zetzsche, Dirk A et al, 'The COVID-19-Crisis and Company Law: Towards Virtual Shareholder Meetings' (University of Luxembourg Faculty of Law, Economics & Finance No WPS 2020-007, 15 January 2020) Abstract: Legislation responding to COVID-19 allows us to examine how, and to what effect, the corporate governance framework can be amended in times of crisis. Almost all leading industrialized nations have already enacted crisis legislation in the field of company law. Here, given the difficulties or indeed the impossibility of conducting in-person meetings currently, the overall trajectory of company law reforms has been to allow for digitalization.We note five fields in which legislators have been particularly active. First, the extension of filing periods for annual and quarterly reports to reflect the practical difficulties regarding the collection of numbers and the auditing of financial statements. Second, company law requires shareholders to take decisions in meetings – and these meetings were for the most part in-person gatherings. However, since the gathering of individuals in one location is now at odds with the measures being implemented to contain the virus, legislators have generally allowed for virtualonly meetings, online-only proxy voting and voting-by-mail, and granted relief to various formalities aimed at protecting shareholders (including fixed meeting and notice periods). Third, provisions requiring physical attendance of board members, including provisions on signing corporate documents, have been temporarily lifted for board matters. Fourth, parliaments have enacted changes to allow for more flexible and speedy capital measures, including the disbursement of dividends and the recapitalization of firms, having accepted that the crisis impairs a company’s equity. Fifth and finally, some countries have implemented temporary changes to insolvency law to delay companies’ petitioning for insolvency as a result of the liquidity shock prompted by the imposition of overnight lockdowns.This working paper seeks to (1) document the respective crisis legislation; (2) assist countries looking for solutions to respond rapidly and efficiently to the crisis; (3) exchange experiences of crisis measures; and (4) spur academic discussion on the extent to which the crisis legislation can function as a blueprint for general corporate governance reform. Countries considered in full or in part include Australia, Austria, Belgium, Canada, China, France, Germany, Hong Kong, India, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, South Korea, Spain, Switzerland, Thailand, the United Kingdom, and the United States. Readers are encouraged to highlight any inaccuracies on the part of the authors in their presentation of the respective laws, and to bring further crisis-related legislation not considered in this working draft to the attention of the authors. Moreover, readers are invited to indicate where there is room for improvement therein, and/or to signal the need for policy reform.
United States of America
AALS Policy Committee; CLEA Committee For Equity and Inclusion, Clinicians Reflect on Covid-19: Lessons Learned and Looking Beyond (2021) 1(28) Clinical Law Review 15-44 Abstract: As a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic. In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by their institutions as they navigated these changes. Were clinical courses treated differently than other courses? Were clinical faculty treated differently than other faculty? Were some clinical courses treated differently than others? Did clinical faculty and staff experience pressure by their institutions to teach in-person or hybrid courses? In addition to summarizing the findings to these questions, this report examines the disparate impact of the COVID-19 pandemic on clinicians and sheds light on some of the distinct challenges they faced. The report concludes with a list of recommended actions that law schools may take to equip themselves to provide appropriate support for clinical faculty during inevitable future emergencies, emphasizing the importance of autonomy and discretion for clinicians; specialized attention for diverse and vulnerable clinicians; and the very serious ethical and legal obligations of clinical law practices.
Abbate-Dattilo, Pamela, 'Navigating the Legal Challenges of COVID-19 Vaccine Policies in Private Employment: School Vaccination Laws Provide a Roadmap' (2021) 3(47) Mitchell Hamline Law Review 1014-1071 Abstract: Extract from Introduction: This Article examines the pre-COVID-19 legal paradigm for mandatory vaccine policies adopted by private employers and identifies the obstacles, ambiguities, and unresolved questions presented by the existing paradigm—all of which will likely be exasperated if mandatory vaccine policies are implemented on a wider scale. In light of these challenges, this Article evaluates the potential for state legislatures to regulate employermandated vaccine policies by modeling legislation off existing school vaccine laws in fifteen states.
Abdellatif, Mahmood, ‘Does Public Health Start Within Jails? A New Incentive for Reform of Wisconsin’s Bail System’ (2022) 105(4) Marquette Law Review 1005–1034 Abstract: Wisconsin’s Milwaukee and Dane Counties are among many jurisdictions in the country employing modern bail reforms, specifically the Public Safety Assessment (PSA). Most of these jurisdictions adopted the PSA before the advent of the COVID-19 pandemic in the United States, but are increasingly relevant as the virus continues to derail public health measures. Through the intersection of detainees, correctional officers, judicial officials, attorneys, and visitors, millions of Americans filter in and out of correctional facilities on an annual basis. These facilities serve as a microcosm of society and breeding ground for mass infection. The COVID-19 pandemic amplified an existing need for reform of correctional facilities to better protect the rights and health of pretrial detainees. This Comment examines the efficacy of the PSA and other currently employed bail reform measures and concludes with how the State of Wisconsin can adopt stronger measures to effectively assess risk while maintaining the liberties of pretrial detainees.
Abdulai, Emmanuel Saffa, 'Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency' (2021) 1: Covid Special Issue(8) IALS Student Law Review 3-18 Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.
Abraham, Leola A., Timothy C Brown and Shaun A Thomas, 'How COVID-19’s Disruption of the U.S. Correctional System Provides an Opportunity for Decarceration' (2020) (45) American Journal of Criminal Justice 780-792 Abstract: The COVID-19 pandemic has amplified decades of vulnerabilities, disparities, and injustices within the U.S. correctional system. The spread of the coronavirus poses a particularly serious threat to those that comprise the system, including personnel, attorneys, prisoners, their families and extends into the communities in which facilities are located. These correctional facilities and communities were especially underprepared for the sudden onset of a highly contagious virus, which has resulted in an exceedingly high number of infections among those who work and are held in the facilities. Rampant overcrowding in the U.S. correctional system, an aging population, and a population exhibiting high rates of underlying health conditions are highly likely to exacerbate the spread of this highly contagious virus. This potentially dire set of interrelated circumstances necessitates rapid decarceration measures that effectively balance public safety and public health. Unfortunately, there has been unclear guidance as well as changing and even contradictory information coming from the federal government concerning rapid measures to mitigate the spread of infection to justice system personnel and federal prisoners. In this paper we summarize the federal response and how it has impacted those responsible for implementation. Furthermore, we discuss how systemic deleterious conditions of the U.S. correctional system serve as both accelerants to as well as effects of the pandemic. We end highlighting critical issues relating to early release due to COVID-19 that will necessitate future research.
Abrams, David, 'COVID and Crime: An Early Empirical Look' (Institute for Law and Economics, Research Paper No 20-49, 14 January 2020) Abstract: We collect data from over 25 large cities in the U.S. and document the short-term impact of the COVID-19 pandemic on crime. There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes. The decline appears to precede most stay-at-home orders, and arrests follow a similar pattern as reports. We find no decline in homicides and shootings, and an increase in non-residential burglary and car theft in most cities, suggesting that criminal activity was displaced to locations with fewer people. Pittsburgh, New York City, San Francisco, Philadelphia, Washington DC and Chicago each saw overall crime drops of over 35%. There was also a drop in police stops and a rise in Black detainee share in Philadelphia, which may reflect the racial composition of essential workers. Evidence on police-initiated reports and geographic variation in crime change suggests that most of the observed changes are not due to reporting changes.
Abu, Akua F, ‘Remote Justice: Confronting the Use of Video Teleconference Testimony in Massachusetts Criminal Trials’ (2020) 34(1) Harvard Journal of Law & Technology 307–346 Abstract: The Note proceeds as follows. Part II provides a brief overview of the development and current usage of procedures for remote testimony, including VTC. Part III examines the current state of the law regarding the confrontation issues raised by the use of VTC technology both at the federal level and within other state court systems. Part IV examines Massachusetts state case law governing the use of video testimony. Part V offers a normative argument against rapidly expanding the use of such testimony, primarily based on policy rationales regarding the limited effectiveness of cross-examination and other elements of confrontation. Part VI applies this argument in evaluating the use of VTC in light of the COVID-19 pandemic. A brief conclusion follows. This Note recommends a functional framework for courts adapting courtroom procedure in response to the pandemic and suggests how courts should think about confrontation rights and evidentiary standards in light of evolving technologies with the potential to change courtroom operations.
Abudaram, Jacob, ‘Exploring How Disabled People Are Treated during Crises and Charting a Path Forward for a Justice-Based, Person-Centered Approach to Crisis Response’ (SSRN Scholarly Paper ID 4072363, 1 July 2020) Abstract: We are living in a moment that is both trying and telling. As of this writing (Spring/Summer 2020), the novel Coronavirus continues to spread quickly across the world and in particular across the United States, where government refusal to act preemptively and years of underfunded investment in public health infrastructure have allowed the country to have both the most cases and the most deaths due to COVID-19 while also lagging behind leading countries in tests per capita. Preliminary data in the United States shows that the virus is having a larger impact on communities of color and low-income communities. Further, as hospitals and medical professionals reach tipping points in terms of capacity and medical supplies, they face difficult decisions around what protocols to set in place for rationing equipment, particularly ventilators. Generally speaking, protocols are geared toward saving the most lives most efficiently, which often leads to the prioritization of nondisabled and younger people over older and disabled people. A majority of the obstacles that disabled people face in their lives are due to social barriers, stigma, and other factors external to any impairments they may have. This in practice puts disabled people in a ‘Double Jeopardy,’ because they are commonly marginalized and oppressed by society, they are deprioritized by that same society for life-saving medical care. This paper examines the history of disability during emergencies, making it clear that the problems that disabled and older people are facing in the midst of COVID-19 stem from preexisting disparities across different parts of life that are now proving to be fatal.
Acree, Christine M and Peter L Cockrell, 'Mortgage Regulation Developments in the COVID- 19 Era' (2021) 2(76) Business Lawyer 627-633 Abstract: The Consumer Financial Protection Bureau (“CFPB”) has been active during the past year issuing rules and other guidance applicable to the mortgage industry. This survey highlights many of these regulatory developments. In particular, this survey addresses three notices of proposed rulemaking (“NPRM”): two proposed rules that would revise the Qualified Mortgage Rule (“QM Rule”) and a proposed rule that would amend various provisions of Regulation Z to facilitate the transition away from the London Interbank Offered Rate (“LIBOR”). The CFPB also issued guidance related to the Home Mortgage Disclosure Act of 1975 (“HMDA”), the Truth in Lending Act–Real Estate Settlement Procedures Act Integrated Disclosure Rule (“TRID Rule”), and the Equal Credit Opportunity Act (“ECOA”) Valuations and Appraisals Rule.
Addicott, Jeffrey, 'COVID-19 Pandemic: Policy and Legal Issues' (2020) March-April() The Officer Review 7-9 Abstract: Most Americans are unfamiliar with governmental powers during a pandemic, which makes it useful to examine applicable legalities, powers and authorities. Importantly, that power can mandate quarantine, isolation, vaccination, decontamination, destruction of infected property, eviction, closing businesses, social distancing, sheltering in place, specimen testing, and mandating health information disclosure and health care responses.
Adeel, Abdul Basit et al, 'COVID-19 Policy Response and the Rise of the Sub-National Governments' (2020) 4(46) Canadian Public Policy 565-584 Abstract: We examine the roles of sub-national and national governments in Canada and the United States vis-à-vis the protective public health response in the onset phase of the global coronavirus disease 2019 (COVID-19) pandemic. This period was characterized in both countries by incomplete information as well as by uncertainty regarding which level of government should be responsible for which policies. The crisis represents an opportunity to study how national and sub-national governments respond to such policy challenges. In this article, we present a unique dataset that catalogues the policy responses of US states and Canadian provinces as well as those of the respective federal governments: the Protective Policy Index (PPI). We then compare the United States and Canada along several dimensions, including the absolute values of sub-national levels of the index relative to the total protections enjoyed by citizens, the relationship between early threat (as measured by the mortality rate near the start of the public health crisis) and the evolution of the PPI, and finally the institutional and legislative origins of the protective health policies. We find that the sub-national contribution to policy is more important for both the United States and Canada than are their national-level policies, and it is unrelated in scope to our early threat measure. We also show that the institutional origin of the policies as evidenced by the COVID-19 response differs greatly between the two countries and has implications for the evolution of federalism in each.
'Affirmative Duties in Immigration Detention' (2021) 7(134) Harvard Law Review 2486-2508 Abstract: The article examines the duty of the U.S. government to protect noncitizens in immigration detention. Topics discussed include the tendency of the case law in the area to tolerate ambiguity and inconsistencies, changes in the legal landscape caused by the lawsuits filed by immigrant detainees over confinement in overcrowded and inadequate conditions during the COVID-19 pandemic, and the use of the power to incarcerate in the duty to protect argument in the pandemic litigation.
Aghamohammadi, Akram and Bizhan Hajiazizi, ‘The Legal Aspects of the COVID-19 Vaccine Produced Based on Genetic Modification (Approach of the Legal Systems of the United States of America, the European Union and Iran)’ (2022) 0 Public Law Studies Quarterly (advance article, published online 18 June 2022 Abstract: The spread of COVID-19 disease has now become the biggest health crisis worldwide. Biotechnology research companies have begun a new era in overcoming the disease by using genetic modification techniques. The findings of the present study, which was performed by descriptive-analytical method, indicate that the COVID-19 vaccine based on genetic modification technology faces two main challenges: First, the relatively strict approach regulation to genetically modified organisms that exists to protect the environment and human health, and compliance with these requirements may make the vaccine production process a lengthy evaluation process. Second, companies active in this field seek legal protection for their intellectual achievements: Critics of intellectual property protection, however, believe that this type of protection of the COVID vaccine could potentially affect accessibility and cost-effectiveness. In the legal system of the European Union and the America, special legal actions are prescribed to exit the above challenges. However, due to the emergency situation caused by the spread of the disease in the Iranian legal system, we still face Legal vacuum.
Ahmad, Nadia, 'Climate Cages: Connecting Migration, the Carceral State, Extinction Rebellion, and the Coronavirus through Cicero and 21 Savage' (2020) (66) Loyola Law Review 293 Abstract: This article addresses the unmapped linkage of mass incarceration and encagement as responses to climate change and the coronavirus. I coin the phrase, climate cages, to highlight how public policy responses to atmospheric dynamics limit mobility, worsen prison conditions, and increase carcerality. In this article, I use the song lyrics of 21 Savage’s “A Lot” and his subsequent arrest as an example to highlight the intersectionality of race, climate change, migration, protest movements, and COVID-19. Further, I reexamine Cicero’s adage of “summum ius summa iniuria” to show problematic configurations of the carceral state and the edifice of the law generally. A warming planet has decreased available land, freshwater, and clean air to live and earn a livelihood. The world’s megacities from New Delhi to Houston are choking from air pollution of their vehicles, power plants, factories, and industrial facilities. Not even rural areas are immune from the impacts of chemicals from agricultural activities. These natural resource stresses have served as threat multipliers for conflict, compounding centuries of economic and racial inequality. Economic and environmental chokepoints are leading to migration, movement, and higher rates of mass incarceration. Currently, the level of income inequality is at its peak, and record high and low temperatures are becoming the norm. The governmental response from the halls of Congress to the desk of the Oval Office has not been to find solutions to the climate crisis, but to restrict mobility and incarcerate black and brown people to maximize available land and space for those who are either more affluent and/or of the more preferred race, religion, and national origin. While historically human hierarchies and caste systems have existed for thousands of years, the impacts of intensified global warming have correlated with the increased prison populations and worsening prison conditions in the age of the Anthropocene.
Ahmad, Nadia B., 'The Cliodynamics of Mass Incarceration, Climate Change, and “Chains on Our Feet”' (2022) 2(49) Fordham Urban Law Journal 371-400 Abstract: This Essay continues the discussion in my earlier article, Climate Cages: Connecting Migration, the Carceral State, Extinction Rebellion, and the Coronavirus Through Cicero and 21 Savage, where I access the unmapped linkage of mass incarceration and encagement as responses to climate change and the coronavirus. This Essay considers how the internal and external factors involving carcerality and climate change will lead to a worsening crisis of migration, criminalization, and dire climate change impacts. I offer observations on these systems so that others can establish the mechanisms to expand the scope of climate and carceral state responsiveness. Climate modeling and carceral rates can only provide snapshots of the looming crises, but examining the past and reassessing current predictions will show how swiftly and furiously policymakers, innovators, and scientists must work to broaden the scope of impact to frontline communities and delicate ecosystems.
Ainsworth Caruso, Kaitlin, ‘Price Gouging, the Pandemic, and What Comes Next’ [2023] Boston College Law Review (forthcoming) Abstract: Whenever there is a disaster, there are complaints of price gouging — that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, and all share a few common characteristics. The laws vary considerably between jurisdictions, however, including on what products, services, and sellers they cover, how long they last, and how strictly they limit price increases. This Article assesses how the states changed their laws during, and in response to, the unprecedented challenges of the COVID-19 pandemic. It surveys 56 state and territorial jurisdictions and finds that more than one-third made changes to their anti-gouging laws between 2020 and 2022, mostly to adopt new laws or strengthen existing regimes. Although the state laws faced the same challenges in responding to the unique circumstances of COVID-19, there was no marked trend toward convergence on a single best approach to regulating price gouging. Instead, the laws are increasingly diverse, which provides both opportunities for policy learning and more pressure for a uniform standard.While the states and territories overwhelmingly favor anti-gouging regulation, economists oppose them nearly as consistently. Critics blast the laws as at best unnecessary (because many businesses voluntarily freeze prices) and at worst as triggering and worsening consumer shortages and derailing important market forces that can speed up disaster recovery. This Article explores both the criticism and support of anti-gouging regulation from both the economic and moral perspectives. It concludes that critics and supporters alike have overlooked a potentially important impact of anti-gouging regulation: the possibility that such rules can help equalize the risk that people will face unjustified price hikes in the event of an emergency between wealthier and poorer communities.
Akiyama, Matthew, 'Flattening the curve for incarcerated populations: COVID-19 in jails and prisons' (2020) (382) New England Journal of Medicine 2075-2077 Abstract: Extract: Because of policies of mass incarceration over the past four decades, the United States has incarcerated more people than any other country on Earth. As of the end of 2016, there were nearly 2.2 million people in U.S. prisons and jails. People entering jails are among the most vulnerable in our society, and during incarceration, that vulnerability is exacerbated by restricted movement, confined spaces, and limited medical care. People caught up in the U.S. justice system have already been affected by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and improved preparation is essential to minimizing the impact of this pandemic on incarcerated persons, correctional staff, and surrounding communities. … As with general epidemic preparedness, the Covid-19 pandemic will teach us valuable lessons for preparedness in correctional settings. It will also invariably highlight the injustice and inequality in the United States that are magnified in the criminal justice system. As U.S. criminal justice reform continues to unfold, emerging communicable diseases and our ability to combat them need to be taken into account. To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctional-system health and public health is a reality not only in the United States but around the world.
Albertson, Skylar, ‘Do Prison Conditions Change How Much Punishment A Sentence Carries Out? Lessons From Federal Sentence Reduction Rulings During the COVID-19 Pandemic’ (2022) 18(1) Northwestern Journal of Law & Social Policy 1 Abstract: A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment—as contrasted with prison conditions—as the sole determinant of how much punishment a sentence carries out. Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may ‘reduce’ already imposed terms of imprisonment upon finding that ‘extraordinary and compelling reasons’ warrant reductions. Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of ‘Other Reasons’ justifying sentence reductions. The BOP used this authority almost exclusively for people who were in the final stages of terminal illness. The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the ‘extraordinary and compelling reasons’ standard. The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so. Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons. Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment. This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws—including second looks—as well as efforts to increase transparency surrounding life inside prisons.
Alkon, Cynthia, ‘Criminal Court System Failures During COVID-19: An Empirical Study’ (2022) 37(4) Ohio State Journal on Dispute Resolution 453–536 Abstract: How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the quick change to online and remote platforms. Criminal Courts also tend to have top-down, non-consensual decision making, and have not traditionally been heavy users of dispute system design approaches to change and reform. This means that there were not processes already in place to consult with all the professionals as changes were being made. This may be one reason for the critical system failures reported in the survey on issues such as confidential attorney-client communications, as well as serious concerns surrounding physical safety inside courthouses and jails. The responses to the survey paint a picture of state courts that are chaotic, unpredictable, and facing serious case backlogs, as they have not been doing normal case processing since mid-March of 2020. As with many other parts of our society, the criminal courts were unprepared to deal with the pandemic and are still struggling with how to adapt. One truism of the pandemic has been that we may all be on the same rough seas, but we are not all in the same boat. This survey highlights that reality.
Allen, Ryan, José D Pacas, and Zoe Martens, 'Immigrant Legal Status among Essential Frontline Workers in the U.S. during the COVID-19 Pandemic Era' (Minnesota Population Center, Working Paper No 2021-03, 21 2021) Abstract: Emerging evidence suggests that the COVID-19 pandemic has extracted a substantial toll on immigrant communities in the U.S., due in part to increased potential risk of exposure for immigrants to COVID-19 in the workplace. In this article we use federal guidance on which industries in the U.S. were designated essential during the COVID-19 pandemic, information about the ability to work remotely, and data from the 2019 American Community Survey to estimate the distribution of essential frontline workers by nativity and immigrant legal status. Our results indicate that a larger proportion of foreign-born workers are essential frontline workers compared to native-born workers and that 70 percent of unauthorized immigrant workers are essential frontline workers, substantially higher than other groups of workers we consider in our analysis. These results suggest that larger proportions of foreign-born workers, and especially unauthorized immigrant workers, face greater risk of potential exposure to COVID-19 in the workplace than native-born workers. Demographic, social, and economic characteristics of unauthorized immigrant essential frontline workers indicate they are more vulnerable to poor health outcomes related to COVID-19 than other groups of essential frontline workers. These findings help to provide a plausible explanation for why COVID-19 mortality rates for immigrants are higher than mortality rates for native-born residents.
Alvarez, José, ‘The Case for Reparations for the Color of COVID’ (2022) 7(1) UC Irvine Journal of International, Transnational, and Comparative Law 7–59 Abstract: This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The ‘color of COVID’ results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups. Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the WHO resist state responsibility or accountability for COVID. This Article argues that since, under international law, states owe a duty to provide remedies to persons within their jurisdiction who are denied fundamental rights because of de facto or de jure discrimination, there will be a substantial number of COVID-related claims presented in national courts and international venues, such as human rights courts and treaty bodies. States will face a choice between allowing judges to respond to actions or anticipating the most serious of them by establishing reparations mechanisms or commissions to address the color of COVID. As students of transitional justice can attest, there are advantages to doing both: allowing tort-like claims to proceed in judicial fora while establishing, at the national and possibly sub-national levels, mechanisms to enable contextually sensitive responses—from government apologies to forms of recompense. Intrastate reparations are more politically viable than interstate claims seeking to establish blame for the spread of COVID. National efforts to provide a measure of restorative justice to those harmed within each country by discriminatory practices are justified morally, legally, and from a utilitarian perspective. Bringing out the facts of the color of COVID and making states accountable may deter discriminatory actions (and inactions) that have furthered COVID-19 and its variants. Enabling accountability for the color of COVID can help mitigate the impact of future pandemics. Reparations would also advance the idea that all persons, irrespective of color of skin, have a basic right to life and health.
Anderson, Courtney, ‘Housing Instability and COVID-19’ (2022) 18(2) University of St. Thomas Law Journal 259–271 Abstract: First, this article will provide background information on the homeless population and reasons for homelessness. The next section will detail how COVID-19 worsens housing instability, and the physical and mental health effects of suffering homelessness. After a critique of housing policies that were implemented in response to the pandemic, the conclusion will set forth suggested reforms to protect this community from health risks and disease.
Anderson, Courtney Lauren, 'A Pandemic Meets a Housing Crisis' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Housing instability in the United States has been exacerbating health disparities and causing worse health outcomes for low-income individuals and people of color well before the COVID-19 pandemic. Individuals with low- or no-income experience intermittent utility connection, are more likely to be evicted, and spend a higher percentage of their income on housing costs. There is an insufficient supply of safe, affordable housing. As a result, people are homeless, live in substandard conditions, and experience economic insecurity. COVID-19 increased the number of families afflicted with housing instability and prompted an unprecedented government response to this issue. Certain legal constraints that perpetuated a system of discrimination were rapidly suspended or amended when middle- and upper-class people found themselves struggling with housing and utility payments, income insecurity, and other stressors of the pandemic. Historically, these burdens were concentrated in the low-income population, with an emphasis on people of color. Therefore, it follows that the grace and concern extended during the pandemic still reflects bias against socioeconomically disadvantaged groups and empathy towards higher-income people. In many instances, laws that are equally applied to all individuals widened the gap between people at different places on the socioeconomic continuum. People facing additional hardships need extended grace periods for rent and utility payments. The short-term solutions instituted during COVID-19 did not address the digital gap, the needs of formerly incarcerated people, or the reality that low-income groups will inevitably experience the same unstable situations they were in prior to the pandemic. Individuals who are more likely to be affected by housing instability belong to socioeconomic groups that are being disproportionately and adversely affected by COVID-19. These compounding demographic factors complicate the legal response to housing problems. Recommendations for mitigating the negative effects of policies and regulations focus on addressing issues omitted from the COVID-19 housing laws, expanding the laws that were put into place, and targeting the underlying causes of housing instability in order to proactively prevent such instability.
Anderson, Evan, 'Assuring Essential Medical Supplies During a Pandemic: Using Federal Law to Measure Need, Stimulate Production, and Coordinate Distribution' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: The global COVID-19 pandemic has temporarily increased demand for basic medical equipment and supplies, and disrupted global supply chains. Governments at all levels and the private sector have found themselves scrambling — and often competing — for the supplies they need. Federal law anticipates that emergencies can generate this kind of sudden demand for medical equipment. Federal agencies not only have ample legal authority to respond to shortages, but also the duty and the authority to prepare for emergencies by planning, supply-chain monitoring, investment and partnership with the private sector, and stockpiling. Perhaps the most important federal law for preventing and ameliorating shortages, and the primary focus of this Chapter, is the federal Defense Production Act (DPA). The DPA provides a menu of powers to stimulate production, strengthen supply chains, coordinate expertise, and resolve market failures. Although the shortfall in personal protective equipment and other basic medical equipment was anticipated by planners and demonstrated in simulation exercises, federal action to address the problem in the face of the pandemic have landed somewhere between failing and making matters worse. This Chapter recommends an independent commission be established to investigate and draw lessons from the federal public health response, but in the meantime points to two core, fixable problems related to law and administration: (1) the failure of Congress and successive administrations to provide sufficient resources to staff and maintain a vigorous infrastructure to prepare for surges in demand, and (2) the failure of the current administration to use its legal authority to lead, manage, rationalize and stimulate production and distribution of needed equipment.
Anderson, Evan, 'Is law working? A brief look at the legal epidemiology of COVID-19' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Legal intervention has featured prominently in the response to the COVID-19 pandemic. In most places in the world, the legal response has consisted of some combination of traditional disease control measures (individualized testing, contact-tracing, distancing), population-based physical distancing (including school and business closures, stay-at-home orders, gathering bans and masking rules), travel strictures (including travel bans, border closures and quarantines), and economic support measures (which are beyond the scope of this Chapter). Researchers have tried to guide that response in real-time by measuring rapidly changing legal interventions and assessing their current and future effects. In a moment when law can have huge beneficial and deleterious effects, this legal epidemiology can fairly be regarded as a crucial element of the overall COVID-19 response. This Chapter tries to identify important take-aways from this evolving evidence base. The epidemiologic record shows that the U.S. is failing to control the virus, but little else is as clear. Understanding how much better or worse things would be with different legal interventions is complicated given that the effects of rules are dependent on settings (e.g., density), timing (e.g., in relation to population transmission rates), and social context (e.g., social norms and political conditions). It is difficult for researchers to untangle the effects of specific legal requirements, let alone to identify some ideal set of least restrictive elements. Nevertheless, previous experience, prevailing theory, and some direct evidence suggest that some early and aggressive distancing interventions have important benefits. Questions of costs, disparities and side effects remain largely unanswered.
Anderson, Evan D and Scott Burris, ‘Imagining a Better Public Health (Law) Response to COVID-19’ (2022) 56 University of Richmond Law Review 955-1005 (preprint) Abstract: The United States did not respond effectively to the COVID-19 pandemic; we were not even close to the league leaders. Several narratives are getting traction in explaining how the public health system lost its way during COVID-19. The ‘bad leaders’ narrative focuses on the incredible failings of, if not outright sabotage by, the Trump administration and its political allies. The ‘bad budgets’ narrative attributes problems in current public health practice to decades of underinvestment. This immiseration of key sectors of the public health ecosystem, along with related structural and cultural problems, underlies the ‘bad institutions’ narrative, which takes plenty of force and evidence from the continuing missteps by the nation’s key key public health entities. The ‘bad Americans’ narrative locates the root of our poor pandemic response in the selfish, ignorant, and tribal impulses of the populace in their embrace of Trumpian populism, vaccine denialism, and conspiracy theories. All these explanations capture part of the failure story and point to things to change and do differently if Americans want better results next time. In this paper, we want to focus on the failures within the public health community. Public health professionals—including the authors of this article —did fail, not each of us or in every case, but as a collective, as a field, as a ‘technology’ for managing a pandemic. We drew faulty inferences, gave poor advice, and launched COVID-19 control rules with shocking indifference to social, psychological, economic, and political factors. Public health cannot be blamed for bad leaders, or budget cuts, fake news, or bad law. All of us in public health could certainly fall back on the defense that we were not heeded or lacked the power to properly deploy our expertise. But such outward-looking explanations do not capture the elements of the story that are useful to public health going forward. Knowing who else we can blame does not help those of us within the field of public health to be better or do better. Irresponsible leaders, angry Americans, and insufficient budgets are not ‘problems’ that get in the way of public health— they are the conditions in which we work, and it just will not do to point to them as the causes of failure. Where we have agency in this broad field is over what we do, and there is plenty to talk about—not just COVID-19, but opioids, obesity, and other big problems we have identified that have not gotten better. This Article is not a thorough-going history of the pandemic response. By way of critique and suggesting a way forward for public health, we are going to imagine how public health—both the official agencies and the interconnected nodes in academia and health systems—might have approached COVID-19 differently. This is a story that focuses on good judgment as the lynchpin of optimal pandemic response and allows us to think about where good judgment seems to have been lacking, and how public health culture and institutions might change to improve the chances of better judgment next time.
Anenson, T Leigh and Hannah R Weiser, ‘Public Pension Contract Minimalism’ (2024) 61(4) American Business Law Journal 303–309 Abstract: The national pension debt and COVID crises have collided. Post‐pandemic economic decline has escalated existing financial strains on state and local pension plans, impacting workers and the public welfare. With unfunded obligations exceeding one trillion dollars, many of these plans are in jeopardy. But the movement to reform government pension contracts has yet to adopt an anchoring idea, leaving judicial decisions in disarray and policymakers without guidance about how to shore up troubled retirement systems. The crux of the problem is the many meanings of contract under state and US Contract Clauses that prevent pension reform. This Essay endorses a promising path forward—contract minimalism. ‘Contract minimalism’ concentrates on the duration of government pension contracts. It posits that public and private employment law should be treated the same. Like its private law counterpart, public sector employment at‐will ought to consist of a daily contract interval. A contract‐a‐day concept entitles employers to change the plan prospectively, with employees receiving a proportionate share of benefits for work performed. Just as several agreements safeguard salaries for labor, they should also mirror the protection afforded to deferred benefits like pensions. Contract minimalism additionally puts public and private sector employers on the same legal footing as to the authority to change pension plan terms. Thus, it aligns public pension benefits with overlapping fields of law, placing them on a firm conceptual foundation. The minimalist approach also has the advantage over approaches that are insufficiently attentive to scarce government resources or employee old‐age security. By protecting pension benefits early and incrementally, it advances a middle path with fairer, more coherent results. In the present post‐pandemic era of hard choices, minimalism provides an equilibrium between the over‐ and under‐protection of pension benefits.
Angelos, Claudia et al, 'Diploma Privilege and the Constitution' (2020) (73) SMU Law Review Forum 168 Abstract: The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin’s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues.This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state’s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic.
Angelos, Claudia et al, 'The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action' (Ohio State Public Law Working Paper No 537, 22 January 2020) Abstract: The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Among other challenges, jurisdictions are unlikely to be able to administer the July 2020 bar exam in the usual manner. It is essential, however, to continue licensing new lawyers. Those lawyers are necessary to meet current needs in the legal system. Equally important, the demand for legal services will skyrocket during and after this pandemic. We cannot close doors to the profession at a time when client demand will reach an all-time high. In this brief policy paper, we outline six licensing options for jurisdictions to consider for the Class of 2020. Circumstances will vary from jurisdiction to jurisdiction, but we hope that these options will help courts and regulators make this complex decision. These are unprecedented times: We must work together to ensure we do not leave the talented members of Class of 2020 on the sidelines when we need every qualified professional on the field to keep our justice system moving.
Antonisse, Larisa, 'Strengthening the right to Medicaid home and community-based services in the post-COVID era' 6(121) Columbia Law Review 1801-1851 Abstract: The COVID-19 pandemic has laid bare the severe public health danger that institutional and congregate care settings pose to people with disabilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these settings could have been far more limited if there had been broader access to home and community-based services (HCBS), which allow people to live with the supports they need in their own homes and communities and avoid many of the health risks of congregate care settings. A major barrier to broadening access to HCBS is existing judicial interpretations of the reasonable modifcations regulation under the Americans with Disabilities Act (ADA). This regulation requires states and other public entities to “make reasonable modifications” to avoid disability-based discrimination (which includes unjustified institutionalization) but does not require measures that would “fundamentally alter” the nature of the entity’s programs. Unfortunately, the Supreme Court’s 1999 Olmstead v. L.C. decision and subsequent lower court decisions interpreting Olmstead have created a standard for this fundamental alteration defense that fails to fully protect individuals’ ADA right to services in an integrated setting and does not account for the public health risks of institutionalization. This Note argues that in light of the new and undeniable evidence from the COVID-19 pandemic of the public health risks of institutionalization, the Department of Justice should use its broad regulatory authority under the ADA to promulgate additional regulations that clarify and strengthen the fundamental alteration framework.
Appleton, Susan Frelich and Laura A Rosenbury, ‘Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy’ (2023) 72 Washington University Journal of Law and Policy 129–166 Abstract: This essay uses lenses of gender, race, marriage, and work to trace understandings of ‘personal responsibility’ in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American ‘welfare state’ through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, the Supreme Court has rejected longstanding constitutional protection for abortion, and campaigns for ‘parental rights’ have gained traction in several states. On the other hand, innovative forms of public support for families have appeared at state and local levels. In developing these conclusions, we highlight familiar challenges to the public/private divide while also exposing new cracks in doctrine that purports to distinguish intentional discrimination from disparate impact and to protect negative but not positive rights.
Aranda, Elizabeth et al, ‘Normalized Expendability: Navigating Immigrant Legal Status During A Global Pandemic’ [2024] American Behavioral Scientist (advance article, published online 6 February 2024) Abstract: Using longitudinal qualitative data, we examine how undocumented immigrants in Florida navigated the first year of the COVID pandemic. Building on the concepts of compounded vulnerability and legal violence, we demonstrate how heightened exposure to COVID shaped immigrants’ well-being by virtue of being overrepresented among frontline workers, underserved by the healthcare industry, and excluded from government pandemic aid. We demonstrate how immigrants’ anxieties overlay onto existing vulnerabilities facing those without legal status; although undocumented immigrants were often at even greater risk for negative outcomes related to the pandemic, access to mitigation efforts was denied to them because of policies and laws that allow for—and normalize—the unequal treatment of noncitizens. Findings demonstrate that undocumented immigrants and their families experienced legal violence through the mechanisms of restricted government aid, for which they were ineligible, in addition to bureaucratic delays in immigration paperwork renewals that resulted in expiring work permits for some with Deferred Action for Childhood Arrivals. These experiences further compounded their economic and social marginalization, rendering immigrants an expendable social group. We identify coping strategies that allowed immigrants to persevere in the face of uncertainty and distress and discuss how policies can diminish some of these vulnerabilities and improve their well-being.
Ariens, Michael S., 'The NCBE's Wrong-Headed Response to the COVID-19 Pandemic' (SSRN Scholarly Paper No ID 3587751, 28 January 2020) Abstract: The NCBE issued a White Paper in early April 2020 attacking proposals to admit 2020 graduates of law schools through a diploma privilege with some additional requirement of supervised practice hours. Its justifications are both self-serving and inconsistent. In an unprecedented time, the NCBE chose to protect its monopoly position in providing bar examination products rather than the 2020 bar applicants upended by the COVID-19 pandemic. Its claim to protect the public from the licensing of "incompetent" bar applicants rings hollow. Because the legal profession is wedded to the status quo in licensing of new lawyers, the NCBE will likely survive the threat to its existence delivered by the pandemic. But its claims should not go unanswered.
Arlota, Carolina, 'The United States Climate Change Policies and Covid-19: Poisoning the Cure' (2021) 2(41) Pace Law Review 94-148 Abstract: Climate change is complex during the best of times. It is commonly conceptualized as the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such measures. This conceptualization illustrates the high transaction costs involved in domestic policies as well as in international agreements addressing climate change, and it is of academic and practical interest. As such, this Article discusses the current challenges that climate change policies face, focusing on the linkages between the climate change policies of the Trump administration and the COVID-19 pandemic and on the effects of those linkages, both in the United States and globally. Specifically, this Article addresses the Trump administration's attacks on climate science and its deregulatory climate agenda, as well as the United States' withdrawal from the Paris Agreement on Climate Change. In addition, it discusses principles of international law and the challenges related to state liability for environmental harms in the context of the COVID-19 crisis. This Article also assesses how the United States' climate policies are likely to aggravate inequalities both domestically, as well as globally, in the aftermath of the pandemic. This Article offers several original contributions. First, it provides a unique assessment of how the deregulatory climate policies implemented nationally and internationally by the Trump administration have magnified the COVID-19 crisis. Second, the law and economics methodology used in this Article validates the claim that improving environmental quality is connected to optimizing early regulatory action. Third, this Article discusses the challenges of state liability for climate harms in the aftermath of the United States' withdrawal from the Paris Agreement and concurrent COVID-19 pandemic. Finally, this Article offers relevant insights for the literature on climate change that are likely to be applicable to critical future situations, whether they are health-related, a global economic crisis, or climate-related emergencies. Ultimately, this Article concludes that, in the aggregate, all such climate change policies have contributed to increased pollution, including elevated greenhouse gas emissions that have aggravated pre-pandemic inequalities embedded within the United States and among countries. Consequently, the domestic and international policy choices of the Trump administration are worsening the impact of the pandemic, particularly for those in more vulnerable positions, as well as indelibly poisoning the global commons.
Arnow-Richman, Rachel, 'Temporary Termination: A Layoff Law Blueprint for the COVID Era' (2021) 1(64) Washington University Journal of Law & Policy 1-29 Abstract: The COVID-19 pandemic led to Congress’ passage of two groundbreaking pieces of legislation, mitigating the financial toll on individuals unable to work due to the pandemic. The protections include: paid sick time, job protected leave for routine childcare, and expanded unemployment benefits. The current worker protection system affords insufficient rights in the event of an economic termination. The accommodations arising from the COVID-19 pandemic have long been demanded and could pave the way for enduring employment reform. This Article encourages the recognition of “temporary termination” for employees terminated for economic reasons. Arnow-Richman advocates for the following “temporary termination” rights: advance notice or its equivalent severance pay; ability of employers to classify such workers as temporarily separated; streamlined employee access to unemployment benefits; entitlement to reinstatement when work becomes available; and a deferred severance pay if the employer is unable to reinstate the employment.
Arnow-Richman, Rachel S., 'Is There An Individual Right to Remote Work? A Private Law Analysis' (University of Florida Levin College of Law Research Paper No 20-46, 20 2020) Abstract: One of the gnawing legal questions of the COVID-19 pandemic is the status of remote work. Since the expiration of the first round of government shut-down orders in the summer of 2020, companies have been calling workers back to the job, prompting serious concerns about the risk of workplace transmission. As a consequence, many workers have asked to continue the remote arrangements their employers adopted when forced to close under executive orders. Some employers are acceding to these requests; others are not. This brief essay, prepared for the ABA Journal on Labor & Employment Law, considers this problem from a private law perspective. It concludes that public law offers little protection to individual employees other than those with qualifying disabilities. Companies, however, may be in breach of contract if they terminate employees who have enforceable job security rights for refusing to return to in- person work. Rather than rely on guesswork, the prudent and compassionate choice for employers is to continue temporary remote arrangements to the extent feasible.
Aschenbrenner, Peter, J, 'United States of America: Response to COVID-19 Pandemic' (2020) October Public Law 803-805 Abstract: Reflects on the extensive emergency powers available to US state governors to combat the coronavirus pandemic, and the range of factors that have hampered their effective implementation, including fragmented local leadership, cultural resistance to official recommendations and the structure of the healthcare system. Discusses the high number of deaths within the jurisdiction.
Ashby, Matthew P. J., 'Changes in Police Calls for Service During the Early Months of the 2020 Coronavirus Pandemic' Policing: A Journal of Policy and Practice (advance article, published 25 June 2020) Abstract: The coronavirus pandemic poses multiple challenges for policing, including the need to continue responding to calls from the public. Several contingency plans warned police to expect a large and potentially overwhelming increase in demand from the public during a pandemic, but (to the author’s knowledge) there is no empirical work on police demand during a major public health emergency. This study used calls-for-service data from 10 large cities in the USA to analyse how calls for service changed during the early months of the 2020 COVID-19 outbreak, compared to forecasts of call volume based on data from previous years. Contrary to previous warnings, overall the number of calls went down during the early weeks of the pandemic. There were substantial reductions in specific call types, such as traffic collisions, and significant increases in others, such as calls to dead bodies. Other types of calls, particularly those relating to crime and order maintenance, continued largely as before. Changes in the frequency of different call types present challenges to law enforcement agencies, particularly since many will themselves be suffering from reduced staffing due to the pandemic. Understanding changes to calls in detail will allow police leaders to put in place evidence-based plans to ensure they can continue to serve the public.
Ashby, Matthew P. J., 'Initial evidence on the relationship between the coronavirus pandemic and crime in the United States' (2020) (9) Crime Science Article 6 Abstract: The COVID-19 pandemic led to substantial changes in the daily activities of millions of Americans, with many businesses and schools closed, public events cancelled and states introducing stay-at-home orders. This article used police-recorded open crime data to understand how the frequency of common types of crime changed in 16 large cities across the United States in the early months of 2020. Seasonal auto-regressive integrated moving average (SARIMA) models of crime in previous years were used to forecast the expected frequency of crime in 2020 in the absence of the pandemic. The forecasts from these models were then compared to the actual frequency of crime during the early months of the pandemic. There were no significant changes in the frequency of serious assaults in public or (contrary to the concerns of policy makers) any change to the frequency of serious assaults in residences. In some cities, there were reductions in residential burglary but little change in non-residential burglary. Thefts of motor vehicles decreased in some cities while there were diverging patterns of thefts from motor vehicles. These results are used to make suggestions for future research into the relationships between the coronavirus pandemic and different crimes.
Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Book Summary: As the nation continues to address the ongoing COVID-19 pandemic, which has resulted in over 170,000 deaths so far and a severe economic recession, 50 top national experts offer a new assessment of the U.S. policy response to the crisis. The research details the widespread failure of the country’s leadership in planning and executing a cohesive, national response, and how the crisis exposed weaknesses in the nation’s health care and public health systems. In Assessing Legal Responses to COVID-19, the authors also offer recommendations on how federal, state and local leaders can better respond to COVID-19 and future pandemics. Their proposals include how to strengthen executive leadership for a stronger emergency response, expand access to public health, health care and telehealth; fortify protections for workers; and implement a fair and humane immigration policy. Note: this open access book includes 35 chapters – most of these are listed in this bibliography under the appropriate topic headings. Each chapter concludes with ‘Recommendations for Action’.
Aucejo, Esteban et al, 'The Impact of Covid-19 on Student Experiences and Expectations: Evidence from a Survey' (NBER Working Paper No w27392, 20 2020) Abstract: In order to understand the impact of the COVID-19 pandemic on higher education, we surveyed approximately 1,500 students at one of the largest public institutions in the United States using an instrument designed to recover the causal impact of the pandemic on students' current and expected outcomes. Results show large negative effects across many dimensions. Due to COVID-19: 13% of students have delayed graduation, 40% lost a job, internship, or a job offer, and 29% expect to earn less at age 35. Moreover, these effects have been highly heterogeneous. One quarter of students increased their study time by more than 4 hours per week due to COVID-19, while another quarter decreased their study time by more than 5 hours per week. This heterogeneity often followed existing socioeconomic divides; lower-income students are 55% more likely to have delayed graduation due to COVID-19 than their higher-income peers. Finally, we show that the economic and health related shocks induced by COVID-19 vary systematically by socioeconomic factors and constitute key mediators in explaining the large (and heterogeneous) effects of the pandemic.
Auslander, Philip, 'Pandemic Proceedings: Legal Performance in the Time of Covid-19' (2021) 3 (129)(43) PAJ: A Journal of Performance and Art 77-86 Abstract: ust two weeks after the federal government’s declaration of a national emergency on March 13, 2020, the Congress of the United States passed the Coronavirus Aid, Relief, and Economic Security Act (known as the CARES Act), a law designed to provide a range of emergency assistance to address the impact of the novel coronavirus. Included in its provisions are a number of measures directed to the judiciary, effective for the period from the beginning of the emergency until thirty days after it is declared to be over, one of which concerns “Video Teleconferencing for Criminal Procedures.” This part of the law (sec. 15002) empowers “the chief judge of a district court . . . [to] authorize the use of video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available,” in a range of legal proceedings if the judge feels the functioning of the court has been materially affected by the pandemic. The legal proceedings mentioned in the CARES Act and the orders that flowed from it are all situations in which someone might appear before a judge: arraignments, initial appearances, preliminary hearings, misdemeanor pleas and sentencings, and the like. It is important to observe, first, that the CARES Act does not permit conducting trials by video teleconferencing, even under life-threatening emergency conditions, and second, that it required legislation for even the routine appearances mentioned in these documents to be carried out through mediatized communication rather than live physical co-presence in a courtroom. This speaks to the way live presence and performance in the courtroom are deeply engrained in the procedural fabric of American jurisprudence .
Austin, Algernon, ‘Protecting Black Workers During the Covid-19 Recession’ (SSRN Scholarly Paper No 4722014, 9 February 2024) Abstract: America’s longest economic expansion on record came to an abrupt and dramatic end with the arrival of a novel coronavirus in the United States. The first confirmed U.S. case of the new coronavirus disease—COVID-19— occurred in late January 2020. By March, major portions of the American economy had been shut down to prevent the spread of the disease.This Thurgood Marshall Institute brief provides an overview of the impact of the recession on African Americans in the labor market and the policies these workers need to address the recession’s negative effects. It includes original analyses of Black essential workers and of Black and White unemployment rates. Black workers are more concentrated in particular industries and occupations due to continuing patterns of inequality in the American labor market. The policy recommendations in the brief are focused on these areas where Black workers are overrepresented.
Ayers, Samantha R, 'Vaccinations and fundamental rights: The need for federal vaccination legislation' (2021) 2(52) University of Toledo Law Review 261-287 Abstract: This note focuses on the interaction between fundamental rights and the consequences of parental refusal to vaccinate their minor children. Whereas parents have the right to raise their children,10 and a right to religious freedom,11 those rights are restricted by a governmental interest in protecting public health, child welfare, and promoting uniformity among the several states in the country. The note aims to explore different rights afforded to citizens by the Constitution and explain situations in which it is necessary, and constitutional, for the government to regulate behaviors and limit rights of the people, to protect the country as a whole. Section I of this note explores fundamental rights that have been granted to individuals by the Supreme Court of the United States through their interpretations of the Constitution and the Equal Protection and Due Process Clauses. Through those fundamental rights, individuals have been protected heavily from governmental intrusion into their lives. The rights granted, however, are not unqualified, and are subject to government regulation in some circumstances. Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so. Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.12 Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests. Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.
Azhar-Graham, Amina; Gallo, Carina, 'Reimagining public defense advocacy in times of Covid-19: lessons from a task force' (2021) 1(33) Current Issues in Criminal Justice 126-130 Abstract: In March 2020, the Contra Costa Public Defenders Association (CCPDA) established a task force to counter the injustices and dangers experienced by clients in custody during the Covid-19 pandemic. The purpose of this commentary is to describe the background and work of the task force, discuss the lessons learned and finally, to identify opportunities for reshaping the criminal justice landscape. In response to the humanitarian crisis in jail, the task force fought for systematic reform, including decarceration. However, while faced with increasingly divergent challenges arising from the pandemic, the task force became overextended, reverting its focus onto membership. The task force’s main lesson is that alliances with other organizations are essential to propel political and legislative change. The Covid-19 task force provided a platform for CCPDA to publicly protest the treatment of incarcerated people, while also providing an opportunity to rethink its role as a political organization. Moving forward, public defenders can, in collaboration with other organizations, play an essential role in criminal justice reform. To prevent future deaths of people in custody during this and future pandemics, we must find alternatives to the current correctional system.
Aziz, Norazlina Abdul et al, ‘Legal Concerns of COVID-19 Vaccine in Malaysia and the United States of America: A Comparative Study’ (2022) 7(SI7 Special Issue) Environment-Behaviour Proceedings Journal (advance article, published online 31 August 2022) Abstract: This study explored and compared the COVID-19 vaccines related issues in Malaysia and the United States of America to identify the adequacy of the current legal framework in ensuring effective administration of vaccines in Malaysia. It aims to consolidate the best practice adopted by these jurisdictions. This study adopts a qualitative method utilising the doctrinal study and semi-structured interview relating to the legal framework governing the role of the Drug Control Authority. The data were then triangulated and analysed using content and thematic analysis. The findings of this study may assist in identifying the loopholes within the administrative control on the vaccination program adopted by Malaysia.
Babie, Paul T and Charles J Russo, 'If Beer and Wrestling Are “Essential,” So Is Easter: COVID-19, Freedom of Religion or Belief, and Public Health in Australia and the United States—Why Rights Matter' (2020) (55) New England Law Review 45 Abstract: This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions is to balance the need to preserve public health while respecting the right to FoRB for all. Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government.
Baccini, Leonardo and Abel Brodeur, 'Explaining Governors' Response to the Covid-19 Pandemic in the United States' (SSRN Scholarly Paper No ID 3579229, 20 January 2020) Abstract: What is the response of US governors to the COVID-19 pandemic? In this research note, we explore the determinants of implementing stay-at-home orders, focusing on governors' characteristics. In our most conservative estimate, being a Democratic governor increases the probability of implementing a stay-at-home order by more than 50 percent. Moreover, we find that the probability of implementing a statewide stay-at-home order is about 40 percent more likely for governors without a term limit than governors with a term limit. We also find that Democratic governors and governors without a term limit are significantly faster to adopt statewide orders than Republican governors and governors with a term limit. There is evidence of politics as usual in these unusual times.
Bagaric, Mirko, Dan Hunter and Jennifer Svilar, 'Prison Abolition: From Naïve Idealism to Technological Pragmatism' (2020) 2(111) Journal of Criminal Law and Criminology (forthcoming) Abstract: The United States is finally recoiling from the mass incarceration crisis that has plagued it for half a century. The world’s largest incarcerator has seen a small drop in prison numbers since 2008. However, the rate of decline is so slow that it would take half a century for incarceration numbers to reduce to historical levels. Further, the drop in prison numbers has occurred against the backdrop of piecemeal reforms, and there is no meaningful, systematic mechanism to reduce incarceration levels. Despite this, there is now, for the first time, a growing public acceptance that prison is a problematic, possibly flawed, sanction. Prison is expensive, inflicts serious unintended suffering on offenders, and profoundly damages families. Alternatives to prison are finally being canvassed. In one respect this is not surprising. The manner in which we deal with serious offenders has not meaningfully changed for over 500 years—during all this time, we have simply locked offenders behind high walls. The way we deal with serious criminals has been more resistant to scientific and technological advances than any other aspect of society. The most radical suggestion regarding prison reform is to abolish prisons. Abolition of prisons has been a theme in some limited academic quarters for many decades. It has never received anything approaching mainstream credibility as a reform option. This is now changing. Prominent politicians, social groups, university organisations, and the mainstream media commentaries have recently advocated prison abolition. This proposal is no longer a fringe idea. It has gained considerable more currency in light of the dual society-changing phenomenon of the COVID-19 pandemic and the Black Lives Matters movement. Yet, the persuasiveness of the proposal to abolish prison evaporates hastily when any degree of intellectual rigor is cast over the proposal. It is likely to go down as naïve idealism due to the absence of any practical alternatives to prison. This Article shores up the notion of prison abolition by carefully outlining an alternative to prison and hence addresses what is thought to be an insurmountable flaw in abolitionist proposal. We advance a viable alternative to prison that involves the use and adaption of existing monitoring and censoring technology, which will enable us to monitor and observe the actions of offenders in real-time and, when necessary, to halt potentially harmful acts of offenders before they harm other people. In proposing this new sanction, we give pragmatic weight to the prison abolition proposal and provide lawmakers and the community a pathway to abolishing most prisons. The reforms suggested in this Article can result in prison numbers being reduced by over ninety percent, without any diminution in public safety.
Bagaric, Mirk and Peter Isham, 'Sentencing Developments in the United States in 2020: The Pandemic, Black Lives Matter and Further Erosion of Mass Incarceration' (2021) 2(45) Criminal Law Journal 114-121 Abstract: The COVID-19 pandemic and to a lesser extent the Black Lives Matter movement have had a considerable impact on sentencing law and practice in the United States in 2020. In this survey of United States sentencing developments, we also explore key reforms in the federal jurisdiction and at State level and reflect on the likely impact of Joe Biden being elected President in November 2020.
Bailey, Jason and Coty Montag, ‘Foreclosures, Evictions, and Utility Cutoffs: Expiring Protections for People Facing Hardship During the Pandemic’ (SSRN Scholarly Paper No 4722002, 1 July 2020) Abstract: This spring, the Thurgood Marshall Institute published a comprehensive report and short brief on the housing challenges faced by homeowners and renters during the COVID-19 pandemic. The report and brief provided details on legislative measures related to foreclosures, evictions, and utility shutoffs that were enacted to protect and assist individuals impacted by the health crisis. As we enter into the fifth month of the pandemic in the United States, many of these measures have expired or are set to expire this summer. However, the economic impacts of the pandemic have not lessened, as millions of people across the nation continue to struggle to pay their mortgage, rent, and utility bills. Indeed, nearly 30% of owners and renters did not make their housing payments in May and June, and 32% of households missed their housing payments in July. Experts have warned of a coming housing apocalypse if additional measures are not taken to assist those affected by the pandemic. Widespread loss of housing will simply worsen the pandemic as families struggle with the loss of means to social distance, isolate, and ensure basic cleanliness through daily access to facilities to bathe, shower, and wash their hands.
Bainbridge, Jessica, 'Sorry, We Don't Cover That: The Restaurant Industry's Continuing Battle With Insurance Companies Amidst the Pandemic' (2022) (83) Ohio State Law Journal Sixth Circuit Review Article 002 Abstract: The Sixth Circuit’s recent decision, Santo’s Italian Café LLC v. Acuity Insurance Company, continues the federal appellate trend of denying business interruption insurance claims related to the coronavirus pandemic. This September, the Sixth Circuit upheld that the government suspension of in person-dining due to the coronavirus pandemic did not cause “direct physical loss of or damage to property” and thus was not covered by Santo’s business interruption insurance. Further, the court reasoned that despite the suspension, the Café still owned the entire restaurant space and could “still put every square foot of the premises to use, even if not for in-person dining use.”
Bainbridge, Jessica, 'The Vaccine Mandate's Luck Runs Out in Judicial Lottery' (2022) (83) Ohio State Law Journal Sixth Circuit Review Article 005 Abstract: The vaccine mandate’s long journey through the judiciary has exposed a system where important legal conclusions are left to the luck of the draw. After the Fifth Circuit issued a nationwide stay, an actual lottery sent the vaccine mandate to the Sixth Circuit where the favorable composition of a three-judge panel resulted in the mandate’s reinstatement. Although the Sixth Circuit’s reinstatement appeared to be a monumental win for those urging for mass vaccinations in order to combat the pandemic, this win was short-lived when the conservative majority of the Supreme Court pronounced the mandate dead on arrival. 3 The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued the mandate in the form of an Emergency Temporary Standard (“ETS”) in November of 2021.4 The ETS, which was estimated to affect over 84 million workers, was issued in order for the agency to fulfill its statutory directive in response to “the ‘extraordinary and exigent circumstances’ presented by [the] unprecedented pandemic.” It directed large employers to have most of their employees either get vaccinated or wear facemasks indoors and test for COVID-19 on a weekly basis. In contrast with the Sixth Circuit’s decision, which adheres to precedent and clearly explains the law, the Supreme Court’s ruling on the mandate relies on twisted logic to establish what they think the law ought to be rather than what the law is, or at least has been.
Baker, James E, 'From Shortages to Stockpiles: How the Defense Production Act Can Be Used to Save Lives, Make America the Global Arsenal of Public Health, and Address the Security Challenges Ahead' (2020) 1(11) Journal of National Security Law & Policy 157-179 Abstract: The Hon. James E. Baker writes that Defense Production Act (DPA) was enacted to provide the federal government with the authority to systematically mobilize the industrial capacity of the nation to address national security emergencies. While it has been primarily used to prioritize DoD contracts and to incentivize the production of goods for which there is otherwise too small a market, it may prove to be useful in combatting the effects of COVID-19. If the DPA were to be used to its fullest extent, it may become an important authority for producing a COVID-19 vaccine at scale; for constructing a long-term, secure, and independent medical supply chain; and stimulating the economy by making the U.S. a global arsenal of public health. In his examination of the DPA, Baker outlines the ways it has been used both during and before the pandemic, considers real and perceived concerns over its potential use, and highlights issues that should be addressed as soon as possible. He further provides three lessons that can be learned from the DPA’s non-use and suggests methods to ensure the adequate preparation for challenges yet to come.
Baker, Thomas, Marc Edelman, Marc and John T Holden, 'College Football in the Time of COVID-19' (SSRN Scholarly Paper No ID 3631528, 19 January 2020) Abstract: This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.
Baker, Todd H, Kathryn Judge and Aaron Klein, ‘Credit, Crises, and Infrastructure: The Differing Fates of Large and Small Businesses’ (2022) 102(4) Boston University Law Review 1353–1396 Abstract: This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding. At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range of government programs implemented and their longer-term impact reveals a very different picture. By primarily providing grants to small businesses, the government helped address their short-term cash flow challenges but did little to encourage ongoing private credit creation for these businesses. The aid provided was real but finite in nature. By contrast, the nature of the programs used to facilitate financing for the largest businesses provided major support at the moment and created expectations of future support. These interventions enhanced the viability and attractiveness of inherently fragile intermediation structures and set them up to continue to provide cheap and easy financing for the largest businesses long after the acute phase of crisis had passed. This Essay further reveals how numerous seemingly neutral choices were anything but in practice, creating a disconnect between policymakers’ stated aims and the actual impact of many of their actions. A key takeaway is that the government should do more during times of peace to understand and shape the credit creation infrastructure in ways that facilitate small business lending in good times and bad.
Balakrishnan, Prithika, ‘Mass Surveillance as Racialized Control’ (2024) 71(3) UCLA Law Review 478–538 Abstract: Incarceration has become the norm for those who assert their innocence. A staggering number of defendants are incarcerated prior to the adjudication of their cases--a reality that has become a central paradox of an American criminal justice system which holds axiomatic the presumption of innocence. Recent attempts to address pretrial mass incarceration through bail reform and the COVID-19 pandemic compassionate release programs have embraced digital surveillance, resulting in unintended and little-understood consequences. This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how they evaluate technological surveillance, affording defendants substantive and procedural due process protections where there currently are none. Part I of this Article charts the ways in which bail reform and the COVID-19 pandemic-related compassionate release programs have resulted in the expansion of pretrial GPS monitoring far beyond the footprint of physical incarceration. Part II, examining an empirical case study as a basis, details the specific and racialized harms imposed by technologically-mediated restraint. Part III offers a substantive and procedural due process framework for how courts should weigh these harms. Finally, I argue for a re-assessment of United States v. Salerno to recognize future dangerousness as a fundamentally racialized concept that, guided by increasingly sophisticated means of constant surveillance, oversteps the boundary between regulatory and punitive purposes.
Baldwin, David R et al, Developments in individual taxation (2021) March() Tax Adviser 1-12 Abstract: The article provides an overview of the recent developments in the area of taxation under November 2020 in the U.S. Topics include regulations were issued clarifying the definition of qualifying child and relative for child tax credit and other tax purposes; Internal Revenue Service provided guidance on pandemic-related payments under an employer leave-based donation program as part of Coronavirus Aid, Relief, and Economic Security Act; and amendments made to Tax Cuts and Jobs Act.
Baldwin, Guy, ‘The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom’ (2021) 26(4) Judicial Review 297–320 Abstract: Restrictions imposed by governments in response to the spread of the novel coronavirus SARS-CoV-2 have presented a human rights challenge around the world. The difficulty of balancing public health against human rights has been particularly acute in relation to freedom of religion, as measures limiting attendance at places of worship or requiring their temporary closure have been challenged in the courts. This article analyses judicial decisions in the US and UK that have considered the lawfulness of restrictions on places of worship. Although the legal approaches to assessing violations of freedom of religion in the US and UK are different, both approaches have led to the similar result of courts taking issue with the imposition of certain public health restrictions on places of worship.
Baldwin, Julie Marie, John M Eassey and Erika J Brooke, 'Court Operations during the COVID-19 Pandemic' (2020) 4(45) American Journal of Criminal Justice 743-758 Abstract: This paper reviews the distinct nature of the COVID-19 pandemic and examines the resultant court responses and recommendations disseminated by various entities that support courts. Specifically, we contextualize the current environment the present pandemic has created by considering how it compares to the most-recent previous pandemics. We then review guidelines disseminated to the courts and the modifications and innovations implemented by the courts in response to the COVID-19 pandemic. Additional challenges related to these recommendations and modifications are identified and discussed.
Bales, Richard A., 'COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis' (2021) 1(37) Ohio State Journal on Dispute Resolution (forthcoming) Abstract: The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.
Ballard, Bonnie M., 'COVID and CAFOs: How a Federal Livestock Welfare Statute May Prevent the Next Pandemic' (2021) 1(100) North Carolina Law Review 281-308 Abstract: As the COVID-19 pandemic continues to threaten lives across most of the globe, experts and the public at large are looking ahead for ways to prevent another deadly disease outbreak from wreaking further havoc on the world. While much of the criticism regarding the risk of disease outbreaks has been reserved for Chinese wet markets, many do not realize that the United States' own intensive farming practices are also a pandemic risk. The majority of American meat is raised on factory farms, which house livestock in tightly packed and unsanitary conditions. These conditions cripple animal immune systems, which increases the risk that the farmed animals will contract diseases that can spread to humans. Despite this risk, living conditions on factory farms in the United States are entirely unregulated by the federal government. This Comment argues that the United States must enact comprehensive livestock welfare legislation to prevent the next pandemic from emerging in our own backyard. This Comment also explains how factory farm conditions exacerbate the likelihood of emerging disease outbreaks and illustrates the failures of the current legal framework in the United States in preventing new outbreaks. Despite the failed attempts and current barriers to passing livestock welfare legislation, this Comment proposes a federal livestock welfare statute based on foreign law and Ohio's innovative Livestock Care Standards Board.
Banks, Nicolo, 'Competition policy during pandemics: how to urgently produce healthcare goods and services while avoiding economic disaster' (2021) 3(9) Journal of Antitrust Enforcement 413-435 Abstract: Pandemics present two emergencies: a war against a pathogen and an economic recession. Historically, the US has been forced to relax its antitrust enforcement policies during its largest wartime mobilizations in order to urgently produce goods and services needed in the war effort. Likewise, when the COVID-19 pandemic began, companies should have been allowed to collaborate with each other and with the US government to adequately respond to the increased demand for healthcare goods and services. Guidance from antitrust agencies during the coronavirus pandemic suggested a willingness to allow such collaborations, but the guidance lacked specificity. This article suggests specific policies that the antitrust agencies should implement during pandemics in order to give companies confidence that they can legally engage in collaborations that will hasten the production and distribution of urgently needed healthcare goods and services. However, relaxing antitrust laws has historically caused and prolonged economic downturns. Thus, during a pandemic, the federal government should relax antitrust laws, but that relaxation could exacerbate the inevitable economic downturn caused by social distancing policies. Accordingly, this article suggests how the US government could use non-antitrust regulations to mitigate the systemic financial risk created by that relaxation in antitrust laws.
Bannon, Alicia and Douglas Keith, 'Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond' (2021) 6(115) Northwestern University Law Review 1875-1920 Abstract: Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has varied substantially depending on the nature of the proceedings, the rules and procedures courts put in place, and the relevant court users’ resources and tech savvy. Critically, the challenges posed by remote court have often been less visible to judges than the efficiency benefits. Drawing on these lessons, this Essay identifies a series of principles that should inform future uses of remote technology. Ultimately, new technology should be embraced when—and only when—it is consistent with fair proceedings and access to justice for all.
Barnert, Elizabeth, Cyrus Ahalt and Brie Williams, 'Prisons: Amplifiers of the COVID-19 Pandemic Hiding in Plain Sight' (2020) 7(110) American Journal of Public Health 964-966 Introduction: On February 29, 2020, nearly half of incident cases (233 of 565) of COVID-19 reported in Wuhan, China, were from the city’s prison system. A separate prison outbreak, 450 miles away, in Shendong, China, was traced to officials who had visited Wuhan and infected seven prison guards and 200 inmates. Modern prisons have faced infectious outbreaks but none at the scale of COVID-19’s. On March 26, 2020, the United States reported its first death of an incarcerated patient, in Georgia, and New York City jails reported an infection rate seven times higher than in the rest of the city, a current US epicenter of COVID-19. For many Americans, it is easy to forget the experiences of our detained community members. But custodial facilities are vulnerable to devastating COVID-19 outbreaks that pose disproportionately high health risks to detained and incarcerated people, elevate transmission risk in surrounding communities, and would likely trigger an occupational health crisis for hundreds of thousands of professionals performing essential work in custodial facilities around the nation. In view of the considerable yet poorly understood and little discussed health risks, public health and custodial leadership must take urgent measures to keep COVID-19 out of custodial settings and develop stringent mitigation strategies for when it does.
Barnes, Matthew, ‘Coronavirus: What Now for the Global Economy and Financial Markets?’ (2020) 5 Wolverhampton Law Journal, 31–46 Abstract: The novel coronavirus has spread exponentially across the globe impacting many aspects of life and it continues to do so at an alarming pace. There are several concerns that stem from this pandemic such as when a vaccine will become available and the impact that it will have on human life. While the paramount concern is, without doubt, to conserve and protect life, there are other implications that should be acknowledged of which this paper is directed toward; the economy and financial markets. This paper will take a two-pronged approach focusing on the effects of the economy and financial markets; and looking to the future. Therefore, the focus of this paper is to illustrate the effects on the economy and financial markets during the beginning and heightened stage of the pandemic, including an up-to-date account, in three large economies, namely the UK, US and Japan. This will be followed by an observation of what the future holds taking into account financial stimulus packages, financial markets and the potential for financial crises. Data, literature and commentary from Governments, global organisations and other key entities will be included.
Barnes, Nancy M. et al, 'The Consolidated Appropriations Act, 2021: Implications for Business: Covid-19 Update' (2021) 3(38) Journal of Taxation of Investments 43-56 Abstract: This article summarizes key aspects of portions of the Consolidated Appropriations Act, 2021, which was signed into law on December 27, 2020, and provided an additional set of relief to businesses and individuals in response to the coronavirus pandemic. The article focuses on relief provisions that are most relevant to businesses. (It has not been updated to include any additional relief, extensions, or expansions that were enacted after December 27, 2020.).
Baron, E. Jason, Ezra G Goldstein and Cullen T Wallace, 'Suffering in Silence: How COVID-19 School Closures Inhibit the Reporting of Child Maltreatment' (SSRN Scholarly Paper No ID 3601399, 14 January 2020) Abstract: To combat the spread of COVID-19, many primary and secondary schools in the United States canceled classes and moved instruction online. This study examines an unexplored consequence of COVID-19 school closures: the broken link between child maltreatment victims and the number one source of reported maltreatment allegations - school personnel. Using current, county-level data from Florida, we estimate a counterfactual distribution of child maltreatment allegations for March and April 2020, the first two months in which Florida schools closed. While one would expect the financial, mental, and physical stress due to COVID-19 to result in additional child maltreatment cases, we find that the actual number of reported allegations was approximately 15,000 lower (27 percent) than expected for these two months. We leverage a detailed dataset of school district staffing and spending to show that the observed decline in allegations was primarily driven by school closures. Finally, we discuss policy implications of our findings and suggest a number of responses that may mitigate this hidden cost of school closures.
Barreto Parra, Paula Natalia et al, 'The Effect of the COVID-19 Pandemic on the Elderly: Population Fatality Rates, Years of Life Lost, and Life Expectancy' (2022) Elder Law Journal (forthcoming) Abstract: The COVID-19 pandemic has disproportionately affected the elderly. This article provides a detailed analysis of those effects, drawing primarily on individual-level mortality data covering almost two million persons age 65+ in three Midwest states (Indiana, Illinois, and Wisconsin). We report sometimes surprising findings on population fatality rates (PFR), mean years of life lost per decedent (YLL), population life expectancy loss (LEL), and the ratio of COVID to non-COVID deaths, and examines how these metrics vary with age, gender, race/ethnicity, socio-economic status, and time period during the pandemic. For all persons in the three Midwest areas, COVID PFR through year-end 2021 was 0.23%, with YLL of 13.2 years and mean LEL of 0.030 years (11 days). In contrast, for the elderly, PFR was 1.13%; mean YLL was 8.9 years, and mean LEL was 0.100 years (37 days). National estimates for the elderly were similar. Controlling for age and gender, PFR was substantially higher for Blacks and Hispanics than for Whites at all ages, but racial/ethnic disparities for the elderly were large only early in the pandemic. Although COVID-19 mortality was much higher for the elderly, the ratio of COVID-19 to non-COVID-19 mortality over the pandemic was similar for both groups, at 16% for the elderly and 15% for the non-elderly. Indeed, in 2021, this ratio was lower for the elderly than the middle-aged, reflecting higher elderly vaccination rates.The Online Appendix for this paper is available at https://ssrn.com/abstract=4030030
Barros, D Benjamin and Cameron M Morrissey, 'A survey of law school deans on the impact of the COVID-19 pandemic' (2021) 2(52) University of Toledo Law Review 241-259 Abstract: We conducted an anonymous survey of deans at ABA-accredited law schools asking questions about the impact of the COVID-19 pandemic on legal education and on law school students, faculty, and staff. Invitations to participate in the survey were distributed through a listserv maintained by the ABA. The first invitation was sent out on November 20, 2020 and the last response was received on December 18, 2020. The survey was comprised of 56 questions, including six optional, extended response prompts. We received 51 total responses, representing a bit more than 25% of the 199 deans of ABA-accredited law schools.1 Not all respondents completed all of the questions, but we received responses for all of the questions on the survey from at least 20% of the 199 deans of ABA-Accredited law schools. Our key findings include the following: 1) Deans overall have moderate concern over the impact of the COVID-19 pandemic on their students’ education, with some reporting high concern and some reporting no concern. 2) Most deans did not feel political pressure to maintain in-person classes during the pandemic. A small number of deans at public institutions, however, did feel substantial political pressure to maintain in-person classes. 3) Most law schools had relatively low rates of COVID-19 infections among students, faculty, and staff. 4) J.D. enrollment at most law schools increased at most law schools during the pandemic. Enrollment by non-J.D. students and international students tended to go down. Overall enrollment at parent universities also tended to go down. 5) The COVID-19 pandemic had a negative impact on: a) the finances of many, but not all, law schools; b) the emotional wellbeing of law school students, faculty, and staff; c) the stress level of law school deans. The first four questions of the survey collected information on the state in which the school was located, the total J.D. student count, the total non-J.D. student count, and whether the school was part of a university. We have not published the responses to these questions to preserve respondent anonymity. Question 5 asked whether the law school was public or private. The respondents were split almost evenly, with 25 responding that their law school was public and 26 responding that their law school was public. Question 6 asked whether the law school was religiously affiliated. 10 respondents indicated that their school was religious and 41 indicated that their school was non-religious, indicating an approximately 20%/80% split in responses between religious and secular institutions.
Bassan, Sharon, 'Data privacy considerations for telehealth consumers amid COVID-19' (2020) 1(7) Journal of Law and the Biosciences Article lsaa075 Abstract: The COVID-19 emergency poses particularly high infection risks in a clinical setting, where patients and health care providers are placed in the same room. Due to these risks, patients are encouraged to avoid clinics and instead use Telemedicine for safer consultations and diagnoses. In March, the Office for Civil Rights (OCR) at the U.S. Department for Health and Human Services (HHS) issued a notice titled Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency (the ‘Notification’). The Notification relaxes the enforcement of privacy and security safeguards established by the Health Insurance Portability and Accountability Act (HIPAA) until further notice, in order to facilitate the transition to telehealth services for the broader purpose of promoting public health during the pandemic. Specifically, covered healthcare providers can use telehealth to provide all services that, in their professional judgment, they believe can be provided through telehealth. If providers make good faith efforts to provide the most timely and accessible care possible, they will not be subject to penalties for breaching the HIPAA Privacy, Security, and Breach Notification Rules. This paper examines the implications of the Notification on patients’ health information privacy. It recommends that patients should undertake a careful reading of provider privacy policies to make sure their protected health information (PHI) is not at risk before switching to telehealth consultation. Acknowledging the limitations of patient self-protection from bad privacy practices when in need for medical treatment during pandemic, the paper proposes that consumers’ data privacy should be protected through one of two alternative regulatory interventions: the FTC’s authority under §5, or HIPAA’s business associates agreements.
Batlan, Felice, ‘Juvenile Protection Courts and the Pandemic: A View from Inside Out’ (2022) 18(2) University of St. Thomas Law Journal 272–294 Abstract: The article proceeds as follows: Part II sets forth the thick literature and data that demonstrates that the juvenile protection system creates racial disparity and embodies structural racism. It documents the current cry for reform emanating from those who are within the system as well as activists. Part III discusses and describes juvenile protection in Illinois, including how an alleged case is reported and investigated and how it winds its way through the court. It argues that current definitions of neglect as well as practices followed by the court allow for a vast potential of both implicit and explicit racial bias that negatively impacts parents involved in such proceedings. Part IV discusses the use of Zoom to deliver services to parents and conduct virtual court proceedings. It questions whether Zoom allowed parents to fully participate in proceedings and how the digital divide may result in the exacerbation of racial inequalities. I make a number of recommendations in Part V regarding how juvenile protection courts can immediately institute a variety of reforms to ameliorate racial disparities and structural racism within the system. My conclusion, however, questions whether piecemeal reforms can ever create a truly equitable system.
Baumgardner, Paul, 'Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom' (2021) 1(10) Laws 12 Abstract: When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.
Bays, Elizabeth, ‘Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights’ (2023) 98(1) New York University Law Review 239–281 Abstract: One of the things courts across the nation struggled with throughout the COVID-19 pandemic was the conflict between preserving defendants’ rights under the Confrontation Clause of the Sixth Amendment and implementing the safest public health measures. Measures like masking or virtual testimony recommended by public health officials threatened to abridge defendants’ rights. This Note has two primary contentions. First, it will argue that the wide variation in the ways courts chose to resolve this tension revealed a fundamental issue in our Confrontation Clause jurisprudence: Courts have never actually defined the underlying right. In fact, this Note will argue, that the ‘confrontation right’ is more appropriately understood as a bundle of distinct rights which must be carefully prioritized. Second, this Note will argue that the standards used to adopt these modifications were insufficiently rigorous. It proposes, therefore, that it is time for the legislature to intervene as they have in other situations involving modified confrontation, and to provide courts with a structured procedure for authorizing modified witness testimony during times of emergency.
Beal, Ron, ‘Texas Disaster Act and the COVID-19 Pandemic: The Validity of School Mask Mandates and How the Texas Supreme Court Engaged in a Legal and Ethical Disaster’ (2023) 54(2) St. Mary’s Law Journal 375–406 Abstract: This Article will initially interpret and analyze the relevant provisions of Chapter 418 of the Texas Disaster Act of 1975 as it relates to the granted powers of the Governor and local governmental entities.
Beard, Virginia, 'COVID-19: Poverty, Housing, Homelessness – A Broad View and a Picture from West Michigan' (SSRN Scholarly Paper No ID 3613030, 28 January 2020) Abstract: Housing…shelter…is a fundamental part of what it means to be human. The current COVID-19 public health crisis is causing economic hardship on families and individuals, hurting disproportionately people already living in tenuous economic situations. Sectors most severely impacted by the economic shutdown employ notable numbers of such families and individuals, who now are without jobs, receiving temporary unemployment assistance, without certainty that their jobs will again be made available. In order to mitigate the additional negative outcomes of these unprecedented twin global health and economic crises, policy makers across levels of government must work together to prevent an extreme loss of housing and the related negative consequences outlined in this paper. Given Michigan has experienced one of the worst sets of recessions over the last 20 years, it is an important case study in understanding the economic impact, particularly on housing, of these crises. This paper presents an overview of the concerns in the ability to pay for housing springing from the economic impact of the public health shutdowns using west Michigan as an illustrative example. It further recommends policy actions to mitigate the most negative impacts on housing access applicable both in Michigan and nationwide.
Bebchuk, Lucian A, Kobi Kastiel and Roberto Tallarita, ‘Stakeholder Capitalism in the Time of COVID’ (3) 40(1) Yale Journal on Regulation 60-126 Abstract: This Article tests the claims of supporters of stakeholder capitalism (‘stakeholderism’) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, and broad expressions of commitment to, stakeholderism from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced from April 2020 to March 2022, totaling 122 acquisitions with an aggregate consideration exceeding $800 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant postdeal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives not to benefit stakeholders beyond what would serve shareholder interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings have significant implications for long-standing debates on the corporate treatment of stakeholders. In particular, our findings are inconsistent with the implicit-promises/team-production view that corporate leaders of an acquired company should and do look after stakeholder interests; on this view, fulfilling implicit promises to protect stakeholder interests serves shareholders’ ex-ante interest in inducing the stakeholder cooperation and investment that are essential to corporate success. Our work also supports the agency critique of stakeholder capitalism which suggests that, due to their incentives, corporate leaders cannot be relied upon to look after stakeholder interests and to live up to pro-stakeholder rhetoric.
Bechtold, Eliza, 'Has the United States’ Response to the COVID-19 Pandemic Exposed the Marketplace of Ideas as a Failed Experiment?' (2020) 3(25) Communications Law 150-160 Abstract: Considers whether the Trump Administration’s handling of the coronavirus pandemic, as well as the public opinions voiced by certain high-profile individuals, corporations and political action committees, has revealed the marketplace of ideas, on which the principle of freedom of speech under the First Amendment to the US Constitution is founded, to be a failed experiment.
Becker, David J, 'Conducting Elections During a Pandemic' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: At the beginning of 2020, many believed that the biggest threat to our elections was foreign interference, consistent with disinformation campaigns launched by our adversaries. But even with this lingering threat, it was expected that voter turnout in the 2020 presidential election would break records – perhaps even reaching the highest level of turnout since the nation saw more than 65% of eligible voters participate in the election of 1908, over a century ago (USEP, 2020). The onset of the pandemic brought much uncertainty, as election officials faced unprecedented challenges, unsettled law, and diminishing resources, while voters were torn between concern about our democracy and fear of contracting COVID-19. Widespread shortages of poll workers and safe polling locations, rushed transitions to mail voting, and insufficient funding could not diminish the democratic spirit, however, and we’ve seen primary turnout break records in some states. Most experts in the field believe that we should plan for the highest turnout in generations this fall, even as we expect that restrictions and fears due to the pandemic will be in full force. What’s also apparent, however, is that law, policy, and perhaps most importantly, administrative and informational practices in our highly decentralized administration of elections are not yet fully equipped to facilitate safe, secure, and convenient voting for 150 million Americans in the midst of a global health crisis. And while solutions like expanding mail voting will be necessary, no one solution will solve this problem, nor will all states find themselves able to offer the same options to all voters. We will need a multifaceted approach including easy mail voting, a massive recruitment of new poll workers to allow for safe and convenient inperson voting, and an unparalleled voter education effort to meet this challenge.
Becker, Ted, 'What Will (Or Might?) Law School Look Like This Fall?: Teaching in the Midst of a Pandemic' (2020) 8(99) Michigan Bar Journal 44-45 Abstract: January 2020 marked the start of a new semester for Michigan law schools. There was little reason to suspect it wouldn’t be a semester like any other: for 3Ls, the start of the stretch run to graduation; for 1Ls, a chance to begin anew after the stress of their first set of law school final exams; for law school faculty, administrators, and staff, a return to the excitement and activity of crowded hallways and classrooms after the brief interlude of winter break. Classes began and proceeded as normal.
Becknell, Conan, 'Constitutional Law-Fourth Amendment Search and Seizure-Online Schools During a Pandemic: Fourth Amendment Implications When the State Requires Your Child to Turn on the Camera and Microphone Inside Your Home' (2021) 1(44) University of Arkansas at Little Rock Law Review 161-192 Abstract: This Note argues that the requirement that public-school students, who are attending school online due to the COVID-19 pandemic, keep their video and in some instances their audio on during virtual class is a search within the meaning of the Fourth Amendment and that legislators, school districts, and courts should address the constitutional implications of such searches. Part II of this Note provides a historical perspective for defining a search, describes exceptions to the warrant requirement, and highlights the foundational basis that online compulsory schooling is a search within the meaning of the Fourth Amendment.22 Part III provides insight regarding the current pandemic while examining compulsory school formats throughout the United States.23 Part IV then explores how States’ requiring children to turn on audio and video within the home is a search within the meaning of the Fourth Amendment and identifies factors pertaining to special needs searches that courts, legislatures, and school districts should consider in addressing online classes.24 Finally, Part V highlights these Fourth Amendment implications while outlining factors courts should use to address the information obtained in these special needs searches.
Begović, Boris; Ilić, Nikola, 'FTC v. Facebook or breaking up dominant digital platforms in the time of COVID-19: Motives, rationale and possible alternatives from a competition law perspective' (2021) (5) EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 85-109 Abstract: The Federal Trade Commission of the United States (FTC) filed a Complaint against Facebook on 9th December 2020, in the midst of the COVID-19 crisis. While facing one of the biggest social and economic crises in American history, FTC has enough time and resources to (re)investigate Facebook’s acquisitions of Instagram and WhatsApp. This paper analyses motives and rationale behind the FTC’s Complaint requesting Facebook’s break-up and what could be possible alternatives from a competition law perspective. All the findings suggest that the FTC’s Complaint is politically motivated, and the competition authorities should enable digital platforms to expand. However, the expansion should be controlled, to ensure that the benefits for consumers are not undermined by relatively slower (not diversified) technological development.
Bell, Gavin A. and W. Stacy Miller II, 'Fraud in the Pandemic: How COVID-19 Affects Qui Tam Whistleblowers and The False Claims Act.' (2021) 3(43) Campbell Law Review 273-307 Abstract: The False Claims Act (FCA)1 and its qui tam provision2 allow whistleblowers who uncover fraud against the government to bring a civil action and assist in the recovery of assets.3 This little-known law has become the government’s most powerful tool to combat fraud and is responsible for the recovery of more than $59 billion since its amendment in 1986.4 As with most things, the COVID-19 pandemic has impacted the FCA and its qui tam practice. As of April 1, 2021, the federal government allocated a total of $3.0 trillion to address the pandemic.5 The public must rely on the FCA and its whistleblowers now more than ever to protect this public investment
Bello, Temitayo and Tolulope Adeosun, ‘Arbital Proceedings Configuration and COVID-19 Pandemic; Evaluation of Success and Shortcomings: Europe, USA and Canada’ (SSRN Scholarly Paper, 15 June 2022) Abstract: Arbitration serves as a dispute resolution mechanism for commercial disputes. The COVID-19 pandemic seriously affected the arbitration proceedings thereby making the proceedings to be done virtually. The work is based on the relative arrangement of the arbitral proceedings and COVID-10 pandemic evaluation of the success and shortcomings using USA, Europe and Canada as case study. This article reflects on the shortcomings and successes of arbitral proceedings during and post-COVID. The article discovers that without remote and virtual proceedings, arbitration would have been wrecked by the COVID-19 pandemic if not for the usage of modern technology. Virtual proceedings were successful globally with usage of various applications of software which navigates the proceedings and brings parties togetherIt concludes that various arbitration institutions in many jurisdictions adopted very fast and efficient methods of resolving arbitration proceedings virtually. The effect of COVID-19 had led to a quicker and more efficient way of resolving arbitration, although with some shortcomings. It therefore recommends that usage of technology via virtual process and proceedings should be more solidified.
Bender, Matt, ‘Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System’ (2021) 66(1) Villanova Law Review 1–61 Abstract: A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others. They cannot be incompatible. Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights. This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings? Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights. The prevailing belief that criminal defendants should reject virtual trials is questioned. Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic. Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored. Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed. Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed. Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes. Instead of disrupting the courtroom—whether a hearing is virtual or traditional—convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys. These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system. Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.
Benfer, Emily A., Solomon J Greene and Margaret Hagan, 'Approaches to Eviction Prevention' (SSRN Scholarly Paper No ID 3662736, 28 January 2020) Abstract: This Article provides a general overview of eviction prevention approaches and strategies that are currently being employed, or could be adapted, to prevent eviction and homelessness during the COVID-19 pandemic. This document provides an overview of strategies that could prevent or mitigate eviction for nonpayment of rent, including 1) eviction and foreclosure moratoria, 2) housing stabilization, 3) landlord relief programs, 4) equitable approaches to the eviction process, and 5) post-eviction mitigation measures. Many of these policies and interventions predate the COVID-19 pandemic, and were employed during the Great Recession of 2008, and could be adapted to the pandemic environment.
Benfer, Emily A et al, 'Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Inequity During and After COVID-19' (SSRN Scholarly Paper No ID 3636975, 01 January 2020) Abstract: Past infectious disease epidemics in the United States and governmental responses to them made it highly predictable that people living in poverty, people of color, and people with disabilities would bear the brunt of the coronavirus pandemic due to discrimination that limits equal access to resources, such as health care, housing, and employment. The COVID-19 pandemic magnified and accelerated the impact of longstanding discrimination and health inequity among historically marginalized groups and low-income populations. Black and Latinx populations have a higher COVID-19 contraction and mortality rate, higher rates of unemployment, less access to health care, and are at higher risk of eviction during the pandemic, among other significant inequities. Without robust and swift government interventions, the impacts of the pandemic will be wide and deep. This article analyzes mechanisms of discrimination and barriers to health in the pandemic setting using the health justice framework to address discrimination and poverty. The health justice framework offers four overarching principles to prevent and eliminate health disparities during and after the COVID-19 pandemic. First, legal and policy responses must address the impacts of discrimination and poverty on the social determinants of health, which in turn threaten to exacerbate the health, financial, and social impacts of a public health emergency on low-income communities, communities of color, and other marginalized communities. Second, interventions mandating healthy behaviors—such as staying at home from work when sick, mask wearing, and minimizing close contacts outside the home—must be accompanied by legal protections, accommodations, and social supports to enable those behaviors while minimizing economic, social, and cultural harms. Third, because emergencies typically exacerbate long-standing and interconnected crises in low-income communities and communities of color, legal and policy responses must address root problems in addition to immediate needs. Fourth, historically marginalized communities must be engaged as leaders in the development of any interventions and the attainment of health justice. To demonstrate the application of the health justice framework and principles, this article focuses upon three pillars that support resilience and equip marginalized communities to withstand the immediate and long-term impacts of the pandemic: health care, housing, and employment. This article explains how health care discrimination is a social determinant of health, how lack of access to health care operated as a barrier to health justice during the COVID-19 pandemic, and applies the health justice framework to address health inequity. Then this article explains how housing and eviction are social determinants of health, how housing discrimination is a barrier to health justice during the COVID-19 pandemic, and suggests way to achieve health justice in housing. Finally, this article discusses how poverty and employment inequity are social determinants of health, how structural discrimination is an accelerator of employment inequity during the COVID-19 pandemic, and suggests how health justice principles can help achieve equity in employment. Ultimately, the framework can be adopted across numerous social determinants of health and structures to ensure the elimination of discrimination, poverty, and poor health among marginalized people during and after the pandemic.
Benfer, Emily A. et al, 'Public Health Amici Curiae Brief in Support of the Centers for Disease Control and Prevention Eviction Moratorium' (SSRN Scholarly Paper No ID 3708504, 09 January 2020) Abstract: Eviction moratoriums help reduce the spread of COVID-19. Millions of Americans entered the COVID-19 pandemic vulnerable to eviction due to a preexisting affordable housing crisis. The economic recession and widespread job loss resulting from the pandemic increased hardship among renters, who often lack savings to cover expenses during an emergency. COVID-19-related job and wage loss left millions unable to afford rent. This has created an unprecedented eviction crisis that disproportionately affects low-income populations and communities of color and increases COVID-19 infection and mortality. The Centers for Disease Control and Prevention (“CDC”) issued an agency order (“CDC Order”) to pre-vent evictions from spreading COVID-19 and worsening public health.Evidence suggests that eviction moratoriums effectively slow the spread of COVID-19. Without these moratoriums, evictions will likely increase to unseen heights, facilitating the transmission of infectious diseases, including COVID-19. Preliminary research and modeling demonstrate that eviction is associated with in-creased COVID-19 infection and mortality rates. The consequences of eviction (such as overcrowding, homelessness, and housing instability) increase contact with others and hinder compliance with the key strategies to contain COVID-19, including social distancing, self-quarantining, and hand hygiene. The people most at risk of eviction are particularly vulnerable to COVID-19. Low-income populations are often exposed to social determinants of poor health and have chronic illness or disability and, as such, are at risk of serious complications or death when they contract COVID-19. People of color are more likely to have lost jobs, face eviction, contract COVID-19, lack access to healthcare, and fall severely ill with the virus. Protecting public health during this pandemic re-quires protecting those most likely to contract, spread, and die from COVID-19. These deleterious health impacts and the spread of COVID-19 are tied to the act of eviction itself and are likely quite preventable if eviction is halted under the CDC’s moratorium. The brief was prepared by Emily A. Benfer, the Yale Law School Jerome N. Frank Legal Services Organization, and the Southern Poverty Law Center in consultation with Yale School of Public Health faculty and with the aid of legal interns at the Wake Forest University School of Law and Yale Law School.
Benfer, Emily A et al, ‘Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic’ (2021) 28(1) Clinical Law Review 45–84 Abstract: The COVID-19 pandemic surfaced and deepened entrenched preexisting health injustice in the United States. Racialized, marginalized, poor, and hyper-exploited populations suffered disproportionately negative outcomes due to the pandemic. The structures that generate and sustain health inequity in the United States-including in access to justice, housing, health care, employment, and education-have produced predictably disparate results. The authors, law school clinicians and professors involved with medical-legal partnerships, discuss the lessons learned by employing a health justice framework in teaching students to address issues of health inequity during the pandemic. The goal of health justice is to eliminate health disparities that are linked to structural causes like subordination, discrimination, and poverty. This Article suggests six maxims for law school clinics to advance health justice, centering on themes of transdisciplinary collaboration, upstream interventions, adaptability, racial justice, systemic advocacy, and community-based strategies. The discussion draws on analyses of the scholarly literature on medical-legal partnerships and examples from the authors’ clinics. These maxims for health justice are particularly relevant during a global public health emergency, but they also transcend the current moment by contributing to the long-running cross-clinic dialogue about teaching and designing clinics for social justice.
Benkler, Yochai et al, 'Mail-In Voter Fraud: Anatomy of a Disinformation Campaign' (Berkman Center Research Publication No No 2020-6, 02 January 2020) Abstract: The claim that election fraud is a major concern with mail-in ballots has become the central threat to election participation during the COVID-19 pandemic and to the legitimacy of the outcome of the election across the political spectrum. President Trump has repeatedly cited his concerns over voter fraud associated with mail-in ballots as a reason that he may not abide by an adverse electoral outcome. Polling conducted in September 2020 suggests that nearly half of Republicans agree with the president that election fraud is a major concern associated with expanded mail-in voting during the pandemic. Few Democrats share that belief. Despite the consensus among independent academic and journalistic investigations that voter fraud is rare and extremely unlikely to determine a national election, tens of millions of Americans believe the opposite. This is a study of the disinformation campaign that led to widespread acceptance of this apparently false belief and to its partisan distribution pattern. Contrary to the focus of most contemporary work on disinformation, our findings suggest that this highly effective disinformation campaign, with potentially profound effects for both participation in and the legitimacy of the 2020 election, was an elite-driven, mass-media led process. Social media played only a secondary and supportive role.Our results are based on analyzing over fifty-five thousand online media stories, five million tweets, and seventy-five thousand posts on public Facebook pages garnering millions of engagements. They are consistent with our findings about the American political media ecosystem from 2015-2018, published in Network Propaganda , in which we found that Fox News and Donald Trump’s own campaign were far more influential in spreading false beliefs than Russian trolls or Facebook clickbait artists. This dynamic appears to be even more pronounced in this election cycle, likely because Donald Trump’s position as president and his leadership of the Republican Party allow him to operate directly through political and media elites, rather than relying on online media as he did when he sought to advance his then-still-insurgent positions in 2015 and the first half of 2016.Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and balance , neutrality, or the avoidance of the appearance of taking a side. He uses the first two in combination to summon coverage at will, and has used them continuously to set the agenda surrounding mail-in voting through a combination of tweets, press conferences, and television interviews on Fox News. He relies on the latter professional practice to keep audiences that are not politically pre-committed and have relatively low political knowledge confused, because it limits the degree to which professional journalists in mass media organizations are willing or able to directly call the voter fraud frame disinformation. The president is, however, not acting alone. Throughout the first six months of the disinformation campaign, the Republican National Committee (RNC) and staff from the Trump campaign appear repeatedly and consistently on message at the same moments, suggesting an institutionalized rather than individual disinformation campaign. The efforts of the president and the Republican Party are supported by the right-wing media ecosystem, primarily Fox News and talk radio functioning in effect as a party press. These reinforce the message, provide the president a platform, and marginalize or attack those Republican leaders or any conservative media personalities who insist that there is no evidence of widespread voter fraud associated with mail-in voting.The primary cure for the elite-driven, mass media communicated information disorder we observe here is unlikely to be more fact checking on Facebook. Instead, it is likely to require more aggressive policing by traditional professional media, the Associated Press, the television networks, and local TV news editors of whether and how they cover Trump’s propaganda efforts, and how they educate their audiences about the disinformation campaign the president and the Republican Party have waged.
Berg, Thomas C., 'Religious Freedom Amid the Tumult' (University of St. Thomas (Minnesota) Legal Studies Research Paper No 20-13, 17 January 2020) Abstract: The Supreme Court Term ending in summer 2020 was action-packed for religious freedom. The Court decided six cases pertaining to the issue—double, even triple the usual number—in contexts from school choice to public-health closures of churches to clashes between religious liberty and nondiscrimination laws. The decisions also came at a time of extraordinary stress and turbulence in society, and they relate in striking ways to those forces of turbulence. This Article discusses religious freedom in relation to three Ps of turbulence: Pandemic, Polarization of culture and politics, and Protests over racial injustice. In each of these areas, the Article aims to explain the Court's approach and defend religious freedom today as a vital aspect of human dignity. Among many lessons from today’s crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task. But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.
Berkowitz, Ariel, '(Un)Masking the Truth - The Cruel and Unusual Punishment of Prisoners Amidst the COVID-19 Pandemic' (2021) 1(37) _Touro Law Review_ Conclusion:There is no simple solution to avoid a health crisis like the Coronavirus pandemic. However, a lack of social distancing unsanitary conditions, and overcrowding can be controlled with a broader standard of what constitutes cruel and unusual punishment in prisons. Although the court system serves as a body of interpreting the Constitution and applying the law to facts, it is inevitable that its decisions serve as goals for people to attain. Specifically, bodies who set even voluntary guidelines, like the NCCHC and prisons themselves, will be more inclined to pay attention to the health needs of inmates' and set standards themselves to avoid the spread of infectious diseases. As the number of complaints of cruel and unusual punishment against prison officials continues to climb admist the Coronavirus pandemic, it is crucial that the courts begin to open their eyes and broaden the impossible to meet standard, so as to protect the right inmages have to health care and safety. No person should fear for his or her life each day as a result of the carelessness of basic human needs.
Berlinger, Nancy et al, 'Ethical Challenges in the Middle Tier of Covid-19 Vaccine Allocation: Guidance for Organizational Decision-Making' (The Hastings Center Supplement to Ethical Framework for Health Care Institutions Responding to Novel Coronavirus SARS-CoV-2 (Covid-19), with Guidelines for Institutional Ethics Services Responding to Covid-19: Managing Uncertainty, Safeguarding Communities, Guiding Practice No , 01 January 2021) Abstract: This supplement to The Hastings Center’s “Ethical Framework” aims to help structure time-sensitive discussion of significant, foreseeable ethical concerns in responding to Covid-19 and to support collaboration across institutions throughout pandemic response and recovery. It is designed for use by county health systems and by hospitals, community health centers, and other health care organizations responsible for patient care or preventive health, including vaccine education, vaccine distribution, and vaccination. This document aims to support formal and informal convening and policy work within the same geographic region, such as a municipality, county, metropolitan area, state, or multistate area, led by public health authorities, health care institutions, or other groups involved in vaccine allocation. The document’s scope is limited to the ethics of vaccine distribution within the United States; it does not address the ethics of international cooperation and sharing vaccines versus focusing solely on ensuring vaccine access in one’s own nation (“vaccine nationalism”).The focus of this document is the middle tier of vaccine allocation and the ethical challenges arising in the U.S. in the first half of 2021. This focus reflects general consensus and ongoing implementation concerning highest-priority vaccination of two populations: frontline health care workers and residents of long-term care facilities (the groups constituting “Phase 1ain recommendations from the Advisory Committee on Immunization Practices [ACIP]).The ethical justification for prioritizing these populations was their high risk of contracting the virus, of passing it to others at high risk of severe disease, and, in the case of long-term care residents, of dying of severe Covid-19. Additional justifications include the relatively small size of these initial cohorts, the relative ease of locating them and providing the vaccine, and the value of public trust created by witnessing health professionals receiving the vaccine. There is also broad consensus that vaccine allocation to the general public—people without major risk factors and who can reasonably protect themselves through masking and physical distancing—should occur only after the vaccination of groups at high risk of infection or at high risk of severe illness or death if infected. This document therefore does not address the final stages of vaccine distribution to lower-risk members of the public.
Berman, Emily, 'The Roles of the State and Federal Governments in a Pandemic' (2020) 1(11) Journal of National Security Law & Policy 61-82 Abstract: As a public health matter, the primary responsibility for pandemic response lies with the states. At the same time, multiple laws, policies, and the numerous pandemic-response plans that the federal government has developed make plain that a successful fight against an outbreak of the scale and severity of COVID-19 requires a national response, with significant responsibilities necessarily falling on the federal government. And indeed, numerous authorities relevant to pandemic response—some specific to public health, others more general emergency tools—rest with federal officials. By many accounts, however, the federal government has not been too heavy-handed— as President Trump’s statements cited above may suggest—but rather the opposite. State leaders have consistently pleaded for more active federal leadership—more policy guidance, more material resources, more national coordination. It thus appears that President Trump has been quick to claim power rhetorically—sometimes powers beyond those that he actually possesses—but often reluctant to exercise it. This paper will explore the ways in which existing law and policy envision distinct pandemic-response roles for the state and federal governments, and distinct powers to fulfill those roles. It will then turn to the United States’ coronavirus response and argue that the federal government failed to bring the full range of its powers to bear—and indeed, that it continues to do so—in ways that have undermined the states’ ability to mount an effective response.
Berman, Micah, ‘Public Health Grand Rounds: Misinformation, Law, and Public Health after COVID-19’ (Centre for Law, Health and Society Events, College of Law, Georgia State University No 141, 28 February 2024) Abstract: Throughout the COVID-19 pandemic, the public was deluged with misinformation about the COVID-19 virus and potential responses to it, particularly on social media. Though rampant misinformation on social media is disturbing, it is perhaps more troubling when, as Professors Claudia Haupt and Wendy Parmet have explored, such misinformation is endorsed and shared by medical professionals, government health officials, and elected representatives. Most discussions of misinformation in any of these forms have focused on how misinformation may have impacted individual decisions, such as the decision to get vaccinated or to wear a mask. This presentation will focus instead on how misinformation during the COVID-19 pandemic shaped laws that remain in effect and now constrain the government’s ability to respond to a wide range of public health issues. This presentation will also consider the ways in which misinformation has historically shaped law, and whether the instrumentalization of misinformation in the context of the COVID-19 pandemic constituted a novel phenomenon.
Bernal, Daniel, 'Pleadings in a Pandemic: The Role, Regulation, and Redesign of Eviction Court Documents' (2021) 4(73) Oklahoma Law Review 573 Abstract: As federal and state eviction moratoriums are lifted, millions of Americans face the imminent threat of eviction. To improve participation in the judicial process, safeguard against unnecessary or unjust evictions, and minimize the impact of those with good cause, courts must ensure that tenants understand their rights and options. Yet, the notice and pleading documents that should serve to encourage participation all too often do the opposite. This is no accident; such documents are frequently designed by the very landlords suing for eviction. To measure the impact of this practice, I investigate the usability and influence of the notice and pleading documents filed by landlords in one Arizona housing court. Through an analysis of three months of eviction data, I find suggestive evidence that tenants who receive landlord-created (as opposed to court-created) pleading documents are 16% less likely to attend their eviction hearing. I conclude by proposing two low-cost solutions: model eviction notice and pleading forms, and legislative and judicial solutions to mandate their use.
Bettinger-Lopez, Caroline, Denisse Cordova-Montes and Maxwell Zoberman, ‘The Duty to Protect Survivors of Gender-Based Violence in the Age of COVID-19 an Expanded Human Rights Framework’ (2022) University of Miami International and Comparative Law Review (forthcoming) Abstract: Many commentators have referred to domestic violence and other forms of gender-based violence (GBV) in the age of COVID-19 as a ‘double pandemic.’ Based on results of a mixed-methods study on the impact of the COVID-19 pandemic on GBV in South Florida, conducted by the Human Rights Clinic of the University of Miami School of Law, in close collaboration with community-based organizations, this article offers a proposal for an expanded normative human rights framework to address domestic violence and other forms of GBV. The local study sought to elucidate the pathways that link pandemics such as COVID-19 and GBV, highlight linkages with other social and economic factors, seek greater clarity on the conditions and systems that actually lead to safety, and inform intervention and response options. Study results show just how underfunded and unprepared service providers have been to respond to victims’ needs and priorities during this pandemic. This article’s human rights analysis and recommendations offer approaches that respond to the most affected communities’ needs and priorities and insist on improved policy and government responses during the current crisis and its aftermath.
Bettinger-Lopez, Caroline et al, 'The Impact of COVID-19 on Survivors of Gender-Based Violence and Service Providers in Miami-Dade County: A Case Study' (SSRN Scholarly Paper No ID 4054048, 10 January 2022) Abstract: Many commentators have referred to domestic and gender-based violence in the age of COVID-19 as a “double pandemic.” This chapter offers a local view on that phenomenon. We elaborate on the results of a mixed-methods study on the impact of the COVID-19 pandemic on gender-based violence (GBV) in South Florida, conducted by the Human Rights Clinic of the University of Miami School of Law, in close collaboration with community-based organizations. The study sought to elucidate the pathways that link pandemics such as COVID-19 and GBV, determine the magnitude of the problem, highlight linkages with other social and economic factors, seek greater clarity on the conditions and systems that actually lead to safety, and inform intervention and response options. More specifically, the study was designed to assess the impact of COVID-19, racism, and exclusionary policies on GBV survivors using an intersectional gender lens that places the focus on the most marginalized and vulnerable communities in South Florida who experience bias and marginalization due to immigration status, sex, gender identity, sexual orientation, race, ethnicity, disability, socio-economic status, and other factors. This chapter summarizes a forthcoming report on the study, which offers key results, a human rights analysis, and recommendations to inform local and national advocacy. Initial results show just how underfunded and unprepared many organizations have been to respond to victims during this pandemic. The study’s analysis and recommendations offer approaches that respond to the most affected communities’ needs and priorities, and insist on improved policy and government responses during the current crisis and its aftermath. This study built off the fact-finding work of our Human Rights Clinic’s COURAGE in Policing Initiative (COURAGE = Community Oriented and United Responses to Address Gender Violence and Equality), which works with community-based organizations, police departments, and GBV experts locally, nationally, and globally on improving law enforcement responses to GBV. The project aims to increase access to safety and justice for all survivors, with a particular focus on black and brown women, immigrant women, disabled women, indigenous women, LGBTQI individuals, and other underserved populations. In collaboration with partners, the project is developing surveys, model policies, trainings, supervision protocols, reports, online resources, and systems of accountability for law enforcement responses to GBV, including research and tools specific to the COVID-19 context. But as the national dialogue transitioned away from law enforcement-centric solutions, and of course, as the pandemic set in in March 2020, the COURAGE project transitioned into its new iteration, which focused on a series of new research questions, namely (1) how the COVID pandemic had impacted the service providers that care for GBV survivors in South Florida, (2) what these service providers were doing to respond to the new challenges, and (3) what the evolving needs of survivors and service providers were. The ultimate goal was to produce a series of recommendations that could then be implemented across Miami-Dade County and surrounding municipalities, to address pressing immediate needs and to better prepare for future public health or other massive crises. Below, we first discuss the “double pandemic” phenomenon of domestic and gender-based violence in times of COVID-19. Next, we explore the intersectional impact of the COVID-19 pandemic in the United States, as it relates to GBV. Then, we offer a synopsis of our study and our conclusions. Finally, we offer a human rights analysis of our study findings as well as law and policy recommendations.
Beylin, Ilya, 'The Ignominious Life of the Paycheck Protection Program' (SSRN Scholarly Paper No ID 3661005, 26 January 2020) Abstract: The COVID-19 pandemic gravely endangers the health of millions of Americans. Private and public safety measures adopted to reduce infection, however, are also a source of existential risk. As U.S. infection rates increased in early March, 2020, unemployment and business dislocation surged. The bipartisan Coronavirus Aid, Relief, and Economic Security Act (CARES Act) represents the first and largest federal attempt to manage economic fallout from the pandemic. The Paycheck Protection Program (PPP) is a lynchpin of the CARES Act. The PPP seeks to mitigate unemployment and closures in several vulnerable sectors of the economy including among tens of millions of small businesses, not-for-profits, and self-employed individuals. The PPP has disbursed over $500 billion to these sectors, providing a lifeline to millions of employees. Nevertheless, media, lawmakers and economists have criticized the PPP for inefficiently or inequitably distributing funds. This Article is the first work of legal scholarship that explains and examines the PPP. As a case study, this Article also provides insight into the design of economic interventions and their limitations as well as how the lawmaking process generates a narrative allocating responsibility for social trauma.
Bhasin, Asees, ‘The Telehealth “Revolution” & How It Fails to Transform Care for Undocumented Immigrants’ (2022) 24(1) North Carolina Journal of Law & Technology 1–48 Abstract: The outbreak of Covid-19 led to the rapid adoption and expansion of telehealth services. Upon understanding its potential for underserved populations, people began referring to this method of health care delivery as ‘revolutionary.’ This reputation stuck, even though it quickly became obvious that telehealth utilization was more common among White, educated, and relatively richer individuals. Meanwhile, advocates of telehealth equity found that the benefits of telehealth did not adequately trickle down to lower-income and rural communities, as well as communities of color. Undocumented immigrants as a group were often ignored during considerations of these disparities. This Article is among the first, even within inter-disciplinary scholarship, to center undocumented immigrants and their (in)ability to access telehealth services. It begins with a discussion of federal and state immigration policies that govern health care access for immigrants and goes on to analyze their health care needs and enhanced vulnerability during the pandemic. It then discusses four themes along which undocumented status makes telehealth services harder to access, namely insurance and affordability, fears of privacy breaches and surveillance, access to technology and digital skills, and limited English language proficiency. This Article concludes by making certain recommendations for changes to state and federal immigration policies that may help undocumented immigrants realize the novel and innovative ways to access health care which were promised by the telehealth revolution.
Bhatta, Snigdha, 'Revisiting Force Majeure in the COVID-19 Pandemic: A Global Perspective' (2020) July(27) NEPCA Bulletin 10-17 Abstract: The present paper attempts to explore the legal trajectory of the force majeure doctrine, and discuss the extent of immunity offered by a force majeure clause in light of the pandemic. It will draw distinctions between the doctrine of force majeure and the doctrine of economic hardship, legal maxims that are often used interchangeably. The paper will also shed light on whether the said immunity can be claimed when there is no force majeure clause in the contract and will do so against the background of Nepalese law, Indian law, US law and UK law.
'Biden Administration Reverses Trump Administration Policies on Immigration and Asylum' (2021) 2(115) American Journal of International Law 340-347 Abstract: After taking office, the Biden administration quickly moved to reverse or revoke a number of the Trump administration's immigration-related policies. On inauguration day, President Joseph Biden announced several significant changes, including termination of the national emergency at the southern border, halting border wall construction, and removal of discriminatory travel restrictions imposed primarily on Muslim-majority countries. In the following weeks, Biden continued to reverse Trump administration policies, including by overhauling the asylum-seeker regime, creating task forces to undo the harms caused by Trump-era border practices, and reimposing some COVID-related travel restrictions, while revoking others. The Biden administration's proposed immigration legislation could introduce even broader reforms going forward.
‘The Biden Administration Takes Actions to Restructure Migration to the U.S.-Mexico Border’ (2023) 117(3) American Journal of International Law 528–534 Abstract: Anticipating the expiration of the COVID-19 public health emergency on May 11, 2023, and with it the end of the special immigration regime instituted by the Center for Disease Control and Prevention’s (CDC) public health orders, the Biden administration has taken measures to restructure migration to the U.S.-Mexico border. Incentives for migrants in the form of new and expanded pathways for entry have been created, and disincentives in the form of exclusions from these and other pathways have been constructed. These actions are designed to reduce the number of migrants and asylum seekers who travel to the border. In conjunction with Canada, Colombia, Guatemala, Mexico, and Spain, among others, the Biden administration is seeking to establish a regional, comprehensive, and collaborative approach to migration, as envisioned in the Los Angeles Declaration on Migration and Protection in June 2022. Two of the key components of the administration’s strategy are parole processes for migrants from four countries and a rebuttable presumption of asylum ineligibility for non-citizens who enter the United States from Mexico without entry documents. Both were immediately challenged in court.
Bier, David, 'Deregulating Legal Immigration: A Blueprint for Agency Action' (Cato Institute Study, 20 2020) Abstract: President Trump restricted legal immigration through a series of unprecedented regulations and presidential orders during his one term. Once President‐elect Joe Biden takes office, he will have the opportunity to reverse these actions and deregulate what is—and was even before Trump—an overly burdensome and expensive legal immigration system. This compendium of 30 concise proposals by 15 authors—including several of America’s leading immigration law experts—can help the Biden administration operate the immigration system as openly and efficiently as the laws allow. These proposals focus entirely on agency measures to improve the process for legal immigrants. Keeping with Biden’s campaign theme of “building back better,” they look past simply repealing Trump’s misguided executive actions to instead create new, better rules for a fully recovered America. For this reason, these reforms do not address temporary actions needed only to address COVID-19 nor do they specifically focus on repealing regulations or orders promulgated during the Trump administration. Congress would still need to pass better laws to eliminate many of the statutory restrictions that these agency actions only help ameliorate, but this compendium should serve as a blueprint for how a new administration can deregulate legal immigration to the fullest extent possible under the laws that exist today.
Billauer, Barbara Pfeffer, 'Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (Il)Literacy' (SSRN Scholarly Paper No ID 3787319, 17 January 2021) Abstract: On October 6, 2020, shortly before the Simchat Torah holiday, New York’s Governor Andrew Cuomo promulgated extensive lockdown requirements which all but eviscerated worship in areas heavily affected by COVID-19. The Executive Order instigated a suit by the Roman Catholic Diocese and the Agudath Israel of America claiming their religious rights had been violated. Turning its back on 225 years of public health law affirming the states police powers to protect the public health – even if this trespassed on constitutional rights, the dicta of the majority hagiographizes and expands constitutional rights to levels not seen before. This essay first contextualizes the decision in light of its timing. I then examine the dicta, contrasting judicial sentiment here to past historical decisions evaluating quarantine in prior epidemics. I then compare similar lockdown orders in Israel which did not invite the same religious push-back, and finally I examine the significant lacuna in scientific understanding demonstrated by the majority as significantly affecting the outcome.
Billauer, Barbara Pfeffer, ‘The Prejudice, Politicization, and “Pariah-Tization” Influencing Pandemic Policy and Law: Stereotype as the Driver of Public Health Response’ (SSRN Scholarly Paper No 4675060, 24 December 2023) Abstract: As the panic incident to COVID-19 subsides, various responses have come under attack. One was the misfocused targeting of the elderly; a second was ignoring the susceptibility of young. As a result. draconian lockdowns were instituted in nursing homes - a feature that exacerbated deaths in both the old, and youngsters were not monitored/masked/ or vaccinated, thereby increasing transmission and upping the incidence of disease in that group. Hard science did not support these conclusions or responses. Similarly, legal and public health responses in American to the cholera and yellow fever epidemics of the 1800s was not driven by science, as I show here. Instead, this Article demonstrates that a particular ‘pariah’ was blamed for each of various epidemics in the 1800s. The pariah or ‘other’ of choice was chosen by political expedience (e.g., the desire to control immigration) and prejudice (e.g., antisemitism and anti-Black). Laws, Legislation, and policy ignored science and proven public health practice which demonstrated that poor sewage drove the epidemics. Nevertheless, American policy makers and public health officials implemented quarantine (mistakenly believing the disease was contagious) or ordered disinfection (called sanitation) believing that disease was transmitted by ‘miasma’ or “bad air. The cohort identified as most susceptible and requiring quarantine or disinfection was predicated on stereotypes feeding ‘misinformed science’: the intemperate, the poor, the Black, the immigrant, and the Jew – all considered dirty or filth breeders.I suggest that a self-protective (and unconscious) desire by policy makers- generally younger and middle-classed – to artificially cocoon themselves from disease by creating an ‘other’ who is believed to be more susceptible seeded erroneous laws and policies of the 1800s. I suggest that same tendency was at play in ‘Pariah-tizing’ the elderly in COVID. I further suggest that awareness of this tendency by exploring past practices is the best prevention from future missteps.
Billauer, Barbara Pfeffer, ‘Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018-2019 Measles Pandemic or the Law as a Public Health Response’ (2022) 71(2) Catholic University Law Review 277–344 Abstract: Following the recent decision in Roman Catholic Diocese v. Cuomo, clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the legal response to vaccination in the two countries, and between two neighboring ultra-Orthodox localities in New York. The research demonstrates the efficacy of differing legal responses, a novel approach to empirically assessing the impact of legal intervention. In so doing, the Article demonstrates the power of the law to help quash epidemics, demonstrating its use as a public health tool. The Article also reaffirms the constitutionality of protecting public health via governmental measures that might trespass on individual rights, such as mandating vaccination. I also discuss legal challenges mounted by the anti-vax community. Finally, and critically, this Article demonstrates the importance of lawyers being knowledgeable with epidemiological terms and principles when mounting defenses to governmental initiatives.
Birdsall, Andrea and Rebecca Sanders, ‘Opportunistic Oppression: U.S. Migration Restrictions and Public Health Policy during the COVID-19 Pandemic’ (2023) 27(5) The International Journal of Human Rights 809–829 Abstract: As the COVID-19 pandemic swept the world in Spring 2020, the Trump administration invoked war against the coronavirus to severely restrict admission of migrants and asylum seekers into the United States. At the same time, it declined to enact national measures to control viral community spread and sharply criticised public health policies. We analyse this notable inconsistency as a case of opportunistic oppression whereby policymakers take advantage of a crisis to pursue pre-existing, and often unrelated, policy preferences. We identify how the securitisation of health and the crisis-enabled politics of enmity allowed the Trump administration to cynically erode migrant human rights protections while simultaneously failing to contain the pandemic. Opportunistic oppression represents an attractive strategy for states facing real and imagined emergencies to pursue political agendas that are not necessarily part of a coherent and effective response to the crisis at hand.
Bisom-Rapp, Susan and Marco Peruzzi, ‘Regulatory Choices and Legal Disputes in the Fight Against COVID-19 Infections in the Workplace: A Comparison of Vaccine Mandates in the Italian and US Contexts’ in Tindara Addabbo et al (eds), Work Beyond the Pandemic: Towards a Human-Centred Recovery (Springer, 2024) 211–229 Abstract: This is a comparative study of two countries’ legal and policy actions to stem the spread of COVID-19 in the workplace, focusing on Italy and the United States (US). Both nations sustained great loss of life and high infection rates during the first years of the pandemic. This chapter examines how Italy and the US approached COVID-19 vaccine mandates for workers. Of particular interest are the regulatory choices made, including the choice not to regulate, and the consequences of those choices on the employment relationship. Additionally revealing are the legal grounds upon which regulatory actions were challenged, and how courts balanced the interests at stake. Finally, the way in which the debates over workplace vaccine mandates were framed illuminate national culture and the extent to which each country views labor rights as human rights. To provide context for these insights, this chapter examines convergence and divergence in the two countries’ initial responses to the global health emergency presented by COVID-19, and the way in which workplace vaccine mandates were initially embraced.
Bixenstine, Barton A, ‘Employment Law Implications of a Remote Workplace’ (2023) 76(3) Dispute Resolution Journal 1–22 Abstract: The article discusses the potential effects of remote work to employment law in the U.S. Also cited are how the COVID-19 pandemic resulted in a dramatic increase in the number of full-time remote workers in the country, the prevalence of remote work and hybrid work arrangements, and the risks posed by remote workers like potential hacking or cyberattacks.
Blackman, Josh, 'The “Essential” Free Exercise Clause' (2021) 3(44) Harvard Journal of Law & Public Policy 637-760 Abstract: The article details the evolving history of the U.S. Supreme Court's caselaw in applying the Free Exercise Clause to the restrictions on religious gatherings during the COVID-19 pandemic. It traces the Court's shift from a regime that was deferential to such restrictions to one that rules in favor of the free exercise of religion. Court cases mentioned include South Bay Pentecostal Church v. Newsom, Calvary Chapel Dayton Valley Church v. Sisolak, and Roman Catholic Diocese of Brooklyn v. Cuomo.
Blackman, Josh, 'What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic' (Liberty and Law Center Research Paper No No 20-04, 20 2020) Abstract: Under conventional constitutional doctrine, courts pose familiar questions. Is a right “fundamental” or “non-fundamental”? Is a classification “suspect” or “non-suspect”? Should a law be reviewed with “strict scrutiny” or with “rational basis scrutiny? But during the COVID-19 pandemic, a novel question prevailed: was a right “essential” or “non-essential.” If a right was deemed “non-essential,” then the state could regulate, restrict, and even prohibit that right. Modern constitutional doctrine was simply set aside during the emergency. Different states drew different lines. Some states deemed the free exercise of religion and the right to keep and bear arms as “essential,” but access to abortions were deemed “non-essential.” Other states did the opposite: religion and guns were “non-essential,” but abortions were “essential.” And in general, the courts declined to intervene so long as the state also restricted “comparable” activities.Can the free exercise of religion be anything but essential? Can the sole method of obtaining a firearm be deemed non-essential? And under controlling Supreme Court precedent, can abortions be deemed mere elective surgeries? This article provides an early look at how the courts have interpreted the First, Second, and Fourteenth Amendments during the time of pandemic.Part I begins with a detailed survey of the emergency lockdown measured issued in March and April of 2020. First, we will study the limits placed on religious worship. Second, we will review how Governors regulated firearm stores—the sole means in many states by which people can obtain a gun. Third, we will recount how four states interpreted their ban on “non-essential” surgeries to prohibit certain types of abortions.Part II revisits an old, but timely precedent from 1905: Jacobson v. Massachusetts. During the COVID-19 pandemic, Governors viewed Jacobson as a constitutional get-out-of-jail-free card. It isn’t. Jacobson concerned a challenge based on the Due Process Clause of the Fourteenth Amendment—what we would today call substantive due process. It is a mistake to simply graft Jacobson onto the modern framework of constitutional law.Part III introduces two competing approaches to understand the free exercise of religion during the pandemic. Chief Justice Roberts articulated the first view in his concurrence in South Bay Pentecostal Church v. Newsom. Here, the Court deferred to the government’s determination of what is “non-essential.” Justice Kavanaugh developed the second model in his dissent in Calvary Chapel Dayton Valley v. Sisolak. With this approach, the Court does not defer to the government’s designation of what is “non-essential.” Under the Calvary Chapel approach, the free exercise of religion is presumptively “essential,” unless the state can rebut that presumption.Part IV extends these two frameworks to the context of the Second Amendment. Under the South Bay framework, prospective firearm owners would have to show that these decisions were irrational. But with the Calvary Chapel approach, the right to sell firearms would presumptively be deemed a “most-favored right.”We are still in the early stages of the COVID-19 pandemic. To date, the courts have largely settled on the South Bay approach. Perhaps this framework may have made sense in the tumultuous beginning. However, as our understanding of the pandemic settles, and we learn to live with COVID-19, the courts will resume a normal approach to constitutional law. And Justice Kavanaugh’s Calvary Chapel approach charts the path forward.
Blau, Rachel L, ‘Protecting Teleworkers: Unilateral Conflicts and Statutory Interpretation’ (2024) 92(2) George Washington Law Review 516–547 Abstract: The COVID-19 pandemic taught us that homes can double as offices. But when a teleworker opens her laptop across state lines from her employer, may she claim the statutory worker protections provided in the employer’s state? Too often, courts misunderstand this recurring problem and refuse to extend an employer’s state protections to an out-of-state teleworker, granting a defendant’s motion to dismiss. Because each statute is analyzed in isolation, a teleworker may be relegated to lawless nowhere land, unable to recover under any state statutory scheme. This Note argues that, in the absence of legislative direction, a court should always find that the scope of an employer’s state statute is broad enough to extend to an out-of-state remote teleworker. Telework is performed using entirely virtual technology and has no physical connection to the place in which it is performed. In contrast, the employer is tethered to earth and therefore should permissibly regulate the employer-teleworker relationship. This Note advocates for a judicial solution by examining existing judicial considerations. It argues that, because of the quasi-territorial nature of remote work, a teleworker should always fall within the legislative jurisdiction of an employer’s state.
Bloom, Anne, ‘The Future of Injury (Tort Law in the Wake of the Pandemic)’ (2022) 71(2) DePaul Law Review 209 Abstract: This Article explores whether the era of Covid, and all that has come with it, ushers in a break with conventional understandings of legal injury. I will argue that it does or, at least, that I hope it does. My starting place is with the failure of conventional understandings of legal injury to adequately recognize and compensate the injuries of most people, especially those who are economically disempowered. Even before the pandemic, injuries to the wealthy and powerful were more readily recognized and compensated than injuries to those on the margins or even the middle class. The pandemic exposed injury inequalities and highlighted the role of the tort system in protecting certain classes of people from liability for the injuries they cause. Ultimately, the implications of the pandemic may prove more lasting.
Blum, John D. and Jordan Paradise, 'Public Health Preparedness & Response: An Exercise in Administrative Law' (2019) 2(20) DePaul Journal of Health Care Law Article 1 Abstract: Responses to epidemics, pandemics, and other biological disasters require multiple coordinated initiatives that combine sophisticated planning, sound emergency management, effective stockpiles, solid geographic information systems, well-developed laboratory surveillance and response, and effective management capabilities. Critical to the noted elements of planning and response is the existence of a legal structure, which underpins the operations of necessary programs. While the law may not be the first public health tool considered in a disaster, it is fundamental to the effective functioning of multiple actors and must be harmonized across jurisdictional lines. This article explores the role of law in pandemics and other biological catastrophes, highlighting broad developments in public health law that have been sparked by recent events. The piece will consider general responses and trends in health disaster management in the context of administrative law with a particular focus on agency responses. Background discussion will also offer a broad overview of the evolution of federal and state laws, highlighting core areas where parallel legal frameworks have developed. The second half of this essay will paint a more detailed portrait of administrative law responses to public health disasters focusing on the Food and Drug Administration (“FDA”), exploring medical countermeasures pursued by this agency to enhance preparedness and response. Key FDA legislation and recent guidance, as well as emergency use authorization (“EUA”) policies, will be analyzed, as a case study of how a pivotal agency has been shaped through law to deal with public health crises.
Blum, Stephanie Cooper, 'Federalism: Fault or Feature: An Analysis of Whether the United States Should Implement a Federal Pandemic Statute' (2020) 1(60) Washburn Law Journal 1-61 Abstract: As COVID-19 plagues the world, countries grapple with a range of measures - such as quarantines, isolation, stay-at-home orders and masks - to limit its spread. In the United States, under the Tenth Amendment to the U.S. Constitution, states have taken the lead in implementing a variety of public health safety measures to address this contagious and deadly virus. In many instances, citizens have claimed a violation of their individual rights and raised numerous legal challenges. But given that the virus knows no borders, a pivotal question is what role the federal government should play in creating a more uniform response that respects individual rights. This Article addresses the legal and policy questions of enacting a federal pandemic statute. It provides guidance to public health experts and lawmakers should they decide that a national and more coordinated response would be helpful as the United States confronts COVID-19 and other pandemics.
Bodie, Matthew and Michael McMahon, 'Employee Testing, Tracing, and Disclosure as a Response to the Coronavirus Pandemic' (2021) 1(64) Washington University Journal of Law & Policy 31-62 Abstract: Testing, tracing, and disclosure is a common workplace safety measure implemented to mitigate the spread of the coronavirus in the United States. The absence of a coordinated national response presented local governments and private businesses with difficult questions regarding operation in the pandemic. This Article analyzes the legal framework for this approach, specifically addressing concerns of invasion into worker privacy. This Article encourages employers to develop their own testing, tracing, and disclosure systems to prevent widespread workplace outbreaks, avoid costly litigation, and preserve their business operations. Steps integral to the system include: providing clear notice to employees about what is required of them and how the employer will use employees’ personal information; limiting sharing of personal information to those who “need to know;” crafting disclosures that protect individual privacy while promptly alerting affected employees of potential virus exposure; and maintaining strong data security systems and practices.
Boggs, Kimberly et al 'Employee Health and Welfare Benefit and Employment Considerations in the Time of COVID-19' (2020) 4(33) Benefits Law Journal 15-68 Abstract: This article sets forth health and welfare and employment pandemic- related guidance, providing a general framework for operating as a compliant employer in these challenging times. We begin by defining the terms furlough and layoff. We then address ACA, COBRA, HIPAA special enrollment, claim procedures, cafeteria plan, and HDHP/HSA compliance in responding to employee benefit issues related to the pandemic. We continue by discussing mandatory coverage of COVID-19 testing, vaccine and preventive care coverage, and special leaves under the FFCRA and the CARES Act, including guidance resulting from the recent U.S. District Court case. We conclude with the pandemic effects on employment practices, including developing a pandemic response plan, providing guidance on disability-related inquires and medical exams, the confidentiality of medical information, hiring and onboarding, employee relations, and returning to work.
Boldrin, Michele and David Levine, 'Reforming Patent Law: The Case of Covid-19' (2021) 3(41) Cato Institute 773-784 Abstract: While vaccination rates are increasing quickly in wealthier countries, rates in Africa, Latin America, India, and elsewhere are not improving much. A short time ago the debate over the proposal to temporarily waive intellectual property rights on Covid‐19 vaccines was raging worldwide; and the suspension of those rights seemed imminent. Public attention reached its peak in May 2021 when the Biden administration endorsed the idea and committed itself to pursuing it under the World Trade Organization–World Intellectual Property Organization (WTO-WIPO) procedural rules for waiving intellectual property (IP) protection. By suspending IP rights, the administration sought to help low‐income countries to start producing vaccines more quickly, reducing the rising and dramatic worldwide vaccine inequality.
Boman, John H. and Owen Gallupe, 'Has COVID-19 Changed Crime? Crime Rates in the United States during the Pandemic' (2020) 4(45) American Journal of Criminal Justice 537-545 Abstract: In response to the COVID-19 pandemic, state-level governments across the United States issued mandatory stay-at-home orders around the end of March 2020. Though intended to stop the spread of the COVID-19 virus, the lockdowns have had sweeping impacts on life in ways which were not originally planned. This study’s purpose is to investigate the extent to which governmental responses to COVID-19 have impacted crime rates in the U.S. Compared to the pre-pandemic year of 2019, crime – as measured by calls for service to law enforcement – has decreased markedly. However, there are multiple indications that the crime drop is being driven by decreases in minor offenses which are typically committed in peer groups. At the same time, serious crimes which are generally not committed with co-offenders (namely homicide and intimate partner violence) have either remained constant or increased. As such, the crime drop appears to be hiding a very disturbing trend where homicides remain unchanged and intimate partner batteries are increasing. Since many offenders would presumably be committing less serious crimes in a non-pandemic world, we raise attention to the possibility that mandatory lockdown orders may have taken minor offenders and placed them into situations where there is rampant opportunity for intimate partner violence, serious batteries, and homicides. While crime in the U.S. appears to be down overall, this good news should not blind us to a troubling co-occurring reality – a reality that paints a dim picture of unintended consequences to public health and criminal justice finances as a result of COVID-19 lockdowns.
Bonds, Victoria, 'Tinkering with the Schoolhouse Gate: The Future of Student Speech After Mahanoy Area School District V. B.l' (2022) 2(42) Loyola of Los Angeles Entertainment Law Review 83-109 Abstract: When the Supreme Court last created a rule about students' First Amendment rights, MySpace was the most popular social media platform. Students' use of social media and technology has radically changed since then, and it is time the First Amendment case law reflects that. With the transition to online learning after the COVID-19 pandemic and overall increased reliance on technology, students need clear answers about when school officials can punish them for their social media posts. The Supreme Court had a chance to clarify First Amendment student speech law this year in Mahanoy Area School District v. B.L., but instead, left it up to the lower courts to decide when school officials can punish students for their off-campus speech. However, the current circuit courts' tests are unclear and heavily favor school officials. This Essay argues that the lower courts should instead adopt a test where school officials cannot punish students for their off-campus speech unless it falls within an exception to the First Amendment.
Bonnin, Sarah R and Luz E Herrara, ‘From Pandemic to Pedagogy: Teaching the Technology of Lawyering in Law Clinics’ (2022) 68(1) Washington University Journal of Law and Policy 109–139 Abstract: The COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical programs to be leaders in answering the growing calls to incorporate technical competency into legal education. The authors draw on the experiences of clinicians during the pandemic to demonstrate how law practice technology can be deliberately and thoughtfully integrated into existing clinical pedagogy and practice. The Article concludes by urging clinicians to build on the current momentum to embrace what they call ‘the technology of lawyering’ as an indispensable component of clinical education.
Booher, Kimberly Dempsey and Martin Robins, 'American Privacy Law at the Dawn of a New Decade (and the CCPA and COVID-19): Overview and Practitioner Critique' (SSRN Scholarly Paper No ID 3658495, 22 January 2020) Abstract: This article has been prepared by experienced practitioners in the privacy area, who are interested in not only the 'how' of privacy law, but also the 'why', namely whether existing authority serves a valid social purpose and whether it does so efficiently relative to the cost that it imposes. The article was prompted by the effectiveness of the California Consumer Privacy Act. It also includes substantial discussion of the major privacy considerations associated with actual and potential responses to the COVID-19 situation, and how such considerations must be weighed against the public health considerations. The discussion encompasses all aspects of US privacy law from breach notice obligations to limitations on tracking internet use of children and the CCPA and similar law and informal guidance. It touches upon the EU's GDPR.Two of the unique attributes of the piece are the presentation of various informal sources of authority such as Federal Trade Commission consent orders and handbooks and the extensive granular author critique from both a theoretical and practical point of view of the various authorities, as well as a separate discussion of the optimal manner for policy-makers to give effect to privacy considerations in connection with mandated COVID-19 responses.
Borden, Bradley T., 'Universal Deadline Extensions Draw Attention to Section 1031 Periods' (2020) (167) Tax Notes Federal 601 Abstract: The IRS published Notice 2020-23 extending section 1031 periods, but that guidance lacks clarity related to several key issues. The IRS has indicated that it will issue additional guidance in the form of FAQs, which should add clarity. Until then, exchangers, qualified intermediaries, and tax advisors must make decisions based upon the existing guidance. We hope the IRS will soon address issues that are central to those decisions. In the meantime, this article does the following:1. Provides three criteria that apply to the analysis and application of Notice 2020-23 and inform future guidance the IRS may publish for exchanges affected by COVID-19: (i) extend generous relief to exchangers, (ii) be simple to apply and explain, and (iii) vivify real estate markets.2. Explains the technical aspects of IRS extension guidance, assisting parties making decisions prior to the IRS additional guidance or will make decisions regarding issues that the IRS guidance may not cover.3. Demonstrates that the 120-day extension in Rev. Proc. 2018-58 should apply to exchanges covered by Notice 2020-23.4. Warns that qualified intermediaries should err on the side of caution by interpreting Notice 2020-23 as applying the 120-day extension to avoid distributing proceeds prior to the expiration of the (g)(6) restrictions.5. Suggests that IRS guidance should apply the Notice 2020-23 extensions to all exchanges entered into on or before any date from January 20, 2020, until July 15, 2020. The detailed analysis in the article will serve as a reference for parties dealing with pending or planned exchanges and for parties who must carefully analyze the application of extension guidance in the future.
Borges, Wanda, ‘The Silver Lining behind Covid-19 Comes with Warnings: (Maintain Your Legality and Ethics While Practicing Law Remotely)’ (2022) 36(2) Commercial Law World 38–42 Abstract: The article presents the discussion on greatest pandemic hitting the US since the Spanish Flu pandemic of 1918. Topics include Executive Orders being signed by many state Governors compelling non-essential businesses for closing the physical offices and stay home in order controlling the spread of the coronavirus; and not practicing law in a jurisdiction in violation of the regulation of the legal profession in the jurisdiction.
Boris, Eileen, 'Vulnerability and Resilience in the Covid-19 Crisis: Race, Gender, and Belonging' in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception' (Springer International Publishing, 2022) Abstract: During the early months of the 2020 pandemic, migrants who travelled to the United States to pick crops, scrub floors, stock warehouses, and tend to elders became ‘heroes’ for performing necessary labour – unless they were surplus bodies crammed into prison-like detention waystations before being deported for the crime of arriving without proper papers. The pandemic intensified states of precarity. Especially among those labelled as ‘essential workers’, the lack of protective equipment and labour rights put them on the frontline of exposure. But domestic and home care workers, meatpackers, fieldhands, and others in the US stepped out of the shadows to demand inclusion in social assistance, occupational health and safety laws, and other state benefits. This chapter historicises the recent hardships and the organising of (im)migrant workers: it shows that the policies of Donald J. Trump were not an aberration, but part of a national pattern of racial differentiation with gendered inflections. Vulnerability, however, is only part of the story. Workers remained resilient in the face of the hidden enemy of Covid-19, as they sought safe and decent living and working conditions.
Bornstein, Victor, ‘How Law Firms Can Thrive in the Post-COVID-19 World’, Business Law Today (online at 26 May 2021) Abstract: As COVID-19 cases have raged across the United States, we have all realized that we must be better prepared for future pandemics. Moreover, businesses must be ready to adapt to future public health restrictions, including the possibility of future lockdowns. As such, businesses cannot stick to a status quo, and should anticipate long-term remote work. Public health experts have a far less optimistic outlook on a return to normalcy than the general public, and businesses should heed the expert position rather than public opinion. Therefore, businesses – especially law firms – must prepare for the possibility of continued pandemic-related public health restrictions until at least the end of 2021.
Bousquet, Kimberly, ‘Farm and Food Worker Inequity Exposed and Compounded by COVID-19’ (2021) 17(1) Journal of Food Law & Policy 50–55 Abstract: Of the 2.4 million farm-working laborers in the United States, upwards of 73% are immigrants. And, according to the Economic Policy Institute, immigrants make up nearly 22% of all workers in the U.S. food industry, including 27% of food production workers, 37% of meat processing industry workers, 34% of commercial bakery workers, and 31% of fruit and vegetable preservation work. Another study found that ‘[p]eople of color make up the majority of essential workers in food and agriculture (50%) and in industrial, commercial, residential facilities and services (53%).’ Many of these workers--if not the majority in some sectors--are undocumented and/or unauthorized. Approximately 25% of U.S. immigrants were born in Mexico. Thus, when we discuss issues involving food and farm workers in the United States, we are largely talking about racial and ethnic minorities, undocumented individuals, and members of the immigrant community (foreign born and their children).
Bowers, Blaze, ‘Navigating the Legal Maze of Mask and Vaccine Mandates in Florida Education Law’ (2022) 2(3) The Florida Bar Education Law Committee Journal 5–10 Abstract: Florida’s education sector faces a new and daunting legal maze in vaccine and mask mandate law. Political forces, schools, institutions of higher education, parents, students—the countless stakeholders in education—are looking to members of Florida’s legal community for guidance. Floridians worry about their health and safety, as well as their rights, liberties, and livelihoods, presenting a diverse and precarious intersection of rights and responsibilities. This is the status of vaccine and mask mandate law across Florida and the nation—an update geared toward equipping practitioners to represent their clients through these unprecedented times informedly.
Box, Kaitlyn and Shoba Sivaprasad Wadhia, 'COVID-19 and Immigration: Reflections From the Penn State Law Center for Immigrants' Rights Clinic' (2020) (2) Frontiers in Human Dynamics Article 592980 Abstract: Since the 2016 Presidential Election, the Center for Immigrants' Rights Clinic (CIRC) at Penn State Law in University Park has been at the forefront of responding to rapidly changing immigration policies that include the “travel ban,” efforts to end a policy called “DACA,” policies to curb asylum at the southern border, and efforts to more easily exclude international students and scholars. Some of the tools CIRC has used to respond to these changes include easy to understand “fact sheets,” in person and virtual “town halls,” and legal support for individuals fighting deportation or seeking refuge. This essay will use CIRC as a case study to demonstrate how one set of student advocates used the same tools developed over 3 years of responding to ever-evolving immigration policies to respond to changes surrounding COVID-19. Specifically, we describe CIRC's responses to changes at international borders, stalemates in immigration detention, expansions to asylum restrictions, and the status of DACA at the Supreme Court. This article explains how the same responses that have long been used to address the current administration's immigration changes can also be used to respond to immigration policy changes resulting from the COVID-19 pandemic. This essay discusses how CIRC responded to each significant immigration policy change arising out of COVID-19, as well as explains how CIRC moved from an in-person to remote platform in spring 2020 alongside many law clinics across the country, shares reflections from those students, and offers lessons that can be drawn for legal education moving forward.
Boyer, Dr. Cynthia, 'Abortion Restrictions During a Pandemic at the Intersection of the 13th Amendment and Electoral Legislation' (2021) 2(19) The University of New Hampshire Law Review 423-449 Abstract: The current pandemic is intensifying restrictions on a wide range of fundamental rights which form a key pillar of the rule of law, it includes access to reproductive rights. Some states have moved forward with their ideological quest of control and infringement of constitutional rights in order to ban or limit abortion what is a fundamental attack on constitutional rights and in particular those associated with the Thirteenth Amendment. These restrictions on abortion resulting from the proclamation of a state of emergency follow the path already taken by certain states to reinforce their coercive measures. They raise major legal and political questions with regard to reproductive rights and individual freedom. As the state continues to impose and exercise strong and unequal constraints on women's bodies through anti-abortion laws and pandemic restrictions through an instrumentalization of the health crisis, it establishes a system of involuntary servitude and subordination for procreation which breaches the 13th Amendment.
Bozza, James, ‘Stimulating Fraud: Comparing the Effectiveness of Fraud Recovery Mechanisms Between the United States and the United Kingdom Through the Lens of Public COVID-19 Expenditures’ (2024) 52(2) Georgia Journal of International & Comparative Law 462-478 Abstract: Fraud committed against the U.S. government is one of the largest costs that taxpayers must bear. The False Claims Act has been the most effective monetary fraud recovery mechanism in history. The question remains, however, of if it will continue to be as useful given modern trends of increased spending. An analysis of the U.S. fraud recovery model compared to the United Kingdom through the lens of Covid-19 expenditures demonstrates both the strengths and weaknesses of the U.S. model and provides reasoning for legislative alteration.
Bradbury, James and Greg Ibach, 'Texas A&M Law Review Fall 2020 Symposium: Containing Covid Catastrophes: Addressing The Effects Of Covid-19 On The Agricultural Industry Texas A&M University School Of Law' (2021) 4(8) Texas A&M Law Review 661-675 Abstract: Transcript from Fall 2020 Symposium, "Containing Covid Catastrophes: Addressing The Effects Of Covid-19 On The Agricultural Industry Texas A&M University School Of Law"
Bradley, Liz and Hillary B Farber, ‘Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference’ (2022) 36(2) Georgetown Immigration Law Journal 515–570 Abstract: The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video ‘to the maximum extent practicable.’ In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences. This Article takes a deep dive into the law and social science regarding demeanor-based credibility assessments and examines the potential impact of VTC on the adjudication of asylum, withholding of removal, and Convention Against Torture (CAT) claims. With empirical and doctrinal grounding, it recommends a prohibition on adverse credibility findings based on demeanor for hearings conducted via video. The assumptions that underpin the extraordinary deference afforded to immigration judges’ demeanor assessments are incongruous with the realities of virtual hearings. Demeanor is an unreliable metric for credibility, even for in-person hearings. Video distorts how we interact and further strains the tenuous relationship between demeanor and truthfulness. The current legal framework is ill-suited to safeguard against erroneous demeanor findings. A prohibition on demeanor-based adverse credibility findings for hearings conducted via VTC would embrace the benefits of our technological advancements while instilling greater confidence in the fair adjudication of humanitarian protection claims.
Bradlow, Daniel D. and Stephn Kim Park, 'A Global Leviathan Emerges: The Federal Reserve, COVID-19, and International Law' (2020) 4(114) American Journal of International Law 657-665 Abstract: The COVID-19 pandemic highlights the importance of the Federal Reserve as a leading actor in global economic governance. As a creature of U.S. domestic law with an international presence and operational independence, the Fed wields authority without a well-defined international legal status, international legal standards to guide its conduct, or accountability to those around the world affected by its decisions. This Essay explores three conceptual approaches that could be used to develop norms, standards, and principles to address this gap.
Brady, Kathleen, 'COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy' (2021) Fides et Libertas (forthcoming) Abstract: Religious litigants challenging COVID-19 restrictions on in-person worship services typically argue that these restrictions discriminate against religion in violation of the Free Exercise Clause. Demands for equal treatment have intuitive appeal, and they also fit with the Supreme Court’s current religion clause jurisprudence. However, there are a number of drawbacks to approaches that focus on equal treatment. It can be difficult to identify the appropriate secular benchmarks for determining whether discrimination has taken place, and religious congregations are usually not actually asking for equal treatment. What they really want is to maximize their ability to gather together safely in person.In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Supreme Court granted applications for emergency injunctive relief in two cases challenging 10- and 25-person limits on houses of worship in COVID-19 hotspots in New York. The Court found that New York’s rules favored secular activities over religious practice and failed to satisfy the strict scrutiny required of discriminatory action under the Free Exercise Clause. However, many of the examples of discrimination given by those in the majority seemed strained, and the justices appeared less interested in the threshold showing of discriminatory treatment than in applying heightened scrutiny to significant restrictions on religious worship. The Court’s shift in focus from discrimination to close scrutiny of worship restrictions is the right one, but those in the majority neither acknowledged this shift nor signaled a new framework or approach that would explain or guide it. In this short essay, I argue that the appropriate framework for analyzing restrictions on religious worship is the doctrine of church autonomy that has been emerging in the Court’s recent religion clause jurisprudence. Viewing conflicts over COVID-19 restrictions through this lens can better clarify what is at stake when clashes occur as well as better inform the scope and limits of institutional freedom in this context.This essay is based on a presentation for the International Conference on COVID-19 Pandemic & Religious Freedom: Reports from North America and Europe sponsored by Andrews University, Brigham Young University Law School Center for Law and Religion Studies, and University of Portsmouth (December 2-3, 2020) and a shorter presentation for the blog webinar Law, Religion, and Coronavirus in the United States: A Six-Month Assessment organized by Brigham Young University Law School, Emory University Law School, Notre Dame Law School, St. John’s University School of Law, and the Villanova University Charles Widger School of Law (October 2, 2020).
Bratspies, Rebecca M., 'This Great Catastrophe: Bungling Pandemics from 1918 to Today' (2021) (30) Michigan State University College of Law International Law Review (forthcoming) Abstract: In examining how badly the United States bungled its COVID-19 pandemic response, it is worth going back to the commemorations of the 100th anniversary of the 1918 flu pandemic. Author after author cautioned that the next pandemic would overwhelm the United States health system and that the demand for hospital beds, treatments, and medical staff would quickly outstrip supply. These prescient predictions from just two years ago. Why, when the risks were so obvious and so clearly understood, were they ignored? In answering that question there is blame enough to go around. The American public increasingly refused vaccines for communicable diseases, resisted spending for health research, and elected anti-science candidates. Those elected officials in turn failed to take obvious steps to ward off an entirely foreseeable disaster. Some of these developments are new(ish), relating to the specifics of the current political climate. Yet what is most striking is how readily official responses fell into virtually the same patterns that stymied effective pandemic response in 1918, and how structural racism predicted which communities would be hardest hit and least served by government responses. Instead of learning from the mistakes of the 1918 pandemic we have largely repeated them. This paper traces some of the threads of complacency, hubris, isolationism, and distrust that got in the way both times, and draws some broader lessons we must learn about American political culture before the pandemic next time.
Brazile, Kevin C. and Sherri R Carter, Accessing Justice in a Pandemic (2020) 4(43) Los Angeles Lawyer 30-34 Abstract: Extract (page 32): Reinventing the largest court in the nation during a pandemic crisis required an extraordinary effort. Full-time working groups in every litigation area, and across the court’s administrative areas, worked tirelessly to create solutions, guided by a common set of principles: 1) preserve essential functions, 2) find ways to support those functions in a manner that supports social distancing of at least six feet, 3) appropriately delay non essential functions that cannot be safely supported, 4) craft solutions that are supported by key stakeholders and authorized by law, and 5) implement changes rapidly albeit in a way that can be sustained throughout the crisis. Court leadership had to figure out what it means to stay committed to access to justice while also being committed to flattening the curve.
Bresler, Jessica and Leo Beletsky, 'COVID-19, incarceration, and the criminal legal system' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Even before the pandemic, contact with the criminal legal system resulted in health harms on both individual and community levels, with disproportionate impact on people of color. The COVID-19 crisis magnified the deleterious public health impact of policing, prisons, community supervision, and other elements of the United States’ vast system of control and punishment. Despite the scientific consensus that prisons and jails needed to be rapidly depopulated to avert disaster, the number of people released has remained small, resulting in explosive outbreaks of COVID-19 behind bars. Depopulation of correctional settings is also rarely paired with meaningful efforts to connect reentering individuals to vital supports. Community supervision systems failed to relax onerous probation/parole requirements, while police have taken on enforcement of physical distancing and other public health orders. Even as COVID-19 is raging, the criminal legal system is resisting changes necessary to facilitate pandemic response. With a focus on incarceration, this Chapter provides an overview of how the U.S. criminal legal system has shaped its COVID-19 response, situating prescriptions in the current debate about divestment from structures of social control in favor of a renewed focus on the social contract. This Chapter will discuss (1) how criminal legal system has exacerbated the current public health emergency and (2) how the United States can use this moment to reform this system and its legal underpinning.
Briffault, Richard, ‘States of Emergency: Covid-19 and Separation of Powers in the States’ [2023] Wisconsin Law Review (forthcoming) Abstract: No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states they pushed back, particularly—albeit not only—where the governor and the legislative majority were of different political parties. Some of these conflicts wound up in state supreme courts. This Article examines the states’ response to the COVID-19 pandemic through the prism of the separation of powers. After considering the actions governors took and the sources of their authority, it focuses on the principal state court decisions concerning the separation of powers questions arising out of the pandemic. Although governors lost a handful of high-profile decisions, overall they did quite well. Courts often read their powers broadly and rejected challenges to their authority. State judicial analysis in these COVID powers conflicts involved both close attention to the specific language of state constitutions and statutes, and reliance on doctrines used by federal courts. The Article then reviews some of the state legislative responses—new laws and proposed constitutional amendments—to gubernatorial power. It concludes by considering what the pandemic experience tells us about state separation of powers, the mix of distinctive state arguments and federal analogies in state court analysis, and the role of partisanship in these disputes.
Brobst, Jennifer A., 'The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform' (2021) (15) University of St Thomas Journal of Law & Public Policy (forthcoming) Abstract: The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system. The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration. Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted. Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health. In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.
Brown, Italo M. et al, 'COVID-19 Disparities and the Black Community: A Health Equity–Informed Rapid Response Is Needed' (2020) 9(110) American Journal of Public Health 1350-1351
Brown, Latoya, 'Bad Law or Just Bad Timing?: Post-pandemic Implications of Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc.’s Ban on the Use of Virtual Technology for Taking Non-party Evidence Under Section 7 of the Federal Arbitration Act' (2021) 4(75) University of Miami Law Review 1037-1086 Abstract: The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations outside the physical presence of the arbitrator and, thus, an arbitral summons for a witness to appear via video conference is not enforceable. Intellectually, Managed Care raises interesting issues concerning the textualist approach to statutory construction. For practical purposes, the opinion stands at odds with the realities of arbitration in the modern world, where remote technology has played a key role in the efficient administration of arbitration proceedings. Further, in light of the pandemic and its related health risks, the Eleventh Circuit’s opinion raises concerns about the conduct of arbitration proceedings, particularly when disclosure of information by non-parties is needed for a full and fair hearing. After examining the text of Section 7 and federal circuit courts’ opinions interpreting the provision, this Article proposes an alternate, perhaps timelier, textual interpretation of Section 7—one that remains true to the text, comports with the practicalities of modern arbitration, and anticipates challenges that will continue or arise in a post-pandemic world.
Brown, Norrinda, ‘Black Liberty in Emergency’ (2023) 118(3) Northwestern University Law Review 691–756 Abstract: COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods. The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted in a public health exception to this general rule. Over the past twenty years, scholars have asserted that deference in this context, including denying due process and suspending judicial review, can lead courts to sustain gross violations of civil rights in emergencies. These scholars’ arguments gained traction amongst libertarians and the courts during the COVID-19 pandemic. But scholars and courts alike have failed to sufficiently center race as they update the law of quarantine, despite a four-hundred-year history of racialized quarantines. This Article seeks to render race visible in our understanding of the nature and scope of quarantines during public health emergencies. The Article makes the claim that COVID-19 pandemic orders and their enforcement schemes are genealogically related to a larger American project of racializing neighborhood borders and constricting Black movement. And it proposes the abolition of carceral responses to public health crises in Black communities, including quarantines, and the reconstruction of liberty to bring Black communities within the sphere of the state’s protection in future emergencies.
Brown, Teneille R, 'When the wrong people are immune' (2020) 1(7) Journal of Law and the Biosciences Article lsaa018 Abstract: After a disaster such as the COVID-19 pandemic, there will be an irresistible desire to blame others. Despite documented failures in the federal government’s response to the pandemic, injured individuals will not be able to hold it accountable due to the broad application of governmental immunity. Congress and state governments have provided targeted immunity to various device manufacturers and emergency volunteers. However, the one group with huge targets on their backs are individual physicians, who are often making impossible choices that are reasonable at the time, but might not appear reasonable to a jury after the fact, and with the bias of hindsight. Recognizing that the potential for liability might cause undue psychological stress on health care providers, this essay argues for statutory immunity that protects them from rationing and other health care decisions that are made in good faith, and that are in compliance with documented state, institutional, or professional pandemic-response guidelines.
Brown, Teneille R., Leslie P Francis and Jim Tabery, 'Should We Discriminate Among Discriminations?' (SSRN Scholarly Paper No ID 3997371, 30 January 2021) Abstract: The COVID-19 pandemic has demonstrated the complexities of rationing needed health care in a pandemic. It has also revealed deep, structural inequities in health care systems and societies, with certain disadvantaged groups experiencing alarmingly disproportionate rates of infection. A number of anti-discrimination statutes exist to ameliorate some of these historical inequities in the United States. Under federal law, health care facilities receiving federal funding may not discriminate on the basis of race, color, or national origin; disability; age; or sex. Three of these forms of discrimination were already prohibited by statutes that have been in effect for nearly fifty years: Title VI of the Civil Rights Act of 1964 (race, color, and national origin), the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975 (age). In 2010, Section 1557 of the Affordable Care Act (ACA) referenced these three statutes and a fourth, Title IX of the Education Amendments of 1972 (sex), in a prohibition of all of these forms of discrimination by health care facilities receiving federal funding.Substantially different bodies of case law have been developed for each statute, spanning the fifty years these statutes have been in effect. The ACA’s juxtaposition of the four presents a puzzle with profound legal, policy, social, and ethical implications: Does Section 1557 bring these four anti-discrimination statutes together in order to harmonize them, offering a common approach to anti-discrimination in health care for all categories? Or should there continue to be differences among how discrimination is understood for these different protected categories? Using the examples of crisis care standards and vaccine allocation, this Article explores this puzzle in interpreting Section 1557. To do so, this Article details important differences among the statutes, including their approach to disparate impact discrimination and whether they have been interpreted to permit suits by private individuals for damages. This Article also explores the legislative histories of the Age Discrimination Act and the ACA itself. This Article concludes that Section 1557 reveals but does not resolve important questions about whether there are legally relevant reasons to discriminate among discriminations.
Brown Hayat, Norrinda, ‘Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing’ (2022) 110(3) California Law Review 639–680 Abstract: The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the ‘culture of exclusion’ that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons living in subsidized housing can be evicted for merely associating with the recently decarcerated. This Article seeks to motivate a pathway toward housing the decarcerated by ending the culture of exclusion. In Part I, the Article updates the status of the prison abolition and right to housing movements and argues why they are interdependent. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing pilot programs. Part III suggests that ‘one strike’ policies have created a broader ‘culture of exclusion,’ which the Supreme Court validated in Rucker, further burdening the reentry process for the recently decarcerated. Finally, Part IV prescribes policy changes that are essential to housing the decarcerated beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing public housing authority discretion, and equalizing voucher holders through civil rights laws.
Brudney, James J, 'Forsaken Heroes: COVID-19 and Frontline Essential Workers' (2020) 1: COVID-19 and Systemic Injustice: People and Governance(48) Fordham Urban Law Journal 1-55 Abstract: Extract from Introduction: FE workers are the subject of this Article. The health and safety risks that they endure in service to the economy and country have made them heroes, supportively portrayed in the media and celebrated in cities at a designated early evening hour. What these heroes have not received is adequate workplace health and safety rights or protections.
Buchbinder, Mara et al, ‘Moral Stress and Moral Distress: Confronting Challenges in Healthcare Systems under Pressure’ (2024) 24(12) American Journal of Bioethics 8–22 Abstract: Stresses on healthcare systems and moral distress among clinicians are urgent, intertwined bioethical problems in contemporary healthcare. Yet conceptualizations of moral distress in bioethical inquiry often overlook a range of routine threats to professional integrity in healthcare work. Using examples from our research on frontline physicians working during the COVID-19 pandemic, this article clarifies conceptual distinctions between moral distress, moral injury, and moral stress and illustrates how these concepts operate together in healthcare work. Drawing from the philosophy of healthcare, we explain how moral stress results from the normal operations of overstressed systems; unlike moral distress and moral injury, it may not involve a sense of powerlessness concerning patient care. The analysis of moral stress directs attention beyond the individual, to stress-generating systemic factors. We conclude by reflecting on how and why this conceptual clarity matters for improving clinicians’ professional wellbeing, and offer preliminary pathways for intervention.
Buck, Isaac D., 'When Hospitals Sue Patients' (2022) 2(73) Hastings Law Journal 191-232 Abstract: Grimly demonstrated by the COVID-19 pandemic, hospitals serve as the central hub of American health care. Increasingly exercising market power, setting clinical standards, and fostering innovation, hospitals' influence over health care delivery and access is unmatched. They are the behemoth in the delivery chain, exerting unrivaled control. As such, hospitals have naturally become the locus of the worst of the collision between consumerism and universality, between cost and access--a gloomy setting for citizens who simply cannot afford the health care they need to flourish, or to survive. Indeed, the price of American health care--a cost that is increasingly borne by American patients--is unsustainable. Those costs continue to rise thanks to a pernicious mix of increasingly brittle and ineffective insurance plans, a squeeze on public funding, and a lack of price sensitivity among the providers of American health care. Patients are suffering. And hospitals are not getting paid. In a predictable but catastrophic turn, hospitals are suing their former patients for unpaid medical bills. Litigation has replaced systematic financing. The operating room has been swapped for the courtroom. And adversarial proceedings now follow the Hippocratic Oath. Tracking the phenomenon of these lawsuits, this Article lays out the harms that result to the American health care system. When hospitals sue patients, they harm public health and destroy patient trust. And they shatter widely held beliefs, highlighting the inadequacy of policy goals and the inequity of health finance rules. Further, once and for all, they expose the failure of the consumer-based paradigm of American health care, spotlighting the inapplicability of moral hazard and demonstrating the means by which individuals with private insurance and high deductibles--a rapidly growing population in the United States--are inadequately protected against the very actors that undertake to protect their health and wellbeing. This Article makes the moral, legal, and policy-based argument that hospital lawsuits against former patients must be brought to an end. American patients simply cannot afford it.
Burger, Ethan, 'Professional Responsibility, Legal Malpractice, Cybersecurity, and Cyber-Insurance in the COVID-19 Era' (2021) 2(11) St. Mary's Journal on Legal Malpractice & Ethics 234-310 Abstract: In response to the COVID-19 outbreak, law firms conformed their activities to the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and state health authority guidelines by immediately reducing the size of gatherings, encouraging social distancing, and mandating the use of protective gear. These changes necessitated the expansion of law firm remote operations, made possible by the increased adoption of technological tools to coordinate workflow and administrative tasks, communicate with clients, and engage with judicial and governmental bodies. Law firms’ increased use of these technological tools for carrying out legal and administrative activities has implications for their staffing needs, office space requirements, and management/supervisory procedures. Actions taken in each of these areas give rise to certain risks, which are by-products of the COVID-19 virus, albeit, not caused by it. Due to the pandemic, law firms have had to address certain secondary (i.e., not health-related) risks arising from (i) non-compliance with professional conduct norms, (ii) legal malpractice, (iii) increased cybersecurity vulnerability, and (iv) need for cyber-insurance. In the twelve months after March 2020, there was an overall drop in lawyer productivity. It is not clear how long clients will accept this situation to continue. What has been the impact of COVID-19 on law firms? It seems there has been a growing gap between the “haves” and the “have-nots,” with the former getting a bulk of the “high-end” work. In the near term, remote operations combined with personnel reductions seem to have had a negative impact on most law firms’ efficiency and, ultimately, revenue. It should not be a surprise that certain law firms have found that adopting “austerity measures” can ensure profitability. Remote operations make law firms more vulnerable to cyber-attacks. Most law firms tend to disregard these risks unless their clients or regulators insist on their adoption of new cybersecurity measures. While a dramatic increase in successful cyber-attacks on law firms and other private-sector organizations might change this situation, profitability will remain the top objective of law firm partners. As a result, it is unlikely that law firms will increase their investment in cybersecurity in the form of expensive equipment, software, services from outside contractors, and cyber-insurance policies with high face-values and expensive premiums. Perhaps law firms can find the needed funds by leasing less expensive office premises. A failure to find adequate funds for cybersecurity improvements not only makes law firms more vulnerable to cyber-attacks but also makes it difficult for them to comply with professional responsibility norms, thus resulting in greater legal malpractice and other risks.
Burri, Mira, ‘Fake News in Times of Pandemic and Beyond: Enquiry into the Rationales for Regulating Information Platforms’ in Klaus Mathis and Avishalom Tor (eds), Law and Economics of the Coronavirus Crisis (Springer, 2022) 31–58 Abstract: The COVID-19 pandemic threw our societies in dire times with deep effects on all societal sectors and on our lives. The pandemic was accompanied by another phenomenon also associated with grave consequences—that of the ‘infodemic’. Fake news about the cause, prevention, impact and potential cures for the coronavirus spread on social platforms and other media outlets, and continue to do so. The chapter takes this infodemic as a starting point to exploring the broader phenomenon of online misinformation. The legal analysis in this context focuses on the rationales for regulating Internet platforms as critical information intermediaries in a global networked media space. As Internet platforms do not fall under the category of media companies, they are currently not regulated in most countries. Yet, the pressure to regulate them, also in light of other negative phenomena, such as hate speech proliferation, political disinformation and targeting, has grown in recent years. The regulatory approaches differ, however, across jurisdictions and encompass measures that range from mere self-regulatory codes to more binding interventions. Starting with some insights into the existing technological means for mediating speech online, the power of platforms, and more specifically their influence on the conditions of freedom of expression, the chapter discusses in particular the regulatory initiatives with regard to information platforms in the United States and in the European Union, as embedded in different traditions of free speech protection. The chapter offers an appraisal of the divergent US and EU approaches and contemplates the adequate design of regulatory intervention in the area of online speech in times of infodemic and beyond it.
Burris, Scott, 'Individual Liberty, Public Health, and the Battle for the Nation’s Soul', The Regulatory Review (Blog Post, 7 June 2021) Abstract: This essay examines the legacy of the US Supreme Court case Jacobson v. Massachusetts in the context of the COVID-19 pandemic. The author contends that the vision set by Jacobson — one of coexistence and cooperation in a democratic commonwealth — is in jeopardy as courts in recent COVID-19 constitutional cases have unveiled a new view based less on the social contract than on a strong form of libertarianism.
Burris, Scott et al, 'The Legal Response to COVID-19: Legal Pathways to a More Effective and Equitable Response' (2021) January/February(27) Journal of Public Health Management and Practice S72-S79 Abstract: COVID-19 is the new disease this country had been preparing to take on for decades.1 So far, the response has been a failure, with huge human and economic costs. While peer countries have managed to get the pandemic under a degree of control, the United States seems pathologically unable or unwilling to prevent rising cases and deaths. This is not a failure of resources: although decades of cutting health agency budgets is a big part of our problem,2 we remain a country rich in money and expertise. This is not a failure of individual courage; from health care workers through transport workers to people who produce and deliver food supplies, essential workers have shown up and done their jobs at significant personal risk. This has been, first and foremost, a failure of leadership and the development or implementation of an effective response.
Bursztyn, Leonardo et al, 'Misinformation During a Pandemic' (NBER Working Paper No w27417, 01 January 2020) Abstract: We study the effects of COVID-19 coverage early in the pandemic by the two most widely-viewed cable news shows in the United States – Hannity and Tucker Carlson Tonight, both on Fox News – on downstream health outcomes. We first document large differences in content between the shows and in cautious behavior among viewers. Through both a selection-on-observables strategy and a novel instrumental variable approach, we find that areas with greater exposure to the show downplaying the threat of COVID-19 experienced a greater number of cases and deaths. We assess magnitudes through a simple epidemiological model highlighting the role of externalities and provide evidence that misinformation is a key underlying mechanism.
Byars, Kaleb, 'Coronavirus, Caregivers and Child Custody: A Pragmatic Solution for Parents Who Seek to Protect Their Children During the COVID-19 Crisis'. (cover story) (2020) 5(56) Tennessee Bar Journal 28-29 Extract from Introduction: As COVID-19 spreads, it undoubtedly carries with it a host of legal issues. This article seeks to address one of those issues. Namely, it answers the following question: What options are available to a child’s parent when the child’s other parent who has shared physical custody of the child refuses to take precautions during a pandemic such COVID-19?
Calboli, Irene, 'Trade marking ‘COVID’ and ‘Coronavirus’ in the USA: an empirical review' (2021) 6(16) Journal of Intellectual Property Law & Practice 473-483 Abstract: Famous and sensational events often lead to several entities filing trade mark applications that include terms related to these events. The most recent example of this phenomenon is the COVID-19 pandemic, which has led to large numbers of (largely controversial) filings worldwide.In this article, I review the applications including the terms ‘COVID’ and ‘Coronavirus’ filed with the United States Patent and Trademark Office (USPTO) in 2020 based on the data available and recorded by the end of January 2021. These data offer significant information related to the type of products for which the applications were filed, the type of filing entities, the legal basis for filings and the timing of these filings throughout the months of 2020.In particular, the COVID-19 pandemic led not only to a large number of filings for medical and pandemic related products, but also, and even more, for unrelated and promotional products. Individuals and small businesses were the largest groups of filing entities. Moreover, over two-thirds of the filings were submitted based on intent-to-use rather than use in commerce. Not surprisingly, the number of filings closely mirrored the development of the pandemic during the various months of 2020. Perhaps, one of the lessons that could be derived from the COVID-19 pandemic, and this unprecedented number of applications, is the need to further study the phenomenon of ‘sensation-drive’ trade mark filings and the problems that these filings can represent for the trade mark system.
Calvo, Rafael A.; Deterding, Sebastian; Ryan, Richard M., 'Health surveillance during covid-19 pandemic' (2020) (369) BMJ (advance article, published 6 April 2020) Abstract: US government and state agencies are talking to companies such as Google, Facebook, and controversial startup Clearview AI about using location data mining or facial recognition to trace infected people and to monitor and enforce isolation. Around the globe, governments are rapidly following in implementing digital contact tracing of people with covid-19.
Caminer, Mitchell, 'Enjoined and Incarcerated: Complications with Incarcerated People Seeking Economic Relief under the CARES Act' (2021) () University of Chicago Legal Forum (forthcoming) Abstract: Congress passed the first round of checks as part of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in late March 2020 to infuse more than $2 trillion into the national economy and address the overlapping medical and economic emergencies stemming from the COVID-19 pandemic. But incarcerated individuals were initially excluded from receiving stimulus checks, despite being eligible to receive them. This delay in delivering immediate cash assistance through the CARES Act to incarcerated individuals exposes the inadequacy of the tax administrative doctrine in resolving emergency relief disputes and how exclusionary measures embedded in the tax system and other economic policies inhibit the rehabilitation prospects of incarcerated people. Millions of Americans made personal and financial sacrifices in 2020 to aid the public health efforts, including incarcerated individuals. In return, those who were denied economic relief on an arbitrary basis by the government should not have to wait until the following tax year to seek a legal remedy. In other words, the legal framework for challenging tax decisions is too unsympathetic toward many taxpayers that rely on policies embedded in the tax code for immediate economic relief. Further, by providing nearly universal economic stimulus, Congress recognized the plight of incarcerated individuals during a pandemic and moved away from the exclusionary stimulus measures enacted in prior economic crises. Providing economic stimulus to those in incarceration is sound economic stimulus policy so long as punitive measures for individuals in and exiting incarceration are embedded in tax and economic policy.
Candler, Blake, 'Court Adaptations during COVID-19 in the World's Two Largest Democracies' (SSRN Scholarly Paper No ID 3609521, 24 January 2020) Abstract: Physical distancing measures to mitigate COVID-19 have significantly disrupted the judiciaries of both the United State and India. Courts are strained by an increased case backlog during and immediately after pandemics, as they receive more incoming cases and are less able to process them. Public safety interventions and economic decline cause the caseload to increase. The rate at which courts process cases, known as their disposal rate, decreases as in-person courtroom procedures are interrupted due to physical distancing requirements. Since the start of COVID-19, disposal rates have remained relatively high in the United States while they have plummeted in India. This article explores the main reasons for this difference, particularly the role of virtual courts. It also analyzes the benefits of virtual courts as well as their challenges, including data security and privacy, connectivity and remote access to files, and accountability to the public.
Cannon, Yael, ‘The Persistent Public Health Emergency’ (2024) 55(3) Columbia Human Rights Law Review 726–812 Abstract: May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists. This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity.
Carey, Tim, 'Comity, Coronavirus, and Interstate Travel Restrictions' (2021) () University of Chicago Legal Forum (forthcoming) Abstract: States and localities responded to the outbreak of the COVID-19 pandemic with a variety of restrictions on interstate travel within the United States. These restrictions varied widely, ranging from self-quarantine requirements to targeted checks of entrants with out-of-state license plates; some localities even sought to ban all non-resident entry. In the inevitable lawsuits that followed, courts struggled to settle on a consistent standard of review, though many reviewed travel restrictions under the highly deferential standard given in Jacobson v. Massachusetts. Others examined restrictions under strict scrutiny, though under tests drawn from different areas of the right to travel jurisprudence. Following on the Supreme Court's decision in its leading right to travel case, Saenz v. Roe, as well as some of the Court's recent coronavirus-related cases, this Comment advances a novel argument: that the dichotomous approach taken by courts during this pandemic — applying either strict scrutiny or the Jacobson standard — is not always necessary. In some circumstances, a form of intermediate scrutiny can and should be applied in the context of interstate travel restrictions.
Carlson, Richard R, ‘OSHA and Public Health in an Emergency and a Culture War’ (SSRN Scholarly Paper No 4126863, 3 June 2022) Abstract: The approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination. OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector ‘occupational’ health, issued an ‘emergency’ rule that applied only to private sector employers with at least 100 employees. The rule did not ‘mandate’ vaccinations. However, it strongly motivated employers to adopt their own vaccination requirements in order to avoid the alternative: burdensome non-vaccination requirements. OSHA’s emergency rule did not last long. Within two months, the U.S. Supreme Court issued an emergency stay against the rule in National Federation of Independent Businesses v. Dep’t of Labor (NFIB). The practical effect of the Court’s emergency stay was the end of the emergency OSHA rule. The OSHA rule is dead, but NFIB lingers as a problem for future health crises. COVID-19 is not necessarily the last or most serious health crisis we will face as a nation. OSHA will probably be needed to contribute to a national response in the future. NFIB is a poorly reasoned but still significant obstacle for OSHA’s participation in a public health crisis. This article examines the ways OSHA can act on an emergency basis in a crisis, the expanse and limits of its authority to regulate ‘occupational’ health, the meaning and flaws of the Court’s decision in NFIB to block enforcement of OSHA’s COVID-19 rule, and the possible strategies for OSHA in the next public-occupational health crisis.
Carnahan, Douglas G, ‘Access to Justice in a Time of COVID’ (2021) 51(1) Southwestern Law Review 91–106 Abstract: The COVID-19 pandemic has caused a sea of changes in the methods of lawyers who represent under-served and low-income client populations. This Essay will examine how the pandemic has affected the work of legal service organizations. Generally, this Essay examines the approaches taken by any pro bono or appointed counsel representing those with traditionally limited access to justice.
Carroll, Faelynn; Block, Walter E, 'Selling Sex: (More) Evidence for Decriminalization' (2021) 3(37) Touro Law Review 1155-1172 Abstract: This paper makes a case for decriminalization of sex work in response to recent legislation restricting sex workers’ access to online platforms and to the COVID-19 pandemic. Using a feminist economic lens, we summarize the current understanding of sex work markets and analyze how agency and stigma are affected by increasingly limited access to online platforms as well as by the social and economic restrictions of COVID-19. We analyze sex work from the point of view of the same labor economics that would be applied to any other industry, rather than as a romanticized or demonized group of sexual deviants, finding destigmatization of the sex work industry as central to the increased agency and well-being ofsex workers and their clients. This paper also employs the libertarian philosophy, according to which all acts should be legal except those that employ, or threaten, violence against innocent people. According to this perspective, murder, rape, theft, arson, kidnapping, and fraud, should be prohibited; but, everything else, certainly including sex work, should be decriminalized.
Carroll, Jenny E., 'Pretrial Detention in the Time of COVID-19' (2020) () _Northwestern University Law Review (2020, Forthcoming)_ Abstract: It is hard to overstate the impact of COVID-19. When it comes to the criminal justice system, the current COVID-19 crisis has shone a light on pre-existing flaws. Long before the first confirmed case in Seattle or elsewhere, America’s jails and prisons were particularly susceptible to contagions, exacerbated by problems from overcrowding to over policing to lack of reentry programs. This Essay focuses on one aspect of the challenges the criminal justice system faces in light of COVID-19 and beyond—that of a pretrial detention system that falls more harshly on poor and minority defendants, has swollen local jail populations, and has incentivized pleas contributing in its own right to prison overcrowding. Even in the best of times the pretrial detention system is often punitive, fraught with bias, produces unnecessarily high rates of detention, and carries a myriad of downstream consequences both for the accused and the community at large. In the context of the COVID-19 crisis, this pretrial detention system faces an exacerbated challenge: the health and safety of those in custody and those who staff U.S. jails and prisons. This new reality reveals that even during “ordinary times” the pretrial detention system fundamentally miscalculates public safety interests to the detriment of both detainees and the communities they leave behind. Simply put, current pretrial detention models fail to account for risks to defendants during periods of incarceration and pit defendants’ interests against the very communities that depend on them. The public health crisis of COVID-19 demonstrates in very real terms the interconnected nature of a defendant’s and the community’s safety interests. This connection is not unique to the current public health crisis, however, COVID-19 brings to light the persistent reality that communities are often weakened, not made safer, by the removal of defendants during pretrial periods.
Carson, Saphronia and Shannon K Carter, ‘Abortion as a Public Health Risk in Covid-19 Anti-Abortion Legislation’ (2023) Journal of Health Politics, Policy and Law (advance article, published online 23 January 2023) Abstract: During the early months of the COVID-19 pandemic, twelve states banned or restricted abortion access under elective procedure restrictions. The rationale was preserving hospital capacity and personal protective equipment (PPE), however abortions commonly take place in clinics and use less PPE than childbirth. This paper investigates the discursive construction of abortions, the people who get them, and fetuses in this legislation. The authors collaborated to analyze 13 anti-abortion documents using an iterative process of thematic coding and memo-writing. Twenty-three percent of the legislation listed abortion as banned, whereas the remaining laws implied abortion within the terms ‘elective’ or ‘non-essential.’ Legislation used common anti-abortion tactics, such as trivialization of abortion, risk discourses, and constructions of motherhood and fetal personhood. Discourses delegitimized abortion providers and used quasi-medical justifications for banning abortion. Finally, legislation constructed abortion clinics as sites of contagion and waste, and consequently as risks to public health. Results highlight the vulnerability of abortion and the connection between abortion policy and other conservative policy, and gesture towards a strategic attempt to federally ban abortion. Thus, these findings have several implications for a post-Roe US and for various stakeholders wishing to increase abortion access.
Carter, Tracey, ‘One’s Health Versus One’s Right to Vote: How the COVID-19 Pandemic Changed the Legal Landscape of Absentee/Mail-in Voting in the United States from the 2020-2024 Election Cycles’ (2024) 35(1) University of Florida Journal of Law & Public Policy Article 1 Abstract: How voting took place during the COVID-19 pandemic in 2020, especially the increased use of absentee/mail-in ballots, has been a point of discussion and debate throughout the United States since the 2020 election cycle. This Article takes an in-depth look into absentee/mail-in voting throughout the United States in early 2020 (pre-pandemic), during the COVID-19 pandemic in 2020, and from 2022–2024 (post-pandemic), including a discussion of litigation filed in various states related to the use of absentee/mail-in ballots from the 2020–2024 election cycles. This Article recommends that more states should expand their access to voting by passing no-excuse absentee/mail-in voting laws because such measures that were put in place during the peak of the COVID-19 pandemic in 2020 allowed more citizens the opportunity to participate in the electoral process without risking their health by going to the polls to vote in person, many voters support it, and a majority of other states already utilize no-excuse absentee/mail-in voting as of 2024.
Caruso, Kaitlin, ‘Price Gouging, the Pandemic, and What Comes Next’ (2023) 64(8) Boston College Law Review 1797–1857 Abstract: Whenever there is a disaster, there are complaints of price gouging—that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, which share a few common characteristics. The laws vary considerably across jurisdictions, however, by what products, services, and sellers they cover, how long they last, and how strictly they limit price increases. This Article assesses how the states changed their laws during, and in response to, the unprecedented challenges of the COVID-19 pandemic. It surveys fifty-six state and territorial jurisdictions, and finds that more than one-third made changes to their anti-gouging laws between 2020 and 2022, mostly to adopt new laws or strengthen existing regimes. Although the state laws faced the same challenges in responding to the unique circumstances of COVID-19, there was no marked trend toward convergence on a single best approach to regulating price gouging. Instead, the laws are increasingly diverse, which provides both opportunities for policy learning and more pressure for a uniform standard. Although the states and territories overwhelmingly favor anti-gouging regulation, economists oppose them nearly as consistently. Critics blast the laws as unnecessary at best (because many businesses voluntarily freeze prices), and as harmful at worst, triggering and worsening consumer shortages and derailing important market forces that can speed up disaster recovery. This Article explores the criticism and support of anti-gouging regulation from both economic and moral perspectives. It concludes that critics and supporters alike have overlooked a potentially important impact of anti-gouging regulation: the possibility that such rules can help equalize the risk between wealthier and poorer communities that people will face unjustified price hikes in the event of an emergency.
Catalano, Michael and Aaron Chan, ‘Common Law Systems and COVID-19 Policy Response: Protective Public Health Policy in the United States, Canada, New Zealand, and Australia’ (Conference Paper, 2022 APSA Annual Meeting: Rethink, Restructure, and Reconnect) Abstract: The Covid-19 pandemic affected the United States, Canada, New Zealand, and Australia in 2020 all pretty similarly. Knowing that that these four countries produce similar types of policies, and all follow the common law judicial system, it was necessary to analyze how the highest court of each land influenced political actors when responding to the first Covid-19 outbreak. More specifically, we determine the party affiliation of each Justice/judge, calculated the composition of the Courts and proceeded with determining how each of the four Courts ruled on protective public health policy responses. While this is new data during the beginning of the pandemic, we see similarities between 2020 Court opinions and come to conclude that more research on years following 2020 is significant to finding stronger correlations.
Cederblom, Michael L., 'Welcome to the Digital Age: Reinventing Contact Tracing and the Public Health Service Act for a Modern Pandemic Response' (2022) 1(31) Annals of Health Law and Life Sciences 101-139 Abstract: The United States' patchwork public health system produced inefficient, insufficient, and fractured contact tracing during the COVID-19 pandemic. Unless the pure federalist approach to public health crisis response is remedied, the U.S. will remain uniquely vulnerable to future outbreaks of infectious diseases. The U.S. federal government should be empowered to become the central coordinator for state digital contact tracing programs, as modeled by South Korea during the COVID-19 pandemic. There are potential privacy concerns with such methods, however, the model provided by South Korea can be adapted to import the efficacy of their program while removing the threats to civil liberties. By amending the Public Health Service Act, the U.S. can turn the CDC into a regional manager for digital contact tracing, preempting stringent privacy laws during times of crises that restrict a state's ability to act, while ensuring adequate digital privacy protections. This articles proposes an amendment that would adapt the South Korean model to improve future U.S. pandemic responses and contact tracing during infectious disease outbreaks.
Chaturvedi, Aishwarya, ‘Law Libraries, Copyright and Digital Lending’ (2024) 27(3) Journal of World Intellectual Property 515–531 Abstract: The article titled ‘Law Libraries, Copyright and Digital Lending’ aims to bring to the fore copyright issues related with digital lending by law libraries and is a comparative study of the copyright law of India and the United States. Accordingly, this piece will analyze the situation in two jurisdictions—India and the United States to understand the facilitation of digital lending by law libraries, particularly during the COVID‐19 pandemic. It will look at some key concepts such as publication, distribution, reproduction, controlled digital lending, fair use, fair dealing, public interest, exhaustion, and copyright infringement. To understand the practice of digital lending by law libraries in India and controlled digital lending in the United States the author interviewed a few librarians from both countries and learnt about the challenges faced by librarians to facilitate digital lending. The author also learnt that while librarians in the United States practice controlled digital lending, librarians in India do not; they practice only digital lending. Testimonies of librarians and analysis of the present law and precedents in India and the United States led the author to understand that there is no concrete law on digital lending by law libraries at present in the two jurisdictions. Accordingly, this article discusses the utility and necessity of digital lending by law libraries in the present times, as also that of controlled digital lending.
Chen, Karen, ‘Catching Up to a New Normal: The Effects of Shifting Industry Standards on Contract Interpretation’ 90(6) Fordham Law Review 2839–2868 Abstract: During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at which parties and courts should define these standards. While some parties argued that industry standards at the time of contract formation are determinative of performance, others claimed that their agreement referenced industry standards that had changed and that, therefore, their performance obligations had changed as well. By looking at contract disputes brought about by the COVID-19 pandemic, this Note examines potential issues of contract interpretation that arise when industry standards referenced by the parties change within the life of a contract. This Note addresses these issues in the context of different types of contracts and examines the use of specific language that references industry standards in the agreements. Ultimately, this Note proposes a general application of an ex ante interpretation of industry standards that would avoid issues of uncertainty even beyond the context of the COVID-19 pandemic.
Chen, Ming Hsu, 'Pursuing Citizenship During COVID-19' (2022) 2(93) University of Colorado Law Review 489-539 Abstract: In this Epilogue, I begin with the key themes in my book, Pursuing Citizenship in the Enforcement Era. Then, I survey policy developments and political conditions since the publication of the book, focusing especially on the prospects for immigration reform presented by a new presidential administration and COVID-19. In light of this shifting landscape, I present a theoretical justification for expanding citizenship to essential workers on the basis of jus meritum (the right of merit) and a recognition of the civic character of civilian service. In comparison to the Citizenship Act of 2021 and stand-alone proposals to legalize essential workers, my Citizenship for Essential Service proposal would expand the spectrum of immigrants who are eligible to legalize and would incorporate a self-updating mechanism lodged in a service-based agency, rather than letting an enforcement agency decide who qualifies for a green card. My proposal serves as an illustration of where the changed conditions might lead to a transformation of national immigrant-integration policy. The Epilogue concludes with thoughts on how bold reforms can and should be to meaningfully advance service as a basis for citizenship in the United States.
Chen, Ming Hsu and Daimeon Shanks, ‘The New Normal: Regulatory Dysfunction as Policymaking’ (2023) 82(2) Maryland Law Review 300–364 Abstract: Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a predetermined political goal that may not be otherwise attainable or attractive through regular processes—a striking example of bad faith governance. The consequences of this kind of dysfunctional policymaking can be dangerous, especially when it then becomes normalized in agency policymaking. Building on an emerging scholarship on internal administrative law, this Article looks inside agencies to expose the phenomenon of regulatory dysfunction in policymaking. It describes the structural characteristics and logics associated with irregular policymaking and provides a typology of agency responses to irregularities ranging from bureaucratic legalism to bureaucratic rationality. Using case studies from immigration law, environmental law, and public health law, it explains how the resulting irregularities can lead to dysfunction. It concludes by assessing the consequences of dysfunctional policymaking for administrative law and scholarship, showing where it makes a difference to flip the starting presumption of regularity. While irregularity is predictable, the normalization of dysfunctional policymaking is worrisome. This Article seeks to shift the discourse around administrative policymaking by injecting some realism about what is, and what should be, the new normal.
Cheng, Tai-Heng; Perez, Daniel R, 'COVID-19: Force Majeure and Common-Law Contract Defenses Under New York Law' () 2(13) New York Dispute Resolution Lawyer 44-46 Abstract: The COVID-19 outbreak and government measures to combat the virus are causing widespread disruptions throughout the economy. Parties unable to perform contractual obligations due to COVID-19-related disruptions should consider whether contractual force majeure provisions or New York common-law defenses of impossibility and frustration of purpose may provide a means of limiting liability for non-performance. Parties struggling to perform contractual obligations due to pandemic related circumstances should carefully analyze any relevant force majeure clauses, the potential applicability of any common-law defenses to performance, and the available dispute resolution mechanisms. A careful analysis of the available defenses and dispute resolution provisions may better enable parties to renegotiate their obligations and defend themselves against claims for non-performance.
Cherdack, Melanie, ‘Trading in the Time of COVID: A Robinhood Bromance’ (2021) 28(2) PIABA Bar Journal 159–177 Abstract: Investors now hold the stock market in the palm of their hands, making trading frictionless and supposedly ‘commission free.’ But this has come at a cost, mostly to young men. The business model of Robinhood and other trading applications requires frequent trading by users. Better investor education and SEC regulation is needed to make this bromance a healthier and more balanced relationship.
Chilton, Adam et al, ‘Political Ideology and Judicial Administration: Evidence from the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 4124690, 11 May 2022) Abstract: We investigate whether political ideology affects the administration of the judiciary in an area with strong political valiance: setting courthouse policies during the COVID-19 pandemic. We do so using novel data on judicial orders and a new identification strategy that leverages three features of the federal judiciary: many states have multiple judicial districts, many districts have courthouses in multiple cities, and randomness in the partisan affiliation of the chief judges from the rules governing the appointment of a chief in a district. Our research design isolates the effect of chief ideology using placebo tests that difference out unobserved district-level effects from the effects of the ideology of the actual chief judge. We find strong evidence that political ideology influenced management of the judiciary during the pandemic: Republican-appointed chief judges were less likely to require masks to be worn but more likely to suspend in-person trials.
Chinn, Scott; Pulliam, Daniel E.; Gutwein, Stephanie L.; Little, Elizabeth M., 'Practicing Pragmatism During a Pandemic: Indiana's Appellate Courts Practically Apply Indiana's Constitution in 2020' (2022) 4(54) Indiana Law Review 827-849 Abstract: Although the last few years produced minimal developments in Indiana constitutional law, this survey period, the Indiana appellate courts used their constitutional powers to pragmatically address issues associated with the COVID19 pandemic and to clarify the test for constitutional double jeopardy violations.
Choi, Elizabeth, The Pandemic of Intrusion into Privileged Communications between Incarcerated Clients and Their Attorneys (2021) 4(34) Georgetown Journal of Legal Ethics 831-842 Abstract: The Effective Assistance of Counsel in the Digital Era Act (H.R.5546) was passed by the House of Representatives in September of 2020.5 The bill's main objective is to protect certain electronic communications between an attorney and their incarcerated client from unreasonable governmental intrusion.' This Note will argue that H.R.5546, while a step in the right direction, falls exceedingly short of providing the necessary protection for communications between an attorney and their incarcerated client. Part I will explore the background of the various policies and practices of federal prisons that have negatively impacted the attorney-client privilege for incarcerated clients and their resulting ethical implications. This problem is prevalent in other institutions, but the scope for this Note is limited to solely federal prison policies. Part II will analyze H.R.5546, its failures in light of the current COVID-19 pandemic, and how to improve its effectiveness in protecting confidentiality without negatively impacting relevant governmental interests.
Chong, Nicole R, ‘Anticipating the Needs of Future Law Students Based on Current Post-Pandemic National Reading Comprehension Test Scores’ (2024) 11(2) Lincoln Memorial University Law Review 1–50 Abstract: The current state of education in the elementary, middle, and high school levels regarding students’ reading comprehension skills is bleak. Post-pandemic scores are showing up to a thirty-year backslide in reading comprehension testing scores. These concerning decreases do not bode well for students who may enter law schools one day. Let’s anticipate those needs by thinking ahead of ways to remedy potential shortcomings. Reading comprehension is tied closely to the skills of critical reading and thinking. Other scholars have written extensively in the legal academia field about critical reading and thinking. In fact, no one likely would dispute that critical reading and thinking are necessary skills for law students and lawyers. However, this article ties reading comprehension to these other skills and discusses the ramifications of current national testing for reading comprehension to potential deficits in those skills in future years. I have had the opportunity to teach a remedial upper-level course that has experimented with the teaching methodologies of modeling, scaffolding, and assessments to help students needing additional help with critical reading, critical thinking, and writing after the first year of law school. The article discusses how the remedial instruction could be implemented broadly across the first-year curriculum, which importantly would address more systemic deficiencies with reading comprehension, critical reading, and critical thinking earlier in law students’ experiences. This article, therefore, is a call to action for law schools to begin to plan ahead and provides some feasible techniques to address future students’ needs in regard to reading and thinking.
Chopko, Mark, 'The Constitutionality of Providing Public Funds for U.S. Houses of Worship during the Coronavirus' (2021) 1(10) Laws 8 Abstract: U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching public interest, such as health care or social services, but does not involve the Government in advancing religion per se. Moreover, the most recent U.S. Supreme Court cases hold that it is a violation of the First Amendment to exclude a religious actor, solely because it is religious, from a general public program and funding on equal terms with secular actors. Pandemic relief from the federal government has been made available to houses of worship (churches, mosques, synagogues, etc.) to mitigate the economic impact of government lockdown orders and public health restrictions on assembly, by offsetting loss of revenue and avoiding the suspension or termination of employees. The extension of such relief sits precisely at the crossroads of debated legal questions about whether such assistance is aid to religion—prohibited—or neutral disaster relief on equal terms with other community-serving entities—permitted. This article concludes that the inclusion of houses of worship is constitutional, given the trend and direction of U.S. law, although the matter will continue to be debated as the effects of the pandemic recede.
Choudhury, Barnali, 'Climate Change as Systemic Risk' (2021) 2(18) Berkeley Business Law Journal 52-93 Abstract: Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a "gray rhino" event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses. The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite those who deny climate change, there remains ample evidence of the increasing temperature of the earth. Moreover, like COVID-19, climate change has the potential not only to create public health emergencies, but also to create wide-scale, enormous adverse impacts on the economy. Indeed, the risks posed by climate change to the economy have the potential to be so far-reaching that climate change should-as this article argues-be termed a systemic risk. As such, the economic implications of climate change need to be mitigated in order to preserve economic stability. This is not only necessary for prudential and economic reasons, but also to protect citizens' health and safety, and to ensure that business does not exceed the limits of the planet. While there has been some attention to addressing the economic implications of climate change at the global level, progress in the U.S. has been minimal. This is surprising for two reasons. First, because climate change has already caused unprecedented damage in certain parts of the country. Second, because to some extent, existing legislation and models may offer the tools to address the systemic risks of climate change. Drawing inspiration from the Dodd-Frank Act, SEC rules, and the FDIC model, among others, this article proposes regulatory approaches for mitigating the systemic risks of climate change in hopes that COVID-19 does not foreshadow our fate for climate change.
Clark, Annette, Diploma Privilege and the Future of the Bar Exam (2020) 6(37) GPSolo 19-23 Abstract: The COVID-19 pandemichas disruptedour lives and workin ways that wereunimaginable only sixmonths ago, as we've been facedwith illness and death withinour families and communities, ahealth care system that has beenstrained beyond capacity, the lossof jobs and increasing economicinsecurity, anxiety and depressionbrought on by the fear ofcontracting the virus and theisolation imposed by our governmentsin trying to combat itsspread, and so much more. Forrecent law school graduates, addto this demoralizing list the needto take and pass a bar exam in themiddle of a public health crisis. Atthe same time, as dean of SeattleUniversity School of Law, I followedthe lead of some of myfellow deans across the countryby reaching out to the body thatadministers the UBE in my state--theChief Regulatory Counsel forthe Washington State Bar Association(WSBA) -- to request ajoint meeting with the bar andthe deans of the other two lawschools.
Clarke, Jessica, ‘A Public Policy Approach to Inequality’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 161 Abstract: This chapter discusses diverging legal and public policy definitions of equality in the United States and explains the implications of this divergence for addressing exponential inequalities such as those unleashed by the Covid-19 pandemic. Over the past several decades, an increasingly conservative US Supreme Court has narrowly construed the project of equality law. It has marginalized theories of indirect discrimination and narrowed the scope of permissible remedial programmes that identify beneficiaries based on race. It is generally sceptical of statistical evidence of discrimination. These developments have rendered US civil rights law ill-equipped to address the disparate effects of Covid-19 based on race, gender, and other social categories. But more capacious understandings of equality have continued to influence US policy-makers, acting through legislatures, government agencies, and non-governmental organizations. These more capacious understandings of equality have inspired data collection efforts to identify disparities, to explore the causes and consequences of these disparities, and to design interventions to mitigate them. To avoid legal challenge, interventions to mitigate disparities are crafted to avoid the perception of zero-sum conflict with majority group interests. Over the longer term, as public policy approaches to equality are proven effective, they may inform legal developments, hastening the demise of legal rules that are out of sync with new understandings of what equality demands.
Clinton, Joshua David; Lapinski, John S.; Lentz, Sarah; Pettigrew, Stephen, 'Trumped by Trump? Public Support for Vote By Mail Voting in Response to the COVID-19 Pandemic' (SSRN Scholarly Paper No ID 3630334, 16 January 2020) Abstract: How much is support for vote by mail (VBM) impacted by the COVID-19 pandemic, partisanship, and recent efforts by partisan elites to politicize discussions about expanding the use of VBM in November 2020? Using surveys of registered voters conducted in April and May 2020 we characterize how changing concerns about COVID 19 and increased partisan messaging affects public support for VBM. We show that the bipartisan support for VBM in April 2020 falls sharply after just six weeks because: Republicans became less worried about catching COVID-19, and unconcerned Republicans also became more opposed to VBM. The pandemic originally increased public support for expanding VBM to help combat the spread of COVID-19 - creating a relative unique opportunity to examine the public’s willingness to reconsider how elections are administered - but decreasing COVID-19 concerns among Republicans and increased opposition among unconcerned Republicans (perhaps due to increased partisan messaging) has combined to increase partisan divisions in otherwise historically high levels of public support for VBM.
Clopton, Zachary D, ‘Power and Politics in Original Jurisdiction’ [2023] University of Chicago Law Review (forthcoming) Abstract: The original jurisdiction of the Supreme Court of the United States is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections and to Covid responses were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction. This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The paper and its appendix include a catalog of the original jurisdiction law of all 50 states; a survey of scores of recent original actions related to elections and Covid; and a review of relevant legislation from the last decade. This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts factfinding responsibility, and has the potential to permit quicker resolution. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court, without the frictions of lower-court litigation. Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in ‘avoidance’ maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way. This analysis has both theoretical and practical relevance. Theoretically, the capacity of decisions about original jurisdiction to advantage some political parties and causes over others shows its family resemblance to the more often studied phenomena of court curbing and court packing. Practically, while original jurisdiction is often designed to serve neutral values, it has the capacity to serve partisan ends—and given our political polarization, we should expect partisanship to play an increasing role in these seemingly neutral choices.
Cloud, Lindsay K; Moran-McCabe, Katie; Platt, Elizabeth; Prood, Nadya, 'A chronological overview of the federal, state, and local response to COVID-19' in Burris, Scott; de Guia, Sarah; Gable, Lance; Levin, Donna E.; Parmet, Wendy E.; Terry, Nicolas (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Since the first case of COVID-19 was confirmed in the United States, federal, state, and local governments have taken varying degrees of legal action to prevent the spread of the virus and mitigate its impact on the public’s health and health care systems. Federal action has primarily consisted of national emergency declarations, travel bans, guidance on social distancing measures, and laws aimed at mitigating the economic impacts of COVID-19. Legal action at the state and local level has focused heavily on social distancing requirements and other emergency measures to reduce the spread of the virus, including stay-at-home orders, prohibitions on large gatherings, closures of non-essential businesses and schools, and the mandatory use of face masks. This Chapter provides an overview of these actions, chronicling the federal and state legal response from January to July 2020, and highlighting policy trends at the local level from March to July 2020.
Coe, Peter, The Good, the Bad and the Ugly of Social Media during the Coronavirus Pandemic (2020) 3(25) Communications Law 119-122 Abstract: Comments on the use of social media in a positive way to bring people closer together and to disseminate vital information during the COVID-19 pandemic, but also observes its harmful use as a platform for spreading fake news, false information, and misleading and unethical reporting.
Cogan, Jacob Katz, ‘The United States Endorses Amendments to the International Health Regulations’ (2024) 118(4) American Journal of International Law 723–727 Abstract: The United States has endorsed1 the World Health Assembly’s (WHA) adoption of amendments to the International Health Regulations (IHR). Based on lessons learned from the COVID-19 epidemic, the amendments are the most significant changes to global health rules in two decades. Their approval comes more than two years after the United States, joined by forty other World Health Organization (WHO) member states, first proposed revisions to the IHR. Congratulating the WHA delegates, WHO Director-General Tedros Adhanom Ghebreyesus said: ‘You have strengthened the cornerstone of international health law. And in doing so, you have made the world safer.’ Commending too the ‘giant step [made] toward protecting the health of humanity,’ Secretary of Health and Human Services Xavier Becerra emphasized that the U.S. government’s ‘first responsibility has always been to protect the lives and livelihood of the American people and the security of our country.’ ‘With this agreement,’ he continued, ‘we take steps to hold countries accountable and strengthen measures to stop outbreaks before they threaten Americans and our security.’
Cogan, John, 'Congress Has Already Ruled in California v. Texas' (2021) 9(62) Boston College Law Review Electronic Supplement, Article 2 Abstract: In California v. Texas, opponents of the Affordable Care Act (ACA) have asked the Supreme Court to invalidate the statute. Relying on a 2017 legislative change to the ACA’s individual mandate, the challengers argue that the mandate is unconstitutional. They then assert that the mandate is inseverable from the rest of the ACA, thus the entire statute must fall. Earlier this year, however, Congress said otherwise. Last March, Congress passed the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. The two statutes amend and expand provisions of the ACA, thereby overriding Texas v. United States, the district court decision that underlies California v. Texas. In short, Congress has already ruled, via an override, on the severability question at issue in California v. Texas. The ACA stands, even with an unconstitutional individual mandate.
Coglianese, Cary; Mahboubi, Neysun A., 'Administrative Law in a Time of Crisis: Comparing National Responses to COVID-19' (2021) 1(73) Administrative Law Review 1 Abstract: Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as well as the World Health Organization. Although the pandemic and its consequences remain ongoing problems, this issue seeks to elucidate the regulatory challenges that countries have faced in common, and to compare approaches and distill lessons that might be transferrable across jurisdictions. From the essays in this special issue emerge at least four key lessons. First, it is clear that a global pandemic demands effective national and local governance. Second, regulations must be adaptable and responsive in the face of fast-moving public health threats. Third, emergency executive powers must be limited and subject to oversight and sunsetting. Finally, as much as administrative law can affect countries’ ability to craft effective responses to public health emergencies, responsible public leadership undoubtedly matters most of all. These four lessons can help guide efforts by lawmakers and policy advisors to prepare more nimble and effective regulatory approaches to respond to viral outbreaks and other public health threats. Even when the current global pandemic eventually recedes, the Administrative Law Review’s special issue on national responses to the COVID-19 crisis can provide a basis for reflection and renewed momentum toward strengthening international public health institutions and regulatory cooperation around the world.
Cohen, Laura, 'Incarcerated Youth and COVID-19: Notes from the Field' (2020) 5(72) Rutgers Law Review 101-115 (forthcoming) Abstract: On a Sunday morning in April 2020, as the novel coronavirus wreaked havoc across the nation, eighteen-year-old Nathaniel woke up with a pounding headache and 103-degree fever. Within hours, he began to feel chest pains, developed a cough, and had trouble breathing, a particularly alarming symptom in light of his lifelong history of asthma. He needed medical attention, quickly.But Nathaniel could not simply call his doctor or go to an emergency room. He is incarcerated in one of New Jersey’s youth prisons, and his story throws open a window to the pandemic’s particularly harsh impact on the lives of children behind bars.Tragically, Nathaniel’s experience with the virus reflects those of incarcerated people throughout the United States. According to weekly data collected by the Marshall Report, 249,093 adults in prisons and jails have tested positive for COVID-19, and at least 1,647 have died—an infection rate that surpasses that of the general population by more than 228 percent. In New Jersey—an epicenter of this sub-pandemic—fifty-two incarcerated adults have died, among the top ten highest inmate mortality rate in the country, and more deaths than in twenty other states combined.Much media attention has focused on the devastating consequences of the pandemic on incarcerated adults in the U.S., but the virus also has run rampant in youth prisons and detention centers. This essay examines the pandemic's incalculable harms on young people in custody through the lens of the lived experiences of incarcerated adolescents in New Jersey; the pandemic's exacerbation of racial disparities within the juvenile legal system; and the multi-pronged advocacy strategies - - judicial, legislative, and regulatory - - employed throughout the year in an effort to keep them safe.
Colbert, Doug and Colin Starger, ‘A Butterfly in COVID: Structural Racism and Baltimore’s Pretrial Legal System’ (2022) 82(1) Maryland Law Review 1–54 Abstract: Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore’s pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful decarceration. Over forty-four weekdays in June and July, the team observed bail review hearings in 509 cases and collected extensive data from the arguments and recommendations offered by the pretrial agency and prosecuting and defense attorneys. Unfortunately, the hoped-for reform failed to materialize as judges held nearly 62% of all defendants ‘without bail,’ sending detainees back to jail indefinitely despite the pandemic and despite their legal presumption of innocence. Even worse, stark racial inequalities persisted. This Article argues that the failed reform of Baltimore’s pretrial legal system represents a larger triumph of structural racism and that nothing short of radical transformation of the body politic will end such systemic racism. After describing the original empirical study, presenting a critical history of pretrial justice struggles in Maryland, and relating representative narratives of detainee experiences, the Article employs a novel analysis that reveals a basic pattern of structural injustice replicating itself, like DNA in cells. When plotting the addresses of study defendants onto maps of Baltimore, the unmistakable pattern of a butterfly emerges. This evokes the vital work of Dr. Lawrence Brown who has famously observed that ‘hypersegregation’ in Baltimore looks like a Black butterfly. The Black butterfly represents the physical manifestation of systemic racism; it reveals a pattern of inequality that cuts across economic, political, and other sociocultural systems.
Cole, Michael J., 'Don’t 'Estop' Me Now: Estoppel, Government Contract Law and Sovereign Immunity if Congress Retroactively Repeals Public Service Loan Forgiveness' (2021) (25) Lewis & Clark Law Review (forthcoming) Abstract: This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance.The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.
Collings, Justin; Barclay, Stephanie Hall, 'Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty' (2022) 2(63) Boston College Law Review 454-520 Abstract: Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court's First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have become even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to virtually all approaches to the issue: What must a government do to justify restrictions on religious exercise? Every extant adjudicatory framework--including proportionality and strict scrutiny approaches--purports to require such governmental justification. But they do so through different frameworks and with dramatically different degrees of rigor. In our view, it is rigor and not labels that really counts--the rigor with which courts require governments to justify religious restrictions. Differences in rigor cannot be explained in terms of the underlying adjudicatory framework. Neither the proportionality framework that prevails internationally nor the strict scrutiny framework prominent in the United States suffices, standing alone, to require governments to meaningfully justify restrictions on religious exercise. To require genuine justification, courts must: (1) require governments to treat religiously-motivated conduct in an evenhanded way vis-à-vis analogous secular conduct; (2) oblige governments to show, with evidence, that the religious restrictions are necessary; and (3) avoid redefining a controversy's theological stakes in ways that minimize the religious claimant's dilemma. Proportionality and strict scrutiny are both capable of incorporating these three factors, but courts applying the two tests do not always do so. In this Article, we survey how courts across several jurisdictions have succeeded or failed in this regard, paying particular attention to conflicts arising in the COVID-19 context. We also suggest some possibilities of convergence that will help both proportionality courts and strict scrutiny courts to better protect the core substance of religious liberty.
Colombo, Ronald J., 'When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities' (Hofstra University Legal Studies Research Paper No (forthcoming), 26 January 2021) Abstract: Numerous colleges and universities have imposed COVID-19 vaccination mandates upon their students. Most of these mandates have been accompanied by the purported recognition of medical and religious exemptions. With regard to religious exemptions, some are unjustly discriminatory. Most notably, they give preference to students who are members of organized religions over students who are not. And even facially neutral exemptions can be administered in an unjustly discriminatory way by, for example, giving preference to one set of religious denominations over another, or by engaging in “religious profiling” (whereby students of a particular denomination are held completely beholden to the beliefs of that denomination (as ascertained by the school’s administration), despite their own sincere and genuine religious beliefs to the contrary).Students attending public colleges and universities have federal constitutional and statutory protections against such discrimination; students attending private institutions do not. Rather, students attending private colleges and universities are at the mercy of state law and afforded only those protections against discrimination recognized by the state in which their institution is located.Although the research and insights presented herein should be applicable, in whole or in part, to any state with antidiscrimination laws protecting college students, this paper’s focus will be on New York’s Human Rights Law. It will demonstrate the ways in which religious exemptions can and do violate the law by illegally discriminating against students upon the basis of religion. It will examine one particularly ill-advised and unlawful policy (Hofstra University’s) and showcase one that comports with best practices (that of Syracuse University’s). For the present, there exists significant uncertainly regarding the promulgation of COVID-19 vaccination mandates. Private vaccination mandates may or may not be lawful, and religious exemptions thereto may or may not be required. But what is clear, however, is that in New York, and most likely in any other state where students are protected against discrimination, a religious exemption to a private college or university vaccination mandate must be nondiscriminatory.
Comfort, Louise K, ‘The United States’ Responses to COVID-19: Science, Uncertainty, and Partisanship’ in M Jae Moon and Dong-Young Kim (eds), Policy Responses to the COVID-19 Pandemic (Routledge, 2024) Abstract: This chapter traces the interactions among decision processes at federal, state, and local levels that led to fragmented perceptions of threat, partisan rhetoric advancing uncertain science, and responsibilities for action shifted from the national to subnational governments that enacted scattered and disparate policies. The challenge of managing an unknown, deadly virus during a presidential election year significantly affected the social and political dynamics that altered the capacity of the nation to achieve a coherent consensus for collective action to suppress the virus. The outcome of the election produced a change in presidential leadership, management strategy, and evidence-based reporting on the status of the pandemic to the public. The scientific discovery of two vaccines reversed the trajectory of failed, uncoordinated management to the threat of COVID-19 over the preceding months of 2020 and placed the United States in a leading position among nations of the world in the production of vaccines and in vaccinating its population. The experience shows that three factors are essential for developing the capacity for global cooperation and collaboration in addressing problems. These factors include the role of science, the power of information technologies, and the development of national information infrastructures.
Conklin, Michael, 'Legality of Racial Discrimination in the Distribution of Lifesaving COVID-19 Treatments' (SSRN Scholarly Paper No ID 4027108, 01 January 2022) Abstract: In 2021 the Federal Drug Administration released a statement advocating for race and ethnicity to be used in rationing lifesaving COVID-19 treatments. By January 2022 three states had implemented policies explicitly prioritizing treatments based on race, which resulted in multiple legal challenges. This Article analyzes the uphill battle such policies would face in an equal protection challenge. It also rebuts the attempt to analogize these policies to the legally acceptable practice of racial preferences in college admissions. Finally, nonlegal, pragmatic consequences are considered, such as how the policy risks disproportionately favoring the wealthy, reduces trust in future government pronouncements regarding COVID-19, perpetuates harmful stereotypes about racial inferiority, breeds racial resentment, and causes unnecessary delays in treatment.The racially disparate outcomes from the COVID-19 pandemic illuminate numerous background factors that disadvantage minority groups. However, the implementation of racial preferences in lifesaving treatments is not the answer. As demonstrated in this Article, such policies spectacularly fail judicial scrutiny. Furthermore, the nonlegal, pragmatic considerations establish that such a policy does far more harm than good. These considerations are of paramount importance not only for the current COVID-19 crisis but also for future pandemics and the rationing of other limited medical resources, such as organ transplants and intensive care unit beds.
Conklin, Michael, 'Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the Religious Freedom and Restoration Act' (2020) 21 May 2020() _Northwest University Law Review, NULR of Note_ Abstract: On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, Howard-Browne was arrested for unlawful assembly and violating the public health emergency order. This paper analyzes how Florida's strict RFRA statute would likely apply to such an act.
Conklin, Michael, 'Racial Preferences in COVID-19 Vaccination: Legal and Practical Implications' (SSRN Scholarly Paper No ID 3765168, 01 January 2021) Abstract: The severity of COVID-19 and the limited supply of vaccines poses a pressing question: Who should receive priority for the vaccine? Many experts support the controversial plan to prioritize black and Hispanic people. For justification they point to the highly disparate health outcomes minorities experience from COVID-19 that are rooted in historical racial injustice. However, such racial classifications implicate the Equal Protection Clause of the Fourteenth Amendment.This Article analyzes the potential outcome of such an equal protection challenge. It explains why strict scrutiny would be the controlling legal standard even though the issue has never been adjudicated by the Supreme Court in a health care context. Next, it considers how the existence of alternative vaccine distribution policies violate the narrowly tailored requirement. It considers the analogous case law of affirmative action in college admissions, in which the use of racial preferences is well established. And it considers alternative vaccine distribution plans that do not utilize racial preferences and how even they are susceptible to legal challenges.This Article further addresses pragmatic implications that would tangentially affect the legal determinations. These implications include potential counterproductive results of racial preferences, such as increased skepticism among the most vulnerable that they are being used as guinea pigs, a stigmatizing effect that could be used by white supremacist groups to promote a perceived martyrdom status, and the dangerous conflation of disparate health outcomes with genetic superiority and inferiority. These issues are considered against the backdrop of a changing Supreme Court, which has shown a willingness to diverge from established precedent regarding racial preferences.
Conklin, Michael, ''The Most Demanding Test Known to Constitutional Law': Do Coronavirus Bans on Church Services Satisfy Religious Freedom Restoration Act Requirements?' (2020) () Washburn Law Journal (forthcoming) Abstract: On March 29, Houston Pastor Juan Bustamante was warned that he could face fines and imprisonment for continuing to hold in-person church services. The next day he filed an Emergency Petition for Writ of Mandamus in the Texas Supreme Court. This Article evaluates his case, which could have broad implications because—like many states—Texas has a Religious Freedom Restoration Act (RFRA) that closely mirrors the federal RFRA. Arguments from both sides are analyzed to determine if such government action limiting religious practice is likely to overcome what the Supreme Court has identified as “the most demanding test known to constitutional law.” City of Boerne v. Flores, [1997] USSC 68; 521 U.S. 507, 534 (1997).
Conrad, Mark A., 'Reimagining U.S. Olympic Sports – How the Covid-19 Pandemic Serves as the Catalyst for Public Funding, Greater Transparency, and Increased Athlete Rights' (SSRN Scholarly Paper No ID 3671087, 10 January 2020) Abstract: The Amateur Sports Act was enacted over four decades ago when Olympic sports were still an “amateur” pursuit. That law created a self-funding system for the United States Olympic and Paralympic Committee and the national governing bodies for the respective Olympic sports. Its self-governance model resulted in a system of limited transparency and ineffective governance that culminated with the sex abuse scandals involving young athletes. With the growth and change in the now U.S. Olympic and Paralympic movement over the last four decades, this article advocates significant changes to the law to permit direct or indirect government funding for the United States Olympic and Paralympic Committee (USOPC) and the sport governing bodies in return for more stringent transparency and ethical rules. The new law should “federalize” a new governing body that will oversee the USOPC and the governing bodies and create additional rights for rights for athletes and required disclosure and ethics rules for the Olympic bodies. Because of the Covid pandemic and the funding shortfalls faced by the USOPC and the governing bodies, the article concludes that now is the time for such a major change.
Conrad, Mark A., 'The Covid Pandemic, The Empowering Olympic, Paralympic and Amateur Athletes Act and the Dawn of a New Age of U.S. Olympic Reform' (SSRN Scholarly Paper No ID 3744574, 01 January 2020) Abstract: In the fall of 2020, Congress enacted the first substantive changes in the Governance of the Olympic Sports system in over four decades. The new law, The Empowering Olympic, Paralympic and Amateur Athletes Act, was passed in the wake of sexual abuse scandals that rocked certain governing bodies. In amending the 1978 Amateur Sports Act, the new law grants Congress the power to decertify the United States Olympic bodies, mandates greater athlete representation in governance, increases funding to protect athletes through greater support of USA Safe Sport. Aside from the decertification power, the most significant provision of the new law is the establishment of a Commission on the State of U.S. Olympics and Paralympics to review the governance of the United States Olympic and Paralympic Committee (“USOPC”) and make proposals for change. The Commission’s creation comes at a crucial time in U.S. Olympic governance. Due to the governance scandals, uncertain funding and the general national sports upheaval caused by the COVID-19 pandemic, this article advocates more significant changes to the Olympic structure that the commission should consider, such as direct or indirect government funding for the USOPC and the sport governing bodies in return for adherence to more stringent transparency and ethical rules. Ideas that the Commission could consider include mandatory disclosure of information such as sponsorship agreements and compensation and bonus limitations for those in key leadership positions, the appointment of an inspector-general and greater athlete involvement in the U.S. Olympic movement. The article also proposes more statutory changes such as a limited antitrust exemption and the end of special trademark protections for the USOPC.
Conti-Brown, Peter; Listokin, Yair; Parrillo, Nicholas R., 'Towards an Administrative Law of Central Banking' (2021) 1(38) Yale Journal on Regulation 1-89 Abstract: A world in turmoil caused by COVID-19 has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the Fed can glean from greater openness and transparency in its interpretations of law and in its long-term policymaking processes. These advantages fall into two categories: (1) sending more credible signals of future action and thereby shaping the behavior of regulated parties and other constituents, and (2) increasing the diversity of incoming information on which to base decisions, thereby improving their factual and predictive accuracy. Second, we apply this framework to two key areas—monetary policy and emergency lending—to show how the Fed can improve its policy signaling and input diversity in the areas of its authority that are most expansive. The result is a positive account of what the Fed already does as an administrative agency and a normative account of what it should do in order to preserve necessary policy flexibility without sacrificing the public demands for policy clarity and rigor.
Cooney, Sean et al, ‘OSH and the COVID-19 Pandemic: A Legal Analysis’ (Northeastern University School of Law Research Paper No 434, 26 April 2023) Abstract: This study provides an analysis of how occupational safety and health (OSH) regulation responded to the circumstances of key workers during the COVID-19 pandemic. It explains the objectives of OSH regulation, including its main elements and how it has evolved over time. It draws from national country studies from Africa (Rwanda); Asia (China, Japan, Republic of Korea); Europe (Italy, Spain, United Kingdom); North America (United States) and South America (Brazil, Colombia) to explain how different jurisdictions address safety and health in their regulatory frameworks and how these frameworks operate in practice, including during the COVID-19 pandemic.
Cooper, Sarah L; Bayham, Michael; Nicklin, Thomas, 'Disease Outbreak & Corrections in the United States: [Existing] Statutory Options' (2021) 36(24) JURIS POIESIS 267-273 Abstract: Correctional facilities quickly emerged as large COVID-19 clusters — places with the largest number of known infections — in the United States (US). Noting calls for state (and federal) authorities to ‘slow the spread’ through inter alia reducing correctional populations, we investigated what, if any, statutory mechanisms exist to support such efforts. Within the broader context of the relationship between health and incarceration in the US, this short article shares on overview of our investigation with some broad, provisional findings.
Copeland, Katrice Bridges Copeland, ‘Telemedicine Scams’ (2022) 108(1) Iowa Law Review 69–126 Abstract: Telemedicine emerged as a lifeline during the COVID-19 pandemic. Although the technology existed long before the pandemic, its use was limited due to strict government regulations that limited reimbursement for telemedicine visits. In response to the pandemic, the Government waived many of its restrictions for the duration of the Public Health Emergency. These changes fueled the growth of telemedicine. The problem, however, is that telemedicine makes it easier to conduct fraud on a large scale because without in-person visits, medical providers can reach many more beneficiaries in a short period of time. Thus, the size and scale of typical health care fraud schemes, such as sending medically unnecessary durable medical equipment, is magnified. This type of fraud has been on the rise since 2016, and, with the relaxed rules for telemedicine reimbursement during the pandemic, there is a serious concern that there will be a sharp increase in telemedicine fraud. This Article examines the fraudulent practices in the telemedicine industry and the conditions that permit them to flourish. This Article critically assesses the changes to telemedicine coverage and their relationship to fraud. It examines the fraudulent practices through the lens of the fraud triangle to determine why telemedicine fraud occurs. After assessing the causes of telemedicine fraud, this Article argues that there is no need for additional criminal statutes to address telemedicine fraud. As the typical telemedicine scam involves the payment of kickbacks and billing for medically unnecessary treatment and services, the existing fraud laws such as the Anti-Kickback statute and the False Claims Act are sufficiently capacious to address the criminality involved in these cases. This Article also argues that in lieu of additional criminal statutes, the Government should focus on additional measures to prevent or detect telemedicine fraud because preventative measures are the best way to safeguard the integrity of federal health care programs.
Corbin, Caroline Mala, 'Religious Liberty in a Pandemic' (SSRN Scholarly Paper No ID 3634084, 23 January 2020) Abstract: The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.
Corcos, Christine A, ‘Legal Uncertainties: COVID-19, Distance Learning, Bar Exams, and the Future of U.S. Legal Education’ (2022) 8 Canadian Journal of Comparative and Contemporary Law 71–117 Abstract: The COVID-19 pandemic forced the U.S. legal academy and legal profession to make changes to legal education and training very rapidly in order to accommodate the needs of students, graduates, practitioners, clients, and the public. Like most of the public, members of the profession assumed that most, if not all, of the changes would be temporary, and life would return to a pre-pandemic normal. These assumed temporary changes included a rapid and massive shift to online teaching for legal education, to online administration of the bar exam in some jurisdictions, or the option to offer the diploma privilege in others. Many employers made efforts to accommodate new law graduates and employees who needed to work from home. As legal educators and the legal profession shift back to ‘normal’, we are now discovering that some of these changes might be rather desirable. Thus, we can begin to look at the last two years as an opportunity to re-evaluate how we teach and learn law and how we might evaluate the competence of those entering the profession in different ways. As we move forward, instead of automatically readopting to the status quo, we can instead examine approaches that would allow us to make headway on solving problems that have been with us for decades.
'Coronavirus emergency law gives paid leave: Federal law gives payroll tax breaks to offset costs to businesses' (2020) 9(256) Journal of the American Veterinary Medical Association 966-967 Abstract: Recently passed federal legislation gives temporary additional paid sick leave to workers for use related to the COVID-19 public health emergency. It also extends family and medical leave for workers if they are unable to work and need to care for their child because of a school closure or unavailability of child care because of the coronavirus. Exemptions apply to certain businesses, and these provisions only last until the end of the year. Tax credits will be given to employers, intended to mitigate the impacts of the expanded leave provisions.
Corradetti, Claudio; Pollicino, Oreste, 'The “War” Against Covid-19: State of Exception, State of Siege, or (Constitutional) Emergency Powers?: The Italian Case in Comparative Perspective' (2021) 6(22) German Law Journal 1060-1071 Abstract: Is the Covid-19 pandemic changing the constitutional-power structures of our democracies? Is this centennial public health emergency irreversibly constraining our liberties? The paper examines recent state-measures of containment during the initial phase of spread of the Covid-19 crisis. It compares primarily the Italian scenario with the Chinese and the American one. It asks whether the measures adopted particularly in the Italian case (known as DPCMs) amount to a state of exception or to a use of emergency powers. Cognizant of the authoritarian risks in severed enjoyments of constitutional rights, the authors conclude that this is not what occurred in the case of solid democracies. At the level of governmental analysis, the “decree” strategy of the Italian DPCMs allude to paternalistic forms of power-exercise that empty the self-determining prerogative of the parliament.
COSTE, JOONU-NOEL ANDREWS, 'COVID-19, Health Justice, and the Privilege of Space: A New Critical Intersectional Framework for Creating a Prescription for Equal Well-Being and Applied to Addressing Health of Children Residing in Psychiatric Institutions.' (2021) 3(43) Campbell Law Review 309-374 Abstract: Our nation--founded on life, liberty, and the pursuit of happiness--is a year into the COVID-19 pandemic. The pandemic has revealed the gap between what we are as a society and that which we long to be. A new critical intersectional legal framework, guided by Dr. Martin Luther King Jr.'s vision of The Beloved Community, will allow legal scholars and policymakers to reframe health equality and health justice toward a more perfect union. By combining the philosophical rigor of dialectical thinking, critical theory, and intersectional analysis, analysts can meet this moment and create new legal frameworks to correct social injustice. Analysts can build a just society based on equality to address the disproportionate sickness, disability, and death of America's historically oppressed peoples. With the goal of addressing oppression across multiple axes of identity at once, and in the spirit of Dr. King 's appropriation of eclectic theologies and philosophies, this Article proposes a new Critical Intersectional Legal Analysis that develops critical social theory by bringing an intersectional analysis to the principles of dialectical thought and indeterminacy. This Article 's framework will analyze power structures as they exist and work together through the power of the state to class, race, and disable people moment to moment. Finally, this Article's framework is reconstructive through self-reflexive application of theory through praxis. This Article will apply that new framework to a specific condition of oppression--,the privilege of space as it relates to the risks of viral transmission, infection, and disease during the current coronavirus pandemic for children in psychiatric institutional settings in North Carolina and the Southeast.
Coto, Ariel F, ‘Hero and Villain: The Defense Production Act in the Era of COVID-19’ (2021) 51(1) Southwestern Law Review 156–173 Abstract: In moments of crisis, heroic acts are typically those that are most decisive. Few statutes embody this sentiment more than the Defense Production Act of 1950 (DPA). The DPA has long been a statutory hero to a country that has needed to adapt to the international and domestic adversities of a post-industrial world. However, the line between hero and villain can often blur when decisive power begins to corrupt. In the nascent stages of the U.S. COVID-19 outbreak, President Trump invoked the DPA to galvanize the production of critical medical supplies for the federal stockpile. What resulted was a use of DPA power that brought states to their knees.
Coughlin, Christine Nero; King, Nancy M. P., 'The Stories We Tell: Narrative, Policymaking, and the Right to Try' (2020) () Wake Forest Journal of Law and Policy (forthcoming) Abstract: Personal stories that demonstrate public health problems can be a persuasive tool to obtain public support for a legislative, regulatory, or other legally oriented solution. Personal stories associate an identified life—a specific, inherently sympathetic person who needs help now—with a problem that can be solved by public action. This association enables us to draw parallels between ourselves and the identified life—the story’s protagonist. These parallels also motivate us to act on behalf of the identified life. The more emotionally charged the story, the more likely we are to credit the narrative as an accurate and representative portrayal of the problem. But public health focuses on the health of whole populations. Public health policies protect and promote the health of statistical lives, which are both numerous and invisible, and thus lack the immediate appeal of identified lives. For these reasons, personal narratives, while a powerful motivating force, can limit appreciation of the complexity of the public health issue and proposed policy to which they draw attention and sympathy. The Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017 and its forty-one state law counterparts offer a stark example of how tragic personal stories—rather than sound data and normative justification—created laws that are at best misleading and inefficient, and at worst, dangerous to public health. This essay examines the history of investigational drugs and expanded access through some of the stories that influenced FDA policy and practice. It then turns its focus to the right to try movement and explores some of the many personal stories that were used to propel the development of right to try laws by focusing exclusively on autonomy and access. Our focus then shifts to those whose personal stories—equally compelling—are not being told in the right to try discussions. These untold stories include narratives that highlight the need for careful science and the duties of researchers; stories that illustrate systematic disadvantage and structural injustice and can help demonstrate the need for a health care system that is meaningfully available to all from the outset; stories about unidentified statistical lives; stories from those who have come to regret the exercise of their right to try; and stories by and about those who have struggled between the do-everything mindset and the desire for a good death. We discuss the concept of identified lives and why the public supports “rescuing” individuals it deems attractive and deserving, and we address the problems associated with elevating these identified lives over other untold stories and statistical unidentified lives in the context of right to try laws. This essay concludes that personal narrative has a place in public health policy generally, and in the question of access to investigational drugs specifically. Personal stories, used judiciously, can be a powerful tool for advocating for needed change. However, in the context of access to investigational drugs, crafting policy with a sole focus on the primacy of personal choice and autonomy fails to incorporate the public policy mandate to base available choices on at least a minimal amount of safety data and a high degree of information transparency. Where research directed to improving human health is at issue, contributing to generalizable knowledge—the principal purpose of research—should not be minimized because patients with life-threatening illnesses believe that they have nothing to lose by trying. While personal narratives can and should be considered, they should be combined with acknowledgment of the complexities of the investigational drug and clinical trial processes, and with awareness of the perennial and inevitable tension between providing access and collecting data supporting safety and efficacy. Even in the most tragic of circumstances, health care policy in this area deserves to be made collectively, based on careful science, good research, and a fair allocation of resources.
Coyne, Christopher J.; Yatsyshina, Yuliya, 'Immigration Reform Is Key in the Recovery from the COVID-19 Crisis' (Mercatus Centre, COVID-19 Response Policy Brief Series No , 19 January 2020) Abstract: Recent immigration policies regarding F-1 student visas and H-1B work visas, aligned with the protectionist executive order known as “Buy American and Hire American,” introduced by the Trump administration in 2017, have been reducing the application rates of foreigners wishing to enter universities and the workforce in the United States. This reduces America’s access to a significant number of talented and creative people and the associated benefits.If current visa policy stands, it is likely that COVID-19 will further limit foreign student admissions to US universities in the coming year and perhaps beyond. This will have long-lasting effects on innovation and economic growth. Therefore, policymakers should treat the COVID-19 pandemic as a unique opportunity to relax or reverse current restrictive policies regarding student visas and H-1B visas. Effective reforms will attract bright young people who will enrich American society in many ways, not least of which being their contribution to innovation and the entrepreneurial spirit that makes the United States an economic powerhouse.
Craig, Lori-Ann and Sabrina A Davis, ‘Reference Services Provided by the Harris County Robert W. Hainsworth Law Library: A Comparison of Prior to and during the COVID-19 Pandemic’ (2022) Legal Reference Services Quarterly (Advance article, published online 23 May 2022) Abstract: The COVID-19 pandemic upended the lives of billions of people as well as the many services that people have come to rely upon for their needs. Libraries, and in particular, government law libraries, were not immune from this upheaval and were forced to reposition themselves to continue to provide valuable legal information services to a population that is underserved, selfrepresented litigants. In this article, the authors describe how one county law library expanded its reference services to include more virtual components.
Craig, Robin Kundis, 'The Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes' (SSRN Scholarly Paper No ID 4028027, 06 January 2022) Abstract: Vaccination mandates have been controversial since long before COVID-19, but the current COVID controversies obscure a more pervasive problem for U.S. public health laws and vaccine-preventable diseases than the intense politicization surrounding the pandemic. Until the late 20th century, for most people the risk of various dread diseases was sufficiently high that they embraced new vaccines. The intentional result of federal and state vaccination policies was that fewer people got these diseases. The perverse result was that perceptions of disease risk shifted, making the vaccines themselves seem like the far riskier option to many people and pressures to eliminate or mitigate vaccination mandates increased. Perhaps most importantly, in the early 21st century, state legislatures increasingly enacted exemptions from school vaccination requirements, setting the stage for measles resurgences in 2015 and 2019. Focusing primarily on measles vaccination, this Article argues that, while not the only factor, a regulatory shifting baseline syndrome fueled the pre-COVID-19 resistance to childhood vaccination. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation forgets what the ocean and its fisheries used to be and that this generational amnesia allows successive generations to accept the current impoverished state of marine fisheries as normal. The generational forgetting of prior fisheries, in other words, makes opaque what the goals of fisheries regulation should be, or even could be. This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a public legal regime, like a school vaccination mandate, so successfully eliminates a societal problem, like dread diseases, that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. This generational amnesia, in turn, can lead to changes in law and policy allow the prior problem to re-emerge in society, as occurred with measles outbreaks. While COVID-19 vaccination mandates are almost uniquely politicized and too new to reflect and regulatory shifting baseline syndrome, decisions are nevertheless being made in the COVID-19 context that may give the regulatory shifting baseline syndrome more room to operate, potentially threatening public health gains made with respect to a plethora of other vaccine-preventable diseases in the United States.
Crawford, Bridget J., 'Taxation as a Site of Memory: Exemptions, Universities, and the Legacy of Slavery' (2020) () SMU Law Review Forum (forthcoming) Abstract: Many universities around the United States are attempting to grapple with their direct and indirect involvement with the institution of slavery. Lolita Buckner Inniss’s book The Princeton Fugitive Slave: the Trials of James Collins Johnson (2019) enters directly into the conversation taking place on university campuses and nation-wide about what responsibilities institutions have to acknowledge their past and to create racially inclusive campuses in the twenty-first century. Because most universities are tax-exempt, it is important to understand that their activities are indirectly subsidized by local, state and federal governments. The lens of tax law facilitates better understanding of universities’ unique historic role in American economic activity as well as contemporary arguments about their obligations to workers and community constituents during the COVID-19 crisis.
Crawford, Bridget; Simon, Michelle, 'Law Faculty Experiences Teaching During the Pandemic' (2021) 3(65) Saint Louis University Law Journal 455-470 Abstract: When colleges and universities abruptly shifted to online teaching in March 2020 all, focus (appropriately) was on ensuring continuity of education for students. In adapting courses to the new online environment, professors were encouraged to take into account the incredible stress students were experiencing, their new living conditions, and, in some cases, lack of access to technology and educational resources. For the Spring 2020 semester, almost all U.S. law schools shifted to some form of pass/fail grading in recognition of the enormous upheaval to students’ educational plans. Less discussed during the initial months of the corornavirus pandemic was how faculty members experienced and responded to the pandemic in their personal lives and as professional educators. This essay describes the results of an informal, non-representative survey of law faculty conducted in May 2020. The principal findings are that during the initial months of the pandemic, law professors themselves were under considerable stress, that they altered their modes of delivery and interaction with students, and that they wanted students, colleagues, and school administrators to recognize the complex experiences of law faculty teaching during the pandemic. The initial survey results here could serve as a basis for law school deans and others to develop school-specific surveys that might elicit more specific feedback about the experiences of faculty members at their schools. That feedback would enable law school leaders to develop programs that support their faculty and students. It may also be important to track longer-term effects of the pandemic on law faculty careers, as disruptions to legal education caused by the coronavirus may continue for some time.
Crebelli, Marta, 'Covid-19 and Its Impact in the United States and European Union: A Tool to Circumvent Refugee Protection?' (2020) 1(27) ILSA Journal of International & Comparative Law 27-54 Abstract: The first part of this article will discuss basic concepts, such as the definition of "refugee," who is entitled to that status, and an analysis on the principle of non-refoulement. The second part will discuss the impact of the COVID-19 pandemic on asylum seekers in both Europe and the United States (U.S.). The third section of this article will discuss the most recent orders, as of this publishing, and directives issued in those two countries as a response to the pandemic emergency and the impact on migrants. A legal comparative analysis will follow. This article will conclude by discussing whether those measures constitute a violation of human rights and whether governments are using this health emergency as a tool to circumvent international refugee obligations.
Creighton, Tyler, 'A New Start down an Old Road Toward Substantive Voter Equality for People with Disabilities' (SSRN Scholarly Paper No ID 3754515, 23 January 2020) Abstract: As the June 2020 state primary election in Pennsylvania approached, Joseph Drenth, who is legally blind, faced an untenable choice: vote by mail and sacrifice the ability to cast a private and independent vote, or continue to vote privately and independently at a polling location and sacrifice the health and safety of himself and his family due to the COVID-19 pandemic? Fortunately, a preliminary injunction ordering the state to implement a remote accessible vote-by-mail system ultimately made such a choice unnecessary for Mr. Drenth. Unfortunately, voters with disabilities in many other jurisdictions throughout the country were not so lucky. Even as the threat of COVID-19 hopefully moves to our rearview mirrors in the coming year, Mr. Drenth’s successful lawsuit highlights a critical but underutilized legal tool for ensuring that voters with disabilities are afforded an equal voting experience—including the ability to cast a private and independent ballot—as compared to other voters.This article proceeds in three parts. Part I summarizes the history and current state of voting with a disability in the United States. In doing so, it outlines the main federal statutory provisions related to voting rights for individuals with disabilities. Part II explains how federal courts initially narrowed the guarantee of the ADA and the Rehabilitation Act to mere technical equality in voting in a way that denied equal dignity and treatment when voting with a disability. It then analyzes a more recent line of cases that backs away from this early case law to expand the reach of the ADA and Rehabilitation Act to also ensure substantive equality and a fuller, more robust right to vote with a disability. Part III then speculates about broader adherence to a mandate of substantive equality throughout the federal judiciary.
Crepelle, Adam, 'Tribes, Vaccines, and Covid-19: A Look at Tribal Responses to the Pandemic' (2021) 1(49) Fordham Urban Law Journal 31-64 Abstract: The article focuses on how tribes were particularly susceptible to the COVID-19 virus and background information on Indians' historical relationship with western medicine and pharmaceutical research. It mentions explores how tribal sovereignty impacts public health measures other than vaccine distribution and other pandemic response measures, such as business shutdowns and mask mandates. It also mentions tribes implemented mask mandates, curfews, and other safety measures.
Crisp, Anne; Heminway, Joan; Martin, Gary, 'Business Law and Lawyering in the Wake of COVID-19' (2021) 2(22) Transactions: The Tennessee Journal of Business Law 365-391 Abstract: Extract from Introduction: The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This Article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to provide valuable services, gain and refresh knowledge and skills, and evolve their business operations.
Crompton, Darryl, ‘President Biden’s Executive Order 13995 on COVID-19 and Health Equity: Seeking Justice in a Public Health Crisis’ (2022) 16(1) Journal of Health and Life Sciences Law 8–15 download PDF print replica of entire issue here] Abstract: This article explores several health policy issues related to the President’s COVID-19 Executive Order, including health equity and justice, structural racism, health disparities, vaccine access, and vaccine acceptance in communities of color. This article also proposes several health equity policy considerations to local governments intended to supplement the Task Force recommendations. Health care attorneys can play a key role in achieving health equity by engaging with local officials and communities of color to adopt these local government health equity policy considerations.
Crow, Olivia, 'Education Inequality During Covid-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention' (2022) 2(63) Boston College Law Review 713-752 Abstract: Remote learning during the COVID-19 pandemic (COVID-19) disrupted nearly every student's life and will cause immense learning losses. Lowincome students and students of color are the most likely to be in online classes, yet the least likely to have necessary resources to succeed in a remote school environment. Studies show that the COVID-19 pandemic has and will continue to worsen the racial and socio-economic achievement gap in education. As a result, two groups of parents in California filed class action lawsuits alleging that the State of California and the Los Angeles Unified School District respectively failed to provide a basic education to students of color in impoverished neighborhoods since the school closures in spring 2020. Following the United States Supreme Court's seminal ruling in Brown v. Board of Education in 1954, education litigation has slowly progressed under State constitutions towards recognizing an affirmative duty for States to provide a free and equal education. The Supreme Court's decision in San Antonio Independent School District v. Rodriguez in 1963 solidified that the federal Constitution does not guarantee an equal public education for all citizens. As such, since the federal Constitution does not guarantee the right to public education, but all state constitutions do, the citizens of California and other states must use their state constitution to enforce the constitutional guarantee of a free and equal education. During the Pandemic, California's remote learning plan has disproportionately affected low-income students of color, while privileging students in wealthier districts. This Note contends that both class action complaints sufficiently allege an equal protection violation, spurring the need for judicial intervention, and providing a model for future litigants in other states. The courts, therefore, should advise the legislature to adopt a plan that accounts for the lost learning time and ensures the most disadvantaged students receive a meaningful education during and post COVID-19.
Cruz, Sherley, ‘Essentially Unprotected’ (2021) 96(4) Tulane Law Review 1–57 Abstract: Since the start of the COVID-19 pandemic, the American public relied on ‘essential’ low-wage workers to provide critical services and keep the public safe. COVID-19 has exposed cracks that lead to serious gaps in workplace protections for low-wage workers. Decades of exploitative employer practices and neglect from the federal government have left frontline low-wage workers essentially unprotected. Many of these workers are people of color and recent immigrants who have been disproportionately impacted by the virus due to structural racism and socio-economic barriers. This is particularly true in the meatpacking industry, where a legacy of poor working conditions, exploitation, and lack of federal oversight resulted in industry-wide COVID outbreaks infecting almost sixty-thousand workers. By applying a critical race theory lens and telling the story of the first worker to die after contracting COVID-19 at one of the world’s largest meatpacking plants, this Article unpacks the practices, policies, and narratives that allow low-wage industries, like U.S. meatpacking plants, to place profits over the lives of Black and Brown workers. This Article concludes by highlighting the lessons learned and providing recommendations to safeguard low-wage workers beyond this critical moment in time.
Culotta, Emma, Understanding the Distributive Equity Framework for Allocating Scarce Medical Resources in Times of Crisis (2022) 4(100) Texas Law Review 803-837 Abstract: The goal of this Note is to examine the moral and legal questions raised by scarcity of life-saving medical resources from a distributive justice perspective. This Note argues that the traditional antidiscrimination framework cannot resolve questions of resource allocation because antidiscrimination laws focus on eliminating barriers to access without addressing issues of substantive equity. Because a solution requires prioritizing across similarly legitimate claims to healthcare to ensure equitable access to health for all, resource allocation is a substantive concern better suited for analysis under a distributive equity framework. This Note identifies the proper space-or good-of distribution as the basic human capability of health and the appropriate metric for distribution within that space as a structured balance of utilitarian and prioritarian principles called the Principle of Proportionate Priority (PPP), a new principle of distributive justice developed by Professor Talha Syed of Berkeley Law. This Note contributes to its relevant field of scholarship by applying this novel principle in the context of medical-resource allocation and proposing it as a useful tool for states to improve resource-allocation protocols like the Crisis Standards of Care developed in response to COVID-19. Under the proper distributive equity framework, the Principle of Proportionate Priority appropriately affords priority as a matter of degree based on how much worse off a patient is relative to others and how much they stand to benefit from treatment. In practical terms, this means a patient's claim for priority is strongest when they have both the greatest need, because of their young age or poor lifetime levels of health, and the greatest potential for benefit, because of their chance of survival or the effectiveness of treatment. This comparative priority approach is preferable to a strictly utilitarian principle that ignores the plight of the worst off or a strictly need-based prioritarian principle that disregards the importance of efficiently stewarding resources, particularly in times of scarcity. When developing protocols for the allocation of scarce medical resources, states can fairly consider the rationing factors of age, severity of condition, probability of survival, and life expectancy after treatment to determine whether a patient suffers from greater need or stands to reap greater benefits from treatment.
Cunningham, Lawrence A., 'Adapting to Remote Law Practice through the Pandemic: Essays from the GWNY 2020 Business Lawyering Class' (GWU Legal Studies Research Paper No 2020-22, 20 2020) Abstract: The coronavirus pandemic requires law schools to train students in the new art of remote legal services, to anticipate how this will change the practice of law and what it means to be "practice ready." The accompanying essays, by students caught in the middle of the epidemic during an immersive training program, offer reflections and visions. Written by students at the end of their spring 2020 semester in George Washington University's New York City (GWNY) business law program, the students explore how they must adapt their competencies accordingly.
Curcio, Alyssa, ‘Immunizing Roe: How Court Treatment of COVID-19 Vaccine Mandates Supports Reproductive Freedom’ (2022) 43(1) Columbia Journal of Gender and Law 1–30 Abstract: This paper places legal doctrines surrounding abortion and reproductive freedom in conversation with the discourse on bodily autonomy as it relates to the COVID-19 pandemic.
Curley, Cali, Peter Stanley Federman and Ruowen Shen, ‘Expanding the Political Market Framework to Explain Executive Decision-Making during the COVID-19 Crisis’ (2023) 83(5) Public Administration Review 1281–1299 Abstract: The traditional political market framework (PMF) argues that elected officials respond to policy demands by adopting policy that furthers their goal of reelection. However, an emerging crisis can make this approach to decision-making challenging as the immediacy of response, the needs of the public, and technical expertise may conflict with reelection goals. This conflict can encourage elected officials to engage in blame avoidance by delegating policy-making powers to the bureaucracy. Utilizing a mixed methods approach to analyze state-level governor responses to COVID-19, this paper expands the PMF by capturing the influence of bureaucratic demands on elected official decisions to delegate or transfer power to the bureaucracy. We find evidence that bureaucratic expertise, under the right set of circumstances, influences policymaker decisions to delegate policymaking power. Lastly, we advocate for a renewed focus on democratic principles and the consequences of delegation for transparency, accountability, and social equity. In understanding the specific dynamics at play when bureaucrats and executives work to develop policy in crisis, practitioners may gain a better understanding of how to navigate difficult decisions. The specific executive orders across states are not particularly well-known, and providing evidence of the steps other states took to combat the crisis may prove useful to practitioners in the emergency management space. If practitioners have a more complete understanding of why policy is made and by what mechanisms, they may apply a focus on implementation strategies that are effective and relevant.
Curran, Charles, ‘Personal Data and Vaccination Hesitancy: COVID-19’s Lessons for Public Health Federalism’ (2024) 73(2) Catholic University Law Review 155–212 Abstract: During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens. Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented immigrants already fearful about the Trump Administration’s data-driven immigration enforcement policies—even as undocumented essential workers faced enhanced risks of COVID-19 exposure. Disputes with some states over the federal government’s proposed terms of governance for individual vaccination information compounded delays in the reporting of necessary public health information. Moreover, as the pandemic response evolved, the Biden Administration was obliged to counter apprehension among the broader public that federally-stored information might be used to enforce vaccination mandates or adoption of digital ‘vaccination passports.’ Notwithstanding calls for greater federal authority to directly gather data in future epidemics, I argue that the goal of achieving broad public vaccination uptake will be better served by preserving and improving a federalist approach that generally leaves the states to control the collection and storage of individually identifiable vaccination information. I contend that the lessons of COVID-19 suggest that more robust governance and technological controls for federal access to state public health data—coupled with improved transparency about the limits of federal data use—can both ameliorate public hesitancy and improve inter-governmental exchange.
Cyphert, Amy, 'Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk' (2020) 2(51) Seton Hall Law Review 331-381 Abstract: The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018. The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism. The resulting tool--PATTERN--was released in the summer of 2019 and quickly updated in January of 2020. It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic. It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm. This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors. But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government's decision to dismiss repeated calls to release more information about it. Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions. This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.
DaBiere, Ashley, ‘COVID Vaccines and Intellectual Property Rights: Evaluating the Potential for National Legislation Implementing Global Patent Waivers’ (2023) 20(1) Duke Law & Technology Review 68–89 Abstract: Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision.
Darrow-Kleinhaus, Suzanne, '"Portability of the Ube: Where Is It When You Need It and Do You Need It at All?"' (2021) 2(37) Touro Law Review 665-696 Abstract: The article focuses on the problem facing May 2020 law school graduates in the U.S. as uncertainty in Uniform Bar Exam (UBE) jurisdictions continues due to the COVID-19 pandemic. Topics discussed include the challenges faced by bar candidates as they prepare for UBE, the problem with UBE score of New York candidates who were encouraged to take the exam in another UBE jurisdiction, and the concept of courtesy and non-courtesy jurisdictions.
Dave, Dhaval et al, ‘Sudden Lockdown Repeals, Social Mobility, and COVID-19: Evidence from a Judicial Natural Experiment’ (2023) 20(2) Journal of Empirical Legal Studies 272–304 Abstract: The imposition and lifting of COVID-19 lockdown orders were among the most heatedly debated policies during the pandemic. Credible empirical evaluations of the effects of reopening policies are difficult because policymakers often explicitly linked sustained reductions in COVID-19 cases to the lifting of lockdown orders. This hardwired policy endogeneity creates challenges in isolating the causal effects of lifting of lockdown orders on social mobility and public health. To overcome simultaneity bias, we exploit a natural experiment generated by the Wisconsin Supreme Court when it abolished Wisconsin’s ‘Safer at Home’ order on separation-of-powers grounds. We capitalize on this sudden, dramatic, and largely unanticipated termination of a statewide lockdown order to estimate its effect—relative to a more gradual scaling back of restrictions—on social mobility and COVID-19 case growth. First, using anonymized smartphone data from SafeGraph and a synthetic control design, we find that termination of COVID-related restrictions had small and short-lived negative impacts on social distancing. Then, using data on case and mortality rates, we find no evidence that the Wisconsin Supreme Court decision impacted COVID-19 growth up to a month following the repeal. These findings suggest that in the absence of carrying new information, sudden lockdown repeals may generate smaller behavioral responses than policymakers anticipate.
Davey, Neil, ‘COVID-19 Response in an Alternative America: Legal Tools That the US Government Failed to Invoke’ (2023) 25(1) Minnesota Journal of Law, Science & Technology 1 Abstract: This article begins with a description of the regulatory and patent landscape for various COVID-19 technology types, including testing (diagnostics), drugs (therapeutics), and vaccines. It then describes the COVID-19 crisis response in the United States from the Trump to Biden Administrations. Next, this article details how the government might have invoked other legal tools during this emergency. These include (1) bypassing patent rights in the pharmaceutical industry, (2) leveraging the government’s central authority to contract creatively and drive know-how transfer, and (3) invoking executive authority to commandeer part of the pharmaceutical sector. Unfortunately, the federal government failed to employ any of these three legal tools to increase access to COVID-19 testing, drugs, and vaccines. Understanding the nuances that may exist for different technology types, this article concludes with tailored solutions on what could have been used to end the pandemic more quickly and effectively. Ultimately, some of the core concerns around innovation incentives that exist for one technology type (e.g., compulsory licensing for complex vaccines) may not exist for another, given different market characteristics due to varying regulatory and patent landscapes. Thus, there is ripe ground for greater government intervention during future crises, without undermining needed innovation.
Davies, Andrew; Smiegocki, Victoria M.; Hall, Hannah E., 'The Court is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending' (SMU Dedman School of Law Legal Studies Research Paper No No 488, 20 2020) Abstract: What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009. Redistributive policies – those which use tax payer funds to support individuals who themselves pay little or no tax – are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. We attribute this apparent stability to two general explanations. First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation. And second, the characterization of indigent defense itself as redistributive seems faulty. Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight. The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele – the lawyers.
Davis, Corey S; Lieberman, Amy Judd, 'Access to Treatment for Individuals with Opioid Use Disorder' in Scott Burris, Scott et al (eds), Assessing legal responses to COVID-19' (Public Law Health Watch, 2020) Abstract: The United States is currently facing two severe public health emergencies: COVID-19 and the continuing epidemic of preventable opioid-related harm. While these epidemics share some similarities, there is one key difference: while there are currently no approved pharmaceutical treatments for the novel coronavirus, highly effective medications to treat opioid use disorder (OUD) have existed for decades. Despite their proven efficacy, access to these medications has long been limited by federal and state laws, limitations that disproportionately impact those who are made particularly vulnerable by structural factors including economic injustice and structural racism. In response to the COVID-19 epidemic, the U.S. Drug Enforcement Administration and other federal agencies have taken steps to temporarily remove some legal and regulatory barriers to these medications. These changes are not comprehensive, and most are tied to the COVID-19 public health emergency declaration. The epidemic of opioid-related harm will not end when the new coronavirus is controlled or the related emergency declaration expires. Indeed, it seems likely that steps taken to attempt to control the virus’ spread may result in an even more unhealthy risk environment for people with OUD, with a resulting increase in treatment need. This Chapter briefly highlights the potential positive impact of increased access to OUD treatment, current changes to increase access to that treatment, and recommendations for making those changes permanent.
Davison, Matthew, 'No Ordinary Process: The Flaws in Illinois Courts' Use of Remote Video Technology in Mental Health Trials' (2021) 1(30) Annals of Health Law and Life Sciences 137-176 Abstract: This article discusses and criticizes Illinois courts’ use of remote video conference technology in mental-health trials during the COVID-19 pandemic. It contends that, while the Illinois Supreme Court issued rules and guidance that directed how local courts should implement video conference technology with purpose and accommodations, the local courts (including the largest circuit court in Illinois) instead mandated remote video technology for mental health trials as a panacea without regard to participants’ preferences, objections, or disabilities. As detailed further, the issues only compound because of a separate shortcoming where, unlike other remote hearings and trials which are widely available to view by the public, no such public access links accompany any of these remote video mental health trials. Meaning, for the majority of 2020 and continuing to date (as of Feb. 20, 2021), trials involving fundamental liberty interests (i.e., involuntary commitments and forced administration of medications or electroconvulsive therapy) occurred out of public view, in a manner inconsistent with law and policy.
Dawodu, Opeyemi Naimot, ‘Covid-19: A Disability under the Americans with Disabilities Act?’ (SSRN Scholarly Paper No 4384672, 17 January 2022) Abstract: The Americans with Disabilities Act has as its mandate to prohibit all forms of discrimination against persons living with disability and to ensure that such qualified persons enjoy equal employment opportunities. Persons with disabilities are a minority and have faced longstanding discrimination in terms of housing, employment, health services, recreation, voting, communication, to mention a few. Thus, the need for an Act like the ADA. This paper addresses the question: whether COVID-19 is a disability and what covered employers need to know in order not to fall short of the provision of the anti-discrimination laws. It is important for employers to be abreast of the provisions of these anti-discrimination laws and ensure they do not fall short of the law. All forms of discrimination ‘because of disability’ are prohibited. Employers should also beware of the kinds of medical enquiries they make as it relates to COVID-19 where it qualifies as a disability. Most importantly, reasonable accommodation should be given to employees with disabilities such as more flexible work schedule, work from home, if possible, adequate time off to recover.
de Mino, Wolfgang Hirczy P, 'Coronavirus Election Jurismalprudence' (SSRN Scholarly Paper No ID 3684951, 01 January 2020) Abstract: Judicial Branch of the Texas GOP Showcases Use of Judicial Power to Make Elections Hazardous to Both Liberty and Health Election Law Guru Richard Hasen recently laid out three pathologies in the American way of practicing electoral democracy. Not only is Texas afflicted by all three of them, the Lone Star State merits an in-depth clinical case study of its own to explore the etiology of how democracy itself can suffer a bad health outcome under partisan judicial leadership in times of a raging pandemic. Not only has official voter suppression been given the imprimatur of judicial approval in Texas; the highest court for all matters civil has gone so far as to criminalize voting by mail, leaving the precise definition of the contours of the crime to the prosecutorial discretion of the Republican Attorney General, along with the ability to select absentee voters for prosecution after the fact for wrongful voting. See, relatedly, Mason v. State, No. 02-18-00138-CR, 598 S.W.3d 755 (Tex.App. – Fort Worth, Mar. 19, 2020, motion for reh’g denied Aug. 27, 2020) (holding that State did not have to prove mens rea to obtain conviction for second-degree felony illegal voting involving the casting of a provisional ballot, Tex. Elec. Code Ann. § 64.012(a)(1), (b)). The Supreme Court of Texas (SCOTX) -- composed solely of Republicans -- set the new low in partisan jurisprudence in an opinion handed down on May 27, 2020, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court’s haste wasn’t motivated by the exigencies of the COVID-19 crisis. The perceived imperative was instead to curtail voting by mail (VBM) in times of pandemic. The supreme jurists did so at the behest of fellow-Republican Attorney General Ken Paxton in an original proceeding brought for the purposes of securing a favorable ruling, rather than in a declaratory judgment case brought by advocates for voters that was making its way through the regular appeals process. Under the motto SAFETY FOR ME, BUT NOT FOR THEE, the nine Supreme Court Republicans voted remotely from their respective homes to deny all Texas citizens the ability to vote remotely from their homes under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, 2020 WL 2759629, 602 S.W.3d 549 (Tex. May 27, 2020). Construing the absentee voting provision of the Texas Election Code as urged by the Attorney General, the High Court proclaimed that lack of immunity to COVID-19 does not, without more, constitute a physical condition that entitles the voter to vote absentee to avoid the risk of infection at the polling place. This paper recounts the course of the litigation, and presents a critique of the actors and the outcome.
de Mino, Wolfgang Hirczy P, 'Devine Dissents on COVID-19 Shutdowns in Texas' (SSRN Scholarly Paper No ID 3664781, 03 January 2020) Abstract: On July 17, 2020 the Texas Supreme Court dismissed a challenge to Governor Greg Abbott’s executive orders issued pursuant to the TEXAS DISASTER ACT in efforts to contain the spread of COVID-19.In re Hotze, No. 20-0430 (Tex. Jul. 17, 2020) (orig. proceeding) This legal action challenging the use of emergency powers during the pandemic—one of several--was brought by Steven Hotze, MD, a conservative political activist, joined by an assortment of affiliated co-petitioners. All were represented by the same Texas attorney, Jared Woodfill, himself a prominent Republican. The fact that the Texas Supreme Court dismissed the case was no surprise because it was initiated directly in the court of last resort, with no constitutional or statutory authorization for it. The statute that provides for mandamus relief expressly excludes the Governor as a target. What is more noteworthy, however, is the issuance of a dissenting opinion in the guise of a concurrence sympathetic to Hotze's challenge to Governor Greg Abbott's handling of the pandemic. The all-Republican SCOTX disposed of Case No. 20-0430 by ordering dismissal for want of jurisdiction without any additional explanation; one justice however, John P. Devine, nevertheless issued a five-page opinion, which none of the other justices joined. This stands in contrast to an earlier challenge of similar nature, which was likewise rejected but managed to attract four justices for a concurring opinion that was not essential to the disposition of the case. In re Salon a La Mode, No. 20-0340, _ S.W.3d _ (Tex. 2020) (Blacklock, J., concurring in the denial of the petition for writ of mandamus). Justice Devine cited the earlier opinion by Justice Blacklock, but did not garner the support of any of his colleagues in the Hotze case. Justice Devine also parted ways with his colleagues on the dismissed of a mandamus petition relating the GOP’s state planned in-person convention in Houston for lack of jurisdiction. In that case, he wrote a ten-page dissent. See In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020). In a companion mandamus case, Hotze complained of the denial of a temporary restraining order relating to the convention in a Houston trial court, which as docketed as No. 20-0524 in the supreme court. The SCOTX denied mandamus relief in that case at the same time it dismissed the GOP’s petition, but Justice Devine dissented, albeit without a separate opinion. Clearly, Justice Devine stands apart from the rest – at least on COVID-related issues -- even though the other eight members of the Court are fellow Republicans and resolve the majority of cases unanimously. Which raises the question: How and why? I conclude that the answer can be found in judicial politics, with no need to delve into the matter of distinctive jurisprudential theories or doctrine-driven explanations. Seven members of the Texas Supreme Court were initially chosen and appointed by a Republican Governor. John Devine is one of two who was not, and is the only associate justice on the SCOTX who won election after having defeated a Republican incumbent in a Republican primary. He did so with Tea Party support. While the Court has a long-standing statist bias and has sided with the Governor and the Attorney General in COVID-19-related cases, Justice John P. Devine caters to a different constituency: the far right of the Texas GOP. His actions on the Court reflects that. In multiple cases involving different legal issues, Devine has demonstrated his willingness to go out of his way to lend legitimacy to conservative activist Steven Hotze, who is a prolific cause-driven litigant, and widely viewed as a right-wing extremist. In the Texas Republicans' fight over the 2020 State Convention, Justice Devine would have used the High Court's mandamus power to force the City of Houston to host the GOP Convention at the George R. Brown Convention Center in the midst of the current pandemic after the event was cancelled by local officials pursuant to a force majeure clause in the contract to avert the occurrence of a super-spreader event. See In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020) (per curiam dismissal; dissent to dismissal by Justice Devine).
Deere, Kelly, ‘Democratizing Emergencies: The Local Predicament’ (2022) 101 North Carolina Law Review (forthcoming) Abstract: Disasters are typically local events even in a pandemic. Throughout 2020 into 2021, state governors used their emergency powers to issue stay-at-home orders, close non-essential businesses and either prohibited or banned mass gatherings including gatherings for religious services. However, it has been local government that reacted more quickly in the beginning and has continued to act into early 2022 when many state governments refuse to consider social mitigation measures to curb transmission despite a national surge of nearly a million cases per day. For those citizens who desire their state government to do more in an emergency, local government often filled that gap. While these local cities and counties are enacting such measures like a school mask mandate in direct response to local public health metrics, many have faced resistance from their state. Some states have banned local authorities from enacting certain mitigation measures and have aggressively sought to restrain those local authorities from defying these bans through litigation and fines. While red states preempting blue city laws is not new, some of the states’ bans are more brazen in method and more crippling in outcome. This new form of ‘crippling preemption’ places local officials in an untenable predicament. Charged with providing for the health, safety and education of its citizens, local government cannot carry out its duties if state government removes critical public mitigation tools from its toolbox in a public health emergency. This Essay highlights the urgent need for local government to fully respond in an emergency and the most important problems facing proponents of responsive regulation. This Essay urges local government to continue to challenge state-placed limitations on local emergency orders. The Essay further concludes: 1) that the state and federal courts can and should bolster the local governments’ legitimacy in their actions on either constitutional or statutory grounds; and 2) that governments should model themselves on those successful state-local partnerships, especially ones that transcend party lines.
Deere, Kelly, 'Governing by Executive Order during the COVID-19 Pandemic: Preliminary Observations Concerning the Proper Balance between Executive Orders and More Formal Rule Making' (2021) Missouri Law Review (forthcoming) Abstract: As the United States enters 2021, almost all fifty states are still operating under a state of emergency due to COVID-19 more than nine months later. Governors using emergency powers provided to them under their respective emergency disaster statutes and state constitutions continue to govern their state by executive order. These executive orders have had significant impacts on citizens’ everyday lives including stay-at-home orders, limits on non-essential gatherings, non-essential business closures and moratoriums on evictions. And these emergency orders have been opposed at almost every turn from citizens gathering in public protest shouting “Liberate Michigan” to constitutional legal challenges to these orders. Even with two promising vaccines receiving emergency authorization at the time of this article’s submission, it will be months or longer before life returns to normal. Therefore, it becomes incumbent to ask the question whether governors should continue to wield this emergency power or whether state legislatures and/or state agencies should take on more responsibility. In answer to this question, this article concludes that governors should use executive orders in some measure as long as COVID-19 is being transmitted in their communities but not for all areas. Since COVID-19 is a highly contagious disease and is difficult to contain, governors need to be able to quickly and nimbly issue orders to curb transmission as long as there is a reasonable check on their power to do so. However, state legislatures and/or state agencies should enact emergency statutes or regulations following the more formal rule making process in areas that do not require immediate action such as requiring facial coverings in public spaces. This article draws its conclusion by examining three key areas. First, most governors have a meaningful check on their emergency powers from both the judiciary and the state legislature. Second, governors and litigants can learn from prior cases to ensure executive orders do not single out a group or unnecessarily burden another. Third, since some states have had success in enacting emergency regulations, statutes or guidelines concerning COVID-19, more states should follow suit.
Del Mundo, Israel, 'Face Masks and Freedom of Speech: The Constitutionality of Illinois Face Mask Mandates Amidst the COVID-19 Pandemic' (2022) 1(71) DePaul Law Review 115-139 Abstract: This Comment considers the constitutionality of Governor Pritzker’s Executive Order, analyzing whether the Illinois face mask mandate violates the First Amendment of the U.S. Constitution. This Comment argues that it does not. Part II provides a background of the COVID-19 disease, the events leading up to the issuing of Governor Pritzker’s Executive Order, and the responses to that Executive Order. In addition, Part II surveys caselaw concerning freedom of speech and regulations created to preserve public health. Part III analyzes whether a face mask requirement by the State of Illinois abridges freedom of speech in the context of Governor Pritzker’s Executive Order. Part IV discusses the impact of the Executive Order and considers the implications and efficacy of statewide face mask mandates generally. Part V concludes this Comment by revisiting the instruction that caselaw provides.
Delfino, Rebecca A., 'A New Prescription for the Opioid Epidemic: 360-Degree Accountability for Pharmaceutical Companies and Their Executives' (2022) 2(73) Hastings Law Journal 301-369 Abstract: We can no longer ignore this--a national crisis resulting in almost one million American deaths, costing hundreds of millions of dollars, ravaging the health care system, and devastating state and local communities. This narrative describes the COVID-19 pandemic and something else: the epidemic of opioid addiction and abuse. In the last twenty years, the opioid epidemic claimed the lives of more than 700,000 people at the cost of more than 500 billion dollars to the economy. The COVID-19 pandemic has made the opioid epidemic worse, causing a staggering increase in opioid-related overdose deaths. Even now, on average, 140 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70% of those deaths involve a prescription opioid. There is a growing sense that those responsible for the opioid epidemic, specifically drug companies and their executives, have escaped responsibility for their dangerous and deceptive practices in manufacturing and marketing opioids. Although they have confronted civil lawsuits, the pharmaceutical industry has faced virtually no criminal scrutiny; only a couple of companies and executives have ever been criminally charged for the devastation that opioids have caused. This raises questions: Given the increasing number of opioid overdose deaths nationally, why are charges and convictions of drug companies and their executives so rare? And why have existing legal mechanisms not worked to punish the improper manufacturing and marketing practices and curb the epidemic? Their misconduct continues because no single federal law exists to prosecute pharmaceutical companies and their executives for causing the epidemic. And existing laws are ineffective; they fail to criminalize the type of conduct that caused the epidemic, contain elements prohibitively difficult to prove, or impose minimal penalties that fail to deter bad actors. Thus, the drug industry has persisted in dubious practices unfettered by civil litigation, government enforcement actions, and fines. This Article seeks to examine these issues and others. It is the first in legal scholarship to offer a concrete and omnibus solution grounded in federal law to address the pharmaceutical industry's misconduct. The novel 360-degree solution proposed here--the "Controlled Substance Manufacturing and Marketing Accountability Act"--will deter and punish those pharmaceutical companies and their executives who provided misleading information to government regulators and used deceptive practices in marketing opioids to the public. It also recognizes that when properly prescribed, these drugs provide essential relief for pain and suffering. Thus, this Proposal seeks to address prior misconduct and point the way forward to avoid the next drug epidemic.
Denkyirah, Elisha K and Raymond J March, ‘Operation Warp Speed: An Emerging Ratchet?’ (2025) 29(4) Independent Review 603–618 Abstract: The article focuses on the establishment of Operation Warp Speed (OWS) by President Trump in May 2020 to expedite COVID-19 vaccine development through collaboration between private vaccine developers and government agencies. Topics include the partnership’s initial success in achieving FDA authorization for vaccines, the limited academic analysis of OWS compared to other pandemic responses, and the mixed evaluations of its effectiveness.
Dennison, James, Alexander Kustov and Andrew Geddes, 'Public Attitudes to Immigration in the Aftermath of COVID-19' (SSRN Scholarly Paper No ID 3884912, 09 January 2021) Abstract: How has the COVID-19 pandemic affected public opinion towards immigration? Long-term evidence in Europe and the United States suggests attitudes to immigration are relatively stable and, in some cases, becoming more favorable with high volatility instead in the perceived importance of the issue. However, theoretically a global pandemic could exacerbate people’s fears of outsiders or that migration may contribute to the disease. By contrast, attitudes could remain stable if their distal drivers prove to be robust enough to withstand the shock of COVID-19, which may instead highlight the disproportional importance of migrant workers. We draw from Eurobarometer data from 2014 to 2020 across 28 European countries, weekly national survey data during the outbreak from the US and individual panel data from the UK and Germany to find little systematic change in immigration preferences and no country-level correlation between the observed changes and the severity of the outbreak. Instead, the perceived importance of immigration has consistently and significantly decreased. These findings suggest that, if COVID-19 is to have an impact on attitudes to migration, it is likely to emerge via longer-term means, such as early-life socialization and value change, rather than reactions to the immediate shock of the pandemic.
DeRosa, Nicholas et al, 'Pharmacist Allowances for the Dispensing of Emergency or Continuation of Therapy Prescription Refills and the COVID-19 Impact: A Multistate Legal Review' (2021) 3(12) Pharmacy Practice & Practice-Based Research Article 17 Abstract: The COVID-19 pandemic has taught Americans many lessons, including what can happen when our healthcare system is strained. During the pandemic, certain healthcare related activities such as seeing or contacting a practitioner to receive a prescription refill may have been a challenge for some patients that could have interfered in the patient’s medication adherence and continuity of care. Given these circumstances, the pandemic also shed light on the necessity for pharmacists to dispense emergency refills, which often is based on variable state pharmacy laws and regulations. State pharmacy laws and regulations vary from allowing pharmacists to dispense as much medication that is required for the patient to receive a new prescription to emergency refills being allowed only in the direst situations to save a patient’s life. State pharmacy laws and regulations vary in the allowable quantities that may be dispensed, the federal schedule of controlled substance medications, and the circumstances they can be dispensed. In many cases, COVID-19 emergency regulations, governor executive orders and board of pharmacy guidance have expanded the authority for a pharmacist to dispense emergency refills. However, these allowances are often finite in nature and would end when the pandemic state of emergency ends. This paper seeks to analyze the laws and regulations in each state pertaining to the ability of a pharmacist to dispense an emergency refill when a patient’s prescription does not have refills and provide a recommendation to optimize the state legal and regulatory landscape to expand current allowances.
Deslatte, Aaron, Megan E Hatch and Eric Stokan, 'How Can Local Governments Address Pandemic Inequities?' (2020) 5(80) Public Administration Review 827-831 Abstract: COVID-19 is exposing a nexus between communities disproportionately suffering from underlying health conditions, policy-reinforced disparities, and susceptibility to the disease. As the virus spreads, policy responses will need to shift from focusing on surveillance and mitigation to recovery and prevention. Local governments, with their histories of mutual aid and familiarity with local communities, are capable of meeting these challenges. However, funding must flow in a flexible enough fashion for local governments to tailor their efforts to preserve vital services and rebuild local economies. The authors argue that the Community Development Block Grant and the Energy Efficiency and Conservation Block Grant programs are mechanisms for providing funds in a manner that is adaptable to local context while also focusing on increasing social equity. Administrators must emphasize the fourth pillar of public administration—social equity—in framing government responses to the pandemic.
DeWitt, Samuel, 'Reimagining U.S. Drug Policy Post-Pandemic' (Ohio State Legal Studies Research Paper No 684, 17 January 2022) Abstract: The COVID-19 pandemic caused increased drug use and a widespread decline in mental health throughout American society. Yet, despite the unprecedented pandemic, society as a whole has shown an impressive ability to adapt to new ways of living, suggesting that a dramatically different version of America is not only possible, but achievable. Domestic drug policy, which has needlessly prohibited and criminalized a vast array of drugs since the early 1900s, is an area ripe for a similar dramatic change. This paper explores how the pandemic, combined with concurrent events including a change in Federal Administration and nationwide protests against systemic racism, presents an opportunity for our country to rethink its long-standing drug prohibition on a national scale.
Dhand, Ruby et al, 'Litigating in the Time of Coronavirus: Mental Health Tribunals’ Response to COVID-19' (SSRN Scholarly Paper No ID 3749772, 15 January 2020) Abstract: People with mental health and addiction issues are disproportionately affected by COVID-19 given the elevated risk of contracting COVID-19 within psychiatric facilities. The impact of the pandemic on this extraordinarily vulnerable population includes the potential for large outbreaks and multiple deaths. There is also the increased risk of serious psychological harm, exacerbating preexisting mental health and substance use issues and in turn elevating their risk to themselves and/or others. In Part I of this paper, we analyze the procedural barriers to access to justice that arose as a result of the initial responses to COVID-19 by the Consent and Capacity Board [CCB] and the Ontario Review Board [ORB]. In Part V, we include a brief report on how appeals taken from both tribunals have been handled throughout COVID-19 to date. In Part VI, we analyze the discretionary and systemic barriers experienced by people with mental health and addiction issues appearing before the CCB and ORB during COVID-19. We critique recent mental health law cases during COVID-19 where deprivations of liberty interests and substantive equality have occurred, and access to justice for people with mental health and addictions issues has been denied, suspended or impaired. Through a legal analysis of how the pandemic has impacted this vulnerable community of litigants, we hope this research will result in further advocacy and education to prevent outbreaks and death, improve health care practices, and increase access to justice.
Dickerson, Mechele, ‘Protecting the Pandemic Essential Worker’ (2022) 85(2) Law and Contemporary Problems 177–199 Abstract: This Article opens by briefly discussing COVID-19 essentiality declarations in Part II. Part III then describes the typical F2F essential worker: a low wage Black, Indigenous, Person of Color (BIPOC) who does not have a bachelor’s degree. Part III notes that the people who can work from home (WFH) are disproportionately white and upper income and that occupationally segregated U.S. workforces posed significant health risks for low wage essential F2F workers during the pandemic. This Part stresses, however, that the social determinants of health (SDOH), not skin color or health co-morbidities, caused higher COVID19 infection and mortality rates for BIPOC workers. Part IV describes the limited contractual protections low wage essential F2F workers have and shows how being an at-will and non-unionized worker has always made it harder for these workers to convince businesses to implement safety protections. To ensure essential F2F workers who perform jobs that become potentially lethal because of essentiality declarations are better protected during the next pandemic, Part V urges state and federal agencies to prepare default PEW regulations that would protect workers. Businesses could adopt those rules or prepare their own PEW protection plan if they negotiate those pandemic workplace safety rules with workers or bargaining units. Finally, because essential businesses that were allowed to remain open received competitive market advantages over non-essential businesses, Part VI concludes by arguing that they should be taxed on any excess profits they earn during a pandemic. Revenues generated from this tax should be used to pay for pandemic infrastructure—like improved data collection systems—to help close health disparity gaps, and to subsidize the costs smaller or non-essential businesses incur to implement health and safety procedures.
Diller, Paul A, ‘Emergency Rule: A New Paradigm for State and Local Governance?’ (2023) 50(4) Fordham Urban Law Journal 723–738 Abstract: The COVID-19 pandemic led to an explosive growth in the use of emergency powers by officials at the state and local levels in the United States. Governors and mayors using emergency powers preceded the pandemic, but the scale and scope of the actions taken pursuant to such powers during Covid dwarfed those of prior instances. This essay suggests that Covid may have ushered in an increased normalization of the use of emergency powers. It offers and analyzes some recent examples thereof, and then assesses the normative implications of the increased use of emergency powers for local governance. The essay concludes that the unilateral nature of emergency powers undercuts the argument for local government rooted in the value of its participatory nature.
Diller, Paul A, ‘Governors Slightly More Bound? A Critique of the Uniform Law Commission’s Model Public-Health Emergency Authority Act’ (2024) 112(4) Kentucky Law Journal (forthcoming) Abstract: In response to the boldest and most pervasive use of emergency powers by governors in United States history during the COVID-19 pandemic, the Uniform Law Commission has proposed the Model Public-Health Emergency Authority Act. The Act seeks to correct some of the excesses of the Covid emergency response, while at the same time shoring up governors’ authority to respond to the next public health emergency. This Article argues that, on the whole, the Act is a disappointment because it continues to allow governors to rule their states indefinitely, with few restrictions, during declared public health emergencies. The Act imposes some soft procedural requirements that any politically competent governor should be able to evade fairly easily. For states that have already enacted significant post-Covid emergency rule reform, or whose courts interpreted their emergency schemes during Covid to restrict gubernatorial authority, the Act would be a step backwards. For those states that have yet to re-assess their emergency regimes since Covid, however, and whose existing regimes grant their governors broad powers, adoption of the Act would likely be better than the status quo.
Diller, Paul A, ‘Municipal Vaccine Passport Regimes in the United States: A European Import Spreads Widely’ (2022) 45(4) Fordham International Law Journal 639–656 Abstract: Approximately two dozen municipalities in the United States adopted ‘vaccine passport’ regimes between August 2021 and January 2022. These regimes required public accommodations such as restaurants, cafes, movie theaters, and gyms to check patrons for proof of vaccination against COVID-19 as a condition of entry. Some of these regimes applied to employees of such establishments as well. Most exempted at least some people, including persons too young to be vaccinated and those with religious or medical reasons for being unvaccinated. While most of these regimes have since been rescinded, most mayors and health officials reserve the authority to reinstate them should they deem conditions to require it. This essay surveys the vaccine passport phenomenon in the United States and categorizes the method by which the various jurisdictions adopted them. The essay shows that the vast majority of cities and counties with vaccine passport regimes adopted them by mayoral or health commissioner order, often premised on the invocation of emergency power, as opposed to by ordinance or administrative rule. The essay concludes by probing the normative implications of such unilateral, emergency local policymaking, as well as its potential implications for policy innovation in other areas.
Diller, Paul A, ‘Training a Public Accommodations Lens on Vaccine Passports’ (2023) 27 Lewis & Clark Law Review (forthcoming) Abstract: The Covid pandemic and the rise of smartphone technology enabled the use of ‘vaccine passports’—that is, a requirement to show proof of vaccination against Covid—on a scale unmatched before in human history. In the United States, many public accommodations such as restaurants, coffee shops, stadiums, and movie theaters required patrons to show proof of vaccination in order to enter or consume food and drink on the premises. In approximately two dozen local jurisdictions as well as the District of Columbia and Puerto Rico, government mandated that public accommodations do this, with varied carveouts for religious objections and medical or age-based inability to vaccinate. In requiring proof of vaccination, these businesses, entities, and municipalities acted in an area of law with a centuries-old lineage. Legal scholars like Harvard professor Joseph Singer have forcefully argued that businesses and venues open to the public should be required to take all comers under the common law, unless the particular patron would disrupt the business’s operations. This argument reflects a pre-Covid skepticism among left-leaning scholars and policymakers regarding businesses and venues having carte blanche to decide whom to admit and serve. Ironically, this skepticism dissipated among many commentators and policymakers during the Covid emergency, with vaccine passport proponents glibly analogizing them to ‘no shoes, no shirt, no service’ policies. Ironically, the only states that have explicitly protected against vaccine status discrimination through legislation in response to Covid vaccine passports are states generally considered ‘conservative,’ at least these days: Alabama, Florida, Iowa, Montana, North Dakota, South Carolina, and Texas. In addition to the common law, federal and state statutes seek to promote equality of access and individual dignity by limiting public accommodations’ prerogative to exclude certain customers. The most well-known such antidiscrimination law is Title II of the Civil Rights Act of 1964; state and local legislation often go even further both in terms of the venues and services they regulate and the classes of persons they protect from discrimination. This Article analyzes vaccine passports amidst both the common law and statutory tableau, demonstrating that the weaker the evidence of the vaccines’ preventing the spread of Covid, as opposed to protecting against severe disease and death, the weaker the argument for their use under the vision of the common law promoted by Singer. Unfortunately for the opponents of vaccine passports, that vision has achieved limited purchase doctrinally among state courts. Assessing the legality of both voluntary and municipal vaccine passports under antidiscrimination statutes reveals that there are many unanswered questions decades into their existence. Almost sixty years in, the federal courts still haven’t decided if Title II protects against disparate impact discrimination, for instance. Reasoning by analogy from Title VII, the article walks through what a lawsuit based on Title II regarding Covid vaccine passports might look like and why its chances of success would be limited. The Article suggests, however, that some of the municipal vaccine mandates likely violated Title II with respect to religion. The Article also analyzes vaccine passports and medical exemptions thereto under the Americans With Disabilities Act, as well as age-based discrimination under (some) states’ antidiscrimination laws and find that some voluntary practices in this area may have been suspect as well.
Dishman, Elysa, ‘Calling the Shots: Multistage Challenges to Federal Vaccine Mandates’ (BYU Law Research Paper No 22–17, 19 May 2022) Abstract: Litigation brought by state attorneys general (AGs) successfully frustrated the Biden administration’s efforts to combat COVID-19 by vaccinating American workers. State challenges to vaccine mandates are consistent with trends in multistate litigation that have occurred in recent presidential administrations. At the same time, these cases reveal emerging new trends that shed light on the future of multistate public law litigation and nationwide injunctions. Challenges to vaccine mandates have raised ongoing criticisms of nationwide injunctions and offer a pathway forward for reform.
Dodson, Scott, 'Videoconferencing and Procedural Doctrine' (2021) Southwestern University Law Review (symposium) (forthcoming) Abstract: Enduring post-pandemic reliance on, and normalization of, videoconferencing in federal civil litigation and throughout society and commerce ought to have downstream effects on legal doctrines that depend upon contacts, burdens, and conveniences. Videoconferencing facilitates interstate contacts while mitigating burdens and costs associated with litigation in distant or otherwise geographically inconvenient forums, a fact that should broaden the reach of personal jurisdiction and influence venue transfer. The use of videoconferencing also should make certain discovery, like nonparty depositions, easier, quicker, cheaper, and more convenient—and therefore less objectionable. In this symposium essay, I consider the impact of normalized videoconferencing on these procedural doctrines. I begin by setting out the pandemic lessons for the use of videoconferencing technology in commercial, social, and litigation contexts, and I forecast its persistence post-pandemic. I then turn to various legal doctrines based on burdens and conveniences—including subpoenaed depositions, personal jurisdiction, and venue transfer—and I argue that videoconferencing will change the way these doctrines should be applied to post-pandemic civil litigation.
Doebbler, Curtis, Geoffrey A Hoffman and Javier Maldonado, 'The Habeas Petition, And Other Options for Immigrants, in the Federal Courts' in Federal Immigration in Litigation (State Bar of Texas, forthcoming, 2020) Abstract: The petition for a writ of habeas corpus is an important tool in the arsenal of immigration attorneys who seek to fully represent their clients. Going to federal court in an attempt to obtain habeas relief may be the only remaining remedy after all other administrative options have been exhausted. Traditionally, habeas has been used to challenge prolonged detention post-final order of removal, prolonged detention pre-final order, and to challenge unlawful detention, but increasingly it is used to challenge such related issues as unlawful deportations in violation of the statute or regulatory provisions, and/or violations by CBP, USCIS or other agency actions during the expedited removal process under 8 U.S.C. § 1225(b). In response to the Covid-19 pandemic, the federal courts have changed operations to limit the spread of the disease. Also, there have been other significant changes to the operations of USCIS and EOIR, in recent days. The article addresses some of the issues to be considered by the habeas petitioner when going forward in federal court proceedings given the Covid-19 pandemic.
Dolovich, Sharon, ‘The Coherence of Prison Law’ (2022) 135 Harvard Law Review Forum 302–342 Abstract: In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.
Dolovich, Sharon, ‘The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School’ (2023) 7(1) UCLA Criminal Justice Law Review 211–248 Abstract: Part I of this Essay tells the origin story of the UCLA Law COVID Behind Bars Data Project. Part II addresses the question of how an effort like this, focused on data and policy, could have arisen in a law school, and what our experience reveals about the role the legal academy and legal scholarship can play in the movement for social justice and policy change. Part III highlights some of the organizational factors that enabled us to do what we did despite significant time and resource constraints. The focus here is on the process of institution-building and lessons learned. Finally, Part IV briefly describes the denouement of our COVID data collection efforts and our decision to pivot to our current focus on national, all-cause carceral mortality.
Donner, Ted A, ‘Civil Jury Trials by Zoom: We’re All Plugged into One World Now’ (2021) 51(1) Southwestern Law Review 71–90 Abstract: In the spring of 2020, the question of whether any given civil dispute should proceed to trial or be continued for an indeterminate period of time was commonplace in the United States. In most cases, the answer was to order a continuance. The pandemic resulted in courthouse shutdowns throughout the country, and the constitutional requirement for ‘speedy trials,’ the one reason a judge might choose to forge ahead despite the health risks, applied to criminal, not civil cases. So, civil cases in courts throughout the United States ended up on the back burner, like they do whenever the courts get too busy to keep up with their ‘speedy trial’ obligations and as was certainly bound to happen when the spread of COVID-19 escalated into a worldwide pandemic. The coronavirus pandemic presented a remarkable and unprecedented scenario for most court systems, forcing everyone to stay home, closing the doors to the courthouse altogether, and leaving more than a few chief judges unsure of what steps to take next. Some cases could be placed on hold indefinitely, to be sure, but others, like criminal cases that were ready for trial, civil cases involving witnesses whose health was infirm, and cases involving injunctive relief, involved a degree of urgency that could not just be ignored and meant more in the way of problems, particularly in the early days of the pandemic.
Dooling, Bridget C.E. and Laura Stanley, 'Extending Pandemic Flexibilities for Opioid Use Disorder Treatment: Authorities and Methods' (2021) 1(106) Minnesota Law Review 74-99 Abstract: This essay evaluates two specific flexibilities the government granted during the COVID-19 pandemic that made it easier for patients to access life-saving medications to treat opioid use disorder: buprenorphine and methadone. First, the Drug Enforcement Administration (DEA) allowed practitioners to prescribe buprenorphine using telemedicine without first conducting an in-person medical exam. Second, the Substance Abuse and Mental Health Services Administration (SAMHSA) made it easier for patients to have a take-home supply of methadone, reducing many patients’ need to make a daily trip to an opioid treatment program. While it is still early, there is some evidence that these flexibilities are working well for patients. Patients and practitioners worry that these flexibilities will come to an end after the pandemic, and one of the federal agencies involved has indicated that it lacks the legal authority to extend its flexibility beyond the pandemic. We disagree. At a political level, the White House Office of National Drug Control Policy has indicated that extending pandemic flexibilities for treating opioid use disorder is a priority for the Biden administration, and this essay offers a roadmap for the executive branch to extend these flexibilities using existing authority.
Doty, David A and Mark E Chopko, ‘Work With What You Have: Navigating Religious Accommodations in the American Vaccine Era’ (2022) 64(4) Journal of Church and State 600–620 Abstract: Pandemic-response regulations in the United States have become increasingly reliant on the COVID-19 vaccine in curbing the spread of the virus—so much so that many states have implemented targeted regulations mandating vaccinations for employees working in high-risk settings, such as hospitals and long-term care facilities. The regulations implemented in New York, Maine, and Rhode Island proved to be the most controversial and legally significant, insofar as they seemingly did not provide for religious exemptions.1 Groups of religious healthcare workers swiftly initiated various lawsuits, charging that the vaccine mandates circumvented well-established antidiscrimination rights under federal law. In each case, federal courts were asked to decide whether these state mandates, by failing to account for religious accommodations, worked to preclude certain antidiscrimination rights created by Title VII of the Civil Rights Act of 1964.2 Title VII has long required covered employers to provide, upon an employee’s request, reasonable accommodations for said employee’s ‘sincerely held religious beliefs,’ so long as such accommodations would not pose an ‘undue hardship’ on the employer.3 The federal courts, however, declined to intervene.4 Indeed, each of these three regulations withstood their respective challenges and have been permitted by the courts, including the U.S. Supreme Court, to take effect. These regulations were not invalidated, but were found rather to exist subject to Title VII. Thus, employers are still required to provide, in the absence of certain exceptions, reasonable accommodations to an employee’s sincerely held religious beliefs. In effect, the courts have neither guaranteed nor erased religious exemptions to vaccine mandates, but have rather referred religious objectors back to Title VII and the decades-long principles and balancing tests developed thereunder.
Douek, Evelyn, 'Governing Online Speech: From 'Posts-As-Trumps' to Proportionality and Probability' (2021) 3(121) Columbia Law Review 759-834 Abstract: Online speech governance stands at an inflexion point. Platforms are emerging from the state of emergency invoked during the pandemic and lawmakers are poised to transform the regulatory landscape. The importance of what emerges from this moment can hardly be overstated: how platforms write and enforce the rules for what speech they allow on their services shapes the most important channels for communication in the modern era, and has profound consequences for individuals, societies, and democratic governance. Understanding how online speech governance arrived at this moment illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech issues, that approach became strained and online speech governance now revolves around the principles of proportionality and probability. Proportionality requires governance to no longer focus on the speech interest in an individual post alone, but to also take into account other societal interests and place proportionate limitations on content where necessary. But the unfathomable scale of online speech governance makes the enforcement of rules only ever a matter of probability: content moderation will always involve error, and so the pertinent question is what error rates are reasonable and which kinds of errors should be preferred. Platforms’ actions during the pandemic have thrown into stark relief the centrality of these principles to online speech governance, but also how undertheorized they remain. This article reviews the nature and causes of this shift of online speech governance from a “posts-as-trumps” approach to one of systemic balancing, and what this new era of content moderation requires of platforms and their regulators.
Douglas, Joshua A. and Michael Zilis, 'Bring the Masks and Sanitizer: The Surprising Bipartisan Consensus About Safety Measures for In-Person Voting During the Coronavirus Pandemic' (SSRN Scholarly Paper No ID 3693286, 16 January 2020) Abstract: Americans overwhelmingly support various safety measures at polling places for the November 2020 election. Issues like face mask requirements, social distancing, and sanitizing polling equipment after each voter have strong support, regardless of party, even if adopting them might mean longer lines or wait times to vote. For instance, 79 percent of Americans support face mask requirements at the polls, with little difference among the views between Democrats and Republicans.That surprising statistic comes from a representative, nationwide survey of Americans we conducted in August 2020 about their views of the election during a pandemic. Although beliefs about expanded vote-by-mail have significant partisan overtones, support for safety measures for in-person voting does not.As of mid-September, five states (Indiana, Louisiana, Mississippi, Tennessee, and Texas) will not allow concerns about COVID-19 to qualify as a valid excuse for absentee voting. These states will therefore likely have a high rate of in-person voting. But the states vary slightly on the safety measures they will employ, with only some requiring poll workers to wear masks and none imposing a mask mandate for voters. Although no voter should be turned away for not wearing a mask, the data in our survey suggests that states can do more to make voters feel more comfortable when voting in person. Given that Americans broadly support some modifications to in-person voting and also express safety concerns about polling places, the failure to adopt them could depress turnout, particularly in states that do not make absentee voting easy.This paper presents the survey data and offers policy recommendations regarding safety measures states should employ to make Americans more comfortable when voting this fall.
Douvas, Alexander et al, 'Breaking Quarantine: Using Article 84 to Combat COVID-19 No. 1' (2020) 2 Army Lawyer 44-55 Abstract: Introduction: Coronavirus Disease 2019 (COVID-19) is caused by the virus Severe Acute Respiratory Syndrome-Coronavirus-2 (SARSCoV-2). This virus is highly contagious, with an estimated average incubation period of five days prior to symptoms,4 during which time it can still be transmitted.5 Within three months of its discovery in late 2019, the rapidly spreading SARS-CoV-2 reached global pandemic status. The current national strategy to combat COVID-19—“social distancing”—is designed to slow the spread of the virus and enable the medical community to treat the most severe cases without exceeding hospital capacity. The military is neither immune to this pandemic nor exempt from the efforts to combat its spread. Instead, it is currently working to strike a balance between operational readiness and restrictive personnel policies. While the ultimate impact of COVID-19 on military operations and service policies remains uncertain, one thing is clear: with an estimated 1.3 million active duty service members subject to some form of COVID-19 restrictions, the newly re-designated Article 84, Uniform Code of Military Justice (UCMJ) (Breach of Medical Quarantine), is about to be field tested.
Draper, Brandon Marc, 'And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right' (2021) 9(62) Boston College Law Review (Electronic Supplement, Article 1) Abstract: The jury trial is the cornerstone of the criminal justice system in the United States. Amid the COVID-19 pandemic, however, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to an important constitutional right. In response, some courts employed video conference technology such as Zoom and WebEx to conduct arraignments, general court appearances, and some pretrial hearings. Six months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. At worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Yet, even with these legitimate concerns, courts should attempt to mitigate the risks and resume jury trials that are both in-person and compliant with social distancing policies to provide the criminal justice system with the best opportunity to ensure fair jury trials.
Draper, Brandon Marc, ‘Prosecutorial Dilemmas Amid the Pandemic and Online Jury Trials’ (2021) 51(1) Southwestern Law Review 133–141 Abstract: This Essay argues that prosecutors should exercise caution when agreeing to conduct a trial by video conference. While such trials may be necessary to ensure that the criminal justice system continues to function during the pandemic, they present several issues that may otherwise hinder a prosecutor’s ability to seek justice. Such issues include limited courtroom technology, the potential for remote juries to have a greater likelihood of rendering a not guilty verdict or giving a more lenient sentence, and the potential that such proceedings may result in per se reversible error.
Draper, Brandon, ‘Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice’ (2021) 105(2) Marquette Law Review 205 Abstract: The Sixth Amendment’s criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal jury trials.
Dunham, Kassadie et al, 'The Impact of Remote Work on Post-Pandemic Law' (2021) 3(1) Idaho Law Review Spotlight 1-16 Abstract: As the state reopens, courts across the state are now faced with difficult decisions, often based on each county’s particular circumstances. It is challenging to state what the future of Idaho’s judicial system will look like; however, after researching and talking to practitioners throughout the state, it appears unlikely we will see remote court appearances disappear any time soon.
Dwoskin, Linda B. and Melissa Bergman Squire, 'Revisiting Background Check and Drug Testing Obligations as Hiring Ramps Up After COVID-19' (2021) 3(47) Employee Relations Law Journal 50-64 Abstract: As businesses reopen and COVID-19 restrictions loosen, help-wanted signs adorn many a shop window, and many employers are struggling to fill jobs. Given the anticipated and very welcome hiring surge, it makes sense for employers to re-familiarize themselves with the various rules which come into play in the hiring context. Conducting background checks, criminal history checks, credit checks, and drug screens are extremely common practices and, if done right, are critical to ensuring a successful hire. Full compliance with the myriad and detailed rules in this area is a challenge, however, and employers that misunderstand their obligations, commit even minor mistakes, or rely blindly on third parties for conducting these checks, can end up enmeshed in very costly litigation. This article addresses the rules and regulations at the federal level, including the Fair Credit Reporting Act (“FCRA”), as well as federal and state restrictions on criminal history checks and credit checks, and provides practical guidance with regard to handling background checks. This article concludes with a discussion of preemployment testing for marijuana usage and practical advice in this area.
Dye, Alaina, 'The Right to Health in Immigration Detention during the COVID-19 Pandemic: An Examination of Federal and International Law' (University of San Diego, Centre for Health Law and Bioethics, CHLB Research Scholarship No 74, 20 2020) Abstract: This article examines the United States’ response to the severe impact of the coronavirus (COVID-19) in immigration detention centers and considers the United States’ obligations to the vulnerable population of immigrant detainees. This article argues that the COVID-19 pandemic further demonstrates the United States’ lack of guaranteed health care for immigrant detainees and deportees despite international recognition of the human rights to health and life. The United States violates international law when immigrant detainees’ human rights are disregarded by lack of appropriate access to health care during a global pandemic. This article recognizes that discrimination against immigrants under the Trump Administration and inconsistent treatment of detained populations further the vulnerability of immigrant detainees during the COVID-19 pandemic. Lastly, this article urges for reform in the United States immigration detention system, in regard to health care, to protect immigrant detainees and deportees during the harsh times of the COVID-19 pandemic.
Dyer, Owen, ‘Florida Loses Legal Battle to Keep Covid Data Secret’ [2023] (383) BMJ p2419 Abstract: The state government of Ron DeSantis in Florida, which manipulated covid data to show deaths falling during a surge, has agreed to release old data and to publish new covid data, abandoning a two year legal battle to keep the data secret.
Earley, Brady, 'Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics' (SSRN Scholarly Paper No ID 3908624, 20 January 2021) Abstract: This article undertakes a comparison of legal restrictions on religious gatherings in the United States during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied upon proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 models a better way. Instead of using proportionality or equality, these local officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, fewer deaths, and fewer cases during the 1918 pandemic and offers a useful precedent for government officials currently managing the religious freedom concerns of COVID-19.
Easop, Bruce A., 'Education Equity During COVID-19: Analyzing In-Person Priority Policies for Students with Disabilities' (2022) 1(74) Stanford Law Review 223-275 Abstract: During the COVID-19 pandemic, schools nationwide failed to provide essential supports and services to students with disabilities. Based on reviews of 115 school-district reopening plans, this Note finds that numerous schools sought to remedy these gaps through in-person priority policies designed to return students with disabilities to physical classrooms before other students. This Note evaluates the legal and policy implications of such in-person priority policies through the lenses of critical race theory and dis/ability critical race studies (DisCrit). This Note begins by identifying the structural barriers to learning that students with disabilities faced during school closures, including disparities in internet access and accessibility, removal or reduction of related services, absence of social interaction and structure, and heightened trauma and mental health concerns. While in-person priority policies are meant to mitigate these barriers, this Note argues that they ultimately segregate classrooms and exacerbate already egregious disciplinary disparities. Consequently, these policies impose disproportionate harm on students of color with disabilities. Additionally, this Note calls on policymakers to develop individualized approaches to inperson priority, adopt nonexclusionary disciplinary policies, and expand access to compensatory education and extended school year services. Beyond the current crisis, policymakers must commit to eliminating systems of stratification that categorically filter students into segregated classroom settings. By centering students of color, schools can reimagine special education to ensure that all students receive the education they deserve.
Eboibi, Felix E., 'Cybercriminals and Coronavirus cybercrimes in Nigeria, the United States of America and the United Kingdom: cyber hygiene and preventive enforcement measures' (2021) 1(47) Commonwealth Law Bulletin 113-142 Abstract: There seems to be no lockdown for cybercriminals who are capitalizing on the global lockdown to perpetrate cyber coronavirus crimes. Qualitatively, this paper examines these crimes, their peculiarities, and how they can be curtailed. Although the United States of America (US) and the United Kingdom (UK) have put in place cyber hygiene and preventive enforcement measures to curtail the activities of cybercriminals in cyberspace, the same cannot be said of Nigeria. Arguably, cybercrime institutions in Nigeria lack adequate capacity building, professional competence, and inter-agency cooperation concerning cyber coronavirus crimes. Consequently, it calls for the adaptation of the US and UK measures to protect cybercitizens.
Eboibi, Felix E.; Robert, Ebi, 'Global legal response to coronavirus (COVID-19) and its impact: perspectives from Nigeria, the United States of America and the United Kingdom' (2021) 4(47) Commonwealth Law Bulletin 593-624 Abstract: Global COVID-19 legislation contains the spread of the disease. However, the Nigerian government's response to the spread of the virus suffers some technical flaws. Consequently, this paper asks how Nigeria's response to the pandemic compares with those of the United States of America (US) and the United Kingdom (UK). Qualitatively, it seeks to substantiate the proposition that Nigeria's response relies too heavily on executive directives and extra-judicial controls, leading to human rights abuses. Even worse is the absence of specific provisions in the Nigerian legislation detailing the application of remote hearing to facilitate redress arising from these infractions comparable to what is obtainable in the US and UK. The paper highlights the several loopholes demonstrated by Nigeria's legal response to the COVID-19 pandemic, its impact, and the lessons the Nigerian government can adapt based on the US and UK experiences.
Edelman, Marc et al, 'Exploring College Sports in the Time of COVID-19: A Legal, Medical, and Ethical Analysis' (2021) 2 Michigan State Law Review (forthcoming) Abstract: The emergence of the COVID-19 pandemic threatens the safety of people attending large social gatherings including organized sporting events. As the number of deaths and hospitalizations from COVID-19 skyrocketed in March 2020, the National Collegiate Athletic Association (“NCAA”) suspended all member colleges’ spring sports seasons. The NCAA has since implemented new guidelines that allow for individual member colleges to make independent decisions about if, and when, to resume their intercollegiate sports programs. This Article explores the implications of resuming intercollegiate sports in the midst of a pandemic from a legal, medical and ethical perspective. The team of scholars who authored this Article include professors at four major public universities, with terminal degrees in the fields of law, medicine, education, and sports management. Adopting a true interdisciplinary approach to the question of how and when to return to sport, the authors collectively express their concerns regarding how NCAA member colleges are approaching the legal and ethical issues surrounding the offering of intercollegiate sports during a pandemic, and propose ten best practices for colleges to determine when and how to resume offering intercollegiate sports.
Elberg, Jacob T., 'Health Care Fraud Means Never Having to Say You're Sorry' (2021) 2(96) Washington Law Review 371-423 Abstract: For decades, the Department of Justice (DOJ) has issued a steady flood of press releases announcing False Claims Act (FCA) settlements against health care entities and extolling the purportedly sharp message sent to the industry through these settlements about the consequences of engaging in wrongdoing. The FCA is the primary mechanism for government enforcement against health care entities engaged in wrongdoing, and it is expected to be DOJ’s key tool for addressing fraud arising out of government programs in response to the COVID-19 pandemic. DOJ has pointed to three key goals of its enforcement efforts (deterrence, incentivizing cooperation, and building a culture of compliance in the health care industry). However, careful examination of the settlements touted in those DOJ press releases calls into question whether DOJ’s settlement practices are conveying the message DOJ seeks to impart or having the impact it hopes to achieve. Virtually all FCA cases resolve without requiring the defendant to admit wrongdoing, and many defendants issue explicit public denials of wrongdoing when the resolution is announced. The absence of any need to admit wrongdoing has fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct. DOJ thereby risks both diminishing the general deterrence value of resolutions and lending credence to the vocal skepticism among industry and the defense bar that DOJ could, in fact, prevail at trial. DOJ’s willingness to allow settlements in health care fraud cases without admissions is diametrically contrary to DOJ’s policy in criminal cases, which is against permitting resolutions without defendants’ clear and unequivocal acceptance of responsibility for violating the law. Permitting no-responsibility settlements in the civil FCA context suggests both that DOJ pursues, illegitimately, weak cases it cannot prove at trial, and potentially weakens the general deterrence value of civil FCA claims in general. New defendants may be left with cover that they are not wrongdoers but are merely ensnared in an illegitimate money grab. Even defendants who frankly recognize that they are in violation of the statute may be comforted that they likely face paying little more than restitution, and no significant penalties or social opprobrium. These practices suggest that DOJ rewards willingness to settle, and the monetary recovery it brings, above all other factors. DOJ’s focus on settling and monetary recoveries in turn lends credence to the widespread belief that civil health care fraud settlements simply do not signal wrongdoing. There is no law, policy, or practice that prevents DOJ from requiring admissions in FCA settlements. Yet an in-depth review of nearly 200 FCA resolutions involving health care entities over the past two years reveals that approximately 92% did not include defendants’ clear acceptance of responsibility, and approximately 37% involved defendants actively denying responsibility. The absence of any DOJ policy favoring admissions has important negative consequences, undermining DOJ’s goals of deterrence, incentivizing cooperation, and building a culture of compliance. First, when corporate actors believe DOJ will pursue claims regardless of wrongdoing and the consequences of even a settlement will be relatively painless from a financial and reputational perspective, those actors have reduced incentive to put in place compliance structures dedicated to preventing wrongdoing. Second, and perhaps more importantly, when corporate actors diminish the force of settlements with DOJ by denying responsibility, they undermine the system’s legitimacy vital for DOJ to encourage cooperation and for the government and well-meaning corporate actors to cultivate an industry-wide culture of compliance. This Article examines DOJ policy both from an economic incentive perspective and in light of research surrounding the psychology of legal authority, concluding that under both lenses DOJ undercuts its own goals. With DOJ actively reforming FCA policy and the FCA poised to take center stage in the government’s fight against COVID-19 program abuse, it is beyond time to address this gap in DOJ’s enforcement policy.
Elias, Stella Burch, 'Law as a Tool of Terror' (2021) 1(107) Iowa Law Review 1-62 Abstract: The immigration laws and policies of the United States from January 2017 through January 2021 serve as a cautionary example of what may happen when the rule of law and the equitable administration of justice are subverted by policymakers pursuing an extreme and coercive political agenda. For four years the Trump Administration used its lawmaking powers to isolate and terrorize immigrant communities. Simply put, the Trump Administration used immigration law as a tool of terror.The same administrative structures and legal provisions that were originally created in the aftermath of 9/11 to combat terrorism and protect human rights were weaponized and turned against refugees, migrants, and naturalized U.S. citizens. The Department of Homeland Security was transformed from an organization dedicated to combatting terrorism to an organization that instead inspired terror in immigrant communities, particularly among immigrants of color. Inflammatory rhetoric, denigrating specific groups of migrants on the basis of their race, religion, and/or national origin shaped anti-immigrant legal measures, with catastrophic results. At the border and in the interior of the United States, immigration laws were reinterpreted, regulations were amended, executive decrees were issued, and terrifying rumors about potential new initiatives were perpetuated on a daily basis. In the shadow of the COVID-19 pandemic and in the absence of stable and settled law, immigrant communities that were already living in extreme precarity experienced heightened and crushing uncertainty; in short, they were living in a state of constant terror.The Biden Administration is now embarking on the project of reversing these damaging initiatives, rebuilding trust in immigrant communities, and restoring the global reputation of the United States. But the harm that has been done—to individuals, to communities, and to the law itself—will likely persist for many years. The Trump Administration’s changes to U.S. immigration law and policy illustrate the inherent fragility and malleability of existing legal protections for vulnerable and marginalized immigrant communities. Policymakers, legislators, jurists, and legal scholars must therefore work together in the months and years ahead to ensure that the tragedy of last four years is never repeated, by meaningfully reforming our immigration laws and restructuring the agencies charged with their administration.
Eliot, Lance, 'Contact Tracing Apps: The Latest Efforts in the US' (2020) June() Computers and Law 53-57 Abstract: Examines the approach of US state and federal governments to addressing problems associated with COVID-19-related digital contact tracing applications software. Outlines the precepts underlying the Exposure Notification Privacy Act released by the US Congress. Discusses the unanswered concerns that remain regarding the governance of such applications and the risks associated with the use of contact tracers.
Elliott, E Donald, Ilde Forgione and Viviana Di Capua, 'US Response to COVID-19' (2021) 1-3(1) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 313-316 Abstract: This article concludes that the U.S. response to COVID-19 was hampered by politics; the decentralization of the U.S. political system and the “fee for service” approach of the U.S. healthcare system. However, the technological prowess of U.S.-based pharmaceutical companies resulted in the development of effective mRNA vaccines in record time.
Elrod, Linda D, 'Review of the Year 2020 in Family Law: COVID-19, Zoom, and Family Law in a Pandemic' (2021) 4(54) Family Law Quarterly 281-324 Abstract: Although COVID-19 shut down courts across the country starting in March 2020, lawyers and judges rose to the challenge of navigating a justice system run remotely from homes across the country. State supreme courts issued administrative orders tolling statutes of limitations and notice provisions and postponing jury trials. Zoom became the platform for hearings, pretrial conferences, mediations, and conferences as well as for education. Added to the health crisis were sad reminders of systemic racism and wealth inequalities as well as a highly contested presidential election. In spite of the challenges, federal and state courts continued to hand down important decisions on a variety of family law issues.
Embley, P. L., 'Judicial Perspectives on ODR and Other Virtual Court Processes' (SSRN Scholarly Paper No ID 3638459, 18 January 2020) Abstract: Just a few months ago, most US courts significantly lagged behind banking, education, retail, healthcare, and other industries in the use of technology. Until mid-March 2020, that is, when US courts suddenly, overwhelmingly embraced some uses of technology, almost overnight, because they had to. Virtual hearings and ODR are opening up new possibilities that are not only keeping courts functioning during the pandemic, but also showing promise in helping resolve seemingly intractable access to justice issues. When the dangers of the COVID-19 virus have passed, courts anticipate a surge of filings. ODR and virtual hearings can “scale” to meet surges in demand in ways that traditional processes cannot. Out of necessity in response to an unprecedented pandemic, courts are boldly embracing changes that are bringing more court processes into line with available technologies and public expectations.
Embley, P. L., 'Managing Evidence for Virtual Hearings' (SSRN Scholarly Paper No ID 3638363, 25 January 2020) Abstract: As a result of stay-at-home orders tied to the COVID-19 pandemic, courts in most states are conducting virtual hearings: using technology to facilitate a hearing without the judge and the parties being physically gathered in one location. Evidence is a key aspect of those virtual hearings. Much can be gleaned from the ways other types of organizations do business virtually. However, courts have unique needs that require thoughtful attention as they impact how evidence is submitted, stored, and shared to support a virtual hearing.
Engstrom, David Freeman, 'Post-COVID Courts' (2020) Special Issue: Law Meets World(68) UCLA Law Review Discourse 246-267 Abstract: As with so much else in American life, COVID-19 delivered a gut punch to our justice system. And the worst is yet to come, as federal and state courts alike are soon to fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. But in truth, our courts were already at a crossroads: chronically underfunded, increasingly politicized, behind the curve technologically, and shockingly out of touch with the justice needs of ordinary Americans. This Essay argues that it is time—with states, for better or worse, reopening—to begin thinking longer term. For the coronavirus pandemic is quickening a pair of tectonic shifts, both well underway when the first diagnoses were made, with the power to reshape the legal system for good and for ill by fundamentally altering the role lawyers play within it. The first is the erosion of the professional monopoly that lawyers have long enjoyed over the delivery of legal services and the steady empowerment of new legally trained professionals to help satisfy justice needs. The second is the adoption of new technologies, many using artificial intelligence, to supplement or even supplant lawyers’ work. Looking back, the coronavirus’s greatest legacy for the legal system may well be its hastening of the arrival of an age of supersession—the decentering and displacement of lawyers by nonlawyers of both the human and nonhuman sort. The question judges, lawyers, rulemakers, and legislators should be asking is not merely how to safely reopen the courts. We should also ask how the post-pandemic justice system will look different—and how it might even emerge from the current crisis better than before.
Epps Jr., Willie J. and Cailynn D Hayter, 'Remote Proceedings During a Pandemic' (2021) 3(60) Judges' Journal 10-14 Abstract: When the coronavirus (COVID-19) outbreak surged in the United States in March 2020 and required courthouses across the country to close their doors, federal and state court practices changed almost overnight. Rather than allow the criminal justice system to screech to a halt, courts embraced -- and sometimes mandated -- the use of video or telephone conferencing technologies to keep cases moving forward. Defendants and counsel, too, have welcomed the use of video teleconferencing technologies to ensure cases are expeditiously heard. While video and telephone conferencing in the midst of a pandemic offer a means of resolving matters that may otherwise be indefinitely delayed, this technology carries potential disadvantages when judges are not informed of its limitations. It is important, therefore, to understand the key role video teleconferencing plays in our justice system amid a pandemic, while staying attuned to the pitfalls it could create.
Erez-Navot, Donna, 'Reimagining Access to Justice: Should We Shift to Virtual Mediation Programs Beyond the COVID-19 Pandemic, Especially for Small Claims' (Cardozo Legal Studies Research Paper No 678, 31 January 2022) Abstract: Since March 2020, and the start of the COVID-19 pandemic, courts around the country have grappled with the dramatic changes in how they function. Most courts in the United States were not prepared for such a sudden and extreme shift and many were stalled for months without any progress on the filings within their jurisdiction. Some courts were more successful if they had previously integrated automated systems before the pandemic, such as e-filing, video hearings, and other technologically supported protocols. Jurisdictions that already had Online Dispute Resolution (ODR) and video conferencing mediation and arbitration in place were able to continue to function. Other jurisdictions, particularly those that were ill-prepared, were stalled once the pandemic began. New York City’s Small Claims Court was completely halted in the beginning of March 2020. But in August 2020, under an Administrative Order by New York City Court Administrative Judge Anthony Cannataro, the courts initiated a new Presumptive Virtual Mediation Program in New York City Small Claims. The courts partnered with various law schools, bar associations, and community dispute resolution centers (CDRCs), and immediately began mediating small claims cases on virtual platforms.The umbrella term ODR is a broad term that includes all uses of information and communications technologies to help parties resolve their disputes. It includes the online replication of ADR processes, including mediation, arbitration, or other ADR processes conducted wholly or primarily online. Some examples include: (1) cases assigned to a court mediator, who facilitates interaction between parties via asynchronous text-based exchanges through a dedicated court-provided system; (2) a judge reviewing court papers from litigants and making a decision based on the papers; or (3) video conferencing mediation, where mediators synchronously work with parties live on Zoom to facilitate a conversation, as seen in the Presumptive Virtual Mediation Program in New York City Small Claims.
Ergeson, Elliott, ‘One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State’ (2022) 106(6) Minnesota Law Review 2653–2692 Abstract: The article focuses on implementation of the paycheck protection program revealed the deteriorating wall between church and state. It mentions Congress sought to address their plight by passing the Coronavirus Aid, Relief, and Economic Security (CARES) Act which offered forgivable loans to small businesses and nonprofits to help them stay afloat. It also mentions direct funding of religious entities by the federal government stands to the Founders' understanding of the Establishment Clause.
Everett, Pamela M, ‘Legal Actions and Impacts of the COVID-19 Pandemic’ in Monica K Miller (ed), The Social Science of the COVID-19 Pandemic: A Call to Action for Researchers (Oxford University Press, 2024) 65
Falcettoni, Elena and Vegard M Nygaard, 'Acts of Congress and COVID-19: A Literature Review on the Impact of Increased Unemployment Insurance Benefits and Stimulus Checks' (SSRN Scholarly Paper No ID 3752834, 21 January 2020) Abstract: This Note is meant to present an overview of what economists have analyzed regarding the implications of two main components of the CARES Act that impact individuals: the increased UI benefits and the stimulus checks. We present the findings from the literature on these two policies with an eye on potential future governmental interventions.
Farber, Daniel A., 'The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts' (SSRN Scholarly Paper No ID 3635740, 25 January 2020) Abstract: When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination. Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today. During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.
Farmer, Ashley K. and Allen Copenhaver, 'Policing in a pandemic: how law enforcement communicates with the public' (2021) () Policing: An International Journal (advance article, published 29 April 2021) Abstract: Purpose This study, a content analysis, aims to analyze general communications from law enforcement via agency websites about the COVID-19 pandemic and how this affected police roles. The authors study the extent to which police departments used their websites to inform the public about COVID-19, changes to their policies and additional information they felt necessary to give members of the public. This is important for understanding how the police inform the public during a pandemic and how the pandemic affected their police role. Design/methodology/approach The data gathered for this project came from a content analysis of the official websites of the largest municipal police departments in the USA. The researchers collected quantitative data from the official websites of law enforcement agencies who serve the 200 largest cities in the USA in March 2020 and coded the information from the websites to determine what themes were most prevalent. Findings The messages most often provided on department websites included information about COVID-19 (52% of websites included this information), modifications to services (33%) and informing users that services such as fingerprinting would be altered (42%). Websites also reminded the public of restrictions on public gatherings (25%) and stay-at-home orders (38%). Further logistic regression analyses explored significant associations among these variables to understand how police/public communications influenced the role of law enforcement during the pandemic. Originality/value Little is known about how law enforcement communicates online with the public during a global pandemic like COVID-19 or how this might affect the police role. Police departments can use their websites to communicate important information to citizens and keep communities updated. Policy implications suggest that agencies continue to update websites with important information and be direct about expectations from the public regarding compliance while also being transparent about how police roles might change.
Fatale, Michael, ‘Post-Pandemic State Taxation of Nonresident Telecommuter Wages’ (2023) 64(8) Boston College Law Review 1859–1930 Abstract: Increased remote work has become a phenomenon in the aftermath of the COVID-19 pandemic. This has raised questions about the constitutional limitations that apply, or the congressional restrictions that should be applied, to state laws imposing an income tax on nonresident employees who telecommute from another state for an in-state employer. The state laws that tax nonresident teleworkers vary, leading to the prospect that some such employees could be double taxed by both the state of their employer and the state in which they are physically working, or taxed by their employer state when the state in which they are physically working does not itself impose a tax. Most outstanding scholarship has argued in favor of intervention by the Supreme Court or Congress to prevent states from imposing tax on employees who are physically working from another state. The Supreme Court has not considered the constitutionality of these taxes and denied a petition for certiorari of New Hampshire v. Massachusetts, a 2020 case that would have raised this issue. The Court’s precedent, however, makes clear that such state taxes should be upheld as constitutional. Two congressional bills proposed in 2020 and 2021 would have preempted state laws imposing a tax on employees physically working in another state, but these bills were not enacted. The decision to not enact the bills was appropriate because, if passed, such legislation would have created significant administrative issues, represented poor tax policy, and likely been found unconstitutional. The questions that have been raised by the state taxation of nonresident employees who telework from a state that is different from the state of their employer are complex and cannot be adequately addressed by either the Supreme Court or Congress—such questions are best left to the states’ political processes.
Fathauer, Cameron M., 'Protecting Liberty in Times of Calamity: The Long and Short Term Benefits of Data Minimization During National Emergencies Like COVID-19' (SSRN Scholarly Paper No ID 3915021, 03 January 2020) Abstract: Overall, data minimization provides more benefits to the United States in both the short and the long term because it directs governmental resources to areas that curb the spread and effects of COVID-19; it honors our democratic, republican principles of government; and it protects individual liberties reinstated by judicial precedent and guaranteed by the United States Constitution. While it may appear, in the short term, broader data information would aid in the fight against COVID-19, it would need to reach the level of surveillance as seen in communist, dictatorial regimes in order to be effective, which is something the Constitution and the American people will not allow. Thus, in the short term, it is far wiser and more prudent to direct financial energy toward those areas that do in fact aid in the fight against COVID-19, which, in the long term, upholds American democracy and liberty. When the COVID-19 chapter of history closes, those governments that did not give in to the reactionary, totalitarian temptations will be made clear. If there only be one, let it be America.
Feibelman, Adam, 'Bankruptcy and the State' (2022) 1(38) Emory Bankruptcy Developments Journal 1-50 Abstract: Anticipating a wave of bankruptcies caused by the economic and financial effects of the COVID-19 pandemic, numerous commentators proposed measures to expand the institutional capacity of the bankruptcy system. A number of these proposals would represent dramatic and systematic government involvement in the U.S. bankruptcy system. Such involvement by the government in the bankruptcy system sits uneasily with dominant theories of bankruptcy that assume the bankruptcy system should be driven by the interests of direct stakeholders in particular cases. This Article argues that involvement or influence by government actors in the bankruptcy system is, in fact, broadly consistent with bankruptcy theory and with the structural relationship between bankruptcy law and other legal and regulatory components of the state. This relationship is subject to some basic ordering principles. Bankruptcy law constrains and adjusts other legal regimes to some extent, but it generally incorporates non-bankruptcy law and yields to government’s regulatory actions. These ordering principles reasonably extend to ad hoc government actions or “activism” in the bankruptcy system. Thus, government actors generally do not contravene bankruptcy policy when they employ the system to advance non-bankruptcy policies within their authority, even when doing so enables the government to take actions and achieve goals that it could not outside of the system. This Article develops these claims by focusing in particular on the relationship between bankruptcy and financial regulation. Bankruptcy is part of the architecture of financial markets in a modern economy, and the influence of financial regulators on the bankruptcy system should be viewed as the product of overlapping regulatory functions. This Article describes three episodes of regulatory intervention in the bankruptcy system: (1) “regulatory bankruptcy” during the 2008-09 financial crisis; (2) the efforts by the Reserve Bank of India to force some large commercial firms into India’s new insolvency system; and (3) the Chrysler bankruptcy. The ordering principles advanced in this Article generally justify the government involvement in these cases and, to some extent, in the COVID-era proposals as well. However, the degree of regulatory involvement in the bankruptcy system envisioned by some of these recent proposals may be disproportionate to, or attenuated from, their underlying regulatory goals. If so, they may fall beyond the scope of justified government involvement in the bankruptcy system.
Feldman, Heidi Li, 'From Liability Shields to Democratic Theory: What We Need From Tort Theory Now' (2021) 2(14) Journal of Tort Law (forthcoming) Abstract: Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call “eliminative” tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes.A fifty-year surge in eliminative doctrines is a distinctive development. It calls for explanation and interpretation. In this article, I introduce a tort theory that centers eliminative tort doctrines, rather than dismiss them as aberrations or passing political fads. I title the theory “tort deflationism.” It is deflationary because it treats tort law as a field that should be modest in the legal liability it creates and the extent of the liability it allows. I argue that tort deflationism is latent in the post-1960s eliminative tort doctrines and their relationship to modern American conservatism, a broad social, intellectual, and political movement that arose after World War II and continues to the present day. I myself do not endorse tort deflationism. I have chosen to articulate it in this article in order to explore its explanatory power, evaluative force, implications for alternative tort theories, and potential significance for democratic theory and practice. Tort deflationism deserves serious attention, if for no other reason than to clarify grounds for objecting to it or to criticize its conception of the law of personal injury.The article examines the COVID-19 liability shields and their predecessors so as to identify the features that any theory geared to them must illuminate. It then spells out the mid-level principles central to tort deflationism and develops a full-blown theoretical synthesis of these principles by showing their ties to the intellectual and ethical commitments of modern American conservatism. Next, the article canvases how tort deflationism can make sense of developments in American tort law other than the post-1960s surge in eliminative tort doctrines, using as an example the law of workplace injury. Then, it covers how tort deflationism compares to other tort theories, showing how it serves as a useful foil. Finally, the article considers how tort deflationism relates to ongoing debates about the legitimacy of law in pluralist democracies.
Fenster, Mark, 'A 'Public' Journey Through COVID-19: Donald Trump, Twitter, and the Secrecy of U.S. Presidents’ Health' (2021) 1(8) Critical Analysis of Law 25-42 Abstract: Donald Trump ignored numerous governance norms in his one term as U.S. President, especially those that prescribe disclosure of official and personal financial information. His brief period of illness from COVID-19, which he broadcast to the world via his Twitter account, revealed the complexity of Trump’s relationship to the concept and norms of transparency that presume information’s necessity for a functional and accountable state. At the same time that Trump offered little in the way of coherent and authoritative information about his health, he also provided an enormous amount of seemingly “inside” and direct accounts of the progress of his illness—indeed, much more than tradition and law appeared to require. This incident epitomized both Trump’s distinct, populist approach to transparency and transparency’s limitations as a concept of democratic governance.
Ferraro, John, 'Compelling Compassion: Navigating Federal Compassionate Release After the First Step Act' (2021) 7(62) Boston College Law Review 2463 Abstract: Prior to the First Step Act, compassionate release was rarely utilized in the federal criminal justice system. Upon the Act’s passage, the federal judiciary took a more significant role in assessing motions for compassionate release. The number of motions for compassionate release swelled as the COVID-19 pandemic became a major public health crisis in the United States, especially in prisons. Many, but not all, federal district courts departed from prior administrative guidelines that were not consistent with the statutory language of the First Step Act. These differing levels of discretion have created an inconsistent patchwork of case law across the federal judiciary. This Note surveys the variety of district court rationales for granting or denying motions for compassionate release. Given the purpose and legislative intent of the First Step Act, this Note argues that district courts should continue to exercise broad discretion to determine whether compassionate release is appropriate. It also argues that future compassionate release administrative guidance should allow courts broad discretion on whether to grant compassionate release, subject to appellate review.
Feuer, Albert, 'How the CARES Act Takes Care of an Individual's Savings and Retirement Benefits' (2020) (48) Tax Management Compensation Planning Journal 110 Abstract: The CARES Act forgives federal student loan payments with due dates between March 27, 2020 and September 30, 2020 and suspends the minimum required distribution rules for distributions otherwise due during the 2020 calendar year. The CARES Act also provides cash flow relief for qualified individuals with savings and retirement benefits by enhancing provisions for direct loans and indirect loans (repayable distributions) of such benefits. Guidance is needed to address at least six major issues. Who are qualified individuals, and how may they may be determined? What notices are required pertaining to the enhanced loan provisions, and to the enhanced distribution provisions? What is the DOL position with respect to fiduciary responsibility requirements pertaining to the enhanced direct and to the indirect loan provisions? Must plans defer loan payment due dates by qualified individuals for due dates between March 27 and December 31, 2020 in the same manner as IRS Notice 2020-23 requires plans to do so for all participants and beneficiaries for due dates between April 1 and July 14, 2020 How do plans determine the new amortization schedule for those deferring such payments? Must plan administrators give qualified individuals the right to avoid withholding on the enhanced distributions that the Act calls coronavirus-related distributions in the same manner that plan administrators must do so for all participants and beneficiaries on the distributions that would be 2020 required minimum distributions, absent the CARES Act? May qualified individuals repay all or only some coronavirus-related distributions within three years to an eligible retirement plan? The longer this guidance is delayed, particularly with respect to the definition and the determination of a qualified individual, the longer will the relief to individuals needing such relief be delayed and the longer will those individuals be unaware of the available relief.
Feuer, Albert, 'Proposed Technical Corrections for Cash-Flow Relief Provisions of the Cares Act for Individuals with Savings or Retirement Benefits' (2020) (48) Tax Management Compensation Planning Journal 135 Abstract: The CARES Act provides cash-flow relief for individuals who want to access their savings and retirement plan benefits without adverse tax consequences. There are significant outstanding issues with those provisions. The article discusses and proposes technical corrections to address three such issues.• Is there a single certification procedure to determine who is eligible to access their own savings and retirement benefits? The HEROES Act, the multi-trillion-dollar proposal to supplement the CARES Act that the House of Representatives approved in mid-May, addresses this issue differently than both the IRS guidance and the article’s proposal. • Are those eligible to so obtain their own benefits defined sufficiently broadly? The HEROES Act broadens the eligibility for the Covid-19 enhanced family and medical care leave relief. The Act does not address the far narrower CARES Act eligibility criteria for individuals who wish to access their own savings and retirement benefits. • Is there an unambiguous and intuitive method to determine the new amortization schedule for an eligible individual who wishes to take advantage of the CARE Act deferral of 2020 due dates for plan loans? The HEROES Act, again, does not address this issue.The article also proposes a state law change to prevent adverse state and local personal income tax consequences for plans, participants, and beneficiaries who wish to take advantage of the cash-flow relief of the CARES Act to access their own savings and retirement benefits. For example, the CARES Act permits in-service distributions that would otherwise cause savings and retirement plans to lose their tax-exemption. State and local tax laws that are not coupled with the Internal Revenue Code may tax plans that decide to provide such cash-flow relief, and also prevent participants and beneficiaries from deferring tax on their plan benefits. The article therefore presents a technical correction to state and local personal income tax laws that conformed to the Code before the enactment of the CARES Act, such as those of New York State, to assure that those laws conform to the Code provisions changed by these relief provisions and only those provisions.
Feuer, Albert, 'What Savings and Retirement Plans May and Must Do to Facilitate COVID-19 Loan Relief' (2020) (61) Tax Management Memorandum 171-174 Abstract: Plan administrators may permit participants and beneficiaries to access their own plan benefits to address their cash-flow problems without adverse tax consequences with more favorable plan loan policies. These policies are not limited to the CARES Act provisions permitting “qualified individuals” to obtain more generous loans and giving those individuals one-year deferrals of loan due dates. Loan repayment relief and loan percentage increases will provide more vital COVID-19 relief than maximum loan amount increases because most plan accounts are substantially below the current $50,000 loan maximum.Plan administrators may help all their participants and beneficiaries by choosing to make loans available, having generous cure period for loan payment default, and deferring loan dues dates for employees on furloughs. They must also defer all loan dates between March 27, 2020 and July 14, 2020 until July 15, 2020. Finally, an individual whose outstanding plan loans were an offset against the individual’s benefits following the termination of employment may avoid taxation on such a deemed distribution by contributing such amount to another plan or individual retirement arrangement before the individual files her or his federal income tax return for the tax year of the distribution.
'Fifth Circuit Upholds Abortion Restrictions During COVID-19 Pandemic: In re Abbott 954 F.3d 772 (5th Cir. 2020).' (2021) 3(134) Harvard Law Review 1228-1235 Abstract: The article focuses on the decision of the U.S. Court of Appeals for the Fifth Circuit in the case In re Abbott in which court upheld GA-09, a Texas executive order that temporarily postponed all nonessential medical procedures, including abortions, in response to the COVID-19 pandemic. It mentions court relied on principles central to common-good constitutionalism, potentially indicating that this judicial philosophy is gaining traction on emergency powers.
Figueroa, Daniel, 'Diminishing Religious Liberties: COVID Under the First Amendment' (SSRN Scholarly Paper No ID 3753678, 22 January 2020) Abstract: The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.
Fine, Anna, Katie M Snider and Monica K Miller, ‘Testing the Model of Judicial Stress Using a COVID-Era Survey of U.S. Federal Court Personnel’ (2024) 31(3) Psychiatry, Psychology and Law 381–400 Abstract: Non-judicial court personnel, critical to a well-functioning justice system, experience overloaded dockets and the responsibility of making significant decisions, contributing to cognitive stress. Understanding and mitigating their stress is essential for maintaining judicial efficiency. We adapted Miller and Richardson’s Model of Judicial Stress to assess stress in a broad sample of non-judicial court personnel (n = 122), including judges, lawyers, and administrative staff. Participants responded to surveys about their stress levels, job performance, and health; they also completed cognitive performance tasks. The findings indicated that stress negatively affected employee outcomes including cognitive performance, job performance, job satisfaction, and health outcomes. Notably, perceived job performance had declined compared to the previous year, suggesting that the pandemic was an additional significant stressor. Based on the data, the Model of Judicial Stress is also applicable to other types of courtroom personnel, underlining its relevance across various judicial roles.
Finger, Davida, Kevin Callison and Isabella Smith, 'Covid-19 Eviction Moratoriums and Eviction Filings: Evidence from New Orleans' (2021) () Housing and Society (advance article, published online 8 July 2021) Abstract: Securing stable housing to prevent the spread of infection during the COVID-19 pandemic remains a concern among policymakers in the US. In this article, we provide a descriptive analysis of the association between COVID-19-related eviction moratoriums and eviction filings in New Orleans, Louisiana. Beginning in March 2020, four separate moratoriums were implemented at the local, state, and federal levels that sought to restrict eviction filings in New Orleans. We collected data on evictions filed from January 2017 through November 2020 in the First City Court of Orleans Parish, the entity responsible for adjudicating the majority of eviction filings in New Orleans. We then examined the association between the various eviction moratoriums, the number of evictions filed, the estimated number of evictions temporarily averted, and the average suit dollar amount for filed evictions. Our results indicate that local and state moratoriums were effective at temporarily halting eviction filings. Federal moratoriums offering fewer protections reduced eviction filings by approximately 50%. We estimate that COVID-19-related eviction moratoriums temporarily averted 2,492 eviction filings in New Orleans between March and November 2020. The average suit amount for eviction filings that resumed following the expiration of local and state moratoriums doubled from pre- COVID-19 filing amounts.
Finkle, Victoria, ‘How Compassionate?: Political Appointments & District Court Judge Responses to Compassionate Release During COVID-19’ (2022) 110(6) THE GEORGETOWN LAW JOURNAL 1495–1517 Abstract: The Trump Administration sought to transform the judiciary by appointing numerous conservative judges to the bench, building on a Republican project that is decades in the making. This Note examines how judges are deciding compassionate release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons. This Note explores how judges appointed by Republicans and Democrats have ruled in more than 6,000 federal compassionate release cases in the first ten months of the pandemic, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of ‘extraordinary and compelling’ circumstances, and requests for release have skyrocketed since the outbreak of the virus. The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate release statute together offer a natural experiment for considering how judicial ideology impacts people’s lives. The results of this analysis underscore the importance of the fight over control of the judiciary going forward.
Fisher, Hannah, 'Getting Down to Brass Tax: Why Courts Should Use Equitable Tolling to Help Taxpayer-Petitioners Impacted by COVID-19' (2021) University of Chicago Legal Forum (forthcoming) Abstract: The COVID-19 pandemic caused some of the sharpest rises in American unemployment and poverty seen in a generation. This left people with less money in their pockets, but also less time and access to resources to diligently pursue their legal rights and remedies. Congress responded by providing some financial aid via stimulus packages. But without accompanying procedural relief from various filing deadlines, many will face financial liabilities to the government they otherwise might not, particularly in the tax context. This Comment advocates for greater flexibility when taxpayer-petitioners miss filing deadlines due to COVID-19-related hardships. I argue that when time limits in the tax context can properly be considered non-jurisdictional claims-processing rules, courts can rely on precedent from other bodies of law to expand the use of equitable tolling, limited by a modified financial disability standard.
Flanagan, John, ‘The Golden Shares Dilemma’ [2022] (5) Illinois Law Review 1971–2002 Abstract: The COVID-19 pandemic brought unprecedented challenges to AThe COVID-19 pandemic brought unprecedented challenges to American businesses. For those businesses facing the most pressure, the American bankruptcy system promised relief and a means of emerging from the crisis. This system is driven by a historic policy of liberal access for debtors, with attempts by creditors to block bankruptcy filings under loan terms routinely nullified. Yet the promise of bankruptcy for some debtors may prove to be illusory, thanks to a device known as the ‘golden share.’ Instead of inserting bankruptcy blocking provisions in loan documents, creditors obtained equity and established their rights to block bankruptcy filings in corporate control documents. While the only appellate court to speak directly on the issue has suggested golden shares are valid, a post-COVID-19 case from the bankruptcy court in Delaware expressed its disapproval of this device. An emerging split of authority threatens to create only more uncertainty for corporate debtors already facing significant pressures. This Note tracks the dilemma of golden shares. It first reviews the history of golden shares, as well as the most important cases dealing with this device. It explores the theory behind the golden shares dilemma, including the role of fiduciary duties in the analysis. The Note then proceeds into a discussion of federal common law. The Note concludes with a proposal that implementing federal common law fiduciary duties through a burden-shifting framework provides the optimal means of resolving the golden shares dilemma.
Flanders, Chad et al, ''Terroristic Threats' and COVID-19: A Guide for the Perplexed' (2020) 4(169) University of Pennsylvania Law Review Online 63-89 Abstract: The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars’ worth of damages to businesses. Those who have been caught doing this — or have filmed themselves doing it — have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes given their long history and regular use by states. Our article is one of the first to look systematically at these statutes, and we do so in light of the rash of these charges during the recent pandemic. Our argument begins with the premise that these statutes typically contemplate a “core case” of terroristic threatening, e.g., someone calls in a bomb threat which forces the evacuation of a building. But these statutes have been variously revised and repurposed over the years, most notably to mass shootings, and more problematically to those who threaten to give others HIV. The recent COVID-19 charges seem to involve facts that are outside the “core case,” so that even if terroristic threatening is a permissible charge in these cases, it is often not the most appropriate one. We conclude by suggesting that in many of the COVID-19 cases other charges should be made (criminal mischief, disorderly conduct, false reporting, etc.) instead of terroristic threatening, and that a lot of the expressive and deterrence benefits of more serious charges can be accomplished just as well by social disapproval.
Fleischhacker, Sheila and Sara Bleich, ‘Addressing Food Insecurity in the United States During and After the COVID-19 Pandemic: The Role of the Federal Nutrition Safety Net’ (2021) 17(1) Journal of Food Law & Policy 98–129 Abstract: Food insecurity has been a direct and almost immediate consequence of the coronavirus disease 2019 (COVID-19) pandemic and its associated ramifications on unemployment, poverty and food supply disruptions. As a social determinant of health, food insecurity is associated with poor health outcomes including diet related chronic diseases, which are associated with worst COVID-19 outcomes (e.g., COVID-19 patients of all ages with obesity face higher risk of complications, death). In the United States (US), the federal nutrition safety net is predominantly made up of the suite of 15 federal nutrition assistance programs that the US Department of Agriculture (USDA) administers and the Older American Act Nutrition Program that the US Department of Health and Human Services (HHS) administers (See Table 1). Both made significant adaptations to help ensure Americans have safe, secureand healthy foods and beverages during this national emergency. This essay briefly discusses the successes and shortcomings of these adaptations by critical life stages and puts forth recommendations for strengthening the public health impacts of our federal nutrition safety net in the near- and longterm.
Fletcher, Ernie et al, 'COVID-19, Corrections, and Early-Release: Implications and Solutions for Populations with Opioid and Substance Use Disorders' (SSRN Scholarly Paper No ID 4004589, 15 January 2021) Abstract: As the United States continues to feel the weight of the delta variant, it is a time of reflection. This global pandemic serves as a reminder that infectious diseases pose an existential threat to our way of life and the way we operate institutions. Correctional facilities are one of many institutions that are high-risk environments and require a nuanced approach to policies and practices. Epidemic planning, as part of a robust disaster/crisis response, may include correctional early releases in order to reduce census and subsequent risk associated with congregate living. However, early release planning must equitably balance inherent risks that marginalized people face, including those with opioid and other substance use disorders (OUD/SUDs). The majority (80-85%) of individuals incarcerated have reported illicit substance use in their lifetime, but only 20% receive treatment while incarcerated. Releasing individuals with OUD/SUDs early due to COVID-19 or another epidemic or pandemic, without a robust reentry plan may result in a return to substance use, fatal and nonfatal drug overdose, and recidivism. This report describes the risks associated with this practice and provides comprehensive policy recommendations incorporating a COVID-19 risk assessment, considerations for OUD/SUD, mental health (MH), healthcare access and resources, recovery housing, and employment. COVID-19 variants and emerging infectious diseases pose an ongoing threat; therefore prevention/planning and response efforts should take place in all sectors. This policy may be adapted to future early release planning scenarios to adequately balance risk and support successful transitions.
Fletcher, Matthew, ‘Pandemics in Indian Country: The Making of the Tribal State’ (2022) 18(2) University of St. Thomas Law Journal 295–306 Abstract: This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan, during the 1881 smallpox outbreak and the 2020–2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020–2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government.
Fletes, Abigail et al, 'Advancing Syringe Services in the United States: The Untapped Role of the Americans with Disabilities Act' (2022) Yale Journal of Health Policy, Law, and Ethics (forthcoming) Abstract: The United States is facing an unprecedented set of public health challenges. Now killing nearly 1000 people daily, the COVID-19 pandemic is also compounding the ongoing crisis of addiction and risky substance use. Disruption in treatment and support services, economic shocks, despair and social isolation wrought by coronavirus have all impeded efforts to bend the overdose curve—now surging again after a momentary deceleration prior to the onset of the pandemic. By the same token, there is evidence that people with substance use disorder are more susceptible to COVID-19 infection and its deadly sequelae. Now more than ever, prevention and supportive services are vital to safeguarding the health of people with substance use disorder. Although access to substance use treatment has received substantial attention and support, harm reduction services are being left behind. These vital programs include syringe service programs (SSPs), naloxone distribution, drug checking, and supervised consumption facilities. Intended to address the needs of highly-stigmatized, criminalized people who use illicit drugs, SSPs have been shown especially effective as platforms for stemming bloodborne infections, preventing overdose, and facilitating access to a broad range of assistance, including COVID-19 testing, substance use treatment, housing, and other essential support.
Fleury-Steiner, Ruth E et al, ‘Legal Systems and Domestic Violence: Changes in Response to the COVID-19 Pandemic’ (2025) Journal of Family Violence (advance article, published online 11 March 2025) Abstract: The COVID-19 pandemic and associated public health control measures resulted in both higher rates of intimate partner abuse and violence (IPA/V) and more severe victimization. Domestic violence advocacy programs struggled to maintain organizational capacity to provide survivor-centered services in the face of both increased demand and rapid changes necessary to mitigate disease spread. The current study explores ways that legal advocates and the legal systems responded to the needs of IPA/V survivors.
Florey, Katherine, 'Tribal Land, Tribal Territory' (2021) (56) Georgia Law Review (forthcoming) Abstract: In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land they govern. First, in a controversy that made national headlines, several tribes in South Dakota clashed with Gov. Kristi Noem about their power to impose Covid-19-related checkpoints on state highways passing through Indian country. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. At the same time the checkpoint controversy was brewing, the Supreme Court decided the pathbreaking case McGirt v. Oklahoma. While only incidentally about tribal territorial jurisdiction, Justice Gorsuch’s opinion spoke directly to what it means for land to be tribal territory, suggesting that a tribe may retain jurisdiction over a reservation even if parts of it are sold to private owners. This would be an unremarkable statement in any other context, but it is near-revolutionary in federal Indian law, where Supreme Court–created doctrine has left tribes with very little ability to regulate non-Indians on fee land. This Article takes these two developments as a starting point for reflecting on the relationship between tribal land and tribal territory. It aims to undertake a comprehensive account of the varied strands of doctrine the Court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two. After surveying current doctrine, the Article suggests a reimagining of both Montana and the right to exclude in a way that would facilitate a return to the territorial control tribes traditionally exercised.
Fontenot, Lily, 'COVID–19, Housing and Evictions: A Comparative Case Study of Housing Law and Policy in the United States and Argentina through an International Human Rights Lens' (2021) 1(53) University of Miami Inter-American Law Review 159-195 Abstract: This Note seeks to address the impact of international human rights obligations on domestic housing laws and policies through a comparative case study of Argentina and the United States. Specifically, it will discuss each country’s response to the COVID-19 pandemic, their housing obligations under international human rights law, and how each country is addressing their own unique housing and eviction crises. Finally, this Note will offer recommendations on how each country should modify their housing policies in light of the pandemic in order to comply with international human rights standards.
Foohey, Pamela, 'Bursting the Auto Loan Bubble in the Wake of COVID-19' (2021) 5(106) Iowa Law Review 2215-2239 Abstract: Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such as the ability to return new cars for up to a year upon job loss. Combined with the CARES Act's relief rebates and moratoria, the bottom did not fall out of the auto loan market. These measures, however, are temporary. The pandemic alone will not reduce people's need for cars, but it will burst the auto loan bubble. The economic fallout will require interventions in the auto sale and loan markets, which presents a moment to transform America's car economy. This symposium Essay details a range of financial and related measures that can be implemented in the near future to shift auto financing away from promoting economically unequal and environmentally unfriendly use and access to automobiles, and, more broadly, to shift the United States away from prioritizing automobiles as the primary means of personal transportation.
Foohey, Pamela, Dalié Jiménez and Christopher K Odinet, 'CARES Act Gimmicks: How Not To Give People Money During a Pandemic And What To Do Instead' (2020) University of Illinois Law Review Online 81 Introduction: The coronavirus pandemic upturned Americans’ lives. The profound financial effects caused by even a few weeks of the coronavirus’ upheaval spurred Congress to pass the CARES Act, which purported to provide economic relief to individuals and businesses. For individuals, the CARES Act includes five provisions that were effectively designed to provide people money. Chief among those provisions are a direct payment in the form of a tax rebate and enhanced employment benefits. Ultimately, this financial support will prove to be shockingly minimal. The direct payments represent a fraction of the average American households’ monthly budget. The unemployment benefits, while providing people with more money over several months, require that people be laid off and similarly are unlikely to reach people quickly enough to be effective. These corner pieces of the CARES Act are best understood as gimmicks. Through them, the federal government told people that it would take care of them in ways that were immediately salient to them as the coronavirus crisis began. It also became quickly apparent to at least some lawmakers that Congress would need to pass at least one additional stimulus package. Indeed, Congress may have several more opportunities to craft legislation that actually will help American families survive the pandemic. This legislation must provide people with true funding to stay current with their minimum necessary expenses as these expenses are incurred. In this Essay, we discuss the gimmicks of the CARES Act’s individual provisions and what Congress should do for people in future bills to address this pandemic. If done right, helping individuals will cost the government more than $2 trillion next time, and the time after that, and possibly the time after that. And, if done right, it will be worth every penny.
Foohey, Pamela, Dalié Jiménez and Christopher K Odinet, 'The Debt Collection Pandemic' (2020) (11) California Law Review 222-241 Abstract: As of May 2020, the United States' reaction to the unique and alarming threat of COVID-19 has partially succeeded in slowing the virus’s spread. Saving people’s lives, however, came at a severe economic cost. Americans’ economic anxiety understandably spiked. In addition to worrying about meeting basic expenses, people’s anxieties about money necessarily included what might happen if they could not cover already outstanding debts. The nearly 70 million Americans with debts already in collection faced heightened anxiety about their inability to pay.The coronavirus pandemic is set to metastasize into a debt collection pandemic. The federal government can and should do something to put a halt to debt collection until people can get back to work and earn money to pay their debts. Yet it has done nothing to help people deal with their debts. Instead, states have tried to solve issues with debt collection in a myriad of patchwork and inconsistent ways. These efforts help some people and are worthwhile. But more efficient and comprehensive solutions exist. Because debt collection brought by the COVID-19 crisis will not dissipate anytime soon, even after the crisis ends, the need to implement comprehensive, longer-lasting solutions remains. These solutions largely fall on the shoulders of the federal government, though state attorney generals have the necessary power to help people effectively, provided they act in concert. If the government continues on its present course, a debt collection pandemic will follow the coronavirus pandemic.
Foohey, Pamela, Dalié Jiménez and Christopher K Odinet, 'The Folly of Credit As Pandemic Relief' (2020) (68) UCLA Law Review Discourse 126 Abstract: Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis an
Foohey, Pamela, Dalié Jiménez and Christopher Odinet, ‘Steering Loan Modifications Post-Pandemic’ (2022) 85(2) Law and Contemporary Problems 201–224 Abstract: This Article focuses on the likely fallout for American households as a result of expiring moratoria and provides a regulatory path for steering creditors to offer borrowers workable loan modifications or else to bring people to the point of reckoning with their debts in bankruptcy.
Forbes, Mitchell, ‘Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations’ (2023) 40(1) Alaska Law Review 171–188 Abstract: The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.
Fox, Dov, ‘The Vaccine Cases and Administrative Power’ (2022) University of San Diego School of Law: The Blue Brief - Faculty Review of 2021-22 U.S. Supreme Court Term 12–14 Abstract: The legal question was basically the same in both of the Supreme Court’s big 2022 federal vaccine mandate cases. It boiled down to whether a federal agency—the Department of Health and Human Services in one case, the Occupational Safety and Health Administration in the other—exceeded the statutory authority that Congress has granted to it. This brief case comment analyzes why the majority upheld the HHS mandate but struck down the OSHA one. A lot came down to past HHS and OSHA regulations to inform the limits of each agency’s authority. Namely, HHS has routinely issued conditions that obligate participating facilities to protect patient health and safety. The vaccine mandate went further than past HHS regulations—after all, the agency had previously been able to rely on compliance with state requirements—but fit within its longstanding practice of protecting healthcare workers and patients. OSHA lacked this historical precedent. By contrast, OSHA had never before issued a regulation ‘addressing a threat that is untethered, in any causal sense, from the workplace,’ in the sense that COVID-19 is a hazard encountered wherever people gather, not just at work.
Franchino, Alexandra, ‘Solitary Confinement in Sheep’s Clothing: The Unlawfulness of Medical Isolation Protocols During the COVID-19 Pandemic in American Prisons’ (2024) 54(3) Seton Hall Law Review 889–921 Abstract: This Comment analyzes the use of solitary confinement, usually disguised as medical isolation, in prisons during COVID-19 as a means of isolating and quarantining incarcerated individuals and its detrimental impact on incarcerated people on a national scale. Part II outlines the nation’s use of solitary confinement as punishment and considers the linkage and overlap between its modern and historical use as a segregation tactic in the medical quarantine context. Part II also describes the modern trend towards public and judicial acknowledgement of the adverse mental effects of solitary confinement. Part III highlights the use of solitary confinement as a means of medical isolation and prevention during COVID-19. Specifically, it exposes the pervasive and systemic imposition of harm on incarcerated people, usually under the guise of paternalistic goals of general safety and welfare. Additionally, it analyzes these practices under an Eighth Amendment framework, arguing that they are characteristic of the deliberate indifference that qualifies as an Eighth Amendment violation. Part IV proposes alternatives to the practices that occurred during COVID-19 and presents an argument for the implementation of protocols that actually advance the health and wellbeing of incarcerated people. Part V begins by calling on the courts to reconsider their responses to conditions of confinement challenges under the Eighth Amendment and urges officials and administrators of American prisons to learn from the detrimental mistakes made during the COVID-19 crisis to avoid future abuse in the next health crisis.
Francis, Leslie, 'Health Information Beyond Pandemic Emergencies: Privacy for Social Justice' 5(70) American University Law Review 1629-1680 Abstract: The COVID-19 pandemic has forcefully revealed the critical importance of timely information to identify emerging infections, discern patterns of disease, and stop disease spread. Information about individuals both as patients, and as ordinary people in the world is necessary for each of these tasks. Yet the implications for information use and efforts to achieve social justice are significant. This Article first surveys information needs as revealed by the pandemic. It then articulates different normative approaches to privacy and confidentiality to develop two implications for privacy and justice: that information gleaned in clinical care and information possessed by public health should be far more integrated, and that sectoral regulatory structures are deleterious. These implications suggest a third: that notice and choice models are misguided as a method for protecting individuals from discrimination and injustice. Individualistic notice and choice are particularly problematic from the perspective of risks of discrimination and social inequality. The Article concludes by suggesting that U.S. law should move away from the notice and choice model as the primary method for protecting privacy.
Francis, Leslie P, 'Employees with Intellectual Disabilities During the Covid-19 Pandemic: New Directions for Disability Anti-Discrimination Law?' (2021) 1(74) Oklahoma Law Review 1-26 Abstract: This Article addresses employment risks and challenges presented by the COVID-19 pandemic for people with intellectual disabilities, in particular people with Down syndrome. Part II presents the risks and challenges of employment for people with Down during the COVID-19 pandemic. Part III lays out aspects of Title I of the Americans with Disabilities Act of 1990 (ADA)7 that are most relevant to these challenges. Part IV explores whether the ADA may be helpful in taking on these risks and challenges. It argues that limits long apparent in Title I of the ADA as it applies to people with intellectual disabilities8 may be exacerbated by the COVID-19 pandemic. Part V concludes by suggesting several ways these limits might be addressed.
Frankford, David M, ‘How COVID-19 Has Infected the Totality of Life (Including Law)’ (2022) 74(3) Rutgers Law Review (forthcoming) Abstract: The COVID-19 pandemic, stemming from the SARS-CoV-2 virus, has shown, as if proof were necessary, that a pandemic is an inseparably biological and social phenomenon that combines interacting elements of nature, including evolution, as well as political, social, and economic forces. As such, the COVID-19 pandemic has affected every sphere of human existence.In this Article, I analyze the more important elements of this seamless web by breaking it down into a number of categories: the virus itself (and some linked phenomena) and the political, economic, and social instability that it has caused everywhere. This instability ranges from effects on forms of primary association like the family to those on forms of secondary association including education, the economy, state legitimacy, social solidarity and law in the United States and, to some extent, in other nations, and health care delivery and public health in the United States.Pre-pandemic society in the United States was becoming increasingly fractured and polarized. In this ecology, a virus as smart and nimble as SARS-CoV-2 worked its will, seeping into everything because it fed on and exacerbated every crack and crevice; and these impacts are not linear but recursive, feeding into and amplifying one another. Instability in primary association partially feeds off of and into economic instability. Likewise, economic instability is concurrently a consequence and a cause of growing political instability. In turn, both forms partially derive from and cause the growing delegitimization of social solidarity and, in particular, the collective enterprise of public health. The latter is one reason that the United States’ capacity to respond to this pandemic and any on the horizon has been reduced. The most vulnerable among us have suffered the greatest hardship, but our society as a whole has been diminished.
French, Christopher C., 'Federal Courts’ Recalcitrance in Refusing to Certify State Law COVID-19 Business Interruption Insurance Issues' (2022) (100) Texas Law Review Online 152-161 Abstract: Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would decide the cases.This Essay argues the federal circuit courts’ decisions to make Erie guesses rather than certify the novel COVID-19 business interruption state law issues is a mistake that federal courts also have made in the past in regard to nationwide insurance coverage litigation governed by state laws. The Essay also argues that U.S. Supreme Court precedents regarding the abstention doctrine support state supreme court certification regarding the novel state law issues presented by COVID-19 business interruption insurance cases. Finally, the Essay discusses how early federal circuit court decisions on COVID-19 business interruption insurance claims are having a butterfly effect with respect to subsequent court decisions because other courts are relying upon, and adopting, the reasoning and holdings—right or wrong—of the federal circuit court decisions.
Fried, Audrey, ‘Lessons from Online Pandemic Pedagogy in North American Law Schools: Toward Law Student Wellbeing’ in Emma Jones and Caroline Strevens (eds), Wellbeing and Transitions in Law: Legal Education and the Legal Profession (Springer International Publishing, 2023) 107–135 Abstract: Many law school faculty who transitioned their courses online for the first time as a result of the pandemic thought deeply about their teaching. In adopting pedagogical approaches and strategies that mitigate the weaknesses of online learning and take advantage of the strengths of the medium, many law professors discovered practices that they found valuable and plan to continue in some form whether they are teaching online or in person. Because some of the challenges presented by online learning overlap with the needs of law students more generally, many of these strategies and practices also have the potential to improve law student wellbeing. In particular, the well-established Community of Inquiry model, conceived to support online course design, is a useful tool for faculty seeking to improve law student wellbeing regardless of modality. By emphasizing collaborative knowledge construction in the context of a learning community supported by an authoritative and caring instructor, the Community of Inquiry model highlights practices that foster the relatedness, competence, and autonomy necessary for law student wellbeing.
Friesen, Amanda and Paul Djupe (eds), An Epidemic among My People: Religion, Politics, and COVID-19 in the United States (Temple University Press, 2023) [OPEN ACCESS BOOK] Book summary: The pandemic presented religion as a paradox: faith is often crucial for helping people weather life’s troubles and make difficult decisions, but how can religion continue to deliver these benefits and provide societal structure without social contact? The topical volume, An Epidemic among My People explains how the COVID-19 pandemic stress tested American religious communities and created a new politics of religion centered on public health. The editors and contributors consider how the virus and government policy affected religion in America. Chapters examine the link between the prosperity gospel and conspiracy theories, the increased purchase of firearms by evangelicals, the politics of challenging public health orders as religious freedom claims, and the reactions of Christian nationalists, racial groups, and female clergy to the pandemic (and pandemic politics). As sharp lines were drawn between people and their governments during this uncertain time, An Epidemic among My People provides a comprehensive portrait of religion in American public life.
Froimson, Jill R et al, 'COVID-19, Home Confinement, and the Fallacy of “Safest at Home”' (2020) 7(110) American Journal of Public Health 960-961 Abstract: IPV is a public health crisis amid and exacerbated by the COVID-19 pandemic. In the United States, one in four women and one in seven men experience severe physical IPV at some point in their lives. Transgender individuals report even higher levels, with some studies quoting lifetime prevalence of IPV of up to 50%.3 Restricted economic resources, unemployment, and high stress levels all correlate with an increase in both the incidence and the severity of IPV.
Frosh, Ariane, 'Reproducing Equality: How Covid-19 Can Strengthen Abortion Rights' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 80-101 Abstract: States hostile to reproductive freedom have weaponized the COVID-19 pandemic to ban abortion in the name of public safety. Relying on heightened power the state typically exercises during an emergency, it can capitalize on public panic to achieve its policy goals. By laying bare the racial inequities of our healthcare systems and the opportunistic banning of abortion by an emergency-emboldened state, the COVID-19 pandemic invites a reexamination of the constitutional frameworks that support reproductive freedom. The status quo, rooted in substantive due process and illusory notions of “choice,” reinforces these inequities. The emergency usurpation of abortion rights suggests the need for a broader framework: one rooted in equality and social justice. An equal protection foundation for the right to abortion can help ebb the steady erosion of Roe’s core promise. More holistically, an equal protection approach can remedy the gaps in access to abortion care along racial and class lines by situating future litigation in the human rights framework of the reproductive justice movement.
Fruchter, Steven, 'Section 363 Sales After the Covid-19 Pandemic' (2021) 2(95) American Bankruptcy Law Journal 367-388 Abstract: The article explains the necessity for U.S. debtors to provide a virtual attendance option for participating in Bankruptcy Code Section 363 asset auctions during the COVID-19 pandemic and in the post-pandemic world. Topics discussed include the role of the Bankruptcy Act of 1867 as the origin of Section 363, implication of the various standards used by bankruptcy courts to determine asset eligibility for auction under Section 363, and benefit of remote auctions in terms of competitive bidding.
Fruin, Hon. Richard, 'Outreach Programs Thrive in Virtual Settings During COVID-19' (2021) 3(60) Judges' Journal 29-35 Abstract: The article reports that COVID-19 pandemic restrictions required adaption, particularly in public forums. The article examines whether judicial participation in community outreach activities should be considered as an official judicial function to promote public understanding of and confidence in the administration of justice.
Frye III, John W., 'A Minor Question of Vaccine Consent: Not for Ethics Alone to Answer' (2022) 1(22) American Journal of Bioethics 64-65 Abstract: The article considers that for an adolescent to give valid and sufficient consent to a COVID-19 vaccine, she must possess both capacity and competency, as in the case of 15-year-old Alesha. Topics include how an ethics consultant should assess Alesha's capacity for vaccination, how an advanced practice registered nurse's presumed concern about competency should be addressed and the ethics consultant's need to work with a legal department to help develop guidelines or policy for such situations.
Fuentes, Gabriel A., 'Federal Detention and "Wild Facts" during the COVID-19 Pandemic Criminal Law' (2020) 3(110) Journal of Criminal Law and Criminology 441-476 Abstract: Extract from Introduction (page 442): This Article offers a framework for considering defendants' arguments for release based on the COVID-19 pandemic. It suggests that the shifting landscape of facts and scientific knowledge about this disease, as well as governmental responses to it, challenge practitioners and courts to grapple with an additional layer of complexity in applying the Bail Reform Act and the Constitution to federal detention decisions. It is now crucial for courts to push past the parties' representations and into the facts and science behind them. The challenge is to try to rely on our experience to search for the line between the known and unknown about the risk this new virus poses in jail environments, by venturing past the open grasslands in a hunt for the less visible "wild facts" lurking in the forest. The lore of "wild facts," an abstract concept first articulated in the early twentieth century by philosopher William James, tells us that "wild facts" are "subtle, unexpected particulars" that lie not in law but in human experience, and that militate against the mechanical and impersonal application of a society's laws. 2 Now that COVID-19 has injected a new level of complexity into federal detention decisions, this Article uses the "wild facts" concept as an inspiration for meeting the new challenge of complexity in federal detention.
Fuentes, Gabriel A. and Mackenzie Krage, 'Federal Detention Amid the COVID-19 Pandemic: A Follow-Up' (2020) 6(67) Federal Lawyer 11-19 Abstract: The article focuses on federal judges began seeing arguments for pretrial release, either at the initial detention stage or after detention during COVID-19 pandemic. It mentions risk of uncontrolled outbreaks in congregate jail settings posed an unacceptable risk to community safety, and that risks associated with incarceration. It also mentions courts have reasoned that the risks posed to a defendant by COVID-19 in terms of terms of Bail Reform Act.
Fuqua, Erik, 'Resurrecting the Monster? Protecting the Market from Unfettered COVID-19 Fraud Enforcement' (2021) Syracuse Law Review (forthcoming) Abstract: COVID-19 spread like a wildfire across the globe, and its effects have spread beyond public health and into all facets of society. The pandemic highlighted significant supply chain vulnerabilities in almost every market, especially those for critical health care supplies. The United States has spent trillions of dollars in response to the pandemic, and that spending has already invited significant fraud. The False Claims Act (FCA) will play a major role in combatting this fraud, and the Department of Justice (DOJ) will lead the charge. However, history indicates that aggressive FCA enforcement during and after a crisis risks producing unintended, negative market consequences. The impact of aggressive mortgage fraud enforcement following the subprime mortgage crisis illustrates this risk. Those efforts dramatically shifted the Federal Housing Administration (FHA) lending market, contributing to a large exodus of established financial institutions. Today’s market for critical health care supplies is even more vulnerable and susceptible to this enforcement impact. Therefore, the DOJ must develop an evaluation framework for COVID-related fraud that considers market impact.This article will outline the federal spending response to COVID-19 and the enforcement framework in which COVID-related fraud will be addressed. It will discuss the impact of enforcement on markets, using the impact of mortgage fraud enforcement on the FHA lending market as a historical example. It will conclude by identifying the need for an evaluation framework that considers market impact and will propose evaluation factors and implementation mechanisms to assist in this effort.
Furth, Salim, 'When the Moratorium Expires: Three Quick Steps to Reduce Eviction' (George Mason University, Mercatus Center Research Paper Series, Mercatus COVID-19 Response Policy Brief No ID 3664186, 19 January 2020) Abstract: Eviction moratoria are set to expire across the country, unemployment is high, and many renter advocates are predicting a “tsunami” of eviction filings. In a legal eviction, a landlord obtains a court judgment against a tenant who has violated his or her lease, either by causing a nuisance or damage on the property or failing to pay. To reduce exposure to COVID-19 for all involved, many localities suspended eviction procedures in March 2019. The sudden end of moratoria will almost certainly result in a surge in eviction filings, if only owing to pent-up requests. Policymakers can avoid a drastic shock to the rental market by encouraging renegotiation, limiting the pace of evictions, and creating incentives for landlord forbearance.
Gable, Lance, Natalie Ram and Jeffrey L Ram, 'Legal and ethical implications of wastewater monitoring of SARS-CoV-2 for COVID-19 surveillance' (2020) 1(7) Journal of Law and the Biosciences Article lsaa039 Abstract: Scientists have observed that molecular markers for COVID-19 can be detected in wastewater of infected communities both during an outbreak and, in some cases, before the first case is confirmed. The Centers for Disease Control and Prevention and other government entities are considering whether to add community surveillance through wastewater monitoring to assist in tracking disease prevalence and guiding public health responses to the COVID-19 pandemic. This scientific breakthrough may lead to many useful potential applications for tracking disease, intensifying testing, initiating social distancing or quarantines, and even lifting restrictions once a cessation of infection is detected and confirmed. Yet, new technologies developed in response to a public health crisis may raise difficult legal and ethical questions about how such technologies may impact both the public health and civil liberties of the population. This paper describes recent scientific evidence regarding COVID-19 detection in wastewater, identifying public health benefits that may result from this breakthrough, as well as the limitations of existing data. The paper then assesses the legal and ethical implications of implementing policy based on positive sewage signals. It concludes that the first step to implementing legal and ethical wastewater monitoring is to develop scientific understanding. Even if reliability and efficacy are established, limits on sample and data collection, use, and sharing must also be considered to prevent undermining privacy and autonomy in order to implement these public health strategies consistent with legal and ethical considerations.
Gagnon, Alysha and Samahria Alpern, 'Reimagining Youth Justice: How the Dual Crises of COVID-19 and Racial Injustice Inform Judicial Policymaking and Reform' (2021) 2(72) Juvenile and Family Court Journal 5-22 Abstract: The COVID-19 pandemic and the rejuvenated movement for racial justice in 2020 have presented an opportunity to reimagine the roles, practices, and policies of juvenile and family court systems actors. In order to capture contemporary ideas about judicial practice and policy reforms, semi-structured interviews were conducted with Hon. Edwina Mendelson, Deputy Chief Administrative Judge for the Office of Justice Initiatives in New York State, and Hon. Steven Teske, Chief Judge of the Juvenile Court of Clayton County, Georgia. These interviews yielded several recommendations for judicial reform in youth justice (e.g., implement court-wide procedural justice practices, improve accessibility using technology). These recommendations can be used by systems actors across the country, particularly those interested in adapting their courtroom practices for a post-pandemic world.
Gaines, Brian J et al, ‘Eviction Expectations in the Aftermath of the Pandemic Moratoria’ (SSRN Scholarly Paper No 4669801, 19 December 2023) Abstract: The COVID-19 pandemic disrupted all aspects of normal life, including legal proceedings. As courts all over the United States shifted from in-person operations to hastily designed virtual proceedings, much changed. Research on how experiences with the justice system and case outcomes were altered by this disruption is early and ongoing, but some results are emerging, suggesting that online hearings had both pros and cons. Indeed, such work is not merely backwardlooking and of mainly historical interest, because many jurisdictions, having seen more gains than losses, are now making online court proceedings permanent for some matters. Evictions are a special case, because, during the pandemic, eviction hearings, rather than being shifted online, were mostly suspended. National, state-level, and even local moratoria prevented evictions for non-payment of rent—the basis of most evictions—and so even though most courts accepted eviction filings by landlords, hearings were largely put on hold. At the federal level, in March 2020, the CARES Act imposed a moratorium for evictions from covered properties (those whose owners received federal funding or had federal-government-backed mortgages) through July 2020. The Centers for Disease Control issued a moratorium for non-payment of rent in September of 2020, later extended, until the United States Supreme Court, in August 2021, lifted a further extension by the Biden Administration.
Gallemore, John, Stephen Hollander and Martin Jacob, 'Who CARES? Evidence on the Corporate Tax Provisions of the Coronavirus Aid, Relief, and Economic Security Act from SEC Filings' (Becker Friedman Institute for Economics Working Paper No 2020-81, 06 January 2020) Abstract: We use U.S. Securities and Exchange Commission (SEC) filings to provide initial large-sample evidence regarding utilization of corporate tax provisions by U.S. firms under the Coronavirus Aid, Relief, and Economic Security Act (CARES). These tax provisions were intended to provide firms immediate liquidity to prevent widespread bankruptcies and layoffs in response to the COVID-19 pandemic. However, critics have argued that the provisions were poorly targeted and amounted to “giveaways” for shareholders of large corporations. We find that 38 percent of firms discuss at least one of the CARES tax provisions in their SEC filings, a result primarily attributable to the net operating loss (NOL) carryback provision. Firms experiencing lower stock returns during the COVID-19 outbreak are more likely to discuss CARES tax provisions, but not firms in states or industry sectors exhibiting large increases in unemployment. Further, we find a higher likelihood of tax provision discussions for firms with pre-pandemic losses and higher financial leverage. Finally, we document some evidence that firms facing potential reputational or political costs from discussing these tax provisions may have avoided doing so. Our analyses suggest that tax provisions under CARES were not material for most publicly-traded U.S. firms, were not likelier to benefit firms in greater need of liquidity during the pandemic, and that some firms perceived that disclosing benefits would be costly. These findings are important for policymakers as they consider additional economic relief for U.S. corporations while the coronavirus pandemic lingers.
Gamage, David and Darien Shanske, 'States Should Consider Partial Wealth Tax Reforms' (2020) 18 May Tax Notes State 859 Abstract: This essay argues that, if the federal government fails to act sufficiently regarding the COVID-19 budget crisis, states should consider either real property surtaxes on their wealthiest residents or partial deemed realization of the unrealized capital gains of the very wealthy.
Gao, Ruoyun, 'Why the Purcell Principle Should Be Abolished' (2022) 5(71) Duke Law Journal 1139-1174 Abstract: The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election--even when the changes are necessary for an orderly, effective election. This Note identifies the drawbacks of the Purcell principle and argues for its abolition. In other words, courts should cease applying the Purcell principle and return to the Winter preliminary injunction standard, which requires courts to weigh plaintiffs' likelihood of success on the merits, any irreparable harm to parties, the balance of equities, and the public interest. The Purcell principle is ambiguous in three key ways: whether it is a stand-alone rule or a subfactor; how close the election has to be for the principle to apply; and whether it applies to appellate decisions in addition to district courts' orders. The consistent failure of the judiciary to clarify the principle in the hundreds of Purcell cases generated by the COVID-19 pandemic demonstrates that revising Purcell is impracticable.
Garcia, Ruben, 'The Human Right to Workplace Safety in a Pandemic' (2021) 1(64) Washington University Journal of Law & Policy 113-150 Abstract: The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia analyzes the options available for workers who confront unsafe working conditions under existing law. Expanding the language of “human right” will allow for greater scrutiny of actions taken by the government and employers. Garcia encourages statutory changes to OSHA and the NRLA, test cases, filing complaints under trade agreements, and lodging complaints with the ILO in order to keep all workers safe.
Gardner, James A., 'Democratic Legitimacy under Conditions of Severely Depressed Voter Turnout' (University of Buffalo School of Law Legal Studies Research Paper No No 2-0162020, 28 January 2020) Abstract: Due to the present pandemic, it seems increasingly likely that the 2020 general election in November will be held under conditions of unprecedented downward pressure on voter turnout. The possibility of severely depressed turnout for a highly consequential presidential election raises troubling questions of democratic legitimacy. Although voter turnout in the United States has historically been poor, low turnout is not usually thought to threaten the legitimacy of electoral processes when it results from voluntary abstention and is distributed unsystematically. Conversely, electoral legitimacy is often considered at risk when nonvoting is involuntary, especially when obstacles to voting fall systematically on specific populations. If turnout in November is unusually low but largely voluntary and unsystematic, then the risks to legitimacy should be low. If, however, nonvoting is both widespread and involuntary, and especially if obstacles to voting seem systematically directed at specific groups, conditions will be in place for a significant escalation of the threat. In particular, concerns of electoral legitimacy, which place in doubt only the authority of specific election winners to occupy the offices to which they have purportedly been elected, may ratchet up to much more profound concerns about regime legitimacy. Such concerns cast doubt on the continuing validity of popular consent to the entirety of the existing governmental regime.
Garland, Norman M, ‘The Constitutionality of Remote Trials’ (2021) 51(1) Southwestern Law Review 107–115 Abstract: ‘When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.’ Justice Gorsuch emphasized the importance of a unanimous verdict for a criminal proceeding when delivering his opinion in Ramos v. Louisiana. Though the case dealt with Louisiana’s criminal courts adhering to a unanimous jury verdict as implied within the Sixth Amendment, Justice Gorsuch’s reasoning could apply to a dilemma that many states are facing today: the constitutionality of conducting remote trials. Due to COVID-19 and the pandemic, many trials have either been delayed or conducted remotely. Parties have argued that the inability to cross-examine a witness face-to-face was a violation of their Confrontation Clause rights as written in the Sixth Amendment. Courts that have conducted remote trials have reasoned that it is in the states’ public policy interest to protect people from contracting the COVID-19 virus by not appearing in court. But the pervasive question is whether the Confrontation Clause can yield to such a public policy interest.
Gartner, David, 'Pandemic Preemption: Limits on Local Control Over Public Health' (2021) 2(13) Northeastern University Law Review 733-766 Abstract: As COVID-19 silently spread across the globe, the earliest effective responses in the United States were driven by localities. However, as the pandemic progressed, many of the most impacted cities were barred from taking comprehensive action in response to the pandemic. The broader trend of state preemption of local public health interventions accelerated as a result of COVID-19 and left many localities effectively defenseless against an invisible enemy.
Gates, Alexander A, ‘Legal and Ethical Implications of Mandatory COVID-19 Vaccination Programs’ (2022) 25 Quinnipiac Health Law Journal 125 Abstract: This article will explore the legality behind vaccine mandates that inherently infringe on civil liberties and what it means for people in different walks of life. In Part II, this note will illustrate the historical background of vaccines and discuss the characteristics that make vaccines unique in preventing infection from otherwise deadly viruses. In Part III, a constitutional basis for compulsory vaccination will be reviewed using case law. In Part IV, the religious and philosophical exemptions that are inherent objections to vaccines will be discussed. In Part V, the Food, Drug, and Cosmetic Act’s (FDCA) Emergency Use Authorization (EUA) will be explored. In Part VI, this note will determine the legality of vaccine mandates in specific situations. In Part VII, the ethical considerations of mandating a vaccine will be evaluated using different frameworks. Part VIII will conclude with a legal and ethical analysis of vaccine mandates.
Gates, Laura, 'Force Majeure, Vis Major, Impossibility, and Impracticability Under Ohio Law Before and After COVID-19' (2021) 1(90) University of Cincinnati Law Review 283-306 Abstract: This Comment assesses the past, present, and future of force majeure, impossibility, impracticability, and related doctrines under Ohio law in light of COVID-19. Section II examines the history of these doctrines in Ohio courts, as well as the history of the COVID-19 pandemic and certain law and economics principles. Section III analyzes how Ohio courts likely would apply these doctrines and interpretations (as they currently exist) to cases involving breach of contract due to COVID-19, and also how they should apply these doctrines and interpretations.
Gatter, Robert, 'Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures' (2021) 1(64) Washington University Journal of Law & Policy 151-166 Abstract: State and local officials have issued public health orders aiming to prevent or slow the spread of COVID-19. As a result, constitutional challenges have been brought claiming that certain measures (stay-at-home orders, mask mandates, etc.) violate the right to free exercise of religion, the right to free assembly, and the right to due process. This Article acknowledges the highly deferential standard applied when assessing whether a government’s public health action, during a public health emergency, violates the due process clause. Gatter encourages judges to adopt “focused scrutiny” in these cases, further constraining judicial review by a scientific focus. This review can be applied to any standard. Courts applying focused scrutiny focus their attention to the known science of the infectious disease as well as evidence of the efficacy of the government’s public heath measure. When both the government’s public health action and the constitutional review of the action occur during a declared emergency, Gatter argues this method is necessary to off-set the risk of judicial rubber stamping, defend against public health policy driven by fear or politics, and to strengthen the scientific basis of public health measures taken during the pandemic.
Gatter, Robert and Seema Mohapatra, 'COVID-19 and the Conundrum of Mask Requirements' (2020) 1(77) Washington and Lee Law Review Online 17-30 Abstract: As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This essay provides an overview of the legal and policy landscape and focuses on the potential for policing against African Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates. Rather, we suggest ways to support mask use, such as normalizing their use via advertising and media buy-in.
Geczy, Isabelle M, ‘Captive Without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals’ (2023) 70(4) UCLA Law Review 1084–1118 Abstract: To be incarcerated is to be deprived of the choices available to those in the free world. In the absence of those choices, carceral facilities dictate the ways that individuals may engage. If an incarcerated person wants to communicate with someone who is not in their facility, they have very limited options. Because of the extended erosion of attorney-client privilege, for years attorneys have identified in-person visitation as the only way to ensure attorney-client privilege is protected while they communicate with their incarcerated clients. When in-person visitation was eliminated due to COVID-19 lockdowns, every communication method that incarcerated individuals were able to access carried with it the likelihood or certainty of surveillance, destroying their access to communication with attorneys that preserved the privileged nature of such communication. Herein lies the essential attorney-client privilege issue laid bare by COVID-19: the state has incarcerated people, deprived them of communications protected by attorney-client privilege, and placed specific surveillance on every other meaningful and effective method people have to communicate with their attorney. These actions are even more damning in light of the multitude of individuals held in pretrial detention, many unable to pay bail, who then are restricted access to their own defense counsel, stealing their ability to participate in their own defense. Such deprivation runs contrary to the Sixth Amendment and is a direct illustration of why meaningful protections must be placed on communications between incarcerated individuals and their attorneys. What follows is a study of the four main alternative communication methods offered during COVID-19 lockdowns to incarcerated individuals: mail, phone, email, and video calls, and the ways in which each fail to afford communications actually protected by attorney-client privilege. This Comment then identifies how holistic and overarching reforms of communication systems for incarcerated individuals and their attorneys must be implemented in order to uphold attorney-client privilege and the criminal defendant’s Sixth Amendment constitutional right to counsel.
Gelinne, Caroline M., 'A Trip down Legislative Memory Lane: How the Fmla Charts a Path for Post-Covid-19 Paid Leave Reform' (2021) 7(62) Boston College Law Review 2515-2571 Abstract: Before the COVID-19 pandemic, the United States was the only highly-developed nation in the world not to guarantee paid family and medical leave (PFML) for its citizens. In 2020, during the early days of the pandemic, Congress passed temporary PFML to alleviate the hardship on families forced to choose between health and a paycheck. That legislation is no longer in effect. Many interest groups and lawmakers feel that the COVID-19 crisis has finally presented the moment to make PFML permanent in the United States. Yet, other conservative and pro-business groups resist the idea. The dynamics unfolding over the future of PFML are highly reminiscent of a policy debate that took place during the 1980s and 1990s over the Family and Medical Leave Act of 1993 (FMLA). The current debate over PFML provides a fortuitous opportunity to look back and learn from history. First, this Note suggests that the legislative history of the FMLA provides an insightful model of bipartisanship and coalition-building that should inform present PFML policy-making. Second, this Note gives an instructive comparison of the corporate and political landscape in the 1980s versus 2020s to frame these policies. Finally, this Note offers potential solutions for the roadblocks to PFML imposed by the business community, which mirror similar pushbacks against the FMLA three decades ago.
Gerke, Sara et al, 'COVID-19 Antibody Testing as a Precondition for Employment: Ethical and Legal Considerations' (2021) 2(49) Journal of Law, Medicine & Ethics 293-302 Abstract: Employers and governments are interested in the use of serological (antibody) testing to allow people to return to work before there is a vaccine for SARS-CoV-2. We articulate the preconditions needed for the implementation of antibody testing, including the role of the U.S. Food & Drug Administration.
Gerver, Mollie, 'The Case for Permanent Residency for Frontline Workers' (2022) 1(116) American Political Science Review 87-100 Abstract: This article presents the case for granting permanent residency to those experiencing significant risks throughout the COVID-19 pandemic to increase citizens' safety. Increasing safety comes in many forms: directly, as when doctors, paramedics, and nurses assist patients, and indirectly, as when farmworkers produce life-sustaining food, garbage collectors protect sanitation, and social workers respond to emergency calls. A range of such workers are owed gratitude-derived duties from citizens that are best fulfilled via permanent residency. I defend this claim first for authorized migrants and then for unauthorized migrants, whose presence citizens would consent to if they were aware of the benefits they provide. Finally, I defend the claim that many frontline workers not owed gratitude are owed duties of justice, acquiring rights similar to those of permanent residency.
Ghezelbash, Daniel and Nikolas Feith Tan, 'The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection' (Robert Schuman Centre for Advanced Studies Research Paper No RSCAS 2020/55, 20 2020) Abstract: The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross-borders to seek protection. As a result, the early months of 2020 saw an effective extinguishment of the right to seek asylum. This working paper examines how this played out in Australia, Canada, Europe and the United States. National and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum. Finally, this working paper explores strategies for restoring and protecting the right to seek asylum beyond the pandemic.
Ghose, Anindya et al, 'Trading Privacy for the Greater Social Good: How Did America React During COVID-19?' (SSRN Scholarly Paper No ID 3624069, 10 January 2020) Abstract: Digital contact tracing and analysis of social distancing from smartphone location data are two prime examples of non-therapeutic interventions used in many countries to mitigate the impact of the COVID-19 pandemic. While many understand the importance of trading personal privacy for the public good, others have been alarmed at the potential for surveillance via measures enabled through location tracking on smartphones. In our research, we analyzed massive yet atomic individual-level location data containing over 22 billion records from ten “Blue” (Democratic) and ten “Red” (Republican) cities in the U.S., based on which we present, herein, some of the first evidence of how Americans responded to the increasing concerns that government authorities, the private sector, and public health experts might use individual-level location data to track the COVID-19 spread. First, we found a significant decreasing trend of mobile-app location-sharing opt out. Whereas areas with more Democrats were more privacy-concerned than areas with more Republicans before the advent of the COVID-19 pandemic, there was a significant decrease in the overall opt-out rates after COVID-19, and this effect was more salient among Democratic than Republican cities. Second, people who practiced social distancing (i.e., those who traveled less and interacted with fewer close contacts during the pandemic) were also less likely to opt out, whereas the converse was true for people who practiced less social-distancing. This relationship also was more salient among Democratic than Republican cities. Third, high-income populations and males, compared with low-income populations and females, were more privacy-conscientious and more likely to opt out of location tracking. Overall, our findings demonstrate that during COVID-19, people in both Blue and Red cities generally reacted in a consistent manner in trading their personal privacy for the greater social good but diverged in the extent of that trade-off along the lines of political affiliation, social-distancing compliance, and demographics.
Gibson, B Isaac, ‘The Portion of Goods That Falleth to Me: Parental Rights, Children’s Rights, and Medical Decisions after COVID-19’ (2022) 60(3) Family Court Review: An Interdisciplinary Journal 590–601 Abstract: The advent and perpetuation of the COVID-19 pandemic has served to highlight issues in American law that have long gone unaddressed. Prominent among them are the issues involving parents, the government, and the medical decisions of children. This article examines the current state of American law involving parental rights, children’s rights, and the government’s role in medical decisions of children and proposes a uniform act as a solution to the discrepancy and unpredictability in this area of American law.
Gilgoff, Julie, ‘Land Redistribution in the Aftermath of the COVID-19 Pandemic’ (2021) 67(2) Wayne Law Review 212–252 Abstract: As the United States begins to emerge from the COVID-19 pandemic, there is a glaring need to redefine property law. Many who are concerned about the looming eviction and homelessness crisis are calling for policies that preserve ‘naturally occurring affordable housing’ before they are sold to private developers and converted to market rate rentals. This Article explores policies that preserve affordable housing and redistribute surplus vacant properties to those in need. Property theories that justify government-sponsored land redistribution assert that redistribution is necessary when the property system fails to provide a meaningful opportunity for the majority to own and enjoy adequate housing. In the midst of an unprecedented surge of homelessness that is sure to follow the lifting of eviction moratoria, this Article posits that self-help measures such as urban squatting should be tolerated in the absence of policies that achieve redistributive results. Historical examples of the legislature intervening to create redistributive policies, and to support squatter movements that defy property law, help support the conclusion that radical property reform is justified at this unique juncture, just as it was at various times since the founding of the United States.
Gilgoff, Julie, ‘Pandemic-Related Vacant Property Initiatives’ (2020) 29(2) Journal of Affordable Housing and Community Development Law 203–227 Abstract: With the rapid spread of COVID-19 in homeless shelters across the country, policies that provide socially distanced housing for society’s most vulnerable have been widely implemented. Hotels-that would have sat vacant while the economy was shut down-were temporarily repurposed to house the homeless. Once COVID-19 pandemic became an ongoing, rather than a short-term health crisis, governments began working to find longer-term housing solutions, like the ones featured in this article.
Gillette, Rebecca, 'The New Normal? Rethinking Telework Accomodations in a Post Covid-19 World' (2021) 1(9) Belmont Law Review 231-264 Abstract: Under the Americans with Disabilities Act (“ADA”), an employer is required to provide reasonable accommodations to qualified disabled employees, which may include a telework program. However, courts historically have been reluctant to grant telework as a reasonable accommodation, relying on an outdated presumption that physical presence is an essential function of most jobs that cannot be performed effectively at home.Despite the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), which widened the scope of potentially valid bases for requesting telework accommodations, courts have continued to rely on the physical presence presumption to deny telework as a reasonable accommodation. The emergence of the COVID-19 pandemic has necessitated an increase in telework arrangements across numerous disciplines. This increase has brought with it overwhelming anecdotal evidence showing unprecedented levels of successful teleworking arrangements without loss of productivity.This Note argues for Amendment to the ADA as follows: (1) binding language to eliminate the physical presence presumption; (2) expressly listing telework as a reasonable accommodation in the ADAAA; and (3) including the susceptibility of a nuclear member of an individual's household as a qualifying disability for the individual herself. This Note also argues for some sort of incentive or encouragement for state and private employers to adopt telework arrangements. This Note will proceed in three parts.First, Part I discusses the background of the ADA and the subsequent ADAAA, including its mandate that employers provide reasonable accommodations to employees with disabilities. Specifically, this Part discusses how courts have historically analyzed telework requests as a reasonable accommodation for a disability and exactly what criteria has been used to allow or deny those requests.Next, Part II discusses how, even after the ADAAA was signed into law, many courts continuously failed to recognize telework as a reasonable accommodation. Further, this part documents how the emergence of COVID-19 illuminated deficiencies in ADA jurisprudence and thus the need to amend practice regarding reasonable accommodations. This Part lastly discusses the Telework Enhancement Act of 2010, and how federal agencies handled the pandemic in comparison to state and private employers.Finally, Part III argues that the widespread increase of telework during the pandemic supports the need for Amendment to the ADA and adoption of a separate telework statute. Specifically, this Part acknowledges that the recent increase of telework and the associated increase of production levels supports the proposal of an amendment that will eliminate the physical presence presumption, include telework as a listed reasonable accommodation, and include the susceptibility of an individual's household to disease as a qualifying disability for the individual herself. This Part also argues that Congress should finally adopt the Multi State Telework Act, in order to incentivize state and private employers to adopt telework arrangements.
Gilman, Denise, 'Barricading the Border: COVID-19 and the Exclusion of Asylum Seekers at the U.S. Southern Border' (2020) (2) Frontiers in Human Dynamics Article 595814 Abstract: What years of deterrence efforts and restrictions on asylum did not achieve to block the U.S. southern border to asylum seekers, the Trump Administration has now accomplished using the COVID-19 pandemic as justification. New measures exclude asylum seekers from U.S. territory, thereby effectively obliterating the U.S. asylum program, which had promised refugee protection in the form of asylum to eligible migrants who reach the United States. In some cases, the policies adopted during the COVID-19 pandemic harden impediments to asylum already in place or implement restrictions that had been proposed but could only now be adopted. In others, the policies could never have been imagined before the pandemic. Overall, the force of these measures in dismantling the asylum system cannot be overemphasized. Once adopted, using an emergency rationale based on the pandemic, these policies are likely to become extremely difficult to reverse. This is particularly true where the restrictions exclude asylum seekers from the physical space of the United States. This article will thus explore two modes of physical exclusion taking place at the U.S. southern border during the COVID-19 pandemic: 1) indefinitely trapping in Mexico those asylum seekers who are subject to the so-called Migrant Protection Protocols; and 2) immediate expulsions of asylum seekers arriving at the southern border pursuant to purported public health guidance issued by the U.S. Centers for Disease Control and Prevention.
Gilman, Sam, 'The Return on Investment of Pandemic Rental Assistance: Modeling a Rare Win-Win-Win' (2021) Indiana Health Law Review (forthcoming) Abstract: We are facing an eviction crisis. The COVID-19 pandemic, has sent our economy into a tailspin forcing countless Americans to choose between feeding their families or having a roof over their heads. Many low-income people, especially low-income people of color, are facing an unprecedented economic crisis with tremendous rates of wage reductions and job loss. This has resulted in millions of Americans being unable to pay their full rents, creating the legal grounds for their landlords to evict them. As of early December 2020, more than 19 million individuals lived in households behind on rent, and more than 30 million did not believe they could make next month’s rent payments on time. For renters who are facing eviction and their landlords, the unpaid bills are piling up. Scholars, policymakers, and advocates have increasingly focused on a number of solutions to the eviction crisis including eviction moratoria and rental assistance, concluding that these solutions can stabilize households, especially when combined. Yet, the refrain is almost always that investing in national rental assistance programs will be expensive. However, few analysts have emphasized the financial costs of inaction. This paper presents an analysis that estimates the Return on Investment (ROI) of a number of different pandemic-related rental assistance programs by comparing the costs of rental assistance with the social costs of homelessness and displacement. As seen in Figure 1, this piece finds that rental assistance has a positive ROI of between 229%-473%. These ROI values point to the conclusion that failing to invest in rental assistance will cost dramatically more than making the investment now. The ROI analysis finds that rental assistance stabilizes both tenants and landlords, preserves neighborhoods, and protects government budgets over the long-term. More broadly the returns on rental assistance argue for a re-imagination of the eviction system. The conclusion that the estimated benefits of rental assistance eclipse the estimated costs of providing the funds by three or four times, suggests that rental assistance should supplant eviction as the social remedy for the inability to pay rent. In other words, keeping people in their homes during this pandemic and beyond is not only the right thing to do, economically it is the smart thing to do.
Ginsburg, Tom, ‘COVID and the US Constitution’ in Arianna Vedaschi (ed), Governmental Policies to Fight Pandemic: The Boundaries of Legitimate Limitations on Fundamental Freedoms (Brill, 2024) 390–400 Abstract: The COVID response in the United States has been extremely poor from a public health perspective. The country has had the highest number of deaths in the world, exceeding 700,000 at this writing, and is in the top twenty countries in terms of cases per capita. President Donald Trump, who was in office for the first year of the pandemic, declined to wear a mask in public, and after catching the virus in October 2020 told Americans not to let it rule their lives. State and local governments have in many cases undermined mask-wearing and treated vaccination as an optional choice that should be left to individuals. And Ameri- can citizens successfully pressured their governments to re-open quickly, leading to a major second wave of cases. President Joseph Biden changed course after he took office in January 2021, but many Americans refused to believe information from the government, and vaccination rates lagged compared to most other OECD countries. Surely this is an enormous governmental failure on a scale rarely seen in democratic countries. Yet from a constitutional and democratic perspective, the failure may not be so great.
Gitter, Donna M, ‘First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions’ (2022) 71(6) American University Law Review 2243–2317 Abstract: The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases. This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views of the proper exercise of the state’s police powers to promote public health and safety, and of the protections afforded by the Free Exercise Clause. Part I of this article considers state vaccination jurisprudence in the United States, beginning with the seminal 1905 case of Jacobson v. Massachusetts, illustrating that federal and state courts have consistently deferred to states’ exercise of their police powers in mandating vaccination, and have held that states need not offer religious exemptions to vaccination. Part II of this article analyzes the two recent cases brought by health care workers who petitioned the Supreme Court for emergency relief from vaccine mandates. This Part focuses on the dissenting Justices’ view that a state must offer a religious exemption to vaccination if it offers a secular one. Part III explores how these dissenting justices developed their interpretation through cases relating to restrictions on religious gatherings, thereby changing Free Exercise jurisprudence significantly during the pandemic era. Finally, Part IV critiques the view that a state violates the Free Exercise Clause where it permits a secular but not a religious exemption to a state vaccine mandate, and explains how the Supreme Court can distinguish the cases concerning pandemic gatherings from cases involving vaccine mandates, so as to uphold state vaccine mandates as constitutional.
Gleckel, Jareb A. and Sheryl Wulkan, 'Abortion and Telemedicine: Beyond COVID-19 and the Shadow Docket' (2021) () UC Davis Law Review Online (forthcoming) Abstract: This Article examines the Supreme Court’s recent shadow docket opinion in FDA v. American College of Obstetricians and Gynecologists (ACOG)—not just its present effects, but its bigger-picture implications for the future of abortion jurisprudence. In FDA v. ACOG, the Court, without full briefing or argument, stayed a Maryland court’s injunction against the FDA. In doing so, it allowed the FDA to continue enforcing its “in-person requirement,” forcing women to travel to pick up abortion medication during the COVID-19 pandemic. Parts I and II of this paper review the Court’s abortion jurisprudence and the opinion in FDA v. ACOG. Part II also suggests that FDA v. ACOG is inconsistent with the Court’s contemporaneous “shadow docket” opinions—summary opinions that enjoined states’ restrictions on church gatherings during the pandemic. Part III then explores the impact that FDA v. ACOG could have on abortion jurisprudence in a post-pandemic world. We first speculate about a post-pandemic United States where the Court continues to recognize abortion as a constitutionally-protected right. We argue that, while “in-person requirements” impede women seeking abortions, they also, ironically, make it harder for states to pass laws restricting access to abortion under contemporary case law. We then contemplate a parallel post-pandemic universe in which the Court overturns Roe v. Wade and stops recognizing the right to abortion. If the Court decides that abortion is not a fundamental right, as pro-choice liberals fear, it will be the in-person mifepristone requirements, or lack thereof, that determine the severity of that decision for many women in the United States. In a world without Roe, in-person requirements would maximally restrict women’s access to abortion.
Gluck, Abbe R and Jacob Hutt, ‘Epilogue: COVID-19 in the Courts’ in Abbe R Gluck et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 391–406 Abstract: Most accounts of the law’s intersection with a major public policy issue have litigation at least in the background. COVID-19 is no exception. Many chapters in this book detail policy areas – from prison health, to access to reproductive care, to worker safety, and more – in which litigation over aspects of the pandemic response played a major role. Other areas that were prominent in courthouses, although not as detailed in the foregoing pages, include election law, free exercise of religion, and the defining of services, including gun shops, as essential or not for purposes of preventing or ensuring access during the emergency. For many of these fields, the litigation shined a salutary light on systemic problems that preexisted COVID-19 but that COVID-19 made impossible to continue to ignore. Yet the legacy of the COVID-19 litigation transcends its already significant impact on the many specific areas that COVID-19 touched. Most broadly, the arc of COVID-19 litigation is a story about the relationship among individual rights, courts, and governments. COVID-19 brought with it an initial period of judicial deference to expert leaders who curtailed individual liberties to deal with an unprecedented emergency. But later, the pandemic litigation ushered in a decline in deference that not only reversed many government actions, but also has outlasted and ties into mounting conversative opposition to the modern regulatory state. Courts grappled with deference both to state governments, and the temporary restrictions they imposed on individual liberty, and to major federal executive actions, taken under broad – but sometimes antiquated – statutory authorities.
Goebel, Joseph, Kristopher J Kemper and Kevin Gatzlaff, ‘COVID-19 and CreditWatch List as an Economic Indicator’ [2022] Journal of Insurance Regulation Article 8 Abstract: A global pandemic interrupted a decade-long US expansionary cycle. While governments intervened in an attempt to manage a health crisis, the economy stalled, and equity markets crashed. However, equity markets quickly recovered and moved to positive territory a few months later. We examine the actions of Credit Rating Agencies (CRAs) and the signals that are sent through S&P Watch List activity. After creating a significant indicator based on Credit Watch activity, reflecting private firm information, we find that the swift recovery may have been foreseeable for non-insurance firms. The indicator provides less potential predictive power for insurance firms, either because the greater regulatory activity surrounding insurance firms yields less private information to be discovered by CRAs, or possibly because the insurance industry is more resilient to economic shock than other sectors of the economy.
Goeringer, Paul and Julie Walker, 'Crops, Livestock, and COVID-19, Oh My: An Overview Of Potential Covid-19 Liability In Agricultural Operations' (2021) 4(8) Texas A&M Law Review 677-684 Abstract: The year 2020 presented a new potential risk of which many business owners, including agricultural operators, were unaware: a global pandemic related to the SARS-CoV-2 virus, also known as COVID-19. Starting in March 2020, the United States worked to contain this virus, while businesses sought to protect their workers (who had to continue working to work) as well as their customers. At the same time, a number of businesses had concerns about how to limit liability from customers arguing later that the business had spread the virus. This Article explores the potential liability agricultural operations face and ways to manage the risks associated with COVID-19. Part II looks at what the virus is. Part III explores potential liability, and Part IV details potential methods to manage and limit that liability. Part V concludes.
Gogul, Keeley, 'Reifying Anderson-Burdick: Voter Protection in the Time of Pandemic and Beyond' (2021) 1(90) University of Cincinnati Law Review 259-282 Abstract: . This Comment will show how Anderson-Burdick, while initially developed in the context of ballot initiative cases, could provide extra protections for voters in cases where state election laws are being challenged on the ground that they have a discriminatory impact due to COVID-19. These protections could be especially important as the Roberts’ Court continues to engage in what seems to be a “crusade” to roll back protections for voters’ rights.
Goitein, Elizabeth, 'Emergency Powers, Real and Imagined: How President Trump Used and Failed to Use Presidential Authority in the COVID-19 Crisis' () 1(11) 27-60 Abstract: Can a president abuse emergency powers by not using them? Elizabeth Goiten explains that President Trump has utilized aggressive rhetoric and claimed the powers of the president during an emergency are absolute. Yet he has been restrained to a fault when deploying emergency powers to address the COVID-19 national health crisis. His approach to emergency powers in regards to immigration and domestic quarantines reveals a tug-of-war between the inclination to assert sweeping power and the desire to avoid responsibility for the public health and economic consequences of the pandemic. At every stage, our national response to COVID-19 has been hampered by a lack of available testing, testing equipment, personal protective equipment, ventilators, and other medical supplies; problems which President Trump could have attacked using legitimate legal authorities. While the use of emergency powers is discretionary by nature, President Trump may have illuminated a new abuse, the politically-motivated failure to deploy emergency powers in a genuine crisis.
Gold, Sara, Toby Treem Guerin and Kerri McGowan Lowrey, ‘A Holistic Approach to Eviction Prevention During the COVID-19 Pandemic: Challenges and Opportunities for the Future’ (2022) 68(1) Washington University Journal of Law and Policy 183–213 Abstract: Many people suffered a loss of income during the COVID-19 pandemic, and many low-income renters became unable to pay rent to their landlords. Tenants without the ability to pay rent feared and faced eviction, and many were unaware of the legal eviction process or protections offered by federal, state, and local eviction moratoria. Anticipating a great need for legal and social services, four clinics within the University of Maryland (UMB) Carey School of Law’s Clinical Law Program joined forces in collaboration with the UMB School of Social Work to launch the Eviction Prevention Project (EPP). The EPP is a holistic, inter-professional, trauma-informed intervention through which clinical law students and social work students working under faculty supervision educated, advised, counseled, and represented low-income clients in two of Maryland’s largest jurisdictions. This Article describes the EPP model within the context of clinical legal education and shares insights about lessons learned after the EPP’s inaugural year for other programs seeking to do similar work.
Goldberg, Richard, ‘Vaccine Damage Schemes in the US and UK Reappraised: Making Them Fit for Purpose in the Light of Covid-19’ (2022) 42(4) Legal Studies 576–599 Abstract: Vaccines have continued to play a crucial global role in preventing infectious diseases in the twenty-first century. The Covid-19 pandemic has underlined their importance, with vaccines seen as the best way to protect the public from coronavirus. A longstanding problem of governments has been the extent to which they should assume responsibility for the compensation of those injured by vaccines. This paper reappraises the vaccine damage schemes currently available in the US and UK in the light of the Covid-19 pandemic. It argues that any improvements to both US and UK schemes should be included in a revised national vaccine policy which takes into consideration their respective long-term national vaccine strategies to prepare for future pandemics. It supports the adoption of a UK-wide National Vaccine Injury Compensation Programme, similar to the one in the US, to be administered by the Secretary of State for Health and Social Care. To balance the need for rigorous criteria to determine causation with the need for fairness, the programme should adopt the US practice of allowing negotiated settlements between parties in circumstances where review of the evidence has not concluded that the vaccine(s) caused the alleged injury but there are close calls concerning causation.
Goldfeder, Jerry H., 'Excessive Judicialization, Extralegal Interventions, and Violent Insurrection: A Snapshot of Our 59th Presidential Election' (2021) 2(90) Fordham Law Review 335-371 Abstract: The article focuses on 59th presidential elections in the U.S. with legislative or executive actions were undertaken in response to the COVID-19 pandemic and election regulators, partisans, and not-for-profit groups, attempted to change voting procedures in response to the pandemic.
Gollust, Sarah E., Rebekah H Nagler and Erika Franklin Fowler, 'The Emergence of COVID-19 in the U.S.: A Public Health and Political Communication Crisis' 6(45) Journal of Health Politics, Policy and Law 967-981 Abstract: The coronavirus public health crisis is also a political-communication and health-communication crisis. In this commentary, we describe the key communication-related phenomena and evidence of concerning effects manifested in the U.S. during the initial response to the pandemic. We outline the conditions of communication about coronavirus that contribute toward deleterious outcomes, including partisan cueing, conflicting science, downplayed threats, emotional arousal, fragmented media, and Trump’s messaging. We suggest these have contributed toward divergent responses by media sources, partisan leaders, and the public alike, leading to different attitudes and beliefs as well as varying protective actions taken by members of the public to reduce their risk. In turn, these divergent communication phenomena will likely amplify geographic variation in and inequities in COVID-19 disease outcomes. We conclude with some suggestions for future research, particularly surrounding communication about health inequity and strategies for reducing partisan divergence in views of public health issues in the future.
Goodwin, Michele, 'Women On The Frontlines' (2021) (106) Cornell Law Review (forthcoming) Abstract: This Article takes aim at the troubling and persistent disempowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in society, sometimes to deadly effect. On the centennial anniversary of the Nineteenth Amendment, it speculates reasons for women’s labor being undervalued, even while on the frontlines of service to their families, employers, and our nation. It examines how women’s invisibility and sacrifice are particularly striking during the 2020 pandemic—a public health crisis so severe that nations besieged by the novel coronavirus or COVID-19 closed their borders, issued shelter-in-place orders, or imposed quarantines.In the United States, COVID-19 exposes preexisting institutional and infrastructural social problems, laid bare by a suffocating, debilitating virus. Racism, sexism, and xenophobia are the preexisting social conditions that further exacerbate harms manifested by the disease. Written during the heat of a pandemic, this Article closely examines the unique ways in which centuries of stereotypes and stigma further undermine women and girls as laborers during the 2020 pandemic and as patients. Meanwhile, their suffering is obscured in news media and not sufficiently accounted for in political spheres.
Goodyear, Michael, 'Fake News in the Time of COVID-19: Inherent Powers over False Public Health Speech' (SSRN Scholarly Paper No ID 3740639, 01 January 2020) Abstract: The world has changed dramatically over the past year. The COVID-19 pandemic has presented unprecedented challenges and has caused a catastrophic loss of over 300,000 U.S. lives. This crisis has been compounded by an infodemic, an effusion of misinformation and fake news about COVID-19. This incorrect information has flooded social media and online platforms, confusing and misleading the American public. Yet U.S. constitutional law largely upholds fake news as protected free speech under the First Amendment. This legal reality has significantly compounded the COVID-19 crisis.But U.S. law is not limited to only constitutional enumerated powers. An underexamined approach to regulating fake news is the broad inherent powers of the federal government. Inherent powers are those innate to being a sovereign nation, and they have long been recognized under U.S. law in key areas, including in public health and censorship during times of military conflict. Inherent powers have followed three lines of justification: long-standing international practice, powers naturally pursuant to constitutionally enumerated powers, and emergency powers. Fake news about public health, and COVID-19, in particular, is a strong match for all three of these models under the applicable balancing tests. In addition, traditional First Amendment justifications are particularly weak in the case of COVID-19 misinformation. This makes inherent government powers over public health an underexamined, but particularly promising avenue for regulating extremely harmful misinformation about COVID-19.
Goodyear, Michael, 'The Dark Side of Videoconferencing: The Privacy Tribulations of Zoom and the Fragmented State of U.S. Data Privacy Law' (2020) 3(10) Houston Law Review 76-89 Abstract: COVID-19 has forced the world to increasingly rely on online services to continue daily life. Chief among these, for school, business, and fun, are videoconferencing services. Zoom has led the way, being used by millions, yet it has come to light that Zoom’s data privacy practices are far from ideal. The tracking of users and the sale of personal data has enormous consequences for users’ data privacy. Yet U.S. law provides poor protections for such risky behavior. U.S. data privacy law is fragmented on both the federal and state level, with federal law focusing on industry-specific protections and states each going their own ways. While this splintered framework does provide some protection for Americans against poor data privacy practices by Zoom and others, it is an unequal framework that provides different protections to different groups of Americans. Instead, Zoom’s privacy tribulations should be a call for Congress to follow the precedent of Europe and enact comprehensive data privacy legislation to equally protect Americans at the federal level from the improper use and sale of consumers’ data privacy.
Goodyear, Michael P, ‘Inherent Powers and the Limits of Public Health Fake News’ (2022) 95(2) St. John’s Law Review 319–378 Extract from Introduction: Part I of this Article establishes the contours and severity of the COVID-19 pandemic. Part II discusses the current status of fake news under prevailing First Amendment precedent. Then, Part III turns to the concept of inherent powers, analyzing how inherent powers have been historically understood both through Supreme Court precedent and as emergency powers. Part III continues by specifically addressing inherent powers related to public health and the inherent power of censoring speech during wartime. Part IV constitutes the main analysis of this Article. First, this Article argues that the traditional First Amendment rationales militate towards lower protections for fake news, especially in the context of COVID-19 misinformation. Next, it evaluates whether restrictions on COVID-19 fake news fit within each of the three historical inherent powers categories: (1) longstanding international custom, (2) powers pursuant to constitutionally enumerated powers, and (3) emergency powers. Finding that there are strong countervailing interests in favor of restricting COVID-19 fake news under all three inherent powers categories, this Article then concludes by looking to the future of government regulation of fake news both in public health and in general.
Goschke, Alaina, 'Virtual Learning in a Pandemic and Its Effects on Lower-Income Students: How the Education Gap is Widening Beyond Repair' (2022) 1(19) Indiana Health Law Review 157-189 Abstract: Section II of this Note discusses the history of children in poverty in the United States and how socioeconomic status effects the quality of education for low-income students. It also addresses how the education gap among low-income and affluent students has been deepened in recent years due to the “homework gap” and how children in poverty and education have been addressed at a national level, with the enactment of the National School Lunch Act. Section III of this Note offers an analysis of how COVID-19 has widened the education gap beyond repair with the emergence of virtual learning, arguing that low-income students, and even parents, were in dire need to return to in-person learning. Additionally, this section analyzes various cities and states in the United States and their handling of education during the pandemic compared to that of other countries, particularly Germany, Spain, and Switzerland- asserting that the United States took a much more detrimental approach.
Gostin, Lawrence O, ‘Judicial Trends in the Era of COVID-19: Public Health in Peril’ (2023) 113(3) American Journal of Public Health 272–274
Gostin, Lawrence O., James G Hodge and Lindsay F Wiley, 'Presidential Powers and Response to COVID-19' (2020) 16(323) JAMA 1547-1548 Abstract: The Centers for Disease Control and Prevention (CDC) modeling suggests that, without mitigation, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes novel coronavirus disease 2019 (COVID-19), could infect more than 60% of the US population.1 President Trump has declared a national emergency along with 50 governors declaring state emergencies, which are unprecedented actions. Social distancing aims to flatten the epidemic curve to moderate demand on the health system. Consequently, whether through voluntary actions or state mandates, individuals are increasingly sheltering at home, schools and universities are closing, businesses are altering operations, and mass gatherings are being canceled. On March 16, the health officers of 6 local governments in the San Francisco Bay Area issued mandatory orders to shelter in place, making it a misdemeanor offense to leave home for any nonessential purpose.
Gostin, Lawrence O., Wendy E Parmet and Sara Rosenbaum, 'The US Supreme Court’s Rulings on Large Business and Health Care Worker Vaccine Mandates: Ramifications for the COVID-19 Response and the Future of Federal Public Health Protection' (2022) Journal of the American Medical Association (JAMA) Viewpoint E1-E2 Abstract: On January 13, 2022, the Supreme Court issued 2 landmark rulings on the federal government’s power to mandate COVID-19 vaccinations. The Court curtailed the government’s ability to respond to the pandemic and may have also severely limited the authority of federal agencies to issue health and safety regulations.In National Federation of Independent Business v Department of Labor, the Court blocked an Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring vaccination, subject to religious or disability accommodations, or weekly testing and masking in businesses with 100 or more employees. In Biden v Missouri, the Court upheld a Centers for Medicare & Medicaid Services (CMS) regulation mandating health worker vaccinations, subject to the same accommodations. What do these decisions reveal about the future of federal protection of public health and safety?
Gostin, Lawrence O., Daniel A Salmon and Heidi J Larson, 'Mandating COVID-19 Vaccines' (2020) Journal of the American Medical Association (JAMA) E1-E2 (published online 29 December 2020) Abstract: Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccines hold promise to control the pandemic, and help restore normal social and economic life. The Food and Drug Administration (FDA) has granted emergency use authorization (EUA) for 2 mRNA vaccines and will likely issue full biologics licenses in the coming months. Anticipating vaccine scarcity, the Advisory Committee on Immunization Practice (ACIP) published guidance on vaccine priorities. Data show 95% efficacy for vaccines granted an EUA, but even highly effective vaccines cannot curb the pandemic without high population coverage and maintenance of other mitigation strategies. Recent data from 1,676 adults surveyed November 30-December 8, 2020 found that when a COVID-19 vaccine is approved and widely available: 34% would get it as soon as possible; 39% would wait; 9% would only get it if required for work/school; 15% would definitely not get it. Black persons, at high risk of infection and hospitalization, are less likely to report vaccine intent with only 20% reporting they would get the vaccine soon and 52% intending to wait. Intent to vaccinate has changed substantially over time and is likely to evolve. In this JAMA Viewpoint, we examine whether vaccine mandates would be lawful and ethical, and whether they could boost vaccine uptake.
Gotberg, Brook E., 'Reluctant to Restructure: Small Businesses, the SERA, and COVID-19' (2021) 3(95) American Bankruptcy Law Journal 389-442 Abstract: The global pandemic sparged by the proliferation of the COVID-19 virus created an economic crisis of an unprecedented nature in the United States, particularly among small businesses. Many of these small businesses were required by law or circumstances to temporarily close, limit hours or capacity, and!or invest in expensive measures intended to protect the safety of their patrons. The financial consequences of these protective measures were devastating. Fortunately, the law seemed primed for just such a crisis. Mere weeks prior to the national shutdowns caused by the virus, a new bankruptcy law intended to facilitate the reorganization of small businesses went into effect. The Small Business Reorganization Act of 2019 created subchapter V of Chapter 11, which permitted small businesses to reorganize with greater speed and less cost than ever before. In response to the COVID-19 crisis, Congress expanded the use of this provision to a larger number of businesses. However, despite the apparent advantages presented by the bankruptcy law and the economic devastation caused by the pandemic, small businesses declined to file for bankruptcy. Although it is too early to draw definitive conclusions as to why, evidence suggests that small business owners see bankruptcy as a tool of "last resort," which may neuter the ability of bankruptcy laws to preserve value as intended pursuant to broader bankruptcy policy.
Gover, Angela R., Shannon B Harper and Lynn Langton, 'Anti-Asian Hate Crime During the COVID-19 Pandemic: Exploring the Reproduction of Inequality' (2020) 4(45) American Journal of Criminal Justice 647-667 Abstract: Coronavirus Disease 2019 (COVID-19) is believed to have emerged in Wuhan, China in late December 2019 and began rapidly spreading around the globe throughout the spring months of 2020. As COVID-19 proliferated across the United States, Asian Americans reported a surge in racially motivated hate crimes involving physical violence and harassment. Throughout history, pandemic-related health crises have been associated with the stigmatization and “othering” of people of Asian descent. Asian Americans have experienced verbal and physical violence motivated by individual-level racism and xenophobia from the time they arrived in America in the late 1700s up until the present day. At the institutional level, the state has often implicitly reinforced, encouraged, and perpetuated this violence through bigoted rhetoric and exclusionary policies. COVID-19 has enabled the spread of racism and created national insecurity, fear of foreigners, and general xenophobia, which may be related to the increase in anti-Asian hate crimes during the pandemic. We examine how these crimes – situated in historically entrenched and intersecting individual-level and institutional-level racism and xenophobia – have operated to “other” Asian Americans and reproduce inequality.
Graber, Mark A, ‘COVID-19, the United States and Evidence-Based Politics’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 72 Abstract: The populist attack on evidence-based politics in the United States resulted in a public policy too often based on ideology, partisanship and wishful thinking rather than on scientific consensus. Institutions that might have blunted the populist challenge to evidence-based politics in the United States had been captured before the pandemic or were captured during the pandemic. Hundreds of thousands of people may have died because President Trump was uninterested in science (or in governing). Most notably, while the Supreme Court initially placed more emphasis than the Trump administration on evidence-based public health concerns, ideology, partisanship and wishful thinking had a major say and increased influence on that tribunal’s voting and religion jurisprudence after Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Comey Barrett.
Graham, Jessica R and Kyle J Morgan, ‘God, Guns, and Hair Salons: Public Perceptions of Rights and Liberties During the COVID-19 Pandemic’ (2022) 125(1) West Virginia Law Review 87–122 Abstract: In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. However, our analysis suggests that this did not come from an ambivalence towards rights and liberties, and instead showed a level of nuance and sophistication among the public in how they conceptualized the tension between individual rights and public safety.
Graves, Tiffany M, ‘Remote Legal Services in the Age of COVID - How Legal Services Organizations Adapted to the Pandemic to Serve Pro Bono Clients’ (2022) 19 Legal Communication & Rhetoric: JALWD 143–153 Abstract: This essay will discuss what I learned from the legal services organizations and highlight how organizations in my firm’s footprint adapted in the face of unprecedented challenges to assure the needs of the most vulnerable in our country would still be met. In addition to discussing how the legal services organizations adapted to the pandemic, I will also highlight the ways in which legal services organizations will—and should— continue to draw on the lessons of the pandemic experience to maximize access to justice.
Green, Rebecca, 'Election Observation Post-2020' (2021) 2(90) Fordham Law Review 467-499 Abstract: The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election observation fell short. This Essay examines the shortcomings of modern election observation in the United States, looks at reform proposals on the table, and suggests several principles that should inform efforts to address the most worrisome shortfalls.
Greenstein, Marla N., The Impact of COVID-19 on Judicial Ethics (2021) 3(60) Judges' Journal 40 Abstract: The article examines that courts moved to remote hearings and mask mandates, as judges who were resistant to the new arrangements and made their resistance known were subject to discipline, Topics include how judges and court staff explored accommodations using Zoom and similar platforms that would allow real-time video participation and closely simulate inperson hearings.
Greuel, Lauren and Lynne Marie Kohm, ‘Has State Legal Handling of Covid-19 Affected Traditional School Enrollment Numbers? An Examination of Student Enrollment, State Legislation, and Parents’ Perspectives’ (2023) 29 Widener Law Review 191–213 Abstract: Using original research we examine whether the handling of the COVID-19 pandemic by certain states (i.e. Wisconsin, California, and Florida) affected the attitude towards and enrollment in traditional routes of public and private education by parents. The results are surprising.
Grey, Betsy, 'Against Immunizing Nursing Homes' (2021) The University of Chicago Law Review Online (Advance article, published 8 July 2021) Abstract: Nursing homes and other long-term care facilities account for approximately one third of the over 500,000 Covid-19 deaths in the United States. Facing liability from that widespread harm, the facilities have sought immunity protection from tort liability. In particular, they have sought protection under the federal Public Readiness and Emergency Preparedness (PREP) Act, which is designed to extend immunity from liability claims arising from various Covid-19 countermeasures developed and used during the pandemic.Importantly for this essay, the lawsuits filed against nursing homes have centered on their failure to take mitigation measures, rather than on harm from their affirmative use of mitigation measures. Initially, courts held that PREP Act immunity does not apply to these failure-to-act claims. In the waning days of the Trump Administration, however, HHS issued an opinion that (together with other HHS statements) interprets the statute otherwise, broadening immunity even to cover the failure to take mitigation measures. That interpretation has been followed by at least one federal district court. This essay questions the wisdom of HHS’s opinion. It argues that it misreads the words and purpose of the PREP Act’s immunity provisions, and undermines accountability of the nursing home industry, creates the wrong incentives for the industry, and may leave victims without any compensatory remedy. This issue should reach appellate courts soon. If the interpretation continues to be followed by the courts, then the Biden Administration should rescind the opinion so that tort law may continue to protect one of society’s most vulnerable populations.
Griffin, Frank, 'COVID-19 and the Americans with Disabilities Act: Balancing Fear, Safety, and Risk as America Goes Back to Work' (2020) 2(51) Seton Hall Law Review 383-430 Abstract: The Americans with Disabilities Act (ADA) will play a significant role in protecting employees and employers while reversing the massive work disruptions caused by COVID-19. The United States’ unemployment rate reflects the magnitude of the disruptions; the unemployment rate reached almost 15%, and over 43 million Americans filed unemployment claims during the first half of 2020. Additionally, millions of Americans began working from home or otherwise altering their work routine to protect themselves and others from spreading the virus. Researchers and the Centers for Disease Control and Prevention (CDC) state that COVID-19 will likely become endemic to the United States’ population. The endemic presence of COVID-19 will create new ongoing legal obligations for employers under the ADA, which are explored in this paper
Griggs, Marsha, 'An Epic Fail' (2020) 1(64) Howard Law Journal (forthcoming) Abstract: All at once, the U.S. found itself embattled with the threat of COVID-19, the new normal of social distancing, and the perennial scourge of racial injustice. While simultaneously battling those ills, the class of 2020 law graduates found themselves also contending with inflexible bar licensing policies that placed at risk their health, safety, and careers. During a global health pandemic, bar licensing authorities made the bar exam a moving target riddled with uncertainty and last-minute cancellations. This costly and unsettling uncertainty surrounding the bar exam administration was unnecessary because multiple alternatives were available to safely license new attorneys. A ball was dropped, and bar examiners at the state and national levels failed epically at an opportunity to be adaptive, decisive, and transparent, to the detriment of a class new lawyers and the public they will serve. The dogged insistence on status quo that led to the bar exam chaos of 2020, has placed the method and purpose of bar examination under national scrutiny. This Article offers a critical analysis of the systemic failure of bar licensure authorities to respond adaptively to crisis; explores alternative processes to measure minimal competency; and offers insight about the institutional mindset that has dominated our perception of the bar exam. An entire class of bar takers was held captive to conventional thinking at a time that called for compassion and innovation. Any failures on this bar exam are ours, not theirs.
Grumet, Lisa, 'Co-Parenting During Lockdown: COVID-19 and Child Custody Cases Before the Vaccine. (A Project of the New York Law School Family Law Quarterly Editors)' (2022) 2(55) Family Law Quarterly 173-194 Abstract: This Article looks back at child custody disputes from the early days of the COVID-19 pandemic in the United States, when there were no vaccines available to limit the spread or impact of the disease and much of the country was in “lockdown.” Beginning in March 2020, most state governments issued some form of “stay-at-home” orders with the goal of protecting public health by limiting the spread of the virus. Restrictions on travel as well as concerns about exposure to the disease impacted co-parenting arrangements for parents who shared custody or visitation of their children while maintaining separate households. Some parents went to court with emergency applications to enforce or modify custody and visitation arrangements based on pandemic-related disputes. Judges considered arguments that the pandemic itself warranted suspending a visitation schedule; that children should not travel or be exposed to “hotspot” jurisdictions; that COVID-19 testing or quarantine protocols should be followed; and that one parent’s noncompliance with COVID-19 protocols put a child at risk of infection. In resolving these disputes, courts recognized the challenges of the pandemic and the importance of protecting children’s health, while also emphasizing the importance of continuity and ongoing relationships with parents for children’s emotional health. In addition, some courts specifically ordered parents to comply with public health guidance. While no vaccine was available at the time of these decisions, some orders specifically mentioned masks, social distancing, hand-washing, and compliance with government protocols generally. Courts have sought to balance children’s needs for time with separated parents; and safety concerns raised by the circumstances of the pandemic, the health needs of particular children and families, or the parties’ own conduct. For so long as the pandemic continues, these considerations may continue to be weighed by courts in determining the best interests of the child.This Article was a joint project of the New York Law School editorial staff for the Family Law Quarterly (published by the Family Law Section of the American Bar Association). Contributors include Erin Peake '21, Aliyah Polner '21, Mathew Fontanez '22, April Pacis '22, other members of the student editorial staff, and Professor Lisa Grumet.
Guevara, Angelica, 'To Be, Or Not To Be, Will Long COVID Be Reasonably Accommodated Is the Question' (2022) 1(23) Minnesota Journal of Law, Science & Technology 253-292 Abstract: To be, or not to be, that is the reasonable accommodation question: whether Long COVID will be reasonably accommodated now that it is covered under disability antidiscrimination law. Some manifestations of Long COVID will certainly be considered disabilities under the Americans with Disabilities Act (ADA). However, even if it is considered a disability, that does not mean the employer will provide reasonable accommodations because Long COVID, like any other disability, is susceptible to what an employer deems as reasonable. Comparatively, Lyme Disease and Chronic Fatigue Syndrome are like Long COVID because they tend to have fatigue as a primary symptom. Therefore, given the historical lack of accommodations provided for Lyme Disease and Chronic Fatigue Syndrome, the question of reasonable accommodation under disability antidiscrimination law remains an ongoing concern. An additional factor embroiling the reasonable accommodation question is the reality that People of Color are not only at a higher risk of contracting, experiencing complications, and dying from COVID-19; they are also more susceptible to developing Long COVID and losing their jobs. Therefore, this Article encourages using a Disability Studies and Critical Race Theory (commonly referred to as “DisCrit”) lens to consider structural issues continually perpetuating disparities while exploring to what extent disability antidiscrimination laws assist those dealing with Long COVID.
Gunder, Jessica R. and Lauren Ballenger, 'COVID-19 Vaccine Scarcity and Prioritization' (SSRN Scholarly Paper No ID 3908231, 19 January 2021) Abstract: Over the initial months of the vaccine rollout, demand for COVID-19 vaccines exceeded supply. Although the CDC issued data-based guidance for how to prioritize access to the vaccines, it was non-binding, and many state and local governments set different priorities. This Article documents the different prioritizations set by the 64 different local health authorities – or “jurisdictions” – that received COVID-19 vaccines through the CDC’s program. These jurisdictions consisted of all 50 states, the District of Columbia, five large cities (Chicago, Houston, New York City, Philadelphia, and San Antonio), along with American Samoa, Guam, Marshall Islands, Micronesia, Northern Marina Islands, Palau, Puerto Rico, and the United States Virgin Islands. Many of these jurisdictions changed their vaccine prioritizations mid-course. The following tables reflect those changes and show how the COVID-19 vaccine was distributed to individuals aged 16 and older in each jurisdiction.
Gupta, Setu, ‘Non-Refoulement During a Pandemic: With a Contextual Analysis of Border Closures Imposed by the EU, the US and India’ (SSRN Scholarly Paper No 4398374, 21 November 2022) Abstract: Non-refoulement is the most basic protection afforded to a refugee. Despite agreeing in theory, States often ignore this principle in practice ending up refouling refugees from their territories or frontiers. In times of COVID-19 crisis, refugees require asylum and healthcare not only as a human right but also to prevent the further spread of the virus. Violation of this principle jeopardises both. This article analyses the scope and extent of the principle of non-refoulement in refugee law, customary international law and human rights law. It also evaluates the ‘national security’ exception and whether it could be invoked to justify refoulement on the basis of a public health emergency. It probes the validity of border closures imposed by the EU, US and India in light of their respective commitments to international treaty and customary law. The article concludes by summarizing the analysis and suggesting alternatives to violation of non-refoulement obligations.
Gur-Arie, Rachel, Zackary Berger and Dorit Rubinstein Reiss, 'COVID-19 Vaccine Uptake Through the Lived Experiences of Health Care Personnel: Policy and Legal Considerations' (2021) 1(5) Health Equity 688-696 Abstract: Purpose: To investigate whether coronavirus disease 2019 (COVID-19) vaccination campaigns targeted at health care personnel (HCP) in the United States have addressed the lived experiences of HCP on the frontlines of the COVID-19 pandemic and to analyze policy and legal considerations for improving COVID-19 vaccine uptake among HCP. Methods: We conducted a literature and policy review to explore the lived experiences of different occupational groups of HCP on the frontlines of the COVID-19 pandemic—physicians, nurses, trainees, and nonclinical essential workers—in relation to ongoing COVID-19 vaccination campaigns. Finally, we discuss policy and legal considerations to improve the state of HCP COVID-19 vaccine uptake as the pandemic progresses. Results: COVID-19 vaccination campaigns have not achieved consistent high uptake among HCP for many reasons, including vaccine hesitancy, personal, professional considerations, and equity-rooted challenges. Conclusion: HCPs lived experiences during the COVID-19 pandemic reveal meaningful impediments to their COVID-19 vaccine uptake. We suggest that health care systems minimize inequity inherent in existing vaccination campaigns by providing financial and social support to HCP to raise HCP COVID-19 vaccine uptake.
Haasl, Mary M, ‘A Prisoner’s Dilemma: Why COVID-19 Must Serve as a Catalyst to Address Compassionate Release Limitations in Federal Prison’ (2022) 106(5) Minnesota Law Review 2501–2541 Abstract: COVID-19 significantly impacted the U.S. prison population. Given concerns surrounding its rapid spread through prisons, many federal inmates petitioned for compassionate release during the pandemic’s initial months. This significant increase in compassionate release petitions has yielded an impactful case study regarding the significant limitations posed by the compassionate release statute as written—particularly related to its exhaustion of administrative remedy requirement. Under the First Step Act of 2018, inmates must exhaust their administrative remedies before petitioning the district court for compassionate release. With concerns surrounding COVID-19 spread, some federal district courts allowed the waiver of the exhaustion requirement, while other did not. Although the present waiver issue has somewhat resolved itself with time, the exhaustion issue remains for future health crises. This Note considers the current limitations of the compassionate release’s exhaustion requirement by analyzing the court split and assessing the statute’s plain language, congressional intent, and federal case law. The Note argues that, given the statute’s clear ambiguity and courts’ inability to fully address the issue, the legislature must clarify the First Step Act’s intention to ensure that judicial discretion is available in all circuits to waive the compassionate release exhaustion requirement during other similar national health emergencies.
Haber, Michael, 'Covid-19 Mutual Aid, Antiauthoritarian Activism, and the Law' (2020) (67) Loyola Law Review 115-174 (pre-published version available on SSRN) Abstract: As the COVID-19 pandemic spread across the globe in the spring of 2020, thousands of grassroots, participatory, and often social movement-connected community efforts to help feed, shelter, and care for one another through the crisis were launched, many of which identified their projects as “mutual aid.” This article presents an overview of mutual aid and gives an introduction to the legal issues being confronted by mutual aid groups. It begins by presenting a history of mutual aid practices, principally in the U.S. context, situating mutual aid within the political framework of anti-authoritarian activism. It then gives an overview of common legal issues being confronted by COVID-19 mutual aid groups, including questions related to: (1) risk, liability, and entity formation and structure; and (2) raising and distributing money and goods, and how these activities may be taxed. It concludes by arguing that mutual aid groups should not limit their visions to short-term disaster response but instead seek to maintain and grow their networks to build long-term grassroots power.
Haber, Michael, 'Legal Issues in Mutual Aid Operations: A Preliminary Guide' (Hofstra University Legal Studies Research Paper No 2020-06, 05 January 2020) Abstract: This is a preliminary guide to legal issues that impact groups engaged in mutual aid. It is targeted to groups that have been responding to the COVID-19 crisis in New York, but has information that may be relevant for groups engaged in mutual aid in other contexts and other places. It gives legal information on topics including: risk of liability; questions around governance and incorporation; safety policies, liability waivers, and insurance; banking and mutual aid; funding mutual aid and taxation of mutual aid; crowdfunding regulations; and food storage and safety rules.
Haddow, Kim et al, 'Preemption, Public Health, and Equity in the Time of COVID-19' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Preemption is a legal doctrine that allows a higher level of government to limit or eliminate the power of a lower level of government to regulate a specific issue. As governments seek to address the myriad health, social, and economic consequences of COVID-19, an effective response requires coordination between state and local governments. Unfortunately, for many localities, the misuse of state preemption over the last decade has increased state and local government friction and weakened or abolished local governments’ ability to adopt the health- and equity-promoting policies necessary to respond to and recover from this crisis. The broad misuse of preemption has left localities without the legal authority and policy tools needed to respond to the pandemic. Existing state preemption of paid sick leave, municipal broadband, and equitable housing policies, for example, forced local governments to start from behind. Moreover, many state executive orders issued in response to COVID-19 outlawed local efforts to enact stronger policies to protect the health and wellbeing of communities. And, preemption in the time of COVID-19 has exacerbated the health and economic inequities affecting people of color, lowwage workers, and women. Conflict between state and local governments has cost lives, delayed effective responses, and created confusion that continues to undermine public health efforts. The new coronavirus pandemic has made it clear that the overwhelming majority of state preemption occurring today harms public health efforts and worsens health inequities. The crisis also has underscored the need to reform and rebalance the relationship between states and local governments.
Hale, R. C. and B Song, 'Single-Use Plastics and COVID-19: Scientific Evidence and Environmental Regulations' (2020) 12(54) Environmental Science & Technology 7034-7036 Abstract: The US has no federal regulations limiting single-use plastics. Several states and numerous localities have enacted restrictions, but these have been under pressure by plastic manufacturers and allied interests. Recently, these interests have built upon concerns regarding the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2, also known as COVID-19) pandemic to push back on reusable bag usage and restrictions on single-use plastics.
Haley, Mariah D, ‘Unequal Treatment: (In)Compassionate Release from Federal Prison in the Context of the Covid-19 Pandemic and Vaccine’ (2022) 122(7) Columbia Law Review 1997–2032 Abstract: In December 2019, the world was introduced to COVID-19--a severe acute respiratory disease that would ultimately wreak havoc in communities across the globe. In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death. Estimates suggest that roughly 620,000 people contracted the disease while incarcerated, resulting in nearly 3,000 deaths. The actual toll is likely much greater. As the pandemic progressed, incarcerated individuals sought relief through the statutory mechanism known as compassionate release. They argued--to varying degrees of success--that the ‘extraordinary and compelling’ nature of the pandemic, in combination with their individual circumstances, justified a sentence reduction or early release. This Note examines how federal courts considered compassionate release requests as they navigated the unique legal landscape engineered by the pandemic. It focuses specifically on the disparate outcomes that resulted from the vast discretion granted to federal judges in adjudicating petitions. While the fact-intensive nature of compassionate release cases renders comparison challenging, this Note argues that the current system results in inequitable, geographic-based outcomes. In many cases, the prime indicator informing whether an incarcerated individual was released was the judge and courthouse before them. In response, this Note calls on the newly revitalized United States Sentencing Commission to offer uniform guidance to federal courts on the most effective ways to approach compassionate release petitions moving forward.
Hall, Gregory Jay, ‘Demystifying the Enigma: The Reasonable Person Standard in Tort’ (2022) 90(4) UMKC Law Review 801–859 Abstract: Social life is inherently risky. Who should pay for the trillions of dollars of accident costs in the United States alone? Recently, Senator Mitch McConnell has predicted an avalanche of lawsuits from COVID-19 related harms due to alleged negligent safety protocols that businesses adopted. Jury deliberation on such will be challenging given the haphazard and sometimes incorrect guidance from health officials. At trial, the judge instructs the jury to decide whether the defendant’s conduct fell below what a reasonably prudent person would have done in the defendant’s circumstances. Since judges do not provide any further direction on that issue, juries have wide discretion in comparing a defendant’s conduct with the enigmatic reasonably prudent person. Such discretion opens the door wide for the legal system to treat litigants differently even though their cases are alike in all relevant ways. Such is the quintessential form of injustice. Additionally, the jury can easily ignore, or fail to give due consideration to, society’s diverse and competing values and ways of life. Doing so privileges some individuals to the unjust detriment of others. Therefore, fundamental injustice may pervade how the United States legal system resolves disputes over who should pay for accident costs. Those forms of injustice are not adequately addressed in tort law doctrine, the Restatements of Torts, and the most prominent theories of accident law. Those theories are based on, and grapple with, two of the major traditions of legal and political thought dating back to the ancient Greeks. Informing jury adjudication with those foundational ideas points to a new under-standing of the reasonable person standard to better guide juries and judges toward more just outcomes in actual disputes as well as to changes in ‘black letter’ law.
Hammond, Andrew; Jurow Kleiman, Ariel; Scheffler, Gabriel, 'How the COVID-19 Pandemic Has and Should Reshape the American Safety Net' (San Diego Legal Studies Paper No 20-455, 12 January 2020) Abstract: The COVID-19 pandemic has delivered an unprecedented shock to the United States and the world. It is unclear precisely how long the twin crises, epidemiological and economic, will last. And it is difficult to gauge the extent and direction of the changes in American life these crises will cause. Nonetheless, it is beyond dispute that the COVID-19 pandemic is putting significant strain on both the ability of Americans to meet basic needs and our government’s capacity to assist them. Federal, state, and local government have responded in various ways to deploy existing safety net programs like Medicaid, SNAP (food stamps), tax credits, and unemployment insurance to meet the surge in need. At this early stage of the crisis, it is worth a) identifying the ways in which the pandemic feeds on and exacerbates both racial and economic inequality in America, b) analyzing the government response in detail, c) considering which changes should outlast the current crisis, and d) how government, in the future, should build social welfare programs that are better suited to meet the needs of all Americans in the coming years. This Essay tries to do these four things in a way that is cogent and useful to legal and lay audiences alike.
Hanby II, Michael J, ‘The Future of Forced Arbitration’ (2022) 65(5) Advocate 18–21 Abstract: The article looks at study found that 81 companies in the Fortune 100 use arbitration agreements to force their customers to give up their right to go to court. It mentions widespread use of inserting arbitration agreements in consumer contracts has only accelerated during the COVID-19 pandemic. It also mentions Consumer Financial Protection Bureau studied the issue in 2015 and consumer advocates have raised serious concerns with the fairness.
Handfield, Robert B et al, ‘A New Acquisition Model for the next Disaster: Overcoming Disaster Federalism Issues through Effective Utilization of the Strategic National Stockpile’ (2024) 84(1) Public Administration Review 65–85 Abstract: Using primary data collected from interviews with federal and state government officials and secondary data related to PPE distribution and state healthcare statistics, we discovered evidence that the use of the Strategic National Stockpile (SNS) to distribute personal protective equipment to state and local agencies in need during the height of COVID-19 was indeed poorly designed to cope with the COVID-19 emergency, leaving many states with shortages of badly needed medical supplies. As a result, many states struggled to organize an uncoordinated procurement response—which we suggest is due to federalism issues. To overcome federalism challenges and increase future disaster preparedness, we recommend four necessary reforms to the SNS that include (1) the incorporation of uncompensated industry experts into SNS administration, (2) the provision of an emergency production board for times of crisis, (3) elevated political leadership for the SNS, (4) improvement of federal-state supply chain governance.
Hans, Valerie P., 'Virtual Juries' (Cornell Legal Studies Research Paper No 21-16, 04 January 2021) Abstract: The introduction of virtual or remote jury trials in response to the COVID-19 pandemic constitutes a remarkable natural experiment with one of our nation’s central democratic institutions. Although it is not a tightly controlled experimental study, real world experiences in this natural experiment offer some insights about how key features of trial by jury are affected by a virtual procedure. This article surveys the landscape of virtual jury trials. It examines the issues of jury representativeness, the adequacy of virtual jury selection, the quality of decision making, and the public’s access to jury trial proceedings. Many have expressed concern that the digital divide would negatively affect jury representativeness. Surprisingly, there is some preliminary evidence that suggests that virtual jury selection procedures lead to jury venires that are as diverse, if not more diverse, than pre-pandemic jury venires. Lawyers in a demonstration project reacted favorably to virtual voir dire when it was accompanied by expansive pretrial juror questionnaires and the opportunity to question prospective jurors. A number of courts provided public access by live streaming jury trials. How a virtual jury trial affects jurors’ interpretations of witness testimony, attorney arguments, and jury deliberation remain open questions.
Hansen, J. Andrew and Gabrielle L Lory, 'Rural Victimization and Policing during the COVID-19 Pandemic' (2020) 4(45) American Journal of Criminal Justice 731-742 Abstract: Rural criminal justice organizations have been overlooked by researchers and underfunded in the United States, exacerbating problems caused by the coronavirus pandemic. Access to victims’ services has been a longstanding issue in rural communities, but has become more difficult due to stay-at-home orders and changes in daily activities. Requirements such as social distancing, necessitated by COVID-19, have increased the risk of domestic violence and rural service providers are less prepared than those in more populated areas. Rural law enforcement agencies, on the other hand, have traditionally operated with smaller budgets and staffs—conditions that have complicated the response to the unprecedented event. Many of the recommended practices for policing during a pandemic have been more applicable to larger urban and suburban departments with more resources and officers extended across many units. The strain on rural victims’ services and law enforcement has been felt only a few months into the coronavirus pandemic, while the long-term effects are not yet known.
Harbach, Meredith, ‘Parens Patriae After the Pandemic’ (2023) 101(5) North Carolina Law Review 1427–1462 Abstract: The COVID-19 pandemic prompted extraordinary state action to protect American children. Acting in its longstanding role as parens patriae, the state stepped in to protect children and their families from the ravages of the pandemic as well as from the dramatic upheaval it precipitated. This Article will evaluate the state’s pandemic response vis-à-vis children and their families, mining the experience for lessons learned and possible ways forward. Specifically, this project will argue that the state’s pandemic response represented a departure from the state’s conventional approach to parens patriae. Conventional practice prior to the pandemic was characterized by a state model of parens patriae that was largely reactive and residual, and was exercised in ways that particularly disadvantaged children of color and low-income children. By contrast, the model of parens patriae actualized in response to the pandemic was proactive, preventative, and responsible. Instances of child abuse dropped or held steady, the incidence of youth offending did not increase, and child poverty levels reached historic lows. At the same time, many children and their parents managed to grow closer and spend more time together during the pandemic. Ultimately, this Article argues that this new approach to parens patriae is the best path forward to protect children and their families from harm and promote child well-being.
Harpaz, Assaf, 'Tax Policy and COVID-19: An Argument for Targeted Crisis Relief' (2021) Cornell Journal of Law and Public Policy (forthcoming) Abstract: The COVID-19 pandemic caused a sharp global economic decline. The U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than theorized conception. Tax relief thus remains largely undertheorized and politically motivated.This Article examines the U.S. tax policy response to the COVID-19 crisis, focusing on recovery rebates for individuals. It evaluates considerations for reforming tax relief and proposes several changes for future crises. First, the Article recommends targeting credits towards low-income households. This should be accomplished by decreasing phase out thresholds and increasing credit amounts. Second, the Article recommends targeting credits towards households which lost income or whose income did not substantially increase. This should be accomplished by implementing a recapture (repayment) requirement at the end of the tax year from households whose income increased beyond the phase out threshold, subject to a safe harbor. These proposals increase vertical equity and effectiveness, allow increased aid to those who suffered the most and enhance economic stimulus. Additionally, the Article explores arguments for universal benefits and recurring payments. It thereby examines the widely publicized debate on fiscal response to COVID-19 and suggests meaningful improvements to tax policy response for future crises.
Harrington, Alexandra, 'Summary Report Concerning Responses to COVID-19 in the USA' (2021) 1-3(1) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 85-94 Abstract: The United States of America (US) has been profoundly impacted by the Covid-19 pandemic, leading the world in both Covid-19 cases and deaths despite access to vaccinations and advanced treatments. Critical to the US response to Covid-19 from a legal and regulatory perspective is the dichotomy between federal and US state governance powers and systems, which have frequently come into conflict during the pandemic. At the same time, the pandemic occurred during a highly divisive presidential campaign, in which responses became a matter of political rhetoric, and an equally contentious aftermath. The change of presidential administrations in January 2021 brought significant shifts in national policies and rules regarding Covid-19 response and recovery. However, the tensions between national and state legal and regulatory responses remains and continues to be evident in responses to the rise of variants, particularly the Delta variant, across the country. This article reviews Covid-19 legal and regulatory responses and the national and state levels in order to highlight how these entities have addressed economic, social, and public health-related issues.
Harris, Patricia J., Aysha Pamukcu and Efthimios Parasidis, 'Fostering the Civil Rights of Health' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Pandemics, like climate disasters, thrive on inequality. COVID-19 is no exception, flourishing where inequality has weakened the social fabric. One of these weaknesses is long-standing racial discrimination, which has produced unjust, racialized disparities in COVID-19 transmission and mortality, and disproportionate economic harm to people of color. Efforts to address these racial disparities have been hindered by a series of governance and advocacy disconnects. Some of these disconnects are wellknown and widely discussed, such as fractures in federal, state, and local leadership that have politicized basic public health measures such as wearing masks. Less-well understood is the society-wide failure to adequately address racial discrimination in all its forms. This has perpetuated the disconnection of public health and civil rights advocacy from one another, and the disconnection of public health and civil rights professionals from anti-discrimination social movements. One promising tool to bridge these disconnects is research on the social determinants of health. Highlighting the ways in which discrimination is a public health problem allows legal advocates to use civil rights law as a health intervention and public health advocates to squarely challenge discrimination. In keeping with the emergent health justice movement, civil rights and public health advocates can amplify their effectiveness by partnering with organizations that fight discrimination. We call this approach “the civil rights of health.” This agenda for action requires (1) integrating civil rights and public health initiatives and (2) fostering three-way partnerships among civil rights, public health, and justice movement leaders (Harris & Pamukcu, 2019).
Harrison, Jessica A, ‘How the Pandemic Altered the Criminal Defense Landscape’ (2023) 66(3/4) Advocate 16–17 Abstract: Our post-COVID-19 world is undoubtedly a different world than the one we were accustomed to before 2020. We can self-administer nasal swabs just as naturally as we brush our teeth, our plant collections are robust and thriving, and our favorite restaurants now feature impressive patio dining year-round. But on a much larger scale, the post-COVID world witnessed a significant disruption to the American workforce – especially within the government. The criminal justice system has particularly borne the brunt of the labor shortage.
Harwood, Alaina, 'Caregiver Discrimination in the Wake of the COVID-19 Pandemic' (2022) 1(33) Hastings Journal on Gender and the Law 79-102 Abstract: Discrimination against workers that are caregivers to family members has risen dramatically in the United States due to the COVID-19 pandemic. The horde of novel issues that were brought on by the pandemic–such as school closures–have had a severely negative impact on workers with caregiving responsibilities, resulting in many of them losing their jobs during a major recession. Because of COVID-19, workers have experienced various types of discrimination relating to their caregiver status, including harassment and retaliation for requesting accommodations and leave during a global pandemic, as well as humiliation from their employers. This paper discusses the trends in caregiver discrimination lawsuits that were filed during the COVID-19 pandemic and analyzes the common issues plaintiffs experienced at the hands of their employers. While legislation that was passed during the pandemic offered some temporary protections to workers with caregiving responsibilities, this paper also discusses how the lack of permanent and comprehensive protection at the federal level left many workers vulnerable to caregiver discrimination.
Hasen, Richard L., 'Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them' (2020) 3(19) Election Law Journal: Rules, Politics, and Policy 263-288 Abstract: The COVID-19 global pandemic, which already has claimed over 150,000 lives in the United States by the end of July 2020, has revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decision making. Third, constitutional protections for voting rights remain weak.Despite these three pathologies and the Supreme Court's recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines, which sided against expanded voting rights, there is room for some hope that at least some courts will provide a measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.More significantly, court intervention can only go so far, and long-term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.
Haskell, Eric A, ‘Free Speech in the Time of Coronavirus’ (2022) 103(4) Massachusetts Law Review 89–96 Abstract: On March 10, 2020, Gov. Charlie Baker declared a state of emergency pertaining to the spread of the SARS-CoV-2 virus (‘COVID-19’ or simply ‘the coronavirus’). That declaration, which was issued pursuant to both the commonwealth’s Civil Defense Act and its Public Health Act, in turn, empowered the governor to issue extraordinary executive orders ‘necessary or expedient for meeting said state of emergency.’ Before rescinding the emergency declaration on June 15, 2021, Baker issued some 69 extraordinary orders in response to the coronavirus, on topics ranging from the mundane to the sort rarely seen outside of wartime. Other organs of the state government also made extraordinary responses to the pandemic. Numerous administrative agencies issued coronavirus-related orders as delegated by the governor or pursuant to an independent statutory authority. Attorney General Maura Healey promulgated emergency consumer protection regulations concerning debt collection practices during the pandemic. And the legislature passed extensive legislation in response to the pandemic, including a moratorium on ‘non-essential’ residential evictions. Many of these enactments were challenged in court. Many of those court challenges, in turn, asserted violations of the Free Speech, Assembly or Petition clauses of the First Amendment. This essay reviews those challenges, focusing on what they mean for the issue of First Amendment ‘coverage’ — that is, what activities may be regulated or curtailed by the government without implicating the First Amendment at all.
Hastings, Colin et al, 'Intersections of Treatment, Surveillance, and Criminal Law Responses to HIV and COVID-19' (2021) American Journal of Public Health (advance article, published 10 June 2021) Abstract: Public health institutions are playing an increasingly central role in everyday life as part of the response to the COVID-19 pandemic (e.g., through stay-at-home orders, contact tracing, and the enforcement of disease control measures by law enforcement). In light of this, we consider how COVID-19 disparities and disease control practices intersect with the response to the more longstanding epidemic of HIV infection in Canada and the United States.
Haupt, Claudia E and Wendy E Parmet, ‘Lethal Lies: Government Speech, Distorted Science, and the First Amendment’ (2022) 2022(5) University of Illinois Law Review 1809–1843 Abstract: Throughout the COVID-19 pandemic, Americans have had to confront an extraordinary speech phenomenon: an onslaught of misinformation and recurring lies from government officials, including the former President and his top health officials, about the pandemic. This phenomenon intersects in potentially novel ways with enduring questions about the regulation of government speech. Ordinarily, the government is free to articulate its own message to the exclusion of others. It can be pro-democracy or anti-tobacco without running afoul of the First Amendment. Whereas the requirement of content and viewpoint neutrality applies when the government polices the public speech of nongovernmental actors, neither the government nor government officials are required to be neutral in their own messaging. Nor would we want them to be neutral regarding scientific and factual issues. Rather, we expect that government health agencies, such as the CDC or FDA and their officials, would express only one side--the side best supported by science. In this sense, we have traditionally treated government speech relating to health, safety, and scientific matters as a particular form of expert speech. The expectation of content neutrality also does not apply to non-governmental experts, such as physicians and other health professionals. They are expected to ground the information they offer in the best science available. But unlike government officials, they are subject to malpractice law when they are offering advice to particular patients and clients. Government speakers have traditionally faced no such consequences for giving bad advice to the public. The torts of public health malpractice or public official informational fraud are not recognized. This raises the critical question: should they be? Or do First Amendment values demand that government speakers have free reign, even when they distort scientific information related to the health of the citizenry? In this Article, we engage with such questions. We begin by offering a typology that disaggregates speakers and types of speech through the lens of the range of misinformation that officials have offered during the COVID-19 pandemic. We distinguish among government speakers who echo experts, government experts who speak outside of their realm of expertise, and government speakers who lack expertise and issue official statements contrary to expertise. We then explore the First Amendment’s relationship to government health misinformation and consider whether private law should play a similar demarcation between protected and unprotected speech for government health officials as it does for privately practicing health professionals. We then argue that given the strong similarities between certain types of official health-related misinformation and professional speech, the legal regime that applies to the latter, more specifically malpractice law, provides a helpful model for thinking about and, more speculatively, potentially policing the former.
Hawdon, James, Katalin Parti and Thomas E Dearden, 'Cybercrime in America amid COVID-19: the Initial Results from a Natural Experiment' (2020) (45) American Journal of Criminal Justice 546-562 Abstract: The COVID-19 pandemic has radically altered life, killing hundreds of thousands of people and leading many countries to issue “stay-at-home” orders to contain the virus’s spread. Based on insights from routine activity theory (Cohen & Felson 1979), it is likely that COVID-19 will influence victimization rates as people alter their routines and spend more time at home and less time in public. Yet, the pandemic may affect victimization differently depending on the type of crime as street crimes appear to be decreasing while domestic crimes may be increasing. We consider a third type of crime: cybercrime. Treating the pandemic as a natural experiment, we investigate how the pandemic has affected rates of cybervictimization. We compare pre-pandemic rates of victimization with post-pandemic rates of victimization using datasets designed to track cybercrime. After considering how the pandemic may alter routines and affect cybervictimization, we find that the pandemic has not radically altered cyberroutines nor changed cybervictimization rates. However, a model using routine activity theory to predict cybervictimization offers clear support for the theory’s efficacy both before and after the pandemic. We conclude by considering plausible explanations for our findings.
Haynes, Jeffrey, 'Donald Trump, the Christian Right and COVID-19: The Politics of Religious Freedom' (2021) 1(10) Laws 6 Abstract: This paper examines the issue of religious freedom in the USA during the coronavirus pandemic of 2020–2021, during the presidency of Donald Trump (2017–2021). It contends that the ability of state governors to close religious places of worship illustrates both the limits on the power of the president and that public health can take supremacy over religious freedom in today’s America. The paper is organised as follows: first, we identify the importance of religious freedom for the more than 20 million Americans who self-classify as Christian evangelicals. Second, we assess the transactional importance that President Trump placed on Christian evangelicals’ religious freedom. Third, we look at one kind of Christian evangelicals—that is, Christian nationalists—to see how they regarded restrictions on their religious behaviour caused by COVID-19. Fourth, we briefly examine several recent legal cases brought against the governors of California and Illinois by the Liberty Counsel, the leading Christian evangelical legal firm in the USA. Led by Matthew Staver, Dean of the Liberty University Law School, Liberty Counsel regularly represents Christian nationalists who challenge state-imposed restrictions on religious gatherings during the coronavirus pandemic.
Heeren, Geoffrey J., 'Building on the Legacy of the University of Idaho's Immigration Clinic During the Pandemic' (2021) 9(64) Advocate 32-34 Abstract: Introduction: The growing presence of immigrants in Idaho is one of the reasons why the University of Idaho College of Law has had an immigration clinic since the early 2000s.1 Immigrants make up 6% of Idaho’s population and 8% of its labor force.2 Moreover, Idaho’s growing immigrant population is a driving force for its economy. Immigrants—both those with lawful and undocumented status—pay tens of millions of dollars of taxes in the state.3 In some strategic sectors of the Idaho economy, like the enormously lucrative dairy industry in Southern and Eastern Idaho, immigrants overwhelmingly make up the work force.4 The increasing presence of immigrants in the state—and in neighboring regions like Eastern Washington—means there is a need for attorneys to help non-citizens with an area of law that one federal court called a “labyrinth that only a lawyer could navigate.”5 This pressing need equates to the availability of jobs for University of Idaho law graduates trained in immigration law. The Immigration Litigation and Appellate Clinic at the University of Idaho College of law offers these opportunities. This year, the clinic adapted to the pandemic in order to continue its legacy of excellent immigrant representation. This article will provide an overview of the clinic, its recent work, and its scope.
Heled, Yaniv, Ana Santos Rutschman and Liza Vertinsky, 'Regulatory Reactivity: FDA and the Response to COVID-19' (2021) Food and Drug Law Journal (forthcoming) Abstract: Public health-oriented agencies play a critical role to play in pandemic preparedness and response. Yet, the current pandemic has exposed significant shortcomings in these agencies’ preparedness and response efforts. Using FDA’s response to COVID-19 as a case study, this article introduces the concept of “regulatory reactivity” to describe and analyze regulatory agency response to external pressures that rely on the adoption of tailored-to-the-moment measures. The article delineates the conceptual and practical differences between the application of standard agency procedures and agency response under what we term “reactive modes,” which often result in the setting-aside of agency procedures, expertise and priorities to the detriment of public health standards. We further explain how these ex post, narrowly construed modifications to the regulatory modus operandi contrast with goals of pandemic preparedness, which require ex ante, forward-looking regulatory interventions.While we utilize COVID-19 as a lens through which to examine reactive regulatory responses to public health crises, the article anchors its analysis in broader trends displayed by the FDA in previous large-scale crises, as well as within the regulatory apparatus as a whole. We conclude with some suggestions for how the FDA might avoid slipping into reactivity mode in response to future pandemics.
Helland, Sophia S and Edward R Morrison, ‘The Healthcare System and Pandemics: Where Is the Market Failure?’ (2021) 82(5) Ohio State Law Journal 833–844 Abstract: Barak D. Richman and Steven L. Schwarcz argue that healthcare providers played a central—and failing—role in stemming the fallout from the COVID19 pandemic. Analogizing to the financial crisis of 2008, they view our healthcare system as a collection of providers, each maximizing returns to its own stakeholders in a laissez-faire regulatory environment that ignored the essential interconnectedness of providers. Because neither hospitals nor regulators were attuned to this interconnectedness, our healthcare system was unprepared for the pandemic, resulting in a reduced standard of care. Just as Dodd-Frank and related legislation view financial institutions as part of a larger, interconnected system that must be regulated to minimize exposure to and build robustness against shocks, so too must federal regulators approach our healthcare providers as a ‘system’ that can work as a collective to mitigate the fallout from shocks. We believe this narrative overstates the role of healthcare providers in managing pandemics.
Hemel, Daniel J., 'Four Futures for U.S. Pandemic Policy' (2021) University of Chicago Legal Forum (forthcoming) Abstract: The COVID-19 pandemic is probably not the last time that a new and deadly infectious disease will sweep the planet. What can the United States do to improve its changes of averting large-scale loss of life the next time? This essay—prepared for The University of Chicago Legal Forum’s symposium issue on “Law for the Next Pandemic”—envisions four “futures” for the United States’ pandemic response and considers the advantages and drawbacks of each. One approach, the Mass Surveillance strategy, relies on widespread population monitoring, rigorous contact tracing, and enforced isolation of the infected. That strategy has enabled several East and Southeast Asian countries to keep case counts low without instituting long lockdowns. In the United States, the Mass Surveillance approach would face surmountable constitutional hurdles but potentially insurmountable cultural obstacles. A second option, the Fortress strategy, combines lockdowns to stop community transmission with border closures to prevent reintroduction of the infection. Australia and New Zealand illustrate the Fortress approach’s lifesaving potential, but their examples will be difficult to replicate in a country with a much larger population and long land borders. A third approach, the Internationalist strategy, emphasizes global cooperation with the goal of preventing animal-to-human transmission and containing any outbreak quickly. That approach is appealing—and worth pursuing—but it faces the high probability that it won’t work. A fourth approach, the Early Vaccination strategy, would truncate the clinical trial process and boost vaccine production capacity so that a large portion of the U.S. population could be vaccinated within several months of an outbreak. This, too, is worth a try, but even a rapidly developed vaccine is unlikely to protect us from a pandemic’s first wave. Ultimately, the essay recommends that the United States follow an all-of-the-above approach—preparing to pursue the Mass Surveillance, Fortress, Internationalist, and Early Vaccination strategies—without being overly optimistic about the prospect that any single one of these strategies will succeed.
Henreckson, Josh, ‘Arbitration Order Ruled Invalid in COVID Wrongful Death Case. That Could Be Trouble for Nursing Homes: Legal Experts’ (2024) McKnight’s Long-Term Care News (7 February 2024) Abstract: An appellate court judge has ruled that a plaintiff who filed a wrongful death case on behalf of her mother was not bound by an arbitration agreement she had signed in her role as power of attorney. The late Friday decision, delivered by Justice Eugene Doherty of the Appellate Court of Illinois Fourth District, partially overruled a lower court that sided with providers and sent a wrongful death case to arbitration instead of through the courts. The ruling could become a cause of concern for state nursing homes.
Hermer, Laura D., 'COVID-19, Abortion, and Public Health in the Culture Wars' (2020) (47) Mitchell Hamline Law Review 1-30 Abstract: At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled. The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy. Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.
Hermer, Laura D., 'Skirting the Law: Medicaid Block Grants and Per-Capita Caps in a Pandemic' (2021) St. Louis University Journal of Health Law and Policy (forthcoming) Abstract: To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding matching payments under Medicaid—which would clearly exceed the government’s authority under § 1115(a)(1)—but rather through application of the demonstration’s budget neutrality limit. “Savings”—or the difference between the cap and actual state expenditures under the demonstration—could be used on a variety of otherwise non-matchable state projects. This Article traces some of the history of this maneuver, showing that the HAO misguidedly seeks to “return” Medicaid to a program it has not been for decades. It furthermore argues that the Trump administration’s attempt to cap federal expenditures for certain Medicaid populations in exchange for certain state flexibilities is beyond the administration’s legal authority to grant. As this Article shows, the issue turns on how “individuals not eligible for benefits under the state plan” are defined: Are they expansion populations considered to be “receiving medical assistance under a state plan approved under Title XIX,” at least for the duration of the demonstration, and hence entitled to all the protections given to categorical and optional Medicaid populations covered under a state plan, or are they simply “regarded” as such for the purpose of expenditures only, and not protections and privileges under the Medicaid statute? A careful reading of the statute, relevant regulations, and recent caselaw show that, at least in the case of the ACA’s Medicaid expansion population, the HAO initiative’s structure and suggested flexibilities do not comply with the law.
Hermes, Clint; Wethington, Nikki, Balancing Hope and Proof: Investigational Products During the COVID-19 Pandemic (2020) 2(33) Health Lawyer 6-12 Abstract: On October 2, 2020, the White House announced that President Trump received an investigational antibody cocktail (REGN-COV2) for COVID-19 made by Regeneron Pharmaceuticals, Inc. REGNCOV2 is still in clinical trials and has not been approved for any use by the Food and Drug Administration (FDA). In addition, because of the declaration of a public health emergency, the FDA may allow unapproved medical products or unapproved uses of approved medical products to be used to diagnose, treat, or prevent COVID-19 under an EUA.[6] In general, EUAs expire at the end of the public health emergency unless they are revoked earlier. Development of a COVID-19 Vaccine In an effort to expedite the availability of a COVID-19 vaccine, the FDA is considering issuing an EUA for potential COVID-19 vaccines currently in development.
Hernandez, Joshua, ‘A Survey of Civil Procedure: Technology to COVID-19 Within State Courts’ (2022) 105(4) Marquette Law Review 963–1004 Abstract: The COVID-19 pandemic catalyzed the implementation of technological innovation within the legal field. Specifically, state courts used technology to adjust their civil procedures while maintaining accurate results, limiting costs, and providing meaningful participation to varying degrees of success. In addition, given the piecemeal nature of these adjustments, there is a lack of knowledge regarding what actions were taken in the early months of the pandemic. Thus, this Comment conducts a survey focusing on how the states adjusted their judicial civil procedures to respond to COVID-19’s impact. This Comment then argues that the most liberal implementation of technological adjustments may not be best for states to fulfill the historical purpose of civil procedure. Rather, states that implemented statewide orders, for a short period of time, allowing their lower courts to implement a full range of technological adjustments, best balanced the need for accuracy with the costs of implementation to maintain the highest degree of meaningful participation.
Herrmann, Michele, ‘Analysis of the Six Preliminary Injunctions Granted in Legal Challenges to COVID-19 Vaccine Mandates for Federal Contractors’ (2023) 15(2) Journal of Legal Affairs and Dispute Resolution in Engineering and Construction (advance article, published online 02 January 2023) Abstract: In September 2021, the Biden administration issued an executive order requiring companies that enter into federal contracts to require and verify that their employees are vaccinated against COVID-19. The executive order has since been challenged in multiple federal district courts. As of the date of submission, six preliminary injunctions have been issued, temporarily ceasing enforcement of the order. This paper is an analysis and summary of the arguments presented and legal reasoning of the courts based on the published court opinions. The key issue common among all six cases was whether the executive order exceeded the scope of authority granted under the Federal Property and Administrative Services Act. The courts reached slightly different conclusions on this issue and had different reasoning, but all issued temporary injunctions. Although most of the injunctions were limited to the plaintiff states, the most notable preliminary injunction was issued by the Southern District of Georgia and was the only one to be issued nationwide. The inclusion of the Associated Builders and Contractors as a plaintiff in that case played a key role in the scope of the injunction being issued on a nationwide scale. Appeals are pending in all cases but given the broad scope of the mandate and the current status of the pandemic, the government faces a difficult appeal.
Hess, David, The Management and Oversight of Human Rights Due Diligence (2021) 4(58) American Business Law Journal 751-798 Abstract: The COVID-19 pandemic showed how vulnerable workers in global supply chains are to adverse human rights impacts. Protecting such workers must be a primary policy goal in the efforts to "build back better" from the crisis, and businesses conducting human rights due diligence (HRDD) is a primary means to do so. In Europe, there is a fast-moving trend toward legislatively mandating HRDD, and there is potential for similar movement in the United States. Whether HRDD will significantly improve human rights conditions, however, is an open question. Based on our experience with corporate compliance programs, it is clear that the management and oversight of HRDD is an essential factor in ensuring meaningful implementation, as opposed to corporations focusing on form over substance. This article identifies those key internal governance issues and provides advice on how best to ensure effective implementation. The article argues that for most corporations, the day-to-day management of HRDD best fits with the compliance function--not the legal function--and this new role could be part of the next step in the evolution of the compliance function. This article also discusses the role of the board of directors and how HRDD combined with recent developments in the law of fiduciary duties can push directors to engage in more rigorous oversight. In addition, it discusses the types of information that are essential for supporting the management and oversight of HRDD.
Hirczy de Mino, Wolfgang, 'Election Administration in Times of COVID-19: How the Texas Supreme Court Failed Texas Voters' (SSRN Scholarly Paper No 3645607, 27 January 2020) Abstract: On May 27, 2020, the Supreme Court of Texas (SCOTX) handed down an opinion on mail-in voting in record time, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court’s haste, however, was to curtail voting by mail (VBM) in times of pandemic--rather than expand it--and they did so upon an emergency mandamus petition filed by Attorney General Paxton, the state’s chief legal officer, rather than in a case brought by advocates for voters. In a glaring disconnect, the members of the SCOTX voted remotely from their respective homes to deny all Texans the ability to vote remotely from their home under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, _ S.W.3d __, 2020 WL 2759629 (Tex. May 27, 2020). In construing the absentee voting provision as urged by the Attorney General, the Court held that lack of immunity to COVID-19 does not, without more, constitute a “physical condition” that entitles the voter to vote absentee to avoid the risk of infection at the polling place. Part I and II of this article will show how the all-Republican state supreme court went out of its way to interpret the Election Code contrary to the best interest of Texas voters when there was no good reason to do so, and will dispel the notion that the state supreme court was merely giving effect to the Legislature’s will in a nonpartisan fashion. In Part III I will argue that the Texas Supreme Court’s ruling does not have the force of binding precedent because the question of statutory construction was improperly addressed in an unsuccessful mandamus case against election clerks who had done nothing wrong. No writ of mandamus was issued against them. The Court’s interpretation of the “disability” provision to exclude a lack of immunity to COVID-19 as a valid reason to apply for a mail ballot therefore constitutes dictum because it was not essential to the disposition of the case. In Part IV and V I will explore the partisan political dimension of the dispute over absentee voting in Texas, and describe and assess the conduct of the state supreme court and the major players in the legal wrangling over mail-in voting in Texas. Integrating the various strands of analysis, I conclude that the Supreme Court did Texans a disservice by thwarting a remedy for the better management of health risks inherent in election administration under pandemic circumstances; - a remedy that was available within the letter and the spirit of the existing absentee voting provision in the Texas Election Code; that the Court ruled contrariwise for extra-jurisprudential reasons; and that the Court’s disposition of the case leaves voters and others at the risk of being criminally prosecuted for not “correctly” reading and heeding the Supreme Court’s ruling. I also conclude that the proponents of easier access to mail-in voting (most notably, the Texas Democratic Party) pursued a suboptimal litigation strategy, and should not have capitulated to Attorney General Paxton after being bested by him. AG Paxton’s successful gambit consisted of by-passing a pending state-court appeal (in the case in which he had lost at the trial court level and in the first round on appeal) so as to obtain a favorable ruling against the Democrats on an emergency basis in a separate case against different parties; a mandamus case filed directly in the all-GOP Texas Supreme Court while at the same time excluding his political nemesis from that arena. In the wake of the Texas Supreme Court’s ruling, the Texas Democrats abandoned their state-court litigation in favor of their federal strategy centered on an age-discrimination argument under the Twenty-Sixth Amendment. That bid for a federal remedy, however, does not look promising, given the current jurisprudential climate and ideological complexion of the Fifth Circuit and the U.S. Supreme Court. In the first salvo, a panel of the Fifth Circuit ruled against the Democrats on the Texas Solicitor General’s motion for stay, and the SCOTUS declined to get involved on an emergency basis so early in the game. Justice Sotomayor noted that the articulated concerns were weighty, and the arguments seemingly novel, but concurred in the denial of extraordinary relief. Texas Dem. Party v. Abbott, 2020, 961 F.3d 389 (5th Cir. Jun. 4, 2020) (staying preliminary injunction order) (motion to vacate stay denied by Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020)).
Hirsh, Merril, 'Seven Steps for Using Special Masters to Help Courts with the Pandemic Caseload' (2021) 3(60) Judges' Journal 18-22 Abstract: The article reports that the American Bar Association House of Delegates approved Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. Topics include how the courts faced the new challenge of dispensing justice safely in a world of social distancing and remote communication.
Hockett, Robert C., 'The Fed’s Municipal Liquidity Facility: Present & Future Possibilities & Necessities' (SSRN Scholarly Paper No ID 3597732, 10 January 2020) Abstract: The Fed's new Community QE Facility, which is unprecedented in Fed history, will function as a literal lifeline to States and their Subdivisions. But it remains, precisely because of its novelty, unfamiliar and possibly even off-putting or intimidating to many State and City financial officers, not to mention Mayors, Governors, City Councils and State Legislatures. It also continues to fall short of what will be required if our States, our Cities, and our federal polity itself, which the present White House occupancy is doing virtually nothing to assist, are to survive the present pandemic. Continuing unfamiliarity on the part of State and City officials with Community QE raises the danger that those in serious need of funding to address the present pandemic will not seek or receive it. It also diminishes the likelihood that City and State officials will press the Fed to do a further easing of terms – and this form of pressure will be critical if the Facility is to do all that it’s meant to do. This Memorandum is meant to solve those two problems. It first briefly summarizes what the newly eased MLF enables now. It then addresses what the new Facility probably will, and, at least as importantly, must enable in future. The Memorandum then closes with an updated three-phase ‘Game Plan’ for States and Cities to put into operation the moment the Fed makes clear that the MLF is not a mere ‘virtue signal,’ but a sincere offer of badly needed funding – by actually beginning to provide funding.
Hodge Jr., James G., 'National Legal Paradigms for Public Health Emergency Responses' (2022) 1(71) American University Law Review 65-109 Abstract: The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government--federal or state--should actually "call the shots" to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. Avoiding it entails substantial changes. Expansive interpretations and executions of core federal emergency powers illuminate new paradigms for modern public health emergency preparedness and response where states remain key players, but the feds are primary play-callers.
Hodge, James G., 'Federal vs. State Powers in Rush to Reopen Amid the Coronavirus Pandemic' (2020) Just Security (27 April 2020) Abstract: Despite millions of active infections and tens of thousands of COVID-19 deaths, multiple state governors, led by Georgia Governor Brian Kemp, are actively reopening businesses and withdrawing stay-home orders. President Trump should be elated. The White House has aggressively pushed state efforts to reboot the economy. Yet, the president publicly criticized Kemp for proceeding “too soon” in a rush to reopen. Underlying the political theatrics, the novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills. What powers could the president use to influence state actions whether to impose or lift mitigation measures? What zone of decisions are designated for the states alone?
Hodge, James G., 'Nationalizing Public Health Emergency Legal Responses' (2021) 2(49) Journal of Law, Medicine & Ethics (forthcoming) Abstract: The fight for public health primacy in U.S. emergency preparedness and response to COVID-19 centers on which level of government—federal or state—should “call the shots” to quell national emergencies? Competing and conflicting priorities have contributed to a year-long federalism firestorm. As the melee subsides, a more dominant federal role is a predictable, long-term consequence in the battle plan for the next major public health threat.
Hodge, James G, Lauren T Dunning and Jennifer L Piatt, ‘State Public Health Emergency Powers in Response to COVID-19’ (2023) 113(3) American Journal of Public Health 275–279
Hodge, James G., Jr and Jennifer L Piatt, 'Legal Decision-making and Crisis Standards of Care: Tiebreaking During the COVID-19 Pandemic and in Other Public Health Emergencies' (2022) 1(3) JAMA Health Forum e214799 Abstract: Extensive surges of patients coupled with shortages of staff and resources throughout the COVID-19 pandemic have contributed to repeated crises in US hospitals and health care facilities. During the recent wave of infections in mid-July through mid-November 2021, more than 1 million individuals with COVID-19 were admitted to hospitals, 156 382 of whom died of COVID-19 complications. Most of these hospital admissions and patient deaths were preventable through widely available and efficacious SARS-CoV-2 vaccines. Still, nearly 40% of vaccine-eligible people in the US are not fully immunized, suggesting additional patient surges are foreseeable in 2022. Decisive actions among doctors, hospitalists, and health officials aim to allocate available treatments, resources, and personnel to avoid limiting patient access to services. Yet, in select hospitals, regions, and states, scarcities have warranted shifts to crisis standards of care (CSC). Legal invocations of CSC vary. Governors in Alaska, Arizona, Idaho, New Hampshire, and New Mexico have formally invoked CSC. Declarations of emergency in Utah may automatically activate existing facility CSC plans. Kansas and Tennessee expressly allow hospitals to shift to CSC on their own initiative. Georgia, Ohio, Oregon, and other jurisdictions that lack statewide CSC plans rely on regional and/or local activations. No matter how CSC is invoked, its goal remains the same: to “extend care to as many patients as possible and save as many lives as possible.”
Hodge, James G., Jr and Jennifer L Piatt,'COVID’S Counterpunch: State Legislative Assaults on Public Health Emergency Powers' (2021) BYU Journal of Public Law (forthcoming) Abstract: Amid the most impactful health crisis in over a century, COVID’s “counterpunch” entails aggressive efforts by numerous state legislatures to diminish state and local public health emergency powers. It is an incredulous movement facially supported by a need to appropriately balance economic interests and rights with communal health objectives. At its political core, however, is a “power grab” by legislatures to free their constituents from extensive emergency powers (e.g., social distancing, assembly limits, and business closures). Never mind the fact that these interventions, when used effectively and constitutionally, save lives and reduce morbidity. Public health agents and activists are understandably concerned about diminutions of their express and discretionary emergency powers. Yet affirmative and strategic uses of existing legal remedies examined in this brief commentary may blunt the impact of these legislative proposals.
Hodge, James G., Jr, Jennifer L Piatt and Leila Barraza, 'Legal Interventions to Counter COVID-19 Denialism' (2021) Journal of Law, Medicine & Ethics (forthcoming) Abstract: A series of denialist state laws thwart efficacious public health emergency response efforts despite escalating impacts of the spread of the Delta variant during the COVID-19 pandemic. However, public and private actors are fighting back to obstruct or reverse anti-public health maneuvers through legal challenges focused on (1) constitutional structural- and rights-based challenges; (2) use of conditional spending requirements; (3) federal preemption; (4) disability and other anti-discrimination laws; (5) waivers or routine uses of public health powers; and (6) civil liability claims.
Hodge, James G. et al, 'Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options' (2021) 1(49) _Fordham Urban Law Journal_ Abstract: Against the backdrop of the most significant public health emergency event in U.S. history, the real-time development of multiple efficacious COVID-19 vaccines through pharmaceutical companies and federal support is a shining achievement. Americans’ future health and safety rely on a national vaccine campaign with an arduous goal of rapidly achieving “herd immunity,” especially among denser, urban environments. Immunizing millions of persons in urban locales is especially complex due to population vulnerabilities, lack of access, issues of eligibility, and vaccine hesitancy based on false information and long-standing governmental distrust. Public and private sectors are responding to these and other challenges in multifarious ways. This Commentary explores legal and policy perspectives on national mass vaccination efforts impacting U.S. urban populations.
Hodge, James G. et al, 'Legal Challenges Underlying COVID-19 Vaccinations' (2021) Journal of Law, Medicine, and Ethics (forthcoming) Abstract: Immunizing hundreds of millions against COVID-19 through the most extensive national vaccine roll-out ever undertaken in the United States has generated significant law and policy challenges. Beyond initial controversies in the development and FDA authorization of the vaccines, multiple issues pervade their real-time allocation and administration. This commentary briefly examines premier law and policy issues shaping the COVID-19 national vaccination campaign.
Hodge, James G. et al, 'Regressive Federalism, Rights Reversals, and the Public’s Health' (2022) 2(50) Journal of Law, Medicine & Ethics (forthcoming) Abstract: As the United States emerges from the worst public health threat it has ever experienced, the Supreme Court is poised to reconsider constitutional principles from bygone eras. Judicial proposals to roll back rights under a federalism infrastructure grounded in states’ interests threaten the nation’s legal fabric at a precarious time. This column explores judicial shifts in 3 key public health contexts – reproductive rights, vaccinations, and national security – and their repercussions.
Hoey, Barbara E. and Alison Frimmel, 'The EEOC Confirms Employers Can Mandate a Vaccine, But Should They?' (2021) 1(47) Employee Relations Law Journal 40-46 Abstract: This article reviews the highlights of the guidance issued by the Equal Employment Opportunity Commission after COVID-19 vaccines were approved and offers practical advice for employers considering rolling out a mandatory vaccination program for their employees.
Hoey, Barbara E. et al, 'Remote Workforces, Expletives at Work, and Problems with Masks, Shirts, and Hats' (2020) 3(46) Employee Relations Law Journal 78-83 Abstract: The article discusses the additional guidelines issued by the U.S. Department of Labor (DOL) on managing remote workers amidst the COVID-19 pandemic. The guidance is based on the federal Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Response Act (FFCRA). Also cited are the other applicable employment laws like the Americans with Disabilities Act (ADA) and Occupational Safety and Health Act (OSHA).
Hoffman, Geoffrey A., 'What Should Immigration Law Become?' (SSRN Scholarly Paper No ID 3680813, 25 January 2020) Abstract: This Essay explores the future of immigration law and asks what it should become after the 2020 election. It begins with a discussion of some of the changes brought about by the Trump administration and exacerbated by the COVID-19 pandemic. In thinking about a starting place for immigration law, one can and should begin with human rights, ensuring international norms are met, providing the most vulnerable urgent protections, as well as responding to humanitarian crises. Simultaneously, immigration law can be viewed as a facet or subset of national security law, administrative law, or constitutional law, and at times all of these sources acting at once upon a particular immigrant or set of immigrants. This confluence of concerns drives the cacophony of voices, and hence the confusion and obfuscation which has frustrated comprehensive immigration reform and remedies for immigrants for decades. Other areas also of course impact the field. Another way of asking the same question is: How do we begin to explore imaginative possibilities at fixing the broken immigration system? In determining what immigration law should become this essay examines the possibilities inspired by three distinct “buckets” or categories: (1) Supreme Court decisions; (2) proposed and, thus far, unsuccessful legislation, including the immigration plan of candidate and former Vice President Joe Biden; and (3) remedies and approaches inspired by other fields of law. The Essay concludes with a discussion of legal analysis and a proposal for change.
Holderness, Hayes, 'Changing Lanes: Tax Relief for Commuters' (SSRN Scholarly Paper No ID 3705646, 05 January 2020) Abstract: Tax law reaches all parts of life, and societal views about life activities often affect how the law is applied. As those societal views change, then, application of the law should be expected to change in turn. This Essay highlights changing societal views about commuting, particularly as a result of the COVID-19 pandemic, to demonstrate how even long-standing positions under the tax law can be quickly uprooted. Specifically, as working from home becomes standard, taxpayers should be afforded tax relief when required to commute into the workplace, despite the fact that the tax law traditionally has rejected such relief.
Holderness, Hayes, 'Taxing Remote Income under a Forgiving Constitution' (SSRN Scholarly Paper No 4009277, 14 January 2022) Abstract: The surge in remote work arrangements brought on by the Covid-19 pandemic threatens serious disruptions to state tax systems. Billions of dollars are at stake at this pivotal moment as states grapple with how to tax income earned through remote work. States intent on modernizing their income tax laws face vociferous challenges on both constitutional and policy grounds, however. This Article provides a full-throated defense against such challenges. The Supreme Court has long interpreted the Constitution to be forgiving towards state tax actions; new laws for the age of remote work surely satisfy constitutional demands. Moreover, the policy justifications for modernizing income tax laws are stronger than those for retaining the traditional approaches. As the nature of work evolves, the tax law must as well.
Hope, Joan, 'Consider emerging law and policy issues on Long COVID and disability' (2022) 10(27) Disability Compliance for Higher Education 9 Abstract: As the extent of Long COVID becomes evident, strategies to address it are needed. The Coelho Center for Disability Law, Policy, and Innovation at Loyola Marymount University's Loyola Law School sponsored a webinar titled “‘Long COVID’ and Disability: A Panel on Emerging Law and Policy Issues.” Assistant Secretary of Labor for Disability Employment Policy Taryn Williams and Director for the Office of Civil Rights in the Department of Health and Human Services Lisa Pino shared perspectives on what their agencies are doing to address Long COVID.
Horton, David and Reid K Weisbord, 'COVID-19 and Formal Wills' (2020) May(73) Stanford Law Review Online 18-27 Abstract: Most Americans do not have a will. The reasons are easy to understand. Thinking about death is unpleasant, and hiring a lawyer is expensive. However, as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, U.S. law makes it difficult to create a will during crises like these. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written, signed by the testator, and also witnessed by two people who were present at the same time. As journalists and lawyers are recognizing, the Wills Act’s insistence that the parties physically occupy the same space creates unprecedented roadblocks during a time of widespread quarantine and shelter-in-place orders. Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills. This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize the requirements for creating a will. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores four ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, enacting electronic will legislation, or temporarily suspending certain elements of the Wills Act during public health emergencies.
Horwich, Allan, 'COVID-19 and Rule 10b-5' (Northwestern University School of Law, Law and Economics Research Paper No 21-01, 19 January 2021) Abstract: The COVID-19 pandemic presented wide-ranging challenges for businesses. Not the least of these is compliance with the federal securities laws, including the prohibition – most notably under SEC Rule 10b-5 – on materially deceptive statements made to the public. Both the SEC, in its role as enforcer of the law, and private parties, seeking to represented classes of aggrieved investors, have filed complaints asserting that corporations and others have engaged in deception of investors regarding matters pertaining to COVID-19. Some of these claims relate to disclosures regarding testing kits for the virus as well as development of vaccines. Other complaints allege faulty disclosure on the effect of the pandemic on the market for a company’s products and services that are not themselves related to the pandemic, such as claims against cruise lines that suspended operations.This article presents the legal framework for claims based on Rule 10b-5, SEC guidance on how COVID-19 affects compliance with disclosure requirements for public companies, and the issues that have emerged in the claims already filed This analysis demonstrates that almost any public reporting company faces the risk of inadequate disclosure and the temptation to withhold or misstate material facts in a time of financial stress.
Horwitz, Michael, 'Coronavirus Economic Stabilization Act of 2020 (CESA) and considerations for private equity portfolio companies' (2020) (1) _Emerging Areas of Practice Series - COVID-19 (Coronavirus)_ Abstract: On March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to respond to the medical and economic impact of the COVID-19 pandemic. Included in the CARES Act is the Coronavirus Economic Stabilization Act of 2020 (CESA), which authorizes the making of emergency loans and guarantees to, and investments in, U.S. businesses in certain sectors that have experienced losses as a result of COVID-19 and authorizes financial support for the U.S. Federal Reserve's efforts to provide liquidity to the financial system.
Hoss, Aila and Heather Tanana, 'Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised their sovereignty to respond and promote resilience in the wake of COVID-19. It also provides examples of intergovernmental challenges. It highlights how ignorance of or animosity to federal Indian law has led non-Tribal governments to infringe on Tribal sovereign rights during the COVID-19 pandemic. It ends by providing a list of recommendations on how law can be better used to support Tribal responses as the pandemic unfolds.
Hotard, J, ‘To Keep Our Nation Breathing: The Impact of State Legislation and the PREP Act on COVID-19 Liability Immunity Defenses for Healthcare Providers in the Eleventh Circuit’ (2025) 76(5) Mercer Law Review 1663–1697 Abstract: This Comment is not intended to patronize you with statistics related to the COVID-19 pandemic. The odds suggest that you or someone you love dealt with these gruesome realities in real-time. Instead, allow me to paint a picture: You direct hospital operations. You have built your career at a trauma hospital, so you are familiar with the stress that comes with a daily ratio of six patients to one nurse—and yet, COVID-19 brings constantly evolving challenges that no one anticipated. On a typical day, during the height of the pandemic, your consecutive twelve-hour workdays become a blur as you and your staff tackle any combination of the following challenges: find more hospital beds for the increasing volume of patients. Find more personal protective equipment (PPE) for your staff and, when these resources become too scarce, develop and implement policies to sanitize and reuse PPE. Intubate critical care patients. Anticipate the number of ventilators4 necessary to intubate infected patients and keep them breathing. Keep them breathing. Balance the personal freedoms of your beloved staff with masking and vaccination mandates. Inform families that they cannot visit their hospitalized loved ones because of a policy intended to prevent the virus from spreading. Care for their loved ones as if they were your own family. Hold their hands while they take their final breaths.
Houser, Ryan and Andrés Constantin, ‘COVID-19, Religious Freedom and the Law: The United States’ Case’ (2023) 49(1) American Journal of Law & Medicine 24–40 Abstract: During the emergence of SARS-CoV-2 and the COVID-19 pandemic, public health officials exercised their police powers to combat the spread of the virus. The pandemic-related legal interventions adopted throughout the United States included lockdown orders and mask mandates. However, these policies and interventions meant to promote the general welfare of the public, in defense of common good, were met with legal challenges, especially in opposition to interventions’ impact on the exercise of religion. This article provides a legal analysis of the policies meant to curb the COVID-19 pandemic with a focus on legislative and judiciary actions and their implications for religious freedom. Ultimately, we hope this article will help inform future legal analyses on conflicts between public health and religious freedom in the context of pandemic legal preparedness efforts.
Houston, Rachael, Tomothy R Johnson and Eve M Ringsmuth, SCOTUS and COVID: How the Media Reacted to the Livestreaming of Supreme Court Oral Arguments (Rowman & Littlefield, 2023) Book summary: This book compares the volume and nature of online print and broadcast television coverage from major media outlets from all U.S. Supreme Court oral argument sessions during the October 2019, 2020, and 2021 Terms. The authors demonstrate that the move to livestreaming the Court’s oral argument sessions increased the frequency and depth of online print news media’s coverage in the short term but not in the long term. For both online print and broadcast outlets, their findings suggest that the benefits of increased transparency offered by livestreaming oral argument audio did not come with significant disadvantages for the Court in terms of long-term changes in its news media coverage. The authors analysis provides timely evidence that speaks to the current, and ongoing, debate about public access to the Supreme Court. It also speaks to the likely consequences of permanently continuing the practice of livestreaming oral argument audio and sheds light on the ramifications of other potential expansions in transparency at the Supreme Court, such as livestreaming opinion announcement audio or providing live video coverage of the Court’s proceedings. This work speaks to the impact of increased access to oral arguments and the inner workings of government institutions more broadly. Indeed, the U.S. Supreme Court was not the only institution to grapple with the constraints of the COVID-19 pandemic and opportunities for unprecedented, and instantaneous, access to anyone, anywhere. Better understanding the implications of the Court’s decision to livestream audio from its proceedings provides leverage on the consequences of greater government transparency for news media coverage and, by extension, individuals’ exposure to, and interaction with, government more generally.
Hrdinova, Jana et al, 'Documenting the Challenges (and Documents) As Ohio Courts Respond to COVID-19' (Ohio State Public Law Working Paper No No 541, 13 January 2020) Abstract: As the coronavirus led to the vast majority of Americans living under stay-at-home orders, government institutions confronted a public health imperative to slow the spread of a communicable disease while still maintaining vital services for their constituents. Judicial branches of governments faced particular challenges given the traditional face-to-face and often time-sensitive nature of their work. Further, while governors can generally exercise centralized control over many parts of the executive branch of government, the judicial function in many states does not operate under a single chief administrator. Ohio represents one such non-unified court system, and this research project sought to review and summarize the formal responses of Ohio courts in the weeks during which the state began shutting down non-essential services in response to the COVID pandemic. This review reveals considerable formal action in service of minimizing physical appearances at court, but also highlights that relatively few court orders included express provisions aimed at decreasing the number of people entering prisons or authorizing proactive steps to release people from detention.
Hu, Qian and Wei Zhong, ‘State-Level Politicization of Crisis Communication on Twitter during COVID-19: Conceptualization, Measurement, and Impacts’ (2023) 83(5) Public Administration Review 1266–1280 Abstract: The political dimension of crisis communication remains understudied in public administration. We defined the politicization of government crisis communication as the employment of politics-oriented communication strategies in crisis messaging. We further examined the state-level politicization occurring during COVID-19 and its influence on public engagement and policy compliance. We applied machine learning algorithms to analyze 43,642 Twitter messages posted by fifty US state governors, assessing the extent to which these governors politicized crisis communication. We compiled data from multiple sources to explore the influence of communication politicization on public engagement and compliance behaviors. While most governors showed major concerns regarding reputation and blame, their level of politicization and selection of communication strategies varied. Increased levels of communication politicization discouraged the public’s online engagement and policy compliance. Excessive levels of political consideration could undermine the legitimacy and effectiveness of government crisis communication, and thus an examination of their relationship was essential.
Huang, Jie (Jeanne), 'COVID-19 and Applicable Law to Transnational Personal Data: Trends and Dynamics' (Sydney Law School Research Paper No 20/23, 20 2020) Abstract: The recent COVID-19 outbreak has pushed the tension of protecting personal data in a transnational context to an apex. Using a real case where the personal data of an international traveller was illegally released by Chinese media, the paper identifies that three trends have emerged at the each stage of conflict-of-laws analysis for lex causae: (1) the EU, the US, and China characterize the right to personal data differently, (2) the spread-out unilateral applicable law approach comes from the fact that all three jurisdictions either consider the law for personal data protection as a mandatory law or adopt connecting factors leading to the law of the forum, and (3) the EU and China strongly advocate de-Americanisation of substantive data protection laws. The trends and their dynamics provide valuable implications for developing the choice of laws for transnational personal data. First, this finding informs parties that jurisdiction is a predominant issue in data breach cases because courts and regulators would apply the forum law. Second, currently there is no international treaty or model law on choice-of-law issues for transnational personal data. International harmonization efforts will be a long and difficult journey considering how the trends demonstrate not only the states’ irreconcilable interests, but also how states may consider these interests as their fundamental values that they do not want to trade off. Therefore, for states and international organisations, a feasible priority is to achieve regional coordination or interoperation among states with similar values on personal data protection.
Huberfeld, Nicole, ‘Federalism, Leadership, and COVID-19: Evolving Lessons for the Public’s Health’ in Abbe R Gluck et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 153–166 Abstract: The default governance architecture for public and individual health care in the United States is federalism, the division of responsibility between federal and state governments. A public health emergency such as a pandemic typically produces swift federal actions to support affected individuals, businesses, and states. Such actions include exercising executive emergency power to disseminate supplies, enacting relief bills, and triggering agencies to facilitate financial and regulatory relief. An emergency also typically involves coordination between federal and state governments, as state and local public health officials need federal funding and guidance but also perform key functions such as isolation orders, testing, contact tracing, and vaccine dissemination. In the case of COVID-19, some of the usual patterns have been disrupted. The two major federal response bills enacted in March 2020 followed prior playbooks, offering financial assistance such as increased Medicaid funding and unemployment insurance benefits as well as novel policies such as paid leave to care for COVID-19-positive relatives. The bills largely relied on states to take up funds, implement emergency assistance, and exercise regulatory options to reach those harmed by the pandemic and its attendant recession. This approach built on states’ preexisting policies, heightening differences between states and intensifying the pandemic’s inequitable impact. This chapter evaluates the atypical federal pandemic response – which witnessed an executive branch rejecting much of the centralized responsibility necessary for addressing emergencies – and the wildly variable state response – some of which prioritized politics over health, and all of which depended on the strength of preexisting social programs – to determine the legacy of the novel coronavirus for federalism in public health emergencies.
Huberfeld, Nicole and Sidney Watson, 'Medicaid's Vital Role in Addressing Health and Economic Emergencies' in Burris, Scott; de Guia, Sarah; Gable, Lance; Levin, Donna E.; Parmet, Wendy E.; Terry, Nicolas (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Medicaid plays an essential role in helping states respond to crises. Medicaid guarantees federal matching funds to states, which helps with unanticipated costs associated with public health emergencies, like COVID-19, and increases in enrollment that inevitably occur during times of economic downturn. Medicaid’s joint federal/state structure, called cooperative federalism, gives states significant flexibility within federal rules that allows states to streamline eligibility and expand benefits, which is especially important during emergencies. Federal emergency declarations give the secretary of Health and Human Services temporary authority to exercise regulatory flexibility to ensure that sufficient health care is available to meet the needs of those impacted. Under federal guidance, states have implemented a variety of options to respond to the COVID-19 pandemic. In addition, Congress enacted short-term legislative responses that increase federal funding for Medicaid and open new pathways for eligibility and payment for some COVID-19 testing. These responses have softened the double blow of the pandemic and its attendant recession, but more federal and state action is necessary. Congress should enact an increase in federal funding that lasts beyond the public health emergency to help states ride out the economic impact of the pandemic; provide extra funding to encourage states to adopt Medicaid expansion; offer states more funding for enrollment efforts to reach newly uninsured populations; and require state and local demographic data collection as a condition of federal funding to inform evidence-based public health efforts. State governments should use all available emergency flexibility options to streamline application and enrollment processes and take advantage of increased federal funding possibilities.
Hutler, Brian, ‘Public Health Deference: Rethinking the Judicial Enforcement of Constitutional Rights during a Pandemic’ (2023) 73(1) Syracuse Law Review 55–83 Abstract: Jacobson v. Massachusetts has long stood for the proposition that courts should generally uphold the government’s public health policies even when they incidentally infringe constitutional rights protections. But the COVID-19 pandemic disrupted this traditional understanding, as many federal courts struck down or enjoined state and local pandemic-response policies, downplaying the applicability of Jacobson. Meanwhile, prominent legal scholars argued that judicial deference premised on Jacobson should be completely abandoned. This article argues that Jacobson must be reconsidered in light of COVID-19, but its posture of deference should not be abandoned. Instead, this article proposes a new theory of ‘Public Health Deference,’ which is the deference that courts should afford to the government’s pandemic-response policies. This article argues that Public Health Deference should be premised on the quality of the processes by which the government creates and implements public health policies, even during an emergency. Courts should not blindly defer to the government’s pandemic response; instead, they should evaluate the government’s decision-making processes to ensure that they meet standards of transparency, accountability, public justification, and community engagement.
Iancu, Lavinia-Olivia, ‘The Access Conditions of the Natural Person to the Insolvency Procedure in Romania’ (2022) 8(4) Athens Journal of Law 409–424 Abstract: Since the beginning of 2020 in Romania, the COVID-19 pandemic has been exhibiting its negative effects. As expected, the hardest hit were the ordinary citizens who, overnight, awakened to reduced wages or downright joblessness. Moreover, the year 2021 has brought price increases in all areas, from basic foodstuffs to electricity, gas, fuels. The over-indebtedness of a large population of individuals has become the norm under the above conditions. The insolvency proceedings law for individuals seemed to be a solution for their over-indebtedness predicament, but we have found that this law is not performing at its true potential. In addition to a complex application form requested of the simple citizen, we contend that the access conditions to the insolvency procedure of the natural persons can be simplified and improved. Given the economic conditions in Romania, along with the reduction in the living standard, the legislator will have to give priority to the possible legislative solutions that will offer the indebted a fresh start.
‘The Import of Zoonotic Diseases’ (2025) 138(3) Harvard Law Review 819–840 Abstract: In 2020, ‘zoonosis’ reemerged in mainstream discourse as a result of the COVID-19 pandemic. However, the United States had been grappling with phases of panic around severe acute respiratory syndrome, swine flu, Middle East respiratory syndrome, Ebola virus, and Zika virus for the last two decades - each time letting disease prevention fade into memory once more. Perhaps a scarcity of virology expertise could account for the lack of comprehensive pandemic measures following the global 1918 Spanish flu outbreak, but why is it that the last two decades of epidemics never produced a cohesive system for pandemic preparedness? Here, law is one of the best vehicles for effectuating desired changes because global health is often a shared policy objective and laws can be tailored to the balance between a state’s unique circumstances and public health objectives. This Note argues that the United States lacks an answer to the problem of zoonoses. With Congress’s recent passage of the One Health Act, a provision granting agencies significant authority to combat zoonotic disease outbreaks, this Note explores one of the several avenues through which the United States can monitor and curtail zoonotic disease spread: its customs regime.
Inazu, John, ‘COVID-19, Churches, and Culture Wars’ (2022) 18(2) University of St. Thomas Law Journal 307–329 Abstract: The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to stop the spread of a deadly virus, a public health interest of the highest order. These already high constitutional stakes were further heightened by a rapidly changing pandemic, a heated presidential election, and Justice Amy Coney Barrett’s Supreme Court appointment, all of which fueled the fire of the culture wars. This article explores the free exercise implications of the Court’s resolution of challenges to the COVID-19 shutdown orders through these constitutional and cultural lenses.
'Inequality in the Impact of the Coronavirus Shock: Evidence from Real Time Surveys' (IZA Discussion Paper No 13183, 04 January 2020) Abstract: We present real time survey evidence from the UK, US and Germany showing that the labor market impacts of COVID-19 differ considerably across countries. Employees in Germany, which has a well-established short-time work scheme, are substantially less likely to be affected by the crisis. Within countries, the impacts are highly unequal and exacerbate existing inequalities. Workers in alternative work arrangements and in occupations in which only a small share of tasks can be done from home are more likely to have reduced their hours, lost their jobs and suffered falls in earnings. Less educated workers and women are more affected by the crisis.
Institute for the Advancement of the American Legal System, 'Pandemic Positives: Extending the Reach of Court and Legal Services' (2021) 1(57) Court Review 12-20 Abstract: A reprint of the Institute for the Advancement of the American Legal System's report "Pandemic Positives: Extending the Reach of Court and Legal Services" is presented. It details how courts, self-help centers, legal aid centers and law/public libraries in the U.S. made the transition to remote services in the wake of the COVID-19 pandemic. Topics covered include existing technologies and pathways of communication, messaging to litigants about service changes, and remote service delivery.
Isaac, William M, 'How regulators can kick COVID-19’s bank shock into remission' (2020) 53(185) American Banker 1 Abstract: How regulators can kick COVID-19's bank shock into remission Congress has imposed laws, rules and ratios on financial institutions which in times like this limit the ability of lenders and regulators to do their jobs. The 2008 financial crisis was due, in no small part, to the mark-to-market accounting rule known as SFAS 157, which resulted in the senseless destruction of $500 billion of capital in the banking system.
Iwry, Jonathan, 'FDA Emergency Use Authorization from 9/11 to COVID-19: Historical Lessons and Ethical Challenges' (SSRN Scholarly Paper No ID 3902890, 08 January 2021) Abstract: Emergency use authorization (EUA) is a power granted by Congress to FDA to expedite the availability and distribution of medical countermeasures during public health emergencies. This article reviews the history of FDA’s EUA authority from its inception in the post-9/11 era to its present-day use in response to COVID-19 in order to better understand and anticipate the limitations, potential, and risks of EUAs. We offer several reflections on the history of EUAs and ethical considerations relevant to their use in connection with COVID-19 (including a potential vaccine) and future emergencies. This history and analysis center around four main themes: (i) the effects that post-9/11 counterterrorist concerns have had on FDA’s ability to deal with naturally-occurring threats to public health and safety; (ii) political interference in efforts to defend the country against those threats; (iii) the question of where the risks posed by emergency countermeasures should fall, including with respect to legal liability for vaccine-related injuries; and (iv) the key ethical and policy issues confronting FDA in public health emergencies.
Jacobi, Tonja et al, 'Oral Argument in the Time of COVID: The Chief Plays Calvinball' (SSRN Scholarly Paper No ID 3678316, 20 January 2020) Abstract: In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more substantive opportunity to have their questions answered.This analysis transcends the significance of individual cases. The fact that the Court experimented with telephonic oral argument, the way it did so, and how the practice could be improved are all issues of profound national importance. The new format had the potential to influence the outcome of cases that have broad national significance, to shift norms of equality and transparency at the Court, and more generally to affect judicial legitimacy. If the Court favors certain parties or certain ideological camps by its choice of forum in a time of crisis, then that will undermine not only the Court’s claim to legitimacy but it also raises doubts whether any of our national institutions have the capacity to adapt to crises more generally.
Jacobs, Leslie Gielow, ‘Misinformation, Social Media, and Opportunities for Content-Based Regulation Within the Constraints of the United States Constitution’s Free Speech Guarantee’ (2024) 55(2) University of the Pacific Law Review 277–288 Abstract: This article explores the challenges of regulating false speech on social media platforms within the boundaries of the United States Constitution. It discusses landmark cases that have shaped the boundaries of false speech regulation and highlights the difficulty of regulating false speech due to the constitutional guarantee of freedom of speech. The article also discusses Section 230 of the Communications Decency Act, which provides legal protection to internet service providers. It explores limited opportunities for regulating false speech through defamation lawsuits, professional discipline, and restrictions on false commercial speech and fraud. The article also discusses the regulations imposed by federal and state governments on product vendors and service providers to prevent consumer confusion or deception. It provides examples of how the government has addressed misinformation during the COVID-19 pandemic and in election-related matters. While the United States has fewer options for content-based regulation compared to European countries, there are still opportunities to address the spread of misinformation.
Jacobson, Adam, 'Legal Requirements for COVID-Related Disabilities' (2022) 1(69) Risk Management 4,6-7 Abstract: In December, the U.S. Equal Employment Opportunity Commission (EEOC) added a new section to its COVID-19 guidance that lays out the circumstances in which COVID infection may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Employers may now have to provide reasonable accommodations for any employees or applicants experiencing longer-term or more serious effects of COVID infection, or face potential legal action for discrimination.
Jacobson, Peter D, Denise Chrysler and Jessica Bresler, 'Executive decision making for COVID-19: Public health science through a political lens' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Executive decision making is the crux of using law to achieve public health objectives. But public health codes and emergency declaration laws are not self-executing. In this chapter, we examine how elected officials and public health officers have used their legal authority to address the COVID-19 pandemic. We begin with an overview of an executive decision-making tool for public health officials. Then we describe the general legal background in which these decisions have been made. Next, we apply the decision-making tool to how governors in eight states have determined whether to issue stay-at-home orders and when to relax these restrictions. In this section, we focus on the criteria governors used to re-open the state’s economy and additional restrictions, such as mask wearing, as a condition of reopening. We examined the states’ political party control, the use of public health science, and equity considerations. We conclude that the COVID-19 response represents federalism at work, with considerable variation across the sample states, and that the public health science is filtered through a very thick political lens. In short, governors making political decisions drove the process, not public health officials relying on the best available science. We conclude with recommendations for future action.
Jafari, Ahmad, Hamid Abhari and Sam Mohammadi, ‘A Comparative Study of Civil Responsibility of Government towards Users the Covid 19 Vaccine in Iran and US Law’ (2023) Comparative Law Review (forthcoming) Abstract: Corona virus or Covid-19 is a disease which affected most of the countries for many year such as Iran and America and caused lots of difficulties and suffering for governments and people. Now days one of the important matters regarding the civil responsibilities of the government is transmission and spread of Corona virus among people. Due to that the aim of this project is to comparatively analysis the conditions of the civil responsibility of government towards the use of Covid-19 vaccination and methods of compensation in the Iranian and US Law system. Writer of this article tried to refer to the subject by sticking to descriptive-analytic method to explain the adaptation of the civil liability of legal system of Iran and America and find out the differences between them. Results obtained from this research show the government responsibility plan regarding this epidemic disease. It means the action or decision by the authorities can lead the responsibility of the government. Also, in US Law system to compensate the lost and damages caused by this covid-19 vaccination the compensation fund and civil responsibility insurance to compensate this case is established. And other achievements are that the government's exemption from non-judgment damages is exceptional and the main principles of the necessity require compensating unjust loss. The government can only cite it when it is sure that it has legal documentations.
Jaffe, Susan, 'Legal challenges threaten Biden's COVID-19 vaccine rule' (2021) 10314(398) The Lancet 1863-1864 Abstract: Critics want to block a safety rule requiring employees of large companies to get vaccinated or be tested weekly for COVID-19 and wear masks. Almost a year after the first COVID-19 vaccine was approved for emergency use in the USA, roughly a third of adults have still not received it. After urging Americans to get vaccinated, US President Joe Biden has taken a tougher approach: under his administration's new workplace safety standard, people must get vaccinated or undergo weekly tests for the virus if they work for companies with at least 100 employees. A day after OSHA's announcement on Nov 4, 2021, multiple lawsuits to block the rule started rolling in to federal courts across the country. So far, 27 mostly Republican-led states and several businesses have sued the Biden administration, claiming that OSHA exceeded its authority by issuing the rule. OSHA was created to ensure safe workplaces, they argue, not fight pandemics.
Jalali, Mohammad; Adam Landman and William Gordon, 'Telemedicine, Privacy, and Information Security in the Age of COVID-19' (SSRN Scholarly Paper No ID 3646320, 08 January 2020) Abstract: COVID-19 has highlighted the shortcomings of healthcare systems globally as countries struggle to meet the high demand for patient care. The spread of COVID-19 has resulted in unprecedented circumstances that necessitate a shift towards adopting infrastructure to enable care to be provided virtually. This shift is critical to minimize insufficiencies and maximize the quality of care in healthcare systems. While COVID-19 has dramatically accelerated the adoption of technology into care delivery, ongoing work is needed to ensure that our technology infrastructure provides an environment for safe and effective care delivery.Telemedicine usage has substantially increased over the past decade (1), and many hospital systems have robust telemedicine programs. Yet traditional in-person visits remain the cornerstone of clinical care, despite the fact that a significant amount of these visits, including follow-ups, treatment for minor illnesses, and chronic disease management could be substituted by virtual communication. Telemedicine has previously been identified as particularly important during disasters, due to the inaccessibility of traditional care services. This is especially salient for the COVID-19 pandemic where in-person healthcare visits pose a high risk to exposure (2). Additionally, responses to COVID-19, specifically social isolation and the intensified burden on essential workers, are eliciting detrimental psychological effects on large populations, while simultaneously making mental health resources highly inaccessible (3). Overall, with the increased strain and demand on traditional medical resources, telemedicine has emerged as an essential component of clinical care delivery during the COVID-19 pandemic (4) with many healthcare organizations reporting substantial increases in telemedicine use during COVID-19. For example, NYU saw an increase in non-urgent care virtual visits from a pre-COVID-19 average of 95 daily to 4,209 post COVID-19 expansion (4,330% increase) (5).However, as we continue the shift to telemedicine, new issues unravel that need to be addressed, particularly in regard to technology infrastructure. In the US, the Department of Health and Human Services recently lifted many of the restrictions on communication apps, reducing barriers that previously prevented the use of telemedicine services for individuals. That being said, the substantial information security and privacy concerns surrounding telemedicine cannot be overlooked. For example, Zoom, currently one of the most popular video conferencing platforms, has had a 10-fold increase in usage over just a few months including increasing use in healthcare, leading to several important privacy considerations—outsiders joining video conferences, or inadequate encryption of communications (6), leading to the possibility of eavesdropping.State and federal agencies have warned of increased risk of cyberattacks towards healthcare and public health sector and organizations doing research on COVID-19 (7). Ransomware attacks—a type of cybersecurity threat that involves encrypting data and demanding payment in return for unencrypting the data—have continued unabated during the pandemic, with many targeting hospitals specifically. Recent ransomware attacks have included the Illinois Public Health District website and a medical testing facility in the UK (7). Successful cyberattacks negatively impact hospital operations, delay access to clinical services, and lead to significant economic loss (8, 9), all of which would be particularly devastating to organizations already under unprecedented economic and clinical strain during this pandemic.Therefore, while global healthcare systems should allocate significant resources towards improving telemedicine capabilities, improvements must ensure that the technology delivers care that is both safe and effective. Balancing the significant privacy and information security concerns with the enormous potential benefits of virtual care during this pandemic will remain a vital component to our continuously evolving response to COVID-19. Now more than ever, health care workers and organizations need to follow best practices to reduce cyber incidents.
Javorka, McKenzie et al, The Impacts of COVID-19 on Criminal Legal Proceedings and Victim Advocacy for Sexual Assault Survivors (2022) Victims & Offenders (advance article, published online 14 Feb 2022) Abstract: This study examines how sexual assault criminal legal proceedings and victim advocacy services for survivors have been impacted by the COVID-19 pandemic. We interviewed 12 victim advocates at a sexual assault service organization in a large Midwestern city that was particularly impacted by the pandemic. Results indicate that there have been major disruptions to sexual assault case timelines and communication with victims. Victim advocacy for survivors has also been affected, especially the provision of court advocacy and accompaniment. We discuss implications of these findings for sexual assault survivors, service providers, and future emergency preparedness planning for the criminal legal system.
Jefferson-Bullock, Jalila, 'Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19' (2020) 5(32) Federal Sentencing Reporter 286-291
Jennings, Wesley G. and Nicholas M Perez, 'The Immediate Impact of COVID-19 on Law Enforcement in the United States' (2020) (45) American Journal of Criminal Justice 690-701 Abstract: During pandemics, like COVID-19, law enforcement agencies are responsible for working with government and public health officials to contain spread, serve the local community, and maintain public order. Given the person-to-person spread of COVID19 through respiratory droplets, law enforcement officers are also at a heightened risk of exposure due to their close contact with members of the public. To protect officers, the Centers for Disease Control and Prevention (CDC) and other agencies have made numerous recommendations for law enforcement agencies to protect officers and the public. Departments around the country have responded to the pandemic in various ways, such as reassigning personnel to high-traffic areas, suspending training, roll calls, and community outreach initiatives, only issuing citations for low-level crimes, implementing safety precautions for officers, and limiting access to department facilities. The COVID-19 pandemic also has exposed some key obstacles for law enforcement, related to communication, resource management, the enforcement of public health restrictions, and changes to crime and service patterns. Based on these early/ initial responses and obstacles during the COVID-19 outbreak, the current paper highlights directions for future responses to pandemics to ensure the safety and security of police officers and the communities they serve.
Joh, Elizabeth E, 'COVID-19 Sewage Testing As A Police Surveillance Infrastructure' (2021) 2(2) Journal on Emerging Technologies 232-240 Abstract: Sewage has become a COVID-19 tool. American colleges and universities have struggled to cope with the COVID-19 epidemic as students returned to campus in 2020. Most colleges are unable to provide widespread testing and contact tracing. Testing all students, faculty, and staff on a campus is prohibitively expensive.1 As a result, many colleges and universities have turned to a different approach. Those infected with COVID-19 shed viral particles in their waste.2 Evidence of these viral particles can be tested by sampling wastewater.3 Testing sewage offers a reliable method for identifying outbreaks and is cheaper and easier to administer than a mass testing and contact tracing program The reliance on wastewater testing during a pandemic makes sense at a time when no national program on mass testing and contact tracing exists.4 And as COVID-19 is likely to affect the population well into 2021, state and local governments have considered or started sewage testing.5 But emergency measures have a tendency to stick around after the crises that prompted them diminish. COVID-19’s public health crisis will end. But the incentives to monitor wastewater will continue.6 This essay argues that sewage testing will outlive the pandemic and become a part of a general policing surveillance infrastructure. We risk adopting this surveillance method without taking care to assess the legal and policy questions raised by its use. Wastewater can provide early clues not just for COVID-19 outbreaks, but also for the presence (and assumed use) of opioids, methamphetamines, and other illegal drugs.7 Sewage testing at the University of California, San Diego, recently led to an alert that an infected person was “someone who used a restroom [at a specified residence hall] from 6 a.m. and 9:30 a.m. on Sept. 2.”8 Now replace “methamphetamine” for “COVID-19.” Systematically looking for evidence of criminal activity in sewage “may be a goldmine for law enforcement authorities.”9 COVID-19 is the current object of wastewater surveillance. However, the use of sewage testing now—by public universities, counties, and other government entities—can be readily repurposed from the detection of COVID-19 to other substances of interest to law enforcement agencies.
Johnson, Creola, 'Crushed by COVID-19 Medical Bills, Coronavirus Victims Need Debt Relief Under the Bankruptcy Code and Workers’ Compensation Laws' (2021) 2(125) Penn State Law Review 453-499 Abstract: After the U.S. declared COVID-19 a pandemic, cracks in the U.S.’s fragile privatized healthcare system were exposed. At the start of the pandemic, 74 million U.S. residents were already uninsured or underinsured. To date, over 7.7 million recently terminated employees have lost their employer-provided health insurance, while over 24.6 million individuals have been infected with COVID-19 and 800,000 have been hospitalized. As a result, coronavirus survival often comes with astronomical medical bills like the $1.1 million hospital bill received by Michael Flor, a 70-year-old survivor who spent 62 days in the hospital for treatment.This Article examines how the U.S.’s flawed healthcare system and federal bankruptcy law may work together to unfairly penalize debtors burdened with medical debts arising from treatment for an infectious disease, like COVID-19. The financial fate of many burdened with infectious-disease medical bills will depend on whether a court characterizes such bills as “consumer” debts. Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, individuals with “primarily consumer debts” are subject to a complex calculation known as the “Means Test.” Debtors who have their massive medical bills characterized as non-consumer debts are allowed to wipe out those bills quickly in a Chapter 7 case. Debtors who have such bills characterized as consumer debts and who fail the Means Test are forced into a five-year repayment plan in a Chapter 13 case, where they pay down their unsecured debts, including medical bills. As a result, courts are effectively penalizing debtors who lack adequate health insurance and who involuntarily contract a contagious disease.To prevent such perverse results, this Article proposes that bankruptcy law be amended to exclude infectious-disease medical bills from the definition of consumer debt. Also, to obviate the need for some individuals to file for bankruptcy relief, this Article proposes that workers’ compensation (“workers’ comp”) laws be amended to include COVID-19 as an occupational disease for any “essential worker,” as defined in each state, so that infected essential workers can have their medical bills paid from workers’ comp funds. If a former U.S. president infected with COVID-19 was considered essential for the nation’s survival and, therefore, entitled to taxpayer-funded medical care in state-of-the-art facilities, then front-line employees—who are required to work for the benefit and survival of us all—should absolutely receive COVID-19 treatment at no cost to them. Legislative action is especially needed due to the current spread of new, highly contagious mutations of COVID-19 in the U.S. With the proposed legislative amendments in place, the U.S. would ensure that survivors are protected from financial devastation due to involuntarily contracting an infectious disease.
Johnson, James A, ‘A Primer on COVID-19 and Insurance’ (2022) 49(1) New York State Bar Association, Torts, Insurance & Compensation Law Section Journal (pre-published version published on SSRN 11 May 2022) Abstract: The ongoing coronaviris (COVID-19) pandemic and varients is the most devastating and disruptive forces in recent history. The Covid-19 pandemic will lead to numerous lawsuits involving insurance coverage and commercial disputes. A party whose operations are compromised by the pandemic may have defenses such as impossibility and force majeure. However, the consensus or majority of cases hold that a loss or damage must be caused by a direct and tangible physical injury to the insured property. In most jurisdictions physical loss does not cover a virus because a virus does not result in tangible damage to property. Notwithstanding an argument can be made that the words physical loss could include a business’s inability to use the property during the pandemic. To help mitigate the financial crisis created by the Covid-19 pandemic, the federal government has issued guidance relating to employee benefit plan operation and administration. The Coronavirus Aid Relief & Economic Security Act (CARES) provides for substantial financial and administrative relief to participants, sponsors and administrators of certain employee benefit plans. The IRS has clarified and expanded upon the relief offered in the new law.
Johnson, Lance G., My Top 12 Growth Predictions for the Post-COVID Days (2020) July/August() Law Practice Today 7
Johnson Raba, Claire, 'Going Remote: Due Process and Self-Represented Debt Collection Defendants During the COVID-19 Pandemic' (SSRN Scholarly Paper No ID 4064918, 10 January 2021) Abstract: In consumer debt collection lawsuits, the vast majority of cases end in default judgment entered against the defendant and the debtor never makes an appearance in court or seeks legal help. In response to the COVID-19 pandemic and the need for remote services delivery, courts made a rapid pivot to provide technology-based solutions for access to court processes. In 2020, when the courts closed to the public, and many lawyers started working from home, some counties among the 58 that comprise the California state court system continued to allow electronic filings. Analysis of court record data shows that debt collectors continued to file new cases even though e-filing was not available to unrepresented parties and the courts were closed for in-person services. This Essay posits that technology can be helpful in a time of crisis but poses a risk as an intervention that may cause additional harm and exacerbate inequities in the civil legal system if it does not make an affirmative effort to reach those struggling to access the justice system. In a look at the pandemic-era data in a populous and high poverty-rate county, the research behind this Essay identifies possible and actual risks to the due process rights of self-represented litigants posed by rapid conversion to new legal technologies in a pandemic or other crisis.
Jones, Daniel J., 'The Potential Impacts of Pandemic Policing on Police Legitimacy: Planning Past the COVID-19 Crisis' (2020) 3(14) Policing: A Journal of Policy and Practice 579-586 Abstract: One of the biggest challenges facing modern policing in recent years has been the lack of police legitimacy. The tipping point of this phenomenon is often attributed to the Rodney King incident in Los Angeles in 1991, where Los Angeles Police Department (LAPD) officers were videoed assaulting a lone black male. They were arrested and charged but eventually all were acquitted, thereby etching deep distrust between communities and police. Now the Rodney King example is an extreme and criminal act by police but it was the beginning of communities and media focusing on what the police were doing and how they were doing it. This lack of legitimacy coupled with what is referred to as the militarization of policing have lasting consequences and impacts on police–community relations and how interactions between police and community shape society today. In the wake of pandemic policing due to COVID-19, there are tales of two eventualities for police legitimacy that will be explored in this article: (1) The police response to the pandemic results in further militarization and draws deeper divides between police and communities or (2) the police response is compassionate and build on procedurally just operations resulting in the rebuilding of police legitimacy post-pandemic.
Jones, Lori Welding, 'COVID-19 and employee mental health: What employers can do' (2021) 1(47) Employee Relations Law Journal 55-61 Abstract: The significant impact of COVID-19 on employees includes not only the many risks to physical health, including, at the most extreme, death, but also the heavy toll on employee mental health. In October 2020, the Kaiser Family Foundation (KFF) reported that mental health illnesses could soon eclipse obesity as the most common pre-existing condition in the United States. Accordingly to data from the Centers for Disease Control and Prevention (CDC), the number of adults reporting symptoms of anxiety or depressive disorder increased from 11% during the period January to June 2019 to 41.5% during the two-week period January 20, 2021 to February 1 2021.
Jones, Mark, 'Being a Judge in Juvenile Court During COVID-19' (2020) 4(23) Judicial Division Record 1-5 Abstract: When I was asked to write this brief article about what it's like being a judge in a juvenile court during the pandemic, my first thought was: "That's easy: frustrating. No more denial hearings in delinquency cases or adjudicative hearings in CHINS or TPRs; in other words, no more hearings - for a while - of those cases in which we're all used to face-to-face examination and cross-examination. Can the clients talk confidentially with their counsel during the hearing when they are in two different geographical areas, and one is on a phone and the other a laptop, in the middle of a video hearing?.
Joondeph, Bradley W, ‘Remote Work and the State Taxation of Nonresident Employees’ [2023] (3) Wisconsin Law Review 873–917 Abstract: The onset of the COVID-19 pandemic caused millions of Americans to suddenly begin telecommuting across state lines. In response, several states deemed the salaries of employees who had previously worked at workplaces in the taxing state to be ‘sourced’ temporarily to that state. Some rival states contended this was unconstitutionally extraterritorial, but the Supreme Court ultimately declined to hear their complaint. This Article explains why these sourcing rules were constitutional. The Constitution only requires a state’s method for sourcing income to be ‘fair’ or ‘rational.’ Given the indispensable role of employers in generating an employee’s salary—and that the state of the workplace is the labor market into which the employee has purposefully sold their services—these rules met this standard. Indeed, nearly all existing state income-attribution rules (including New York’s controversial ‘convenience of the employer’ regulation) are constitutional. The production of income involves the contribution of several activities, so assigning it to a particular location depends on value and policy judgments about the significance of those contributions—as well as the governmental services supporting those activities. These rules might be controversial as a matter of policy, but there is little doubt they are rational and reasonable. More importantly, the judiciary’s deference to these sorts of state judgments abides the Constitution’s deeper norms about the proper judicial role. Exacting judicial review of these types of rules would risk ensnaring the courts in an endless series of problems they lack the institutional competence to solve.
Joslin, Courtney G., 'COVID and the Urgency of Parentage Reform' (2021) Drexel Law Review (forthcoming) Abstract: This Essay highlights how the COVID-19 pandemic underscores the urgent need to reform outdated and discriminatory parentage laws.
Kajeepeta, Sandhya, ‘Lessons Learned from COVID-19 for Racially Equitable Decarceration’ (SSRN Scholarly Paper No 4696765, 1 January 2023) Abstract: After four decades of growth, the size of the U.S. incarcerated population has been declining for the past decade, and racial disparities were beginning to shrink. The start of the COVID-19 pandemic triggered immediate calls for decarceration (i.e., reducing the number of people incarcerated), given the high risk of the virus spreading in congregate settings like jails and prisons and subsequent, inevitable spread to the neighboring community. Although the majority of incarcerated people were left behind bars to face potential illness and death, the U.S. incarcerated population experienced its largest recorded one-year population reduction in U.S. history. This large-scale decarceration undoubtedly saved lives and will have long-term benefits for those who were diverted out of jails and prisons, as well as their families and communities. However, not all benefited from the decarceration equally: racial disparities in jail and prison worsened during the COVID-19 pandemic, and Black people represented a larger percentage of the incarcerated population as it declined. In this brief, we examine the drivers of pandemic-related decarceration, interrogate its impacts on racial disparities, and draw lessons to inform policy recommendations for racially equitable decarceration.
Kalokairinou, Louiza et al, 'The promise of direct-to-consumer COVID-19 testing: ethical and regulatory issues' (2020) 1(7) Journal of Law and the Biosciences Article lsaa069 Abstract: Widespread diagnostic and serological (antibody) testing is one key to mitigating the COVID-19 pandemic. While at first, the majority of COVID-19 diagnostic testing in the USA took place in healthcare settings, quickly a direct-to-consumer (DTC) testing market also emerged. In these DTC provision models, the test is initiated by a consumer and the sample collection occurs at home or in a commercial laboratory. Although the provision of DTC tests has potential benefits—such as expanding access to testing and reducing the risk of exposure for consumers and medical personnel—it also raises significant ethical and regulatory concerns. This article reviews these challenges and shows how they parallel and also diverge from prior concerns raised in the DTC health testing arena. The first part of this paper provides an overview of the landscape of diagnostic and serological tests for COVID-19, anticipating how provision models are likely to evolve in the future. The second part discusses five primary issues for DTC COVID-19 tests: test accuracy; potential misinterpretation of results; misleading claims and other misinformation; privacy concerns; and fair allocation of scarce resources. We conclude with recommendations for regulators and companies that aim to ensure ethically marketed DTC COVID-19 tests.
Kaminer, Debbie, 'Vaccines in the Time of COVID-19: Using Vaccine Mandates to Teach about the Legal and Ethical Regulation of Business' (SSRN Scholarly Paper No ID 3883768, 10 January 2021) Abstract: This article uses the question “Can government and businesses mandate the COVID-19 vaccine?” as a starting point for an interdisciplinary discussion appropriate for a variety of business laws classes. This timely and engaging question lends itself to a class discussion on law, ethics, and behavioral economics, which will help students integrate their learning across these disciplines. This lesson is appropriate for courses on the Legal and Ethical Regulation of Business as well as Employment Law at both the undergraduate and graduate levels. In addition to currently being an extremely timely topic, mandatory vaccination will remain an important issue for years to come as many experts predict immunity will wane with time and booster vaccines will be required.One of the most important learning goals of this lesson is improving students’ understanding of the complexities surrounding the legal regulation of business in the United States. Real-world business dilemmas often have many interrelated legal issues and students will develop a true understanding of how to integrate various areas of the law. The lesson pulls together different legal concepts including federalism, statutory interpretation, administrative law, stare decisis, constitutional law, and employment discrimination. Additionally, the lesson is an excellent way to develop students’ analytical and critical thinking skills. This lesson can also be used to develop students’ ability to analyze issues from competing ethical frameworks. These mandates are a particularly interesting topic for ethical analysis since there are many hypothetical variations depending on the specific vaccine mandate at issue, and who it covers. Additionally, this article discusses how vaccine mandates can be used to introduce a class discussion on behavioral economics.
Kammer, Sean, 'Reflections on Teaching Constitutional Law in the Midst of Constitutional Crisis' (2022) 2(67) South Dakota Law Review (forthcoming) Abstract: The events of Jan. 6, 2021 at the Capitol building in Washington, D.C. brought the U.S. Constitution to the forefront of the minds of citizens across the nation. For law students beginning a Spring 2021 Constitutional Law course on this very day, the typical “first day” abstract hypothetical was supplanted by the very real and imminent crisis, and the term was sent on an unforeseen trajectory. This essay reflects upon the experience of teaching Constitutional Law in an era of compelling challenges to the American legal order. The teaching of Constitutional Law in today’s climate, the author concludes, must foster a discussion beyond the text of the Constitution and letter of the case law, including frank conversations about the government branches’ and individual actors’ roles in enforcing constitutional principles and ideals, as well as an understanding of the social context and political landscape in which what we refer to as “Constitutional Law” lives and breathes.
Kan, Samuel, 'Divorce and the Collapse of the Three-Legged Stool: Setting Servicemembers Up for Success in the Age of BRS and COVID-19' (2020) 2(66) Wayne Law Review (forthcoming) Abstract: Over the past few years, many monumental tax and benefit law changes have created a need to re-evaluate the problem of divorce and retirement in the military community. This need has become especially vital, because the military has transitioned from the legacy retirement system to the Blended Retirement System (BRS). To a certain degree, this retirement model shifts a portion of the financial risk to servicemembers and their family members as they will need to make their own investment decisions in an uncertain economic market to protect assets in their defined contribution plans. In addition, significant threats to the overall economy posed by disasters such as the exponential spread of the Novel Coronavirus Disease 2019 (COVID-19) pandemic have created increasing unemployment and the need to rely more heavily on health care and Social Security support structures.This article argues that military marriage partners need to learn to function efficiently within this new and more fragile economic paradigm to ensure that their families are financially self-sufficient even if the partners divorce. In addition, as some servicemembers may fail to take action to provide for their intended surviving beneficiaries in the event of their divorce and subsequent death, the federal government should take action to effectuate the likely intent of these servicemembers at the time of their death. Furthermore, the federal government should take action to increase the economic sustainability of Social Security, which military marriage partners may need to rely upon after divorce as many may struggle financially to support separate households.
Kanter, Arlene S., 'Can Faculty Be Forced Back to Campus?' (2020) 16 June() Higher Education Chronical 1-4 Abstract: This essay discusses the right of faculty to work from home during this COVID-19 pandemic. Various laws, including the Americans with Disabilities Act, provide protections for faculty who do not feel safe returning to campus. :
Kanter, Arlene S, ‘Remote Work and the Future of Disability Accommodations’ (2022) 107(7) Cornell Law Review 1927–2006 Abstract: When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. In the past decade, sophisticated computer applications and programs have become commonplace. These advances in technology, have enabled millions of employees to work from home since the onset of the Covid-19 pandemic in March 2020. During the pandemic, more than half of the national labor force worked remotely. By most estimates, a significant percentage of the workforce will continue to work remotely, at least part time, even after the pandemic ends. This Article argues that people with disabilities, like their nondisabled colleagues, should enjoy the benefits of our new remote workplace culture. For employees with disabilities, Title I of the Americans with Disabilities (ADA) protects their right to accommodations in the workplace. Over the years, courts have been called upon to resolve disputes between disabled employees and their employers regarding whether or not an employee’s request to work remotely is a ‘reasonable accommodation’ under Title I. An examination of the cases from every federal circuit court of appeals over the last decade reveals that most courts rule in favor of employers. However, due to recent changes in the workplace as a result of the Covid-19 pandemic, including greater reliance on communication technologies, the author argues that more courts should recognize remote work as a reasonable workplace accommodation for qualified employees. While it is true that not all employees—with or without disabilities—want to work from home, and not all jobs can be done remotely, increasing opportunities for remote work as a reasonable accommodation furthers the goal of the ADA to promote employment and economic self-sufficiency of disabled people. Remote work opportunities also may challenge the ongoing and systemic ableism that exists within many workplaces today. Further, while discussions of the future of remote work have been a ‘hot topic’ during the pandemic, this Article is the first to systemically review and analyze the state of remote work as a disability accommodation under the ADA. This Article incorporates legal analysis and social science evidence in support of its argument for remote work as a reasonable accommodation. This Article concludes with recommendations for changes to the applicable EEOC regulations which would clarify that remote work or ‘telework,’ the term used in the current regulations, is a reasonable accommodation for qualified employees under Title I of the ADA. Such changes are necessary to re-envision remote work as the future of disability accommodations under the ADA.
Karol, Stephanie and Jennifer Mayo, ‘Effects of COVID-19 on the Nonprofit Sector’ (2024) 77(3) National Tax Journal 505–532 Abstract: This paper studies the effects of the coronavirus pandemic on the US nonprofit sector. Using a difference-in-differences framework, we leverage variation in the timing of charities’ fiscal years, finding that government intervention helped keep charities afloat during the pandemic. On average, government grants increased 66 percent in the first year of the pandemic and 82 percent in the second. Despite the net increase in their contributions, charities lost employees and made fewer program expenditures in fiscal year 2019. Although the decline in program services proved to be temporary, the pandemic has had a lasting impact on the nonprofit labor market.
Kaufman, Eileen R, ‘The Lawyers Justice Corps: A Licensing Pathway to Enhance Access to Justice’ [2021] University of St. Thomas Law Journal (forthcoming) Abstract: The idea for establishing a Lawyers Justice Corps (LJC) emerged out of efforts to solve a problem: how to license lawyers at a time when COVID-19 had expanded the need for new lawyers while also making an in-person bar exam dangerous, if not impossible. We—the Collaboratory on Legal Education and Licensing for Practice --proposed the Lawyers Justice Corps to provide a different--and better--way of certifying minimum competence for new attorneys while at the same time helping to create a new generation of lawyers equipped to address a wide range of social justice, racial justice, and criminal justice issues. When implemented, the Lawyers Justice Corps will accomplish two critical and related goals: enhancing access to justice and creating an effective and equitable method of licensing lawyers. This essay begins by outlining the general contours of the Lawyers Justice Corps. It then explains how the Corps will enhance access to justice for the many underserved clients in our society. In a third section, the essay describes the racial injustice perpetuated by the traditional bar exam, as well as the exam’s failure to adequately measure lawyer competence. A final section shows how the Lawyers Justice Corps would provide a licensing path that both trains for and better assesses competencies required for law practice. The essay concludes that the time is ripe for multiple alternative licensing paths, including the Lawyers Justice Corps.
Kaukinen, Catherine, 'When Stay-at-Home Orders Leave Victims Unsafe at Home: Exploring the Risk and Consequences of Intimate Partner Violence during the COVID-19 Pandemic' (2020) 4(45) American Journal of Criminal Justice 668-679 Abstract: The novel coronavirus pandemic (hereafter COVID-19) is likely to have unprecedented impacts on the incidence and impacts of crime and violence globally. This includes impacts to the risk, consequences, and decision-making of women experiencing violence by an intimate partner (hereafter IPV). Most importantly, the COVID-19 pandemic, and its impact on the risk of IPV is likely to differentially impact vulnerable populations, including minority women and those with long histories of victimization and mental health issues. This review paper explores the potential short- and long-term implications of COVID-19 on the risk of IPV, highlighting some of the most recent preliminary data. The economic impact of the COVID-19 pandemic, record levels of male unemployment, added stressors in the home, including the care and home schooling of children, and the social distancing measures required by the epidemiological response, may serve to undermine the decades of progress made in keeping women and children safe at home. Victim police reporting, help-seeking decisions, and social service utilization during the pandemic are likely to be impacted by stay-at-home orders and social distancing requirements. The paper concludes with a discussion of the implications for providing safety planning and self-care for victims and their children.
Keilitz, Ingo et al, 'Racial Inequality and Systemic Injustice, the Coronavirus Pandemic, and the Courts' (SSRN Scholarly Paper No ID 3695661, 10 January 2020) Abstract: The twin crises of systemic injustice and the vulnerabilities of the COVID-19 pandemic in 2020 have caused unprecedented social and economic upheaval – including economic contraction and sometimes violent street protests. Combined and entwined in a shameful way, systemic injustices and the relentless pandemic constitute existential threats to society disproportionately affecting marginalized and disadvantaged people. Confronting these threats is not just about the reform and revamping of one or two unjust institutions or units of government – the police and the health care system. It is instead an overdue reckoning on white supremacy, pervasive racial and ethnic injustices, and a deadly lack of preparedness for crises that were long anticipated. It is a challenge of transformative change that calls for a holistic response, a whole-of-society approach (WOSA) that must include the courts and the entire justice system, including the police, prosecution, defense, pretrial services, jail, prison, probation, and parole.This article is a call to action for the judicial branch of governments, including judges, court administrators, and their justice systems partners, not only to continue to provide critical justice services but also to advocate and to execute a whole-of-society approach (WOSA). This approach is essential to begin to root out racial biases and to combat the threats to our safety, security, and health during the Covid-19 pandemic. The authors present three reasons for court leaders and court administrators to get off the sidelines, to make their voices heard, and to become proactive participants in the fight against the existential threats of the admixture of systemic injustice and inequality, combined with our vulnerability to COVID-19: (1) the crises of disease, injustice, protests, and violence demand a WOSA that must include the courts and the justice system; (2) the courts’ silence and reluctance to join fight cannot be defended; and (3) judges, court administrators, and their justice system partners must close the gap between the de jure and de facto law, i.e., the law on the books and the law in practice.
Keitner, Chimène, ‘The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability’ _Harvard National Security Journal Online_ On June 23, 2020, the Senate Judiciary Committee held a hearing on “The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability. This series of works by Professor Keitner memorializes Professor Keitner’s prepared written testimony and detailed responses to 39 Questions for the Record (QFRs).
- Part I: ‘Written Testimony’ (23 February 2021).
- Part II: ‘Questions for the Record—Benefits to the United States from Foreign Sovereign Immunity’ (30 March 2021)
- Part III: ‘Questions for the Record—Private Litigation Will Likely Fail to Secure Relief for U.S. Victims’ (20 October 2021)
- Part IV: ‘Questions for the Record—Federal Government Response to Coronavirus and U.S. Public Health Leadership Role’ (30 March 2022)
Abstract: Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19. During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along with the speech restrictions enacted by social media platforms at the behest of federal officials. It does so through a historical lens as it applies to free speech and prior restraint. Tracing this lineage is vital to understanding the importance of the right to think freely in the Covid era and how to apply historical concepts of free speech to contemporary challenges. I conclude the solution to the problem of misinformation is more speech, not suppression. Unconventional speech thus warrants constitutional protection. The First Amendment is designed to preserve an uninhibited marketplace of ideas where truth will ultimately prevail. That process is difficult, time consuming, and not without error. However, it is the most prudent alternative to reliance on the government intrusion of prior restraint and viewpoint discrimination.
Kendrick, Thomas A, ‘Rebuttal: Alabama’s Gubernatorial and Legislative Responses to the COVID-19 Pandemic Were Valid, Constitutional, and Appropriate’ (2022) 83(6) Alabama Lawyer 404–414 Abstract: As a lawyer who defends healthcare providers that continued to care for patients during the COVID-19 pandemic, I take a different view from my opposing counsel who published an article in the September edition of The Alabama Lawyer.
Kess, Sidney, 'First Look at the CARES Act's Provisions for Tax Relief' (2020) 4(90) CPA Journal 8-9 Abstract: The Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748), signed into law on March 27, 2020, is a $2.2 trillion package enacted to help individuals and businesses get through the health and economic crisis triggered by the coronavirus pandemic. Rebate Checks for Individuals Rebate checks are advance payments of a new refundable tax credit [Internal Revenue Code (IRC) section 6428]. These rebate checks for individuals with adjusted gross income (AGI) below set amounts are being paid via the IRS. [Extracted from the article]
Kettl, Donald F., 'States Divided: The Implications of American Federalism for COVID-19' (2020) 4(80) Public Administration Review 595-602 Abstract: The explosion of the coronavirus onto the global stage has posed unprecedented challenges for governance. In the United States, the question of how best to respond to these challenges has fractured along intergovernmental lines. The federal government left most of the decisions to the states, and the states went in very different directions. Some of those decisions naturally flowed from the disease's emerging patterns. But to a surprising degree, there were systematic variations in the governors’ decisions, and these variations were embedded in a subtle but growing pattern of differences among the states in a host of policy areas, ranging from decisions about embracing the Affordable Care Act to improving their infrastructure. These patterns raise fundamental questions about the role of the federal government's leadership in an issue that was truly national in scope, and whether such varied state reactions were in the public interest. The debate reinforces the emerging reality of an increasingly divided states of America.
Key, Aimee and Lindsey Obenhaus, 'COVID-19 and Family Law: What Every Attorney Needs to Know' (2020) 5(83) Texas Bar Journal 310-311 Extract from Introduction: In addition to transforming the way matters are handled in court, the COVID-19 pandemic poses a number of new issues for family law clients and their children, which are considered here.
Kim, Oliver, ‘Tsunami: Recommitting to Address AAPI Mental Health in a Post-COVID Era’ (2022) 46 Nova Law Review 370-392 (pre-print published on SSRN 18 May 2022) Abstract: For too many in the Asian American and Pacific Islander (AAPI) community, this past year has been one of particular hardships: a global pandemic that caused suffering at home and abroad, political and social unrest, economic hardship, and an ongoing series of violent attacks on Asian Americans. Some health experts warn that this COVID pandemic will be followed by widespread mental health issues caused by the stressors that the pandemic has caused—social isolation, the economic anxiety, and political and social unrest that have engulfed our collective psyche. But again, for many communities of color, these stressors only brought to light disparities in our healthcare system, particularly our mental health system. As policymakers and stakeholders envision a new system, particularly for mental health, in a post-pandemic world, we should add our voices for a more equitable system by calling out the circumstances facing the Asian American community. This is a pivotal time to not only address the coming ‘second pandemic’ of mental health issues brought about by the COVID pandemic but also to rebuild the healthcare system and address systemic changes that have long needed attention. Like many other communities of color, AAPI communities are no strangers to understanding racism as a public health issue, and the pandemic has exacerbated such underlying tensions, not necessarily generated new ones. Like other communities of color, the history of AAPIs in the United States is complicated, running the gamut as explored below between outright exclusion to elevation as a model minority and a wedge for identity politics. For instance, economic anxieties about China as well as scapegoating of Asian American-owned businesses parallel the nativism that led to events ranging from the passage of the Chinese Exclusion Act to the Vincent Chin murder. In building that more equitable system, this paper will discuss three interconnected—but not necessarily exhaustive— issues to facilitate a more equitable mental health system post-pandemic: Asian cultural attitudes towards mental health, AAPIs’ station as a community of color, and understanding the long-term impact of the COVID pandemic on the community. The paper will then turn to recommendations to not only addressing the mental health needs of the AAPI community in the wake of COVID and the uptick in violence but also bringing greater equity into mental health services for all communities of color. For example, recently Congress passed the Covid-19 Hate Crimes Act, an important part of responding. But some critics argue that the law does not address the underlying causes of anti-Asian sentiment nor the needs of the community.
Kim, Sage et al, 'Pandemic Behind Bars' (SSRN Scholarly Paper No ID 3888415, 06 January 2020) Abstract: This policy spotlight documents the growing concern for the health of the incarcerated population and explores the implication of unabated COVID-19 outbreaks in Illinois prisons for the health of Illinois communities where correctional facilities are located. Jails and prisons are not isolated from the community. Preventing COVID-19 transmission in correctional settings requires steps to ensure that COVID-19 outbreaks within prisons do not spill over to the surrounding communities, and that community infection does not enter into correctional facilities. Correctional facilities not only in Illinois but throughout the U.S. have been affected by localized outbreaks but also experienced poor access to personal protective equipment and testing. Furthermore, because of unsanitary, crowding, and congregate living conditions, social distance, a key public health mitigation measure, has been a challenge. Correctional employees and officers are not immune to these risks. The high infection rates in correctional settings have been a concern since the beginning of the pandemic. The reports from prisons and jails around the country underline the vulnerability of the incarcerated population and correctional staff to COVID-19. IDOC will need to implement preventive measures to protect the health of inmates and staff, as well as the community. Meeting the public health and mental health needs of inmates is not only just, it is a smart public health policy.
Kindt, John Warren, 'Bans on Sports Gambling and Lotteries Would Pump-Prime the U.s. Economic System in the New Age of Covid' (2021) 5(2021) University of Illinois Law Review 1771-1793 Abstract: A strong economy is essential for U.S. national security. The economic downturn caused by the 2020 COVID-19 pandemic has again highlighted this basic economic principle. In the context of legalized gambling, Nobel-Prize Laureate Paul Samuelson emphasized that gambling creates "no new money or goods" and "subtracts from the national income." The economic multiplier effect of "consumer dollars" is negated or otherwise substantially diminished when consumer dollars are diverted into gambling dollars. Therefore, the $2.2 trillion economic stimulus of the 2020 Coronavirus Aid, Relief, and Economic Stimulus Act (CARES Act) wasted billions of dollars of the $260 billion allocated for unemployment benefits and the $300 billion allocated in payments to U.S. citizens. Intended to put food and other necessities of life in consumer pantries, billions of CARES Act dollars were instead misdirected into lotteries--creating record lottery sales, for example, in Georgia and Texas during the first 30 days of the CARES Act. While shutting down productive consumer businesses, governors declared lotteries to be "essential"--although historically states were receiving only 27 cents per gambled dollar. More importantly, U.S. lotteries take $85 billion out of the U.S. consumer economy each year (with only $23 billion going to state budgets). Accordingly, the cheapest and most effective way to pump-prime the consumer economy would be to shut down the lotteries. This $85 billion would thereby morph into a consumer economic multiplier resulting in approximately $255 billion in new economic spending on consumer goods (or over $1 trillion in 4 years). In his 1999 Martin Luther King Day speech in Chicago, Jesse Jackson emphasized that "[t]he new chains of slavery happen to be . . . lottery tickets." Later in 1999, the state lotteries were savaged by the congressional U.S. National Gambling Impact Study Commission, in its Final Report ("NGISC Final Report"). Academically, it is well-established that lotteries make "poor people poorer" and target-market to minorities contributing to gambling addiction rates of: African Americans (2-4%); Native Americans (2-6%), Hispanics (2-3%), and Caucasians (1.2-2%). As reported in the Wall Street Journal, these social and economic concerns prompted Mr. Les Bernal, the national director of the charity Stop Predatory Gambling ("SPG"), to write to all U.S. governors and state attorneys general detailing the need to close the state lotteries. The 2020 movie Money Machine, however, documented the power of the gambling lobby in suppressing adverse facts. While Columbine and Sandy Hook remain in the psyche of the U.S. public, Money Machine details how the October 1, 2017 Las Vegas killings have been sanitized via "a web of corruption and cover-ups that make the Vegas of yesteryear, when it was still run by the mob, seem positively quaint." The biggest mass murderer in U.S. history, Stephen Paddock, killed 59 people including himself and injured 413 by gunfire. It would be difficult to argue that Paddock did not satisfy the American Psychiatric Association's criteria for being an addicted or problem gambler. All of these facts and trends are well-known to the gambling industry, whose business model has morphed toward abandoning brick and mortar gambling facilities in favor of widespread internet gambling--utilizing sports gambling to build pressure on government decision-makers. Gambling lobbyists are looking to leverage the COVID pandemic and the public's natural affinity for sports into real-time 24/7 gambling on cell phones and throughout video games. In the age of COVID, bans on sports gambling and lotteries would inexpensively and effectively pump-prime the U.S.
King, Brandon, ‘Covid and the Court: Why the Supreme Court Should Not Diffuse European Speech Restrictions into American Law’ (2024) 11 Brandeis University Law Journal 61–78 Abstract: Speech constitutes an immense power which, at its best, can lead to open dialogue that creates the opportunity to achieve positive political and social change. At its worst, the freedom to speak can precipitate hate speech and violence. Across the world, the standards governing free speech are not necessarily the same. This article aims to analyze the constructs of free speech in both Europe and the United States. To this end, this article concerns two major questions: should the United States adopt legislation to combat hate speech in line with the Digital Services Act which the European Union previously enacted; and should this be enacted via the Supreme Court’s opinion in Murthy v. Missouri, a case analyzing possible infringement of Free Speech by the federal government on social media sites. This article discusses the nature of how and which comparative law principles and jurisprudence should be diffused into judicial opinions written by U.S. judges. As well as why this issue is not one that should be handled by the courts, especially through the diffusion of European authored regulations on speech.
Kirk, Katie, ‘The State of Federalism and Police Powers in a Post-COVID-19 Society’ (2024) 29(3) Independent Review 525–535 Abstract: The article focuses on the legal and constitutional issues surrounding public health during the COVID-19 pandemic. Topics include the impact of the Jacobson v. Massachusetts Supreme Court decision on state police power during health emergencies, the legal restrictions imposed by the pandemic, and the unprecedented challenges to daily life and individual freedoms in response to the health crisis.
Klein, Brennan et al, ‘COVID-19 Amplified Racial Disparities in the US Criminal Legal System’ [2023] Nature (advance article, published online 19 April 2023) Abstract: The criminal legal system in the USA drives an incarceration rate that is the highest on the planet, with disparities by class and race among its signature features. During the first year of the coronavirus disease 2019 (COVID-19) pandemic, the number of incarcerated people in the USA decreased by at least 17%—the largest, fastest reduction in prison population in American history. Here we ask how this reduction influenced the racial composition of US prisons and consider possible mechanisms for these dynamics. Using an original dataset curated from public sources on prison demographics across all 50 states and the District of Columbia, we show that incarcerated white people benefited disproportionately from the decrease in the US prison population and that the fraction of incarcerated Black and Latino people sharply increased. This pattern of increased racial disparity exists across prison systems in nearly every state and reverses a decade-long trend before 2020 and the onset of COVID-19, when the proportion of incarcerated white people was increasing amid declining numbers of incarcerated Black people. Although a variety of factors underlie these trends, we find that racial inequities in average sentence length are a major contributor. Ultimately, this study reveals how disruptions caused by COVID-19 exacerbated racial inequalities in the criminal legal system, and highlights key forces that sustain mass incarceration. To advance opportunities for data-driven social science, we publicly released the data associated with this study at Zenodo.
Klingler, Desiree, 'Government Purchasing During COVID-19 and Recessions: How Expansionary Legal Policies Can Stimulate the Economy' (2020) 1(50) Public Contract Law Journal 1-35 Abstract: The traditional approaches to “cure” economic recessions are monetary and fiscal policies. Most economic crises are first addressed with monetary instruments, as the Federal Reserve’s extensive corporate bond purchasing program of March 24, 2020, has shown. However, when interest rates are zero or close to zero—referred to as the zero-lower bound—and the economic downturn is expected to be significant, governments often launch additional fiscal stimulus programs, such as the U.S. COVID-19 Stimulus Package in the amount of $2.2 trillion passed by Congress on March 27, 2020. But monetary and fiscal policies are not the only means of influencing an economy’s business cycle. A third and novel option is expansionary legal policies, also referred to as countercyclical regulation, which is the focus of this article.Legal instruments have been used only to a limited degree to stimulate the economy. One of the first advocates of law and macroeconomics was Yair Listokin who promotes the use of legal policies and lawyers in macroeconomic policy. In this article, the author explains and applies the idea of expansionary legal policies to the field of public procurement law. Public procurement lends itself particularly well to expansionary legal policies for two reasons. First, public contracts form a large part of the government’s expenditure side, amounting to fifteen to twenty percent of global GDP, and can therefore be used to expand the money supply. Second, government contracting is governed by a set of complex administrative rules that can be adjusted to better reflect the business cycles. This article will discuss the idea, design, application, and potential effects of expansionary legal policies by means of two procurement policies that were adopted in the United States and Switzerland in response to COVID-19 this March and compare them to Germany’s relaxation of procurement rules after the financial crisis in 2009. To protect taxpayers’ money and mitigate the risk of corruption, this article suggests legal safeguards for expansionary procurement policies. With the necessary measures in place, expansionary procurement policies will help procurement regulations to reflect economic realities more accurately and stimulate the economy by increasing and expediting spending through public projects in infrastructure, healthcare, and other sectors.
Klonoff, Robert H, ‘COVID-19 Aggregate Litigation: The Search for the Upstream Wrongdoer’ (2022) 91(2) Fordham Law Review 385–428 Abstract: The COVID-19 pandemic has generated many suits--including thousands of class actions--in which plaintiffs claim that defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely--as they do in non-COVID cases--on whether the defendant has breached clear contractual commitments or has engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID-19 context, recognizing that everyone has suffered due to the pandemic and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. This Essay focuses primarily on three categories of cases that have already generated numerous rulings: (1) business interruption insurance claims, (2) tuition reimbursement actions, and (3) suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID-19 itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require ‘physical loss or damage’ to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success, with many (but not all) courts granting motions to dismiss after failing to find that there was a contractual commitment to in-person teaching. At the other end is the category of cases raising health and safety issues related to COVID-19 in prisons and at immigration detention facilities. On the merits, this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID-19. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID-19 or the large numbers of claims. After discussing the three categories above, this Essay also briefly examines (1) consumer, labor, and securities fraud cases in the context of COVID-19; (2) COVID-19 cases involving arbitration clauses and class action waivers; and (3) the handful of class-wide settlements that have thus far been reached in COVID-related litigation.
Knapp, Hunter, 'Essential, Not Expendable: Protecting the Economic Citizenship of Agricultural Workers – University of Colorado Law Review' (2022) 2(93) University of Colorado Law Review 459-487 Abstract: When the COVID-19 pandemic reached the United States in early 2020, the importance of agricultural workers became undeniable. Fear of food shortages seized the nation, and many people saw the shelves of grocery stores empty for the first time. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency identified workers in the food and agriculture sectors as “essential critical infrastructure workers.” This designation allowed agricultural workers to continue earning desperately needed wages, but these workers did so without adequate protection from COVID-19. Also lacking protected collective-bargaining rights and representatives, individual agricultural workers did not have the power to successfully advocate for safer practices or accommodations to work schedules. Along with many classes of healthcare and transportation workers, the Centers for Disease Control and Prevention (CDC) continues to identify agricultural workers as “essential to maintain critical infrastructure and continue critical services and functions” during the COVID-19 pandemic. This capricious treatment of agricultural workers during the COVID-19 crisis—one moment acknowledging their essential role, the next denying them rights—highlights the need to protect their full economic citizenship.
Knauer, Nancy J., 'The Federal Response to COVID-19: Lessons from the Pandemic' (2022) 1(73) Hastings Law Journal 49-103 Abstract: When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018. Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of the prescribed protocols. Federal officials lost valuable time as they downplayed the risk posed by COVID-19 and repeatedly assured the American people that the virus would simply “go away.” By March 2020, a frightening spike in cases in the Northeast made the pandemic impossible to ignore. President Trump and other administration officials shifted tactics and began to characterize COVID-19 as the quintessential “black swan”—a threat that no one could have foreseen. President Trump repeatedly told the American people that “no one could have predicted something like this” even though official federal policy suggested a very different story. Far from being a black swan, the COVID-19 pandemic was widely anticipated and, according to many epidemiologists, inevitable. This Article argues that our botched federal response was not so much a failure of policy per se, but rather a failure of political will. The federal government had a robust pandemic policy in place; it simply chose not to follow it. This failure of political will illustrates the dangers that arise when public health measures are politicized and weaponized for partisan advantage and demands strong interventions to ensure federal accountability and transparency. The first Part of this article outlines the evolution of our national pandemic plans within the broader context of disaster and response planning. The second Part explains the pandemic staging framework that is used to organize and coordinate decision-making within a pandemic. The third Part charts the federal response during the crucial first three months of the public health crisis, specifically identifying instances where the federal government failed to follow its own clearly articulated pandemic policy. The final Part outlines some lessons learned from the pandemic and proposes reforms to insulate public health measures from partisan wrangling and keep our federal government faithful to its foremost obligation; namely, to promote the general welfare.
Knutsen, Erik S and Jeffrey W Stempel, ‘American Exceptionalism: The COVID-19 Insurance Experience’ in María Luisa Muñoz Paredes and Anna Tarasiuk (eds), Covid-19 and Insurance (Springer, 2023) 135-158 Abstract: It was the best of times, it was the worst of times. Channeling Charles Dickens (from his A Tale of Two Cities), a legal observer might describe COVID-19 insurance coverage disputes in similar terms. Although U. K. and E. U. policyholders would hesitate to describe their Covid coverage situation as ideal, it has been close to the worst of times for U. S. policyholders, who have lost an astonishing 95 percent of business interruption cases in the U. S. national (“federal” in American-speak) courts with a near 80 percent loss rate in state courts. The insurer win rate in the U. S. differs markedly from the more mixed picture in Europe, the U. K., and Canada. These jurisdictions have pursued an approach quite distinct from that of the U. S. The American experience to date not only reflects a jaw-dropping insurer win rate but also litigation volume and transaction costs far higher than in other judicial systems. In this chapter, we examine the different approaches and their consequences, comparing the more collaborative approaches of Canada, the U. K., and E. U. with the more combative system dominating U. S. COVID-19 coverage battles. The comparison reveals substantial advantages of the collaborative approach, not only for policyholders and legal systems but also for insurance and risk management systems, even if at the cost of larger and more frequent payouts by insurers.
Kohn, Nina A., 'Nursing Homes, COVID-19, and the Consequences of Regulatory Failure' (2021) (110) Georgetown Law Journal Online (pre-print, published 20 April 2021) Abstract: This essay explores the COVID-19 crisis in America’s nursing homes and its lessons for the future of long-term care. It challenges narratives portraying nursing homes as the unfortunate victims of COVID-19 by showing how the crisis is the foreseeable result of regulatory gaps and failures that have long enabled nursing homes to engage in systemic neglect. It then shows how regulatory approaches employed in other parts of the U.S. healthcare system could be used to create a more humane and resilient long-term care system. It concludes by considering the implications of such reforms for enhancing equity and reducing structural ageism.
Kohn, Nina A et al, ‘Using What We Have: How Existing Legal Authorities Can Help Fix America’s Nursing Home Crisis’ (2023) 6 William & Mary Law Review (forthcoming) Abstract: The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.
Kolker, Dina and Daria DAnichkova, 'Public Employee Speech in a Pandemic' (2021) 4(46) Employee Relations Law Journal 52-60 Abstract: The authors explain that public employees concerned about virus exposure at work enjoy various protections from retaliation for speaking out about perceived unsafe working conditions.
Kooli, Chokri, ‘The Importance of Protecting Jobs and Workers Rights during Crises’ [2022] Berkeley Business Law Journal (forthcoming) Abstract: The COVID-19 crisis has impelled the introduction of exceptional measures by organizations to contain the pandemic to ensure employee safety. Protecting workers’ rights is germane in the economy, especially those most vulnerable to limited social protection and income losses.
Kort-Butler, Lisa A, ‘Tweeting about Crime in Pandemic Times: US Legacy News Media and Crime Reporting During the COVID-19 Pandemic’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 123–139 Abstract: This study explored how the pandemic shaped or shifted legacy news reporting about crime, focusing on Twitter posts as visual elements of the crossmedia landscape. This study found that news organizations partnered the pandemic and crime in the American discourse of fear. Tweets acted as crime news snapshots, which magnified a sense of instability and uncertainty. Tweets constructed a collective malaise that could contribute to users’ sense of ontological insecurity.
Kotzmann, Jane and Morgan Stonebridge, ‘Preventing Another Pandemic: How Changing the Legal Paradigm Governing Intensive Animal Agriculture Will Reduce the Risk of Future Zoonoses’ (2022) 47(2) Columbia Journal of Environmental Law 458–517 Abstract: The public health consequences tied to our relationships with animals are significant. The COVID-19 pandemic and previous instances of zo- onotic disease emergence and re-emergence have demonstrated that human relationships with animals can have a profound impact on our health. In the US, the most prevalent human-animal relationship is the one we have with the animals that we eat. This relationship is defined and facilitated by intensive animal agriculture, a practice at high risk of causing zoonotic disease emergence. This Article explores the current regulatory regime governing intensive animal agriculture and argues that it is deficient in the context of zoonotic disease. It argues that this deficiency is a result of the legal anthropocentrism that manifests in practices inherent to intensive animal agriculture and demonstrates that such an approach is unable to adequately manage the risk of future zoonoses. This Article argues for a regulatory approach that acknowledges the interdependence of humans, animals, and the environment. It proposes Wild Law as the most appropriate framework to address the risk of zoonotic disease and concludes that intensive animal agriculture would not be permitted under a Wild Law approach due to its inherent inability to operate within the context of an interdependent human-an- imal-environment relationship.
Kovarsky, Lee, 'Pandemics, Risks and Remedies' (2020) (106) Virginia Law Review Online 71-98 Abstract: There are lessons in every catastrophe, and the impact of Coronavirus-19 (“COVID”) on America’s prisoner population has been especially catastrophic. Jails and prisons are sites of unique peril because each facility bears the systemic risk of a single infection. That COVID tore through these facilities was predictable—the health infrastructure is deplorable, social distancing is impossible, and the community has heightened medical vulnerabilities. These places are pandemic tinder boxes, and COVID was more than enough to kindle the blaze. There is a temptation to view America’s inability to protect her prisoners as a simple failure of political and bureaucratic will, but the shortage of such resolve was just one part of a more complex institutional disaster. In this Paper, I argue that COVID exposed a remedial deficit between pandemic risks that were systemic and remedies that were not. In so doing, I explore the surprisingly poor performance of the mechanisms that one might have expected to facilitate sufficient prisoner discharge: federal civil rights litigation, administrative release, and clemency power. The systemic health risk at jails and prisons requires remedies that are fast and scalable, but existing discharge mechanisms are too slow, require too much multilateral consensus, and concentrate discharge powers in the wrong institutions. To address future waves of pandemic infection, American jurisdictions should concentrate discharge powers in decision-makers who are closer to the most acutely affected localities. A concentration-and-localization principle is also a model for a broader back-end decarceration strategy.
Kovvali, Aneil, 'Countercyclical Corporate Governance' (2022) North Carolina Law Review (forthcoming) Abstract: The American economy has lurched from crisis to crisis for over a decade, enduring long stretches of high unemployment, market dysfunction, and ineffective government policy. Despite the enormous scale of this suffering and disruption, the full implications of the experience have not been absorbed by the corporate governance literature. Corporate law’s focus on delivering financial returns to shareholders works reasonably well in a robust economy, when markets function effectively and align shareholder incentives with the goal of maximizing social wealth. But these tidy mechanisms fail in periods of macroeconomic stress, when markets send faulty signals and firms pursuing short-term shareholder profits can destroy social wealth. The layoffs or price increases often desired by shareholders can be useful in a healthy economic environment, as they cause resources to be allocated more efficiently to higher-value uses, and competitive markets prevent harm from falling on workers or consumers. But the same maneuvers can be destructive when the economy is afflicted by unemployment or inflation. Revising corporate governance arrangements so that companies focus less on maximizing short term shareholder profits during crises can thus be a useful tool for managing economic problems and improving outcomes.This Article begins the theoretical and practical work of adapting corporate governance to periods of economic crisis. After demonstrating that the assumptions that have driven corporate law debates depend on macroeconomic context, the Article shows that correcting those assumptions could make corporate governance a powerful tool for managing crises. These insights offer a useful framework for evaluating measures undertaken by businesses, investors, and the government in response to the COVID-19 crisis, while suggesting new avenues for action.
Kramer, Liz, ‘MEMA Matures: Minnesota Emergency Law Post-COVID’ (2024) 50(4) Mitchell Hamline Law Review 674–725 Abstract: The COVID-19 public health emergency was the first to test Minnesota’s emergency management laws. Four years of litigation and more than two dozen lawsuits proved that the statutes were flexible enough to allow the Governor, Tim Walz, to manage a novel emergency effectively. While 16,397 Minnesotans have died from COVID-19, as of December 5, 2024, it is clear that without the precautions taken by the Governor and the Executive Council, the devastation would have been much worse. That inherent flexibility opened the statutes to many non-frivolous lawsuits regarding their interpretation. Because the Governor and Executive Council stayed well within their authority, and lawyers and judges worked overtime to interpret any ambiguities in the statutes, our state law is better prepared for another public health emergency. This Article assembles the case law developed surrounding the emergency management powers in chapter 12 of the Minnesota Statutes as a result of the COVID-19 pandemic. It begins by reviewing the history of the Minnesota Emergency Management Act (‘MEMA’ or ‘the Act’), giving context on the COVID-19 pandemic, and summarizing the COVID-related executive orders (‘EOs’) in Minnesota. The Article then reviews MEMA case law, organizing it by section of the Act. The Article concludes with recommendations for clarifying and modernizing the Act.
Krantz, Emmalyn, ‘Paid Family Leave: How A Global Pandemic Exacerbates The Need For A Comprehensive National Paid Leave Policy’ [2022] (3) Illinois Law Review 1293–1324 Abstract: Even after a global pandemic swept through the nation’s workforce, the United States remains one of only a few countries without a permanent paid family leave policy. Although temporary paid extensions to the current national, unpaid family and medical leave policy were enacted, the expiration of these policies leaves employees without needed job and income protections. Despite historic job losses and nearly 2.5 million women leaving the workforce, current paid leave proposals have yet to gather enough support to pass in Congress and still lack the comprehensive assistance necessary to support the workforce they are aimed at protecting. This Note acknowledges that some state and private paid leave programs are already in place. It recommends, however, broader protections in the form of a comprehensive paid family leave program, which is imperative to fill the gaps and to facilitate an inclusive economic recovery.
Krishna, Gowri, Kelly Pfeifer, and Dana Thompson, 'Caring for the Souls of Our Students: The Evolution of a Community Economic Development Clinic During Turbulent Times' (2021) Fall(28) Clinical Law Review 243-279 Abstract: Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to provide transactional legal services to nonprofit and community-based organizations, social enterprises, and neighborhood-based small businesses in Detroit and in other disinvested urban areas in the region; and second, it prompted the clinic to attempt to foster a culture of care within the virtual classroom. As an epicenter of pandemic, racial, and political turmoil over eighteen months (and counting), Detroit offered a unique setting to engage students in thinking critically about the role of lawyers in assisting communities in their efforts toward economic, racial, and social justice during the pandemic year and beyond.
Krueger, Jill, 'Legal Strategies for Promoting Mental Health and Wellbeing in the COVID-19 Pandemic' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: While mental health is often viewed as a matter of individual treatment of mental illness, mental health and well-being may be promoted throughout the population, including through law and policy. The inadequacy of our mental health care system, including limited public and private insurance coverage and provider shortages, has been apparent during the response to COVID-19, though expanded access to tele-mental health has closed the gap somewhat. Inability to meet basic needs contributes to stress, anxiety, and depression, so COVID-19 response measures to ensure access to employment or unemployment benefits, housing, food, childcare, and the like are critical to community mental health. Interventions aimed at mental health, such as Psychological First Aid, the Crisis Counseling Program, suicide prevention, and violence prevention programs can promote feelings of calm and safety, while supporting collaboration, nurturing problem-solving skills, and increasing hope. Longstanding inequities have contributed to higher infection and mortality rates, especially among African Americans, Latinos, and Native Americans, while Asian-Americans have been targeted with harassment and discrimination, making legal action to support mental health in communities of color essential. With schools abruptly shifting to remote learning in spring, school-based mental health services and opportunities for social emotional learning were disrupted. Intentional support for the mental health and wellbeing of students, teachers, school employees, and parents is needed this fall, regardless of educational setting. If the COVID-19 pandemic is viewed as a mass trauma, strategies to support posttraumatic growth ought to be at the forefront of pandemic response, recovery, and restructuring.
Krupenkin, Masha et al, 'If a Tree Falls in the Forest: COVID-19, Media Choices, and Presidential Agenda Setting' (SSRN Scholarly Paper No ID 3697069, 22 January 2020) Abstract: During a time of crisis Americans turn their attention to the news media for critical information about what to expect, who is affected, and how to behave. Throughout the COVID-19 crisis, public safety experts warned that the consequences of a misinformed population would be particularly dire due to the serious nature of the threat and necessity of severe individual collective action to keep the population safe. Thus, those elites who possess the power to set the agenda of the conversation bear a huge responsibility for the general welfare. Among the various agenda-setting mechanisms available to the president is daily press conferences which provide a unique opportunity to leverage public exposure, accelerated by the state of crisis. Yet, mainstream media's daily viewership is many times larger than the president's press conference and we explore their narratives surrounding the COVID-19 pandemic through automated text analysis of complete transcripts of national cable, network, and local news. Of particular importance, we characterize the differences in which topics were covered and how they were covered by various cable media sources. Our analysis reveals polarized narratives around blame, racial and economic disparities, and scientific conclusions about COVID-19. The media is influenced by the president's agenda, even for cable news channels that are consumed by audiences that typically do not support him, but we found strong evidence that the media's choices mediate, and ultimately dominate, the agenda-setting abilities of the president's daily press conferences.
Kruvi, Noy, ‘The Pandemic Special with a Side of Shut-Downs: A Note on NYC’s Restaurants in the Age of COVID-19’ (SSRN Scholarly Paper No 4321187, 14 April 2021) Abstract: There is an old phrase that resonates from time immemorial throughout the streets of New York City: carpe diem. Latin for ‘seize the day,’ the Roman poet Horace used the phrase to express the attitude of enjoying life for as long as one still can. The streets of New York City invite all of its walkers to partake in the celebration, by offering endless bars and restaurants to explore. This feeling is irresistible when walking around Downtown, in search of hidden gems. Even a busy lunch hour in Midtown is filled with a wonderous array of diverse cultural foods that some locals have mastered. Yet there is a good reason why Horace emphasized enjoying life while one still can: like waking up from a dream, it can all be gone in an instant. In 2020, when the ‘invisible enemy’ turned New York City into a ghostown almost instantaneously, the restaurant industry descended into chaos, and the timeless lesson emerged once again. SARS-CoV-2 is the virus causing the coronavirus disease (COVID-19). The World Health Organization (WHO) stated the virus originated in Wuhan, China. On March 11, 2020, the WHO declared COVID-19 a global pandemic. On the day of this declaration, New YorkCity reported its first COVID-19 associated death. Three weeks after the discovery of the coronavirus, NYC accounted for 5% of the world’s confirmed cases, rendering the region a global epicenter. By May 2, 2020, New York City recorded 13,831 COVID-19 deaths, and estimated an additional 5,048 probable deaths. COVID-19 is infamous for its lethal effects: the Center for Disease Control listed Covid- 19 symptoms that include ‘fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches . . . . ’ For individuals who are at higher risk of severe illness (young children, the elderly, and those with compromised immune systems), COVID-19 is deadly. Globally, and as current as January 2021, the WHO reported 98,794,942 confirmed cases, and over two million deaths.10 When the pandemic struck the State of New York in March 2020, Governor Cuomo signed Executive Order No. 202, declaring a state of emergency.11 Shortly afterwards, the Governor signed the ‘New York on PAUSE’ Executive Order, requiring all nonessential businesses to shut down. Subsequent guidance clarified the meaning of ‘essential businesses,’ which did not include restaurants.The COVID-19 crisis in New York City eviscerated most restaurants’ capacities to conduct their ordinary business activities. Even when New York City (‘NYC’) began entering its reopening phases, the economic ramifications of COVID-19 and the Executive Orders continued to pose unprecedented hardships for restaurants. Given the substantial health risks of resuming restaurant work amidst a global pandemic, many restaurant owners concluded that reopening their businesses would be an unprofitable and dangerous affair. Accordingly, many restaurant owners diligently, although with great sadness, elected to close shop permanently. Commercial rent in Midtown Manhattan and throughout New York City is expensive. Rent may be as high as thousands of dollars per square foot. As such, the pandemic caused landlords great angst about lost income, and many began pestering small business owners for rent. Beyond pestering, landlords launched a brigade of lawsuits to recover rent owed. This crisis raises complicated questions of contract and property law regarding commercial leases in the event of unforeseeable emergencies: should defendants in breach of contract lawsuits be required to pay rent when performance of the paramount contractual terms, e.g., operating a business safely, are no longer possible? Does a global pandemic constitute an ‘act of God’ capable of triggering force majeure clauses? And in the absence of such clauses, can the common law doctrines of impossibility of performance or frustration of purpose rise up to the defense of the small business owner? Can the State and City of New York solve this matter through legislation and ordinances? This Note explores these questions, while prescribing the need for force majeure clauses in every restaurant’s lease that clearly define pandemics, and perhaps other imminent natural disasters as triggering events, as the most powerful prospective solution.This Note proceeds as follows: Part I discusses relevant background information concerning COVID-19’s impact on New York City from public health, economic, and administrative perspectives. Part I also unpacks the federal CARES Act, examining some of its economic relief programs, as well New York City’s local ordinances and their efficacies. Part II analyzes the common law doctrine of force majeure and its applicability to the COVID-19 crisis. Part III examines the usefulness of the impossibility of performance doctrine, as an alternative to force majeure. Part IV proposes mandatory force majeure legislation and tests its constitutional dimensions. Lastly, this Note will summarize the major arguments and themes, and will reemphasize the policy considerations of protecting small restaurant owners from unjust enrichments in the COVID-19 context.
Krznarich, Courtney, 'The Pitfalls of Judicial Activism During COVID-19: An Analysis of Wisconsin Legislature v. Palm, 55 UIC L. Rev. 94 (2022)' (2022) 1(55) UIC Law Review 94-119 Abstract: This Note will illuminate how the Wisconsin Supreme Court erred in its decision in Wisconsin Legislature v. Palm.12 Part II of this Note will cover the background of the DHS in Wisconsin and what led to the erroneous decision in Palm. Part III will explain why the court’s evaluation of Secretary-elect Andrea Palm’s issuance of Emergency Order 28 was flawed. It will also explain how the Wisconsin Supreme Court Justices’ personal disfavor for the broad discretion granted through Wisconsin Statute Section 252.02 (“Chapter 252”) influenced them to evaluate its powers in a narrow way. This part will also highlight what led the court to unjustly strike Order 28 in its entirety and leave Wisconsinites with no guidance on how to avoid contracting COVID-19. Finally, this Note will offer a personal analysis of Palm, offering a more effective statutory analysis and logical outcome to the issues presented in the case.
Kubrin, Charis E and Bradley Bartos, ‘The COVID-19 Pandemic, Prison Downsizing, and Crime Trends’ [2023] Journal of Contemporary Criminal Justice (pre-published article) Abstract: California has fundamentally reformed its criminal justice system. Since 2011, the state passed several reforms which reduced its massive prison population. Importantly, this decaceration has not harmed public safety as research finds these measures had no impact on violent crime and only marginal impacts on property crime statewide. The COVID-19 pandemic furthered the state’s trend in decarceration, as California reduced prison and jail populations to slow the spread of the virus. In fact, in terms of month-to-month proportionate changes in the state correctional population, California’s efforts to reduce overcrowding as a means to limit the spread of COVID-19 reduced the correctional population more severely and abruptly than any of the state’s decarceration reforms. Although research suggests the criminal justice reforms did not threaten public safety, there is reason to suspect COVID-mitigation releases did. How are COVID-19 jail downsizing measures and crime trends related in California, if at all? We address this question in the current study. We employ a synthetic control group design to estimate the impact of jail decarceration intended to mitigate COVID-19 spread on crime in California’s 58 counties. Adapting the traditional method to account for the ‘fuzzy-ness’ of the intervention, we utilize natural variation among counties to isolate decarceration’s impact on crime from various other shocks affecting California as a whole. Findings do not suggest a consistent relationship between COVID-19 jail decarceration and violent or property crime at the county level.
Kugler, Matthew B. et al, 'American Law Enforcement Responses to COVID-19' (2020) Journal of Criminal Law and Criminology (advance article, published 9 July 2020) Abstract: During the spring and summer of 2020, what role did law enforcement play in promoting COVID-19 restrictions in the United States? Because most law enforcement in the US occurs at the local level, we conducted a survey of local police departments to examine their responses to the COVID-19 pandemic. Our results show that most departments, especially departments in smaller jurisdictions, played a minimal role in enforcing COVID-related restrictions and tended to only encourage compliance. Further, it was extremely rare for a department to use sophisticated surveillance technology to monitor COVID compliance. This lack of monitoring stands in stark contrast to both the regimes employed by several comparable industrialized countries and the broad surveillance powers permissible under the U.S. Constitution.
Kuh, Katrina et al, 'Environmental Law Disrupted By COVID-19' (2021) (51) Environmental Law Reporter 10509-10523 Abstract: For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.
Kukura, Elizabeth, ‘Birthing Alone’ (2022) 79(4) Washington and Lee Law Review 1463–1537 Abstract: Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink the perinatal health equity gap, as reflected in a pregnancy-related mortality rate for Black women that is three to four times higher than for White women. As COVID-19 case rates declined and hospitals relaxed their restrictions, some doulas found themselves subject to new hospital credentialing requirements in order to attend births, even though they serve in nonclinical roles and are hired by the birthing person rather than the hospital. This Article explores the often-contested relationship between doulas and hospitals, and between doulas and hospital-based perinatal care providers, against the historical backdrop of other restrictions on birthing companions since birth shifted from the home to the hospital around the turn of the twentieth century. It details the important role doulas play in promoting good perinatal health outcomes and considers why many hospitals and healthcare providers perceive doulas as a threat rather than as a source of value in the delivery room, which results in strategies to restrict doulas through formal and informal mechanisms. This Article suggests that hostility to doulas and restrictions on birth support reflect central qualities of mainstream perinatal care, such as liability-driven decision-making, nonadherence to evidence-based medicine, medical paternalism, and fear, all of which interfere with efforts to improve health outcomes in the midst of a maternal health crisis that disproportionately burdens communities of color. Ultimately, this Article argues that doula credentialing is a regulatory mismatch that should be abandoned by hospitals as misguided and counterproductive, and instead identifies public and private policy changes, along with related advocacy strategies, that would provide appropriate recognition of doulas within the perinatal healthcare system and serve both patient and provider interests while protecting the autonomy of doulas to operate within their scope of practice. Increased attention to the United States’ maternal health crisis and the opportunity to advance healthcare reforms that incorporate lessons from the pandemic make this a critical time to prevent the widespread adoption of credentialing requirements before they become the default norm, and instead to pursue investment in growing the doula model as an efficient and effective means to improve childbirth experiences and reduce the stark racial inequities in perinatal health outcomes.
Kulkarni, Manjusha P, ‘Stopping AAPI Hate: COVID-19 Related Racism and Discrimination Against Asian Americans and Pacific Islanders, Its Origins, Our History and Avenues for Redress’ (2023) 26(1) Asian Pacific American Law Journal 75–102 Abstract: Between March 2020 and March 2022, Stop AAPI Hate received over eleven thousand reports of anti-Asian hate and discrimination. Analysis of the data indicates that 67% of incidents involve harassment, 17% involve physical assault and 12% involve civil rights violations, including refusal of service, vandalism and discrimination in housing and the workplace. Impacts on community members have been significant. Many have turned to criminal law enforcement as the answer. Given that a significant majority of incidents reported to Stop AAPI Hate are not hate crimes, more appropriate means of addressing the harm include prevention and non-carceral approaches, such as civil rights enforcement, community safety, and education equity. Toward that end, Stop AAPI Hate focused its efforts in California on the No Place for Hate CA Campaign that resulted in the enactment of two bills, SB 1161 and AB 2448, to address harassment in public transit and discrimination in retail. Stopping anti-Asian hate and preventing it from happening in the future can only be achieved through a comprehensive framework which includes providing redress and resources to victims through civil rights enforcement, ensuring long term community safety through strong wages and safe, affordable housing, and guaranteeing education equity by teaching ethnic studies in K-12 schools.
Kurichety, Karlyn, 'Deliberate Endangerment: Detention Of Noncitizens During The COVID-19 Pandemic' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 118-128 Abstract: In the midst of worldwide efforts to mitigate the COVID-19 pandemic, Immigration and Customs Enforcement (ICE) continues to detain noncitizens in dangerous conditions that create a high risk of infection. This Article explores the dire situation facing detained noncitizens as a result of the government’s decision to imprison tens of thousands of people in civil confinement during an unprecedented global pandemic.
Laguardia, Francesca, ‘From the Legal Literature: Covid and the Criminal Law’ (2021) 57(2) Criminal Law Bulletin 278–287 Abstract: This review begins with the specific effects of COVID-19 on the courts and jury trials. It then moves to the staying power of these effects. Finally, the review looks to the possible Fourth Amendment implications for efforts to enforce COVID-19 responses.
Lande, Robert H. and Sandeep Vaheesan, 'Can COVID-19 Get Congress to Finally Strengthen U.S. Antitrust Law?' (SSRN Scholarly Paper No ID 3610880, 26 January 2020) Abstract: The COVID-19 pandemic could cause Congress to strengthen our merger laws. The authors of this short article strongly urge Congress to do this, but to do this in a manner that ignores 5 myths that underpin current merger policy: Myth 1: Mergers Eliminate Wasteful Redundancies and Produce More Efficient BusinessesMyth 2: Current Merger Enforcement Protects Consumers Myth 3: Merger Remedies Preserve Competition Myth 4: The Current Merger Review System Offers Transparency and Guidance to Businesses and the Public Myth 5: Corporations Need Mergers to Grow
Landers, Renée, 'Buffering Against Vicissitudes: The Role of Social Insurance in the Covid-19 Pandemic and in Maintaining Economic Stability' (2021) 3(49) Georgia Journal of International & Comparative Law 505-524 Extract: The job loss and disruption brought about by the public health measures imposed in response to the COVID-19 pandemic expose the preexisting weaknesses in the social insurance infrastructure and the weak consensus about the role of government in addressing the impacts of this type of disruption, or those effects caused by environmental or other disasters.
Langowski, Jamie et al, 'Qualified Renters Need Not Apply: Race and Housing Voucher Discrimination in the Metro Boston Rental Housing Market' (2020) () Georgetown Journal on Poverty Law Policy (forthcoming) Abstract: Black, Indigenous, and People of Color have long had to navigate the barriers of racist laws, policies, and actions in housing. Housing discrimination perpetuates segregation and contributes to maintaining the status quo of disparities with respect to health inequities as well as income, wealth, and opportunity gaps. The COVID-19 pandemic has put these inequities in stark relief. Data on the current status of such discrimination is valuable for policy makers who should develop anti-racist policies that dismantle structural racism and its attendant harms.Using matched-pair testing, we measure the level of discrimination based on race and income level in the Greater Boston rental housing market, where both race- and income-based housing discrimination is illegal. Data from the study show high levels of discrimination against both black people and individuals using housing vouchers throughout the pre-rental application.
Lanier, W. Mark, 'Voir dire in a post-coronavirus MDL world' (2021) 4(89) UMKC Law Review 915-921 Abstract: The article focuses on voir dire in a post-coronavirus Multidistrict Litigation (MDL). It mentions that state courts generally leaning more heavily on lawyer voir dire, while most federal judges conduct the preponderance of the voir dire. It also mentions that both state and federal courts are much more attuned to the advantages of using questionnaires before jury selection.
Lanphier, Elizabeth and Shannon Fyfe, 'Pediatric Off-Label Use of Covid-19 Vaccines: Ethical and Legal Considerations' (2021) Hastings Center Report (advance article, published 8 November 2021) Abstract: When the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech Covid-19 vaccine for people sixteen and older, questions arose. Parents, pediatricians, and the media wondered whether Covid-19 vaccines could be used off-label—and whether they should be. The American Academy of Pediatrics cautioned against pediatric off-label use of the vaccine, and the vaccine provider agreement from the Centers for Disease Control and Prevention appears to prohibit it. After briefly contextualizing ethical and legal precedents regarding off-label use, we offer an analysis of the ethical permissibility of and considerations for pediatric off-label Covid-19 vaccination based on individual benefits, risks, and available alternatives. Our analysis challenges the ethics of a blanket prohibition on off-label pediatric Covid-19 vaccination, as it limits clinician ability to provide care they may determine to be clinically and ethically appropriate. At the same time, our analysis acknowledges that Covid-19 creates population-level ethical considerations that are at times in tension with individual health interests.
Larkin, Jr, 'Suing China Over COVID-19' (2020) (100) Boston University Law Review Online 91-116 Abstract: On April 21, 2020, the state of Missouri filed a lawsuit in federal court against the People’s Republic of China and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last two months, put millions of people out of work, and killed thousands in the process. According to the complaint, Chinese authorities pursued “[a]n appalling campaign of deceit, concealment, misfeasance, and inaction” causing our current “unnecessary and preventable” global pandemic. The threshold issue is whether Missouri can sue under the Foreign Sovereign Immunities Act of 1976 (FSIA). Missouri’s lawsuit does not look promising under current law. Missouri claims that China has engaged in “commercial activities” that allow this suit to go forward, but Missouri’s alleged injuries are not “based upon” those activities, as the FSIA requires. Missouri also alleged that it can sue China in tort for their response to the virus, but the FSIA does not allow foreign governments to be sued for their “discretionary functions,” even when they abuse that discretion. Missouri alleges that the Chinese Communist Party is the ultimate authority in China, but does not allege that it lacks discretion over choosing its response to COVID-19. Missouri therefore has an uphill climb to avoid dismissal.
Larkin, Paul J., 'Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate' (SSRN Scholarly Paper No ID 3962522, 12 January 2021) Abstract: Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an “emergency temporary standard”—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment.Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.
Larkin, Paul J., 'The Sturm und Drang of the CDC’s Home Eviction Moratorium' (2021) Harvard Journal of Law and Public Policy (forthcoming) Abstract: The pandemic that has roiled the globe since late in 2019 has begun to have the same effect on the law. Beginning in March 2020, Congress, former President Donald Trump, and current President Joe Biden have engaged in a pas de trois, taking turns directing the U.S. Centers for Disease Control and Prevention (CDC) to issue nationwide moratoria preventing qualifying tenants from being evicted for not paying their rent. Most recently, Biden, bowing to political pres-sure to prevent evictions from restarting after more than a year’s delay, ordered the CDC to issue yet another moratorium, and, on August 3, 2021, the CDC did so. As it had done for some of its earlier orders, the CDC relied on a 1944 statute, the Public Health Service Act. The CDC did so even though, prior to 2020, the CDC had never before invoked that law as a rental protection device or an indirect form of rent control. Landlords, real estate companies, and trade associations have brought a series of lawsuits challenging both the CDC’s statutory authority to issue those orders and their constitutionality. One case reached the Supreme Court of the United States, twice in fact. The first time, by a 5-4 vote the Court seemed to agree with the plaintiffs that the CDC had exceeded its statutory authority but none-theless denied them injunctive relief pending appeal because one justice guessed that the few remaining weeks of the moratorium would enable an orderly distribution of appropriated but undisbursed federal rental assistance funds. By contrast, when the case reached the Court a second time, the Court, by a 6-3 vote, granted the plaintiffs interim relief went out of its way to belittle the government’s argument, sending a strong message of displeasure at having to revisit the issue. This Article will address the legality of the CDC’s August 3 moratorium: Part I will describe the steps that Congress and the President have taken to prevent a new and often fatal virus from engulfing the nation and killing a large part of its population. That discussion will include a history of the different CDC eviction moratoria. Part II will summarize the litigation that has unfolded since the moratoria went into effect, focusing on the Supreme Court’s two orders in Alabama Association of Realtors v. Department of Health and Human Services. The Su-preme Court did not issue a final ruling on the meaning of the statute, so Part III will analyze whether the CDC has the power to issue its August 3 order. Part IV asks why Biden directed the CDC to enter that order and what the long-term consequences might be for him by having done so.
Larson, David Allen, 'Designing a State Court Small Claims ODR System: Hitting a Moving Target in New York During a Pandemic' (2021) 3(22) Cardozo Journal of Conflict Resolution 569-580 Abstract: When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal and the New York State Civil Court Small Claims ODR platform went live on January 29, 2021. We learned a great deal along the way, and I hope it will be useful to share some of what we did and what we learned.1 This short Article will not describe every detail of the small claims ODR system. It will instead focus on distinct stages of our ODR system design that required close attention.
Larson, Rhett, 'Water law and the response to COVID-19' (2020) 7-8(45) Water International 716-721 Abstract: The COVID-19 crisis has been particularly devastating for the people of the Navajo Nation, a sovereign indigenous nation of around 175,000 people that has had over 4000 cases, more per 100,000 than New York City. The Navajo Nation spans more than 27,000 square miles, including parts of Arizona, Utah and New Mexico, in the south-western United States, as depicted in Figure 2. The Navajo people have lived in this arid region for generations. More recently they have confronted water scarcity associated with more frequent and intense droughts on the Colorado River, as well as water quality challenges due to decades of uranium mining in the region. These water challenges are exacerbated for a population often living in small, remote communities, often lacking the economies of scale that drive the development of large centralized water treatment and distribution systems. An estimated 30% of Navajo Nation residents lack access to tapped and treated water (Torgan, 2020). These challenges combined to make the Navajo uniquely vulnerable to the spread of COVID-19 because of the lack of adequate water quantity and quality for proper hygiene.
Lawrence, Meghan K., 'Tinker Stays Home: Student Freedom of Expression in Virtual Learning Platforms' (2021) 6(101) Boston University Law Review 2249-2288 Abstract: Following the COVID-19 outbreak of March 2020, states imposed mandatory "lockdowns," forcing schools throughout the country to move to virtual learning platforms. With this unprecedented shift came many unforeseen challenges for school officials, including assessing what First Amendment rights students retain in virtual learning platforms. Falling into an unusual gray area where students are technically "in school" because they are attending school-run classes, and yet off campus as they are doing so from the privacy of their homes, school officials have little guidance from the currently established student speech categories to make these determinations. While this issue originally arose out of the unique circumstances surrounding the COVID-19 pandemic, schools will likely continue to face this problem in the future, whether by the uncertain prospect of further school closings as new COVID-19 variants emerge or by schools and students continuing to take advantage of the convenience and safety provided by online platforms. This Note focuses on the intersection of existing student First Amendment rights both on and off campus and the constitutional protections afforded to speech and expression within the home. Ultimately, this Note concludes that there is no one-size-fits-all test that can be applied to all aspects of the virtual learning platform. While schools arguably must have some authority to limit student expression within virtual learning platforms, that authority must be balanced with students' First Amendment rights. The two central problems posed by virtual learning platforms, virtual backgrounds and physical backgrounds, require a unique solution to balance protection of students' rights and respect for a school's authority. This Note argues that schools should wield far more authority over students' virtual backgrounds and less authority over their physical backgrounds. To control physical backgrounds, school officials must presume students are entitled to First Amendment protection over student expression subject to only few exceptions in specific categories of speech. Virtual backgrounds, on the other hand, do not exist outside of the virtual class, and thus do not implicate the same First Amendment and privacy concerns. This bifurcated solution thus accounts for the nature of virtual learning environments and balances school authority with not only students' First Amendment rights but also students' privacy rights, students' autonomy, and the authority of students' parents to control their homelife.
Layser, Michelle D. et al, 'Mitigating Housing Instability During a Pandemic' (University of Illinois College of Law Legal Studies Research Paper No 20-15, 29 January 2020) Abstract: Housing instability threatens to impair the United States’ policy response to the COVID-19 pandemic by undermining public health strategies such as social distancing. Yet, mitigation of housing instability has not been the focus of early emergency legislation, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which has focused on providing cash support to individuals and businesses. Although many of these laws have the potential to reduce housing instability, this Working Paper argues that they face barriers to effective implementation and take-up akin to those that hindered similar interventions during the Great Recession. These barriers—which include administrative hurdles, reliance on voluntary participation, resource constraints, and political pushback—may prevent these interventions from realizing their full potential. As a result, despite the unprecedented amount of aid that the CARES Act directs to individuals, the implementation of these aid programs may fail to effectively mitigate housing instability. For this reason, additional rental assistance and mortgage payment assistance may be necessary to prevent loss of housing that ultimately exacerbates the public health crisis. We also recommend a new civil right to counsel in eviction cases and targeted place-based interventions to promote affordable housing development where it is needed most.
Leathers, William, 'Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard' (SSRN Scholarly Paper No ID 3863451, 09 January 2021) Abstract: This Article makes three arguments, all rooted in Lukumi’s value-judgment justification for the general applicability standard. First, Lukumi’s value-judgment justification is much broader than Lukumi itself suggests, and potentially so broad as to be unworkable. Second, this broad standard means both that Tandon was rightly decided and that Smith itself was not—according to the logic of Lukumi and Tandon, the very law in Smith was not generally applicable. And third, in addition to showing that Smith was wrongly decided on its facts, this value-judgment justification fundamentally undermines the general applicability rule itself.First, Lukumi grounds the general applicability standard in a rule against value judgments: the government may not devalue religious conduct in the pursuit of its interests. But government interests come in different levels of generality. As an example, the government’s interest in “Stopping the Spread” of COVID-19 in the home serves its broader interest in “Stopping the Spread” of COVID-19 more generally, which in turn serves a broader interest in public health. As applied to value judgments, these different levels of generality have two significant implications. First, the government may make value judgments in the pursuit of its interests at all levels of generality. And second, as the level of generality increases, so too does the scope of the conduct that threatens those interests. Unless analogous secular conduct must be inherently analogous to the relevant religious conduct, combining a high level of generality with all conduct that threatens it produces a theoretically justified but practically unworkable general applicability standard. Nevertheless, Tandon partially confirms this broad reading of Lukumi. While Tandon does not address whether analogous secular conduct must be inherently analogous, it casts the government’s interest at a high level of generality: stopping the spread of COVID-19 in general. As such, it is not sufficient, as the dissent suggests, that religious and secular conduct were treated alike at the interest’s lowest level of generality: stopping the spread of COVID-19 in homes. Importantly, had the general applicability analysis in Smith been conducted at this level of generality, Smith would have come out the other way. Finally, in addition to casting doubt on whether Smith was decided correctly on its facts, the value-judgment justification fundamentally undermines the rule of general applicability itself. Value judgments inhere in the very act of regulation. Before regulating religion at all, the government must calculate religious costs and adjudge those costs to be outweighed by some governmental interest. This too is a value judgment, and this too should be subjected to the strictures of strict scrutiny.
LeBrun, Daniel, 'Keeping the Lights on through Dark Times: How Subchapter V Bankruptcy Should Protect Small Businesses Decimated by the Pandemic' (2021) 3(37) Touro Law Review 1575-1604 Abstract: Small to mid-market, independent businesses are at the heart of our economy and play a pivotal role in job creation. While it’s estimated by the House of Representatives that these companies account for over half of overall U.S. employment, they have been traditionally underserved in bankruptcy law. Historically, the resources necessary to complete a chapter 11 bankruptcy are not within reach for these small to mid-market businesses. Passed in 2019, the Small Business Reorganization Act has modified the Bankruptcy Code to provide new avenues for these small businesses in need. Impactful in its own right, it has emerged as a lifeline to small businesses decimated by the pandemic. This Note will focus on the fundamental changes to the Bankruptcy Code brought by the SBRA and what improvements can still be made.
LeClercq, Desiree, ‘Judicial Review of Emergency Administration’ (2022) 72(1) American University Law Review 143–214 Abstract: This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies – what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration’s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor helpful during crises. As a result, bipartisan members of Congress are introducing new legislation to take control over emergency oversight.Efforts to rebalance emergency powers are mistaken. Using a unique dataset of the APA cases that arose during the first two years of the COVID-19 pandemic, I show how federal judges invalidated emergency administration that unjustifiably violated the APA in over half of the cases. Agencies carried out much of their emergency administration under presidential control and not, necessarily, their expertise. The trajectory of judicial review during emergencies suggests that judges are becoming increasingly aware of presidential control and its harmful effects on vulnerable populations. Judges’ willingness to uphold the APA’s standards and protections during emergencies has significant implications for current legislative efforts and the balance of emergency powers.
Lee, Edward, 'Informal Governance of the United States' (SSRN Scholarly Paper No ID 4032053, 09 January 2022) Abstract: The United States faces vexing problems. Yet many people—indeed, a majority of Americans—think the government is broken. The prospect that the federal government can tackle the many challenges the country faces, from attacks on election administration to faltering infrastructure and a deadly pandemic, seem dim. In the face of these profound challenges, policymakers may have to turn to more innovative approaches. Informal governance, which lacks written or formal authorization, organization, and rules, may become the last best hope for solving intractable problems and breaking the gridlock and polarization in Washington. Although the United States prizes a written Constitution and the formal rule of law, informal governance of the United States dates back to President George Washington’s creation of and reliance on a cabinet, an institution nowhere mentioned in the Constitution or then-existing federal law, to deal with national crises facing the early United States. This Article examines two more recent examples of informal governance of the United States—an informal group of physicians known as the Wolverines who orchestrated the strategy of social interventions in the United States during the pandemic and an informal group of Republicans and Democrats, business and labor groups, who joined to promote election integrity during the 2020 U.S. elections, including respect for the final election results. By studying these case studies, this Article identifies the promises and perils of informal governance of the United States. The Article sets forth a constitutional theory based on the Tenth Amendment to justify the general practice of informal governance, but also identifies valid concerns about the lack of transparency and accountability, and potential for abuses and even illegality that informal governance may foster. The Article closes by offering several reforms or safeguards to prevent informal governance from devolving into rogue operations or a shadow government.
Lee, Yong-Shik, 'Managing COVID-19: Legal and Institutional Issues' (2022) 1(23) Minnesota Journal of Law, Science & Technology 1-76 Abstract: The spread of the recent pandemic, COVID-19 – which began in Wuhan, in December of 2019 – has created an unprecedented impact on public health in the United States and across the world. As of November 1, 2020, the United States reported over nine million infection cases and 230,000 deaths. Those cases represent twenty percent of the reported infection cases in the world whereas the population of the United States is less than four percent of the world population. The United States has not been successful in managing this pandemic and stopping its spread effectively even though it possesses the largest medical, financial, and administrative resources in the world. This article analyzes the legal and institutional causes of this failure and explores possible remedies in three areas: provision of public healthcare to combat the pandemic; the regulation of public conduct to prevent the spread of the pandemic; and public access to information. The article also calls for a new approach; it explains why a law and development approach is relevant and applies the General Theory of Law and Development to assess the proposed remedies. The article advocates law and institutions as a remedy to fill the gaps created by ineffective political leadership in the management of COVID-19.
Leiwant, Sherry, Jared Make and Elena Rodriguez Anderson, ‘How Local Paid Sick Time Innovations —And the COVID-19 Pandemic —Have Shaped a Growing Paid Leave Movement across the United States’ (2024) 51(4) Fordham Urban Law Journal 1031–1064 Abstract: The article focuses on the role of local governments in protecting workers’ rights, particularly in the context of increasing state-level preemption efforts aimed at curtailing local policymaking. It discusses how localities have implemented various strategies and initiatives to promote workers’ rights despite legal constraints and resistance from higher levels of government. It emphasizes the importance of local activism, creativity, and persistence in advocating for labor protections.
‘Lending in the Time of Coronavirus’ (2022) 135(May) Harvard Law Review 1885–1906 Abstract: This Note proceeds as follows. Part I discusses the historical evolution of the relationship between the Treasury, the nation’s fiscal policy authority, and the Federal Reserve, the nation’s monetary policy authority, in addition to the development of the Fed’s lender-of-last-resort powers under section 13(3) of the Federal Reserve Act. Part II describes the Fed’s actions during the 2008 and 2020 financial crises and the respective political responses. Part III catalogues the tensions between section 13(3) of the Federal Reserve Act and the Fed’s COVID-19 response, arguing that the Fed’s intervention was well within the letter of the law. Finally, Part IV attempts to debunk some of the stickier myths surrounding the Fed’s actions during March and April 2020.
LeRoy, Michael H., 'Refusing Work To Avoid Serious Injury or Death: An Empirical Study of Legal Protections Before and During COVID-19' (2022) 1(49) Pepperdine Law Review 1-61 Abstract: I present data on court and administrative rulings involving employees who were disciplined or quit after refusing to work due to concerns about death or injury. My sample of 109 pre-pandemic cases from 1944-2020, and its comparison to twelve COVID- 19 cases in 2020 and 2021, shows an emerging picture of new forms of work refusal. The cases before COVID-19 were concentrated iii mining, construction. and transportation. In contrast, the COVJD- 19 cases span new' occupations in social services, education, law, healthcare, protective services, food preparation, and building cleaning. Before COVID-19, employees lost most work refusal cases because laws such as the National Labor Relations Act, Occupational Safety Health Act, and others narrowly protect them from employer retaliation. in the past year, the Emergency Paid Sick Leave Act afforded workers broader protections: however, it expired at the end of2020. 1 conclude that work refusal laws are out of date in today's workplace because they apply mostly to work refusal in mines, construction. and trucking-male-dominated workplaces, with 10% to 30%female workers. These industrial settings do not reflect changes in the economy that have expanded jobs in service and office sectors or the growth of gig work that falls outside the protections of work refusal statutes.
Leslie, Emily and Riley Wilson, 'Sheltering in Place and Domestic Violence: Evidence from Calls for Service during COVID-19' (SSRN Scholarly Paper No ID 3600646, 14 January 2020) Abstract: The COVID-19 pandemic has led to a worldwide slowdown in activity as more people practice social distancing and shelter at home. The attendant increase in time families spend in isolation, unemployment, and economic stress has the potential to lead to more incidents of domestic violence. In this paper we document the impact of the COVID-19 crisis on police calls for service for domestic violence. The COVID-19 pandemic and accompanying public health response led to a 10.2 percent increase in domestic violence calls. The increase in reported domestic violence incidents begins before official stay-at-home orders were put into place, is not driven by any particular demographic group, but does appear to be driven by households without a prior history of domestic violence.
Levenson, Laurie L, 'Climate Change and the Criminal Justice System' (Loyola Law School Los Angeles Legal Studies Research Paper No 2020-22, 01 January 2020) Abstract: The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.This article first examines three ways climate change is challenging our criminal justice system –from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation. Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.
Levin, Benjamin, 'Criminal Law in Crisis' (2020) Colorado Law Review Forum (forthcoming) Abstract: In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy). Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.” To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated. In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention. In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all. What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York? In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days. Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.
Levin, Leslie C., 'The Politics of Bar Admission: Lessons from the Pandemic' (2021) 1(50) Hofstra Law Review 81-143 Abstract: The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United States reached very different decisions about how to proceed. This article uses eight case studies of states’ responses to explore why these differences occurred. They reveal how a state’s political culture and political attitudes toward the pandemic seemingly informed some regulators’ responses. Institutional relationships among the courts, the bar examiners, and sometimes, the organized bar also affected the decisionmakers. In addition, the courts’ attitudes toward innovation and its desire to maintain the reputation of the bar seemingly played a role. The article sheds new light on the politics of bar admission and the state supreme courts’ role in lawyer regulation.
Levine, Jeffrey F, ‘A Post-COVID Inflection Point and Call to Action: Theorizing a Legal Right to Youth Sport, Play, and Physical Activity in the United States’ (2024) 34(1) Journal of Legal Aspects of Sport 1–25 Abstract: Literature links sport, play, and similar leisure endeavors to numerous physical, psychological, and social benefits critical to a young person’s development. Unlike other nations, the United States lacks a national policy to fund structures supporting youth sport, play, and the like. Instead, a for-profit youth sport industry oversees this sector using a pay-to-play model, creating significant financial and access barriers. The COVID-19 pandemic created an inflection point and call for action to meaningfully reform youth sport. Advocates often claim, without providing legal justification, that access to sport and play is a constitutional right. Therefore, the purpose of this commentary is to move beyond aspiration or hypothetical rhetoric and investigate whether a persuasive legal argument exists that places a constitutional legal responsibility upon the United States federal government to create structures, allocate funding, and provide universal access to free sport, recreation, and play opportunities for youth. While review and analysis of relevant case law found that no constitutional right likely existed under United States law, this process confirmed that that such claims will have little chance of success under current precedent. Therefore, given the improbability of substantive voluntary reforms in the private sector, a deeper exploration of innovative legal theories is required to achieve the necessary structural change.
Levine, Kay L, Jonathan Remy Nash and Robert A Schapiro, ‘Protecting State Constitutional Rights from Unconstitutional Conditions’ (2022) 56(1) U.C. Davis Law Review 247–288 Abstract: The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for state unconstitutional conditions analysis. As attention turns to distinctive state constitutional rights — in the context of COVID-19 disputes, abortion litigation, and more generally — state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis. Three reasons in particular drive this doctrinal claim. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A state court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a state statute or regulation risks undermining the very nature of the right. Second, uncritically adopting federal doctrine ignores the state’s distinctive legal framework, interests, and history, all of which might lead to a deviation from federal law. With respect to the topics on which unconstitutional conditions litigation typically focuses, such as licenses and permits, the federal-state disparities are especially stark. Third, robust legal development in our federal system depends in part upon the interplay of different institutional interpreters. When state courts and federal courts engage in independent interpretative activity, they create the possibility of dialogue and mutual learning. This interpretive interplay enhances federal doctrine, as well as doctrinal development in other states. Given the gaps and inconsistencies in the unconstitutional conditions doctrine, such interjurisdictional enlightenment is especially needed in this area. After explaining why states should develop their own doctrines of unconstitutional conditions, we suggest the relevant considerations that should guide states in formulating their doctrines.
Levine, Samuel J., 'Hands-Off Religion in the Early Months of COVID-19' (SSRN Scholarly Paper No ID 3708424, 01 January 2020) Abstract: For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, judicial rulings and rhetoric in these cases illustrate ways in which the hand-off approach remains, at once, both vibrant and vulnerable to critique.
Levine, Samuel J., 'The Supreme Court’s Hands-Off Approach to Religious Questions in the Era of COVID-19 and Beyond' (2022) 1(24) Journal of Constitutional Law 276-312 Abstract: For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. Although the Court’s approach is based in well-grounded prudential and jurisprudential concerns revolving around the role and capacity of judges to adjudicate religious issues, the Court has expanded the contours of the hands-off approach to the point that some scholars have found parallels in the political question doctrine, accordingly dubbing the Court’s approach the “religious question doctrine.” Whatever the title, the Court’s expansion of the hands-off approach has prompted substantial scholarly criticism, as well as notable instances of dispute—if not disregard—by prominent judges, likewise on both prudential and jurisprudential grounds.Since the start of the COVID-19 pandemic, these issues have repeatedly been brought to the forefront of legal, political, and popular discourse, as courts across the United States, including the Supreme Court, have faced difficult and often unprecedented—and, heretofore unforeseeable—questions about the place of religion and religious practice in American law and society. Concomitant with disputes over limitations on religious gatherings due to the pandemic, in July of 2020, near the end of a term that was extended because of the virus, the Supreme Court decided two important cases turning on religious doctrine. More recently, confronted with cases of its own over religious gatherings amid the pandemic, rather than issuing decisions that provide clear guidance, the Supreme Court has produced contentious and fractured rulings that stand as but further illustrations of unsettled and unsettling aspects of these ongoing controversies.This Article suggests that, taken together, judicial rulings and rhetoric in these cases demonstrate that the hands-off approach remains, at once, both vibrant and vulnerable. Specifically, the Supreme Court’s July 2020 decisions both reinforced and extended the scope and impact of the handsoff approach, elucidating the basic elements of the Court’s approach while at the same time exemplifying some of the problems latent in judicial failure or refusal to decide issues of significant import. The religious gathering cases, in turn, offer a poignant example of the difficulties the hands-off approach imposes on judges when the proper resolution of a case seems to require, at least in part, a measure of inquiry into the substantive doctrine underlying a religious practice.Part I of the Article briefly outlines the contours of the hands-off approach, highlighting the development and evolution of the doctrine and identifying some of the concerns, justifications, and critiques that have influenced and accompanied the Court’s analysis. Part II of the Article turns to the two important Religion Clause cases the Court decided in July 2020, during the early months of the COVID-19 pandemic, demonstrating the continuing centrality of the hands-off approach, both enriching and complicating judicial decision making. Part III examines cases in which religious claimants challenged governmental limitations on religious gatherings, finding that differences in attitudes toward the hands-off approach and other forms of judicial deference may help explain stark differences in judicial rulings and judicial rhetoric. On the basis of these assessments, the Article concludes that taken together, these cases demonstrate the abiding relevance—and limitations—of the hands-off approach to questions of religious practice and belief, in both ordinary and extraordinary times. As such, the Article closes with the hope that the Supreme Court will closely examine the critiques, acknowledge the underlying problems, and consider some of the proposals that, for decades, scholars, dissenting justices, and others have offered, toward a more workable, more effective, and more uniting approach to questions of religious practice and belief.
Levitin, Adam J, Lindsay A Owens and Ganesh Sitaraman, 'No More Bailouts: A Blueprint for a Standing Emergency Economic Resilience and Stabilization Program' (Roosevelt Institution Great Democracy Initiative Report No , 30 January 2020) Abstract: Since the COVID-19 pandemic first landed our shores in late January, Congress has scrambled to pass five relief and recovery packages to deal with the health and economic fallout. The first included just $8.3 billion in spending—an astonishingly small sum given the threat of the virus. The third bill included critical spending priorities for struggling families, but was paired with a no-strings-attached $500 billion slush fund for corporate America. The fourth and fifth bills remedied problems with the third bill—Congress didn’t appropriate enough money for its signature small business relief program, the Payroll Protection Program, and needed to top it up (fourth bill), and then needed to extend the loan repayment period (fifth bill) for the program because most businesses had yet to reopen and begin generating new revenue. Congress is likely to take up a sixth bill in late July, in part to deal with the imminent expiration of the temporary expanded unemployment insurance benefits passed in the third bill.This ad hoc approach to crisis policymaking is inefficient at best and malpractice at worst. Delays have resulted in bankruptcies and closures for businesses large and small and countless hardships for the more than 40 million Americans who have filed jobless claims since March. There is a better way.In this paper we propose a standing emergency economic resilience and stabilization program that will be deployed in the event of an economic emergency. The program has four central components: 1. An off-the-shelf, bankruptcy-based restructuring process for large or publicly- traded firms that involves a federal equity stake and a potential federal senior secured loan; 2. A program for smaller businesses to cover payroll and operating expenses to prevent mass layoffs and closures on Main Street; 3. A financial system infrastructure reform to enable direct government payments to consumers and businesses without reliance upon private intermediaries; and, 4. A system of automatic stabilizers to engage policy tools without repeated and recurrent congressional action, including a suite of programs to address housing insecurity for both renters and homeowners.This emergency economic resilience program would blunt the foreseeable impacts common to all recessions—unemployment, income shocks, and liquidity constraints— so that Congress can focus its attention on the unique causes of the particular downturn. In the case of the most recent downturn, had such a program been in place, Congress would have been able to spend the lion’s share of the spring narrowly focused on testing production, building out a community health corps of contract tracers, and supporting the development of a vaccine, instead of scrambling to patch together an economic relief program.
Lexchin, Joel et al, 'Regulators, Pivotal Clinical Trials, and Drug Regulation in the Age of COVID-19' (2021) 1(51) International Journal of Health Services 5-13 Abstract: Medicine regulators rely on pivotal clinical trials to make decisions about approving a new drug, but little is known about how they judge whether pivotal trials justify the approval of new drugs. We explore this issue by looking at the positions of 3 major regulators: the European Medicines Agency, Food and Drug Administration, and Health Canada. Here we report their views and the implications of those views for the approval process. On various points, the 3 regulators are ambiguous, consistent, and demonstrate flexibility. The range of views may well reflect different regulatory cultures. Although clinical trial information from pivotal trials is becoming more available, regulators are still reluctant to provide detailed information about how that information is interpreted. As medicines and vaccines come up for approval for treatment of COVID-19, transparency in how pivotal trials are interpreted will be critical in determining how these treatments should be used.
Li, Alexandra, ‘The Unreasonableness of Reasonable: Rethinking the Reasonable Investor Standard’ (2023) 117(6) Northwestern University Law Review 1707–1737 Abstract: This Note explores the ‘reasonable investor’ standard in light of recent developments in pandemic-era securities litigation. Scholars have long criticized the reasonable investor standard for determining materiality. Given the dramatic backdrop of the COVID-19 pandemic, the limitations of the standard are becoming ever more evident. This Note provides a brief history of the development of the current standard and highlights some of its problems through two recent COVID-19 securities fraud cases. This Note argues that the reasonable investor standard is no longer sufficient to protect investors. Through examining tort law and First Amendment jurisprudence, this Note differentiates between the ‘reasonable’ and ‘average’ persons and recommends replacing the reasonable investor standard with the average investor standard.
Li, Tiffany C, 'Post-Pandemic Privacy Law' (2021) 5(70) American University Law Review 1681-1728 Abstract: COVID-19, the global pandemic that began in 2019, altered how we live our lives in just about every way imaginable. Some of those changes were obvious—for example, those who were fortunate enough to be able to work from home began working online—while other changes were more subtle. The latter category included unprecedented levels of data collection by governments and organizations purporting to collect information that would help stop the pandemic’s spread. Given the deadly nature of COVID-19, few would question any public health efforts, no matter their impact on privacy. However, the lack of attention to privacy issues during the pandemic can and will have long-ranging effects that will lead to greater losses of privacy in the future, post-pandemic world. This Article analyzes privacy issues in this pandemic and offers a novel framework for crafting legislation during and after this pandemic to protect privacy. The Article takes a unique socio-legal approach in contextualizing privacy-related issues arising from this time of public health crisis, examining the impact of the coronavirus itself as well as contemporaneous social issues in America that have shaped the way we must think about privacy moving forward (primarily focusing on political unrest related to the 2020 election and growing tensions involving racism and discrimination). Ultimately, the Article proposes a framework that post-pandemic privacy law should follow and provides tangible legal and policy solutions, including a federal privacy law, updates to existing legislation to reflect specific privacy considerations, and focus on privacy as an integral part of foreign policy. Finally, the Article evaluates select privacy-related legislation that the U.S. Congress has proposed to date in light of the Article’s proposed framework and recommendations.
Lidstone, Herrick K., 'Corporate Annual Meetings of Shareholders in the COVID-19 World' (SSRN Scholarly Paper No ID 3570989, 13 January 2020) Abstract: A number of states are reacting to the COVID-19 pandemic by adopting emergency legislation or executive orders to authorize shareholder meetings that are not held “at a place” but only by telecommunication – referred to as “virtual-only” meetings. As corporate practitioners know, Colorado corporations are required to hold annual meetings of shareholders (C.R.S. § 7 107-101(1)), and those meetings involve certain formalities (which can be made more restrictive in the articles of incorporation or bylaws) such as:1. Preparation of a shareholders’ list as of the record date that is available for review by shareholders; 2. Sending notice of the meeting place, date, and time to shareholders; and 3. Counting of votes from properly registered and voting shareholders entitled to vote. These requirements apply to Colorado corporations that are public companies subject to the rules of the Securities Exchange Act of 1934 as well as to private companies with one to one hundred or more shareholders. Of course, Colorado corporations which are subject to the 1934 Act’s proxy and reporting rules have a number of requirements to meet in addition to the requirements of Colorado law.Subject to contrary provisions in the articles of incorporation or bylaws of a Colorado corporation, the Colorado Business Corporation Act contemplates that Colorado corporations may hold hybrid shareholders' meetings, but do not yet provide for virtual only shareholders' meetings. In Colorado, as in other states, other statutes for corporate-like entities (such as nonprofit corporation statutes, statutes for cooperative organizations, and statutes for homeowners associations, should also be reviewed together with the governing documents for those organizations.
Lipman, Francine J., Nicholas A Mirkay and Palma Joy Strand, 'U.S. Tax Systems Need Anti-Racist Restructuring' (2020) 5(168) Tax Notes Fed/State 855-862 Abstract: #BlackTaxpayersMatterThe world has witnessed the brutal suffocation of George Floyd on a concrete sidewalk in Minneapolis. While this is but one more example of centuries of relentless violence against Black people, many are hoping that this tragic death might be a catalyst for meaningful change. Around the world, rallies, marches, and vigils have filled public spaces to call out institutional racism and demand systemic change. The rage, despair, exhaustion, and frustration with targeted discrimination has not only permeated cities and streets, but racism is being condemned at kitchen tables, by businesses, in social media, and from groups as sweeping as Sesame Street, KPop fans, and NASCAR. People across the globe are raising their voices and insisting that something be done to stop the routine ruin of Black lives.Many are looking to Black leaders in every discipline, including finance, economics, and tax, and asking what they can do to help. And Black leaders — once again, after centuries of explaining, exposing, discussing, writing, speaking, preaching, demanding, and demonstrating that American institutions are implicitly and explicitly discriminatory and must fundamentally change — are providing thoughtful, cogent answers. They rise to the challenge again and again, hoping that this horrific racist episode will be different from countless previous episodes. They call for a transcendent time of tangible change. However, they are rightfully saying that this is not their burden to bear, and that those with the privileged status of race, income, wealth, and platforms must step up, move forward, and finally do something. We have heard from many of our Black and brown colleagues that they are “sick and tired of being sick and tired.”As writers, we understand the power of words. But it is also true that actions speak louder than words. As Maya Angelou said so poetically, “When someone shows you who they are, believe them the first time.” (Emphasis added.) What can we as tax professionals, scholars, and advocates do to show our commitment to racial justice?First, we must recognize that tax injustice is economic injustice, which leads directly to income and wealth inequality; pervasive poverty; and the compromised health, welfare, and safety of communities of color. The immorally high and persistent 32 percent rate of poverty for Black children and the 380 percent higher death rate of Black individuals from COVID-19 as compared with their white counterparts are real-world problems that can be remedied. However, real remedies will require all hands on deck, because these issues are long-standing systemic harms created and perpetuated by federal, state, and local institutions over the last 400 years.This article will help you think more critically about these issues. It discusses the racist history of U.S. tax systems, prescribes anti-racist action items, and provides a wealth of referenced readable resources.
Lipson, Jonathan C. and Norman M Powell, 'Contracting COVID: Private Order and Public Good (Standstills)' (2021) 2(76) _Business Lawyer_ Abstract: The novel Coronavirus (2019) (COVID) has created a dilemma: Open the economy and spread disease; quarantine and choke the economy. Thus far, the response has looked to government for health-safety standards and financial subsidies. Although these are necessary steps, they have become politicized, thereby exacerbating severe uncertainties created by the pandemic. While we will surely halt it, we do not know how, when, or what comes next. Many writers are exploring litigation that will flow from COVID. This Article considers the flip side: the important but under-appreciated role that ex ante contracting plays in addressing the COVID dilemma. Liability waivers, for example, will be ubiquitous, but might be misused to shelter poor risk management. This essay argues that these waivers should be enforceable only when coupled with reasonable health-safety precautions, which may appear in contracts such as workplace rules or supply chain agreements. Without such balance—or worse, when imposed by fiat, as President Trump did in the meat processing industry—they can inflame the public health crisis. At the same time, the COVID-induced shutdown has caused most contracts to be in or near breach. This has resulted in responses such as litigation, bankruptcy, and bailouts. While these may be inevitable, second-order contracts such as standstill agreements provide certainty that enables parties to adjust commercial relationships in ways that may preserve more value at lower cost than public interventions.Contract in this context is thus doing more than creating private order; it is also producing public good. This hearkens to Depression-era scholarship which argued that contract had public ramifications. Although modern writers have largely abandoned that view, it reflected a change in mindset that cleared the way for sweeping New Deal reforms. While we do not yet know whether COVID will be as disruptive as the Depression, the uses of contract described here may signal a comparably dramatic realignment of private and public.
Lisko, Karen, ‘Bearing Witness to, Well, Witnesses: An Examination of Remote Testimony Versus In-Court Testimony’ (2021) 51(1) Southwestern Law Review 63–70 Abstract: The COVID-19 pandemic required the world to quickly adapt countless in-person tasks to remote settings. In the courts, it also accelerated experimental approaches to remote courtroom practices across the United States, including the appearance of trial witnesses testifying live via remote video. While some courts have sporadically incorporated this practice for years, the pandemic prompted many courts to examine this mode of testifying at a more expansive level when choosing among the four options of (1) suspending in-person trials altogether, (2) participating in socially distanced trials, (3) conducting remote trials, or (4) presiding over ‘hybrid’ trials (combining some in-person elements with remote components). So, how has this quickening of approaches impacted witness testimony, and how have juries and trial attorneys reacted to these modes of testifying? This Essay addresses results from several recent (and, in the case of my doctoral dissertation, not so recent but, in parts, still relevant) sources. Throughout the pandemic, my colleagues and I have conducted simulations on behalf of the Online Courtroom Project and as advisors to the Maricopa County (Arizona) Jury Trial Innovation Task Force, including Dr. Jeff Frederick, who has also authored an article for this issue.4 In addition, I have conducted post-trial interviews with actual jurors and attorneys involved in remote trials who offered their perspectives on remote witness testimony. I have also analyzed national survey data on behalf of the Judicial Division of the American Bar Association regarding judges’ and attorneys’ experiences with and attitudes toward remote proceedings.6 As part of this research on remote proceedings, we have collected judges’ and attorneys’ forecasts about the future of remote witness testimony. The great majority predict many witnesses will testify remotely to some degree long after the pandemic is over, largely to enable witnesses to appear remotely by videoconference when health or distance would ordinarily preclude their involvement if they were only allowed to testify in the courtroom. If this prognostication is true, we must better appreciate the jury experience with witnesses in the remote setting.
Liu, Mengyan et al, ‘Public Health Crisis and Hate Crimes: Deciphering the Proliferation of Anti-Asian Violence in the US Before and During Covid-19’ (2023) 17(2) Perspectives on Terrorism 30–59 Abstract: The substantial increase in far-right violence in the United States in the last few years was also manifested by the intensification of attacks against Asian American communities and individuals. This trend was especially evident during the spread of the COVID-19 pandemic. The current paper utilises a natural experimental design and a multitude of analyses (descriptive, geospatial, and advanced regressions) to illustrate the intricate combination of factors that facilitated anti-Asian violence during the pandemic and the various paths in which public health crises may enhance the persecution of minorities. The findings illustrate that the main drivers of anti-Asian violence are not related to changing focus among organised hate groups, but to environmental and economic stress factors which, combined with existing xenophobic narratives, have legitimised anti-Asian violence. Additionally, we identified a clear association between othering rhetoric, also operationalised by President’s Trump kung flu remarks and the subsequent increase in anti-Asian violence. Overall, our findings provide important insights into our understanding of the endogenous and exogenous factors that facilitate hate-related violence against minorities during public health crises.
Lobel, Orly, ‘Remote Law: The Great Resignation, Great Gigification, Portable Benefits, and the Overdue Reshuffling of Work Policy’ (2023) 63(1) Santa Clara Law Review, (forthcoming) Abstract: The shift to widespread remote work in 2020 during the COVID-19 pandemic accelerated changes to the labor market, including flexibility of time, place, and nature of traditional office jobs, and a steep rise in gig economy work. As vaccines became available and employers began to require their employees to return to in-person work, many employees instead chose to move to jobs with more competitive pay, more flexibility, and better remote work options. Now, law and policy must evolve to address this changing labor market, including the uncertainties and risks created by remote work. This Article identifies inequities that have deepened with the availability of remote work and calls for systems to better support work-life balance and worker mobility, and to protect both gig workers and employees whose jobs do not lend themselves to working remotely. Post-pandemic labor policy must also address the portability of benefits for employees and independent contractors, as well as the issues employers face when their remote employees work across state lines. Following the Great Resignation, heightened workforce insecurity and mobility presents new risks and opportunities for both employers and workers, yet measured policy reforms in response to the new labor landscape are needed to maximize human capital and social welfare.
Logan, Wayne A, ‘Sex Offender Registration in a Pandemic’ (2021) 18(2) Ohio State Journal of Criminal Law 515–536 Abstract: This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information. Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted. As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible. If they failed to satisfy the registration requirement they faced significant criminal punishment. The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience. As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact. As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses). The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.
López-Santana, Mariely and Philip Rocco, 'Fiscal Federalism and Economic Crises in the United States: Lessons from the COVID-19 Pandemic and Great Recession' (2021) 3(51) Publius: The Journal of Federalism 365-395 Abstract: The architecture of fiscal federalism in the United States represents an obstacle for prompt and comprehensive policy responses to economic crises, especially by subnational levels of government. As both a public health and economic crisis, the COVID-19 pandemic has put unique fiscal pressures on subnational governments. This article reviews the pandemic’s fiscal effects on these governments, as well as the federal government’s response. By comparing the response to the COVID-19 crisis during the Trump administration with the response to the Great Recession during the Obama administration, we show that while the speed and magnitude of federal aid was unprecedented in 2020, it was nevertheless conditional in nature and beset by familiar political and institutional obstacles. Despite major fiscal pressures, state revenues rebounded earlier than expected, in part due to the relaxation of public health measures and the collection of taxes from online transactions; yet, state resources remained strained throughout the year, especially in states reliant on the hospitality and the oil sectors. And while local property taxes were buoyed by a surging housing market, cities and counties were confronted with declining revenue from other sources and intense emergency spending needs. Thus, despite unprecedented levels of federal support for state and local governments, the legacies of “fend for yourself” federalism live on.
Lopez, Miriam Magaña and Seth M Holmes, 'Raids on Immigrant Communities During the Pandemic Threaten the Country’s Public Health' (2020) 7(110) American Journal of Public Health 958-959 Abstract: Extract: On the first day of California’s stay-at-home order, US Immigration and Customs Enforcement (ICE) agents—each with N95 medical protective masks at the ready—raided immigrant communities in Los Angeles, California. That same day, an asylum seeker in a detention center in Colorado was alerted that ICE planned to deport him to Nicaragua shortly thereafter. As the pandemic spread quickly and the death toll rose, ICE raids continued in multiple parts of the United States. On March 18 (the same day as three raids in New York City—the area with the highest COVID-19 prevalence), ICE issued a public statement indicating that “[the agency’s] highest priorities are to promote life-saving and public safety activities.” Far from promoting public health and safety, these raids, detentions, and deportations contravene public health recommendations and threaten to worsen the pandemic in the United States and beyond on several important levels—leading to avoidable exposures, infections, and deaths.
Lorvick, Jennifer et al, ‘Decreased Homelessness among Women Involved in the Criminal Legal System after a COVID-19 Housing Intervention’ [2022] Journal of Social Distress and Homelessness (advance article, published online 12 April 2022) Abstract: The COVID-19 outbreak fueled unprecedented public health efforts to mitigate the spread of infection, including rapid provision of non-congregate housing to people experiencing homelessness. People on community supervision (criminal probation or parole) have high levels of homelessness due to housing discrimination, poverty and racism, and are among the groups most vulnerable to COVID-19. We examined housing status in a cohort of women with probation histories in Alameda County, CA before and after the COVID-19 outbreak (N = 204). Before March 2020, 38% of women in the cohort reporting being homeless (95% CI: 34–43%), a level that was consistent over 12 months. As of August 2020, 15% of the cohort was homeless (95% CI: 10–20%; relative risk [RR] 0.40, 95% CI: 0.28, 0.55; p < 0.001). During a period of assertive public health efforts to reduce COVID-19 risk through provision of housing, we found meaningful reductions in homelessness in this sample of vulnerable women.
Lu, Lerong and Sergio Cappuzzello, ‘Maintaining Financial Market Stability during COVID-19 Pandemic: A Case Study of the US Securities and Exchange Commission’s Regulatory Responses and Crisis Management Measures’ (2021) 36 Journal of International Banking Law and Regulation 515–523 Abstract: This article provides an in-depth and comprehensive analysis of regulatory measures taken by the US Government to mitigate the negative effects of the Coronavirus pandemic (COVID-19) on its economy and financial markets. It focuses on the actions of the US Securities and Exchange Commission (SEC) which is in charge of the making and enforcement of capital markets regulations. This article looks at regulatory responses to the previous financial crisis to see if the regulator has learned lessons from the past experience of crisis management. It also considers the difference of the current crisis and assesses the effectiveness of the SEC’s recent regulatory measures, addressing both positive or negative impacts. This article seeks to understand the strategies that the SEC has implemented to help the financial markets survive the pandemic as well as studies the concrete measures that make the crisis less traumatic for all market participants.
Lucas, Paul A, Kweilin T Lucas and Catherine D Marcum, ‘Best Practices and Beyond: Exploring the Impact of the COVID-19 Pandemic on Treatment Courts in a U.S. Southern State’ (2023) 14(2) International Journal for Court Administration Article 2 Abstract: This study examines the impact that COVID-19 has had on treatment court professionals in a US southern state during four time periods to determine if and how the pandemic hindered their ability to process cases and provide services to participants, and to give insight about their overall feelings of safety working within their courts during the pandemic. Treatment court coordinators working within drug treatment courts (DTCs), mental health courts (MHCs), and veterans treatment courts (VTCs) were administered online surveys to self-report their experiences about how they have adapted to the many challenges presented by COVID-19. As is common with exploratory research, an inductive approach was used to compare findings from the treatment court coordinators to the Adult Drug Court Best Practice Standards Volumes I and II to better understand the impact that COVID-19 has had on the sampled treatment courts. Findings indicate that there are potential issues with best practice standards, which can negatively affect treatment court effectiveness. Regardless, respondents reported feeling relatively safe about their work environment across the four time periods.
Lynner, Natalie Banta, ‘Death in a Pandemic: Funeral Practices and Industry Disruption’ (2023) 70(1) UCLA Law Review 154–205 Abstract: The COVID-19 death toll is staggering and has impacted the funeral industry more than any other event in recent memory. Funeral service providers have been on the frontlines of this pandemic doing the work of the dead—transporting, storing, and disposing our dead. They have performed a critical service during uncertain times. Even before the COVID-19 pandemic, the funeral industry was beginning to adapt to the changing personal preferences about death care and increasing concerns about sustainability, technology, and cost. The COVID-19 pandemic has drawn attention to the changing norms and practices in American funerals and succession law and accelerated a shift toward digital funeral practices and digital testamentary instruments to meet the demands of a quarantined public. This Article is the first to provide a comprehensive analysis of the impact of COVID-19 on funeral practices and the funeral industry.
Macdonnell, Timothy C, ‘The Supreme Court During Covid-19: Keeping Its Head When Those About It Were Losing Theirs’ (2025) 70(1) South Dakota Law Review 61–116 Abstract: Alexander Hamilton’s Federalist No. 78 suggests that one of the reasons for a life-tenured judiciary whose pay cannot be altered is because ‘judges may be an essential safeguard against the effects of occasional ill humours in the society.’ Our Nation’s history is replete with instances of ill humor leading to violations of constitutional rights. Wars, epidemics, natural disasters, civil unrest, and economic crises all demand governments to act and act swiftly. But courts, and particularly the United States Supreme Court, are necessary to check governments when they go too far in contending with an emergency. Historically the country’s courts have responded unevenly to governmental action during emergencies. In many instances, the federal courts, including the United States Supreme Court, have granted great deference to ‘the politically accountable’ branches of government during emergencies. This deference has resulted in some of the most infamous decisions of the Supreme Court. As time has passed, the Supreme Court has granted less deference to the actions of the executive and legislative branches of government during emergencies. This withdrawal of deference can be seen in the post-9/11 and COVID-19 cases decided by the Court. The United States, like the rest of the world, has recently contended with the COVID-19 pandemic. The pandemic’s impact has been profound. The death toll, financial loss, and disruption to everyday life has been extensive. To contend with the pandemic, local, state, and federal governments have taken action, and, at times, these actions have been challenged in court. This article examines several of those challenges and analyzes the Supreme Court’s reaction to those challenges.
Mack, Nicholas, 'The COVID–19 Pandemic Highlighted the Need for Mandated ESG Disclosures: Now What?' (2022) 2(30) University of Miami Business Law Review 188-224 Abstract: This is not simply your run–of–the–mill COVID–19 article. Instead, this article highlights a salient issue that has been right in front of our eyes this whole time and COVID–19 simply took our blinders off. ESG—short for environmental, social, and governance—is gaining significant momentum both at the firm level and in investment strategy, yet the SEC is trailing behind in ensuring the market is adequately informed of firms’ ESG information. It is important to note that the COVID–19 pandemic initially threw the market into an unanticipated downward spiral; however, many ESG funds still managed to outperform the market in the midst of this financial downturn. Why is that and where do we go from here?
Maio, Michael, ‘The Right to Asylum During the Covid-19 Pandemic: A Legal Review of the Power to Expel Noncitizens Under Title 42’ 86(3) Albany Law Review 649-681 Abstract: This Note will delve into the legality, discriminatory use, and fabricated public health rationale of the Title 42 expulsion policy. Part II provides an overview of the history of Title 42, its implementation during the COVID-19 pandemic, and its impact on immigration policy through caselaw. Part III examines how Title 42 violates both domestic and international law. Part IV analyzes how the policy’s discriminatory enforcement against noncitizens and minorities discredits its public health rationale. Lastly, Part V provides recommendations for how Title 42 could be amended in order to properly and legally achieve its intended purpose.
Makhlouf, Medha D., 'Health Care Sanctuaries' (2021) 1(20) Yale Journal of Health Policy, Law and Ethics 1-67 Abstract: It is increasingly common for noncitizens living in the United States to avoid seeing a doctor or enrolling in publicly funded health programs because they fear surveillance by immigration authorities. This is the consequence of a decades-long shift in the locus of immigration enforcement activities from the border to the interior, as well as a recent period of heightened immigration enforcement. These fears persist because the law incompletely constrains immigration surveillance in health care.This Article argues that immigration surveillance in health care is a poor choice of resource allocation for immigration enforcement because it has severe consequences for health and the health care system; additionally, it compromises the legitimacy of the state vis-à-vis its noncitizen residents. The consequences include public health threats, health care system inefficiency, ethical dilemmas, and increased vulnerability in immigrant communities. Laws permitting immigration surveillance in health care also create legitimacy harms by obstructing noncitizens’ access to health care and undermining their privacy and rights to public benefits. The COVID-19 pandemic starkly illustrates these dangers, but they exist even in the absence of a novel disease outbreak.Health care access for noncitizens has largely been left to the vagaries of immigration policy. Immigration surveillance in health care should prompt us to consider the scope and limits of health law and the role of discretion in immigration law. Health care sanctuaries — durable legal protections against immigration surveillance in health care — recover some of the lost equilibrium between immigration enforcement and other goals and values of public policy.
Makhlouf, Medha D, ‘Stemming the Shadow Pandemic: Integrating Sociolegal Services in Contact Tracing and Beyond’ (2022) 50(4) The Journal of Law, Medicine & Ethics 719–725 Abstract: The COVID-19 pandemic has shed light on the challenges of complying with public health guidance to isolate or quarantine without access to adequate income, housing, food, and other resources. When people cannot safely isolate or quarantine during an outbreak of infectious disease, a critical public health strategy fails. This article proposes integrating sociolegal needs screening and services into contact tracing as a way to mitigate public health harms and pandemic-related health inequities.
Makhlouf, Medha D. and Jasmine Sandhu, 'Immigrants and Interdependence: How the COVID-19 Pandemic Exposes the Folly of the New Public Charge Rule' (SSRN Scholarly Paper No ID 3597791, 02 January 2020) Abstract: On February 24, 2020, just as the Trump administration began taking significant action to prepare for an outbreak of COVID-19 in the United States, it also began implementing its new public charge rule. Public charge is an immigration law that restricts the admission of certain noncitizens based on the likelihood that they will become dependent on the government for support. The major effect of the new rule is to chill noncitizens from enrolling in public benefits, including Medicaid, out of fear of negative immigration consequences. These chilling effects have persisted during the pandemic. When noncitizens are afraid to (1) seek treatment or testing for COVID-19 or (2) access public benefits in order to comply with stay-at-home guidance, it impedes efforts to slow the spread of COVID-19, contributing to the strain on the health care system. This Essay describes how the pandemic has exposed the folly of the public charge rule: Discouraging noncitizens from accessing public benefits to support their health and well-being is and always has been unwise from a public health perspective. The pandemic merely magnifies the negative consequences of this policy. This Essay contributes to scholarly conversations about how immigration law and policy have framed the United States’ response to the COVID-19 pandemic. Specifically, it provides an in-depth analysis of the negative public health consequences of the new public charge rule during the pandemic.
Makhlouf, Medha and Patrick Glen, ‘Immigration Reforms as Health Policy’ (2022) 15(2) Saint Louis University Journal of Health Law & Policy 275–330 Abstract: The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions on noncitizen eligibility for Medicaid and other public benefits contribute to inequitable access to health care. Moreover, visa restrictions for noncitizen health care professionals run counter to health policies promoting access to health care during a time of severe shortages in the health care professional workforce. It is time that health policy be incorporated into the immigration-reform debate, with Congress considering whether and how such reforms are helping to achieve health policy goals relating to improving individual and population health.
Mamaysky, Isaac, 'Can Employers Mandate the COVID Vaccine? Assessing the Implications of Emergency Use Authorization' (2021) Mitchell Hamline Law Review Amicus Curiae (forthcoming) Abstract: As employers acclimate to our new normal, the COVID vaccine’s emergency status has led to extensive speculation about whether employers can mandate that their employees be vaccinated. While long-established immunizations, including those which have mostly relegated diseases like polio and smallpox to the annals of history, have full approvals from the FDA, the COVID vaccine is currently approved through an Emergency Use Authorization. This emergency process allows the use of unapproved medical products to prevent serious or life threatening diseases when there are no adequate alternatives. This essay considers whether employers can mandate that their employees receive the COVID-19 vaccine despite its emergency authorization. The essay explores how vaccine mandates play out for non-emergency vaccines and then examines whether the COVID vaccine's Emergency Use Authorization leads to a different outcome.
Mamaysky, Isaac, 'Coronavirus Paid Leave: The Intersection of New State and Federal Laws' (Westchester County Bar Association COVID-19 (Coronavirus) Publications No , 20 2020) Abstract: At the same time the federal government passed the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), states passed their own paid leave laws, often with wider applicability than the federal law.
Mamaysky, Isaac, 'Furloughs: Weighing the Unemployment Costs and Benefits' (Law360, Expert Analysis No , 06 January 2020) Abstract: In response to the COVID pandemic, the CARES Act created a $600 federally subsidized weekly increase to existing state unemployment benefits. This leaves struggling employers with a dilemma: Should they do whatever they can to maintain payroll for employees who might have very little work in light of quarantines and shutdowns, or should they conduct temporary furloughs so their employees can access expanded unemployment benefits?
Mamaysky, Isaac and Wendy Fischman, 'Rehiring Furloughed and Laid-Off Workers Post-Pandemic' (Law360, Expert Analysis No , 01 January 2020) Abstract: Since the start of the COVID pandemic, countless employees lost their jobs following furloughs and layoffs. As unemployment rates continue to decrease, many employers are rehiring their workforces. This article explores best practices to do so properly and considers potential pitfalls when making rehiring decisions.
Mamaysky, Isaac and Mark Papadopoulos, 'Role For COVID-19 Liability Waivers In Employment Is Limited' (Law360, Expert Analysis No , 19 January 2020) Abstract: Waivers of liability have taken on renewed significance as businesses reopen during COVID. Courts have traditionally disfavored these instruments between employers and employees due to the unequal bargaining power of the parties. This article explores the role and utility of liability waivers in the employment context and beyond.
Manian, Maya, ‘Abortion Access in a Post-COVID and Post-Roe World’ in The Routledge Companion to Gender and COVID-19 (Routledge, 2024) Abstract: This chapter describes the U.S. Supreme Court’s momentous decision to overturn Roe v. Wade and legal and public health consequences of that decision in a post-COVID world. The COVID-19 pandemic provided opportunities to both restrict and expand access to abortion care. During the height of the pandemic, the Supreme Court agreed to hear several cases on abortion rights, ultimately leading to the demise of the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. This chapter analyzes the Dobbs decision and its impact on state legislatures’ attempts to regulate abortion through criminal, regulatory, and civil penalties during and after the height of the pandemic. This chapter also highlights the public health consequences of overturning Roe during the long tail of the pandemic. The pandemic both exposed and exacerbated health disparities for low income people and people of color. The reversal of Roe v. Wade portends worsening reproductive health disparities among communities already ravaged by the pandemic.
Mann, Naomi M, ‘The Promise and Perils of Technology and Gender in the Courts’ in The Routledge Companion to Gender and COVID-19 (Routledge, 2024) Abstract: At the start of the COVID-19 pandemic, state civil courts turned to technology to remain ‘open’ to the public. This reliance on technology has remained a key component of ongoing court operations. While technology has provided important access points and efficiencies, it has also interacted in nuanced ways with litigants’ lived realities and the state civil court systems’ existing structures, with critical impacts on women’s equitable access to the court system. This chapter interrogates the consequences of increased use of technology as a communication tool or gateway to accessing the courts, particularly the assumption that using technology in this manner can operate to make the courts equally available to potential litigants. I conclude by offering some lessons learned and questions to consider for how best to use technology as an access tool in court systems, with the goal of centering access to justice, including gender equity, in these important innovations.
Marcum, Catherine D., 'American Corrections System Response to COVID-19: an Examination of the Procedures and Policies Used in Spring 2020' (2020) 4(45) American Journal of Criminal Justice 759-768 Abstract: This article will explore the federal and state correction system responses to COVID-19 as of early May 2020. Current statistics of infection rates and policy responses will be discussed. In addition, adjustments to inmate activities and staff will be reviewed, as well as responses by community corrections agencies.
Mariani, Nicole, ‘Hiding in Plain Language: A Solution to the Pandemic Riddle of a Suspended Grand Jury, an Expiring Statute of Limitations, and the Fifth Amendment’ (2022) 76(4) University of Miami Law Review 938–981 Abstract: Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), ‘no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.’ That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario. In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, to combat the rampant and unabating COVID-19 outbreak in Florida, the District Court for the Southern District of Florida suspended grand juries from March 26, 2020, until November 17, 2020, creating a nearly eight-month period during which prosecutors could not obtain indictments. But, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to be prosecuted by indictment. Thus, during the grand jury suspension, the five-year statute of limitations applicable to most federal crimes was expiring on uncharged criminal conduct that ended in 2015 at a time when prosecutors could not comply with the Fifth Amendment. Despite being alerted of this constitutional issue, Congress did not enact legislation giving either the Chief Judge of the United States Supreme Court or the Chief Judges of the United States District Courts authority to suspend statutes of limitations during national emergencies, such as the COVID-19 pandemic, that affect the functioning of the courts. The combination of that judicial decision to suspend grand juries and that legislative decision not to suspend statutes of limitations posed a pandemic riddle: how can prosecutors comply with both the statutes of limitations and the Fifth Amendment when there are no grand juries? This Article examines the text of 18 U.S.C. § 3282(a), Federal Rule of Criminal Procedure 48(a), and 18 U.S.C. §§ 3288 and 3289; the purposes of statutes of limitations and the Fifth Amendment right to prosecution by indictment; and the related legislative history. Based on that examination, this Article suggests that, for most federal crimes, when defendants assert their Fifth Amendment right to prosecution by indictment during a pandemic (or other national emergency) that suspended grand juries and the statute of limitations on their alleged crimes is expiring, prosecutors can uphold that constitutional right and that statutory privilege as well as the public interest in seeing lawbreakers brought to justice by: (1) filing an information to toll the statute of limitations under 18 U.S.C. § 3282(a); (2) dismissing that information without prejudice under Federal Rule of Criminal Procedure 48(a) if the defendant does not waive his right to prosecution by indictment; and (3) obtaining a timely indictment within six months of the resumption of grand juries under the savings clauses in 18 U.S.C. §§ 3288 and 3289 for re-prosecutions after the dismissal of a timely filed information. This Article concludes that there already is a mechanism in the federal statute of limitations appliable to most federal crimes that allows prosecutors to constitutionally preserve criminal charges when a national emergency prevents grand juries from finding indictments.
Mariner, Wendy K., 'Shifting Standards of Judicial Review During the Coronavirus Pandemic in the United States' (2021) 6(22) German Law Journal 1039-1059 Abstract: Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.
Mark, Alyx, Courts Unmasked: Civil Legal System Reform and COVID-19 (University Press of Kansas, 2025) Book summary: A groundbreaking new study based on extensive and original data that examines court policies and proceedings during the COVID-19 pandemic to uncover the realities of power, procedure, and reform in state civil courts.
Marks, Alexia Brunet, 'Essential but Ignored:COVID-19 Litigation and the Meatpacking Industry' (2022) 1(14) Northeastern University Law Review 47-112 Abstract: The spread of the novel coronavirus SARS-CoV-2 (COVID-19) among meatpacking employees forced closures and slowdowns at many plants across the United States. As the meatpacking giants JBS, Smithfield, and Tyson became hotbeds for COVID-19, national meat production plummeted. To forestall further supply chain disruptions, former President Trump passed an Executive Order compelling plants to continue operating as “essential businesses.” As work continued, employees reported that social distancing and mask-wearing were not being enforced, managers were pressuring sick employees to work and not revealing co-worker’s infections, and an overall lack of Personal Protective Equipment (PPE) or training to reduce the risk of infection prevailed. With over 50,000 meatpacking workers contracting and 250 dying from COVID-19, academic scholarship has neglected addressing this failure to keep workers safe.The problem is that while workers were deemed “essential,” they were ignored by employer practices and lax regulations allowing rapid COVID-19 transmission in the workplace. As illnesses and deaths mounted, the former Trump administration did not issue a COVID-19 emergency standard and many states also narrowed their worker protections, passing “liability shield” legislation and restricting worker’s compensation coverage for employee claims. Injured on the job, plaintiffs began suing for their rights. However, while litigation brought by workers and their families, labor advocates, and unions has advanced, plaintiffs continue to struggle to overcome motions to dismiss based on preemption by either workers’ compensation, primary jurisdiction, or liability shields.This Article is the first to use COVID-19 litigation to expose gaps in workplace safety, and the first to present a timely, evidence-based solution to address the problem: a new Emergency Temporary Standard (ETS) and workers’ compensation reform. The new ETS will provide a necessary baseline for Occupational Safety and Health Administration (OSHA) fines and citations which will, in turn, motivate companies to adopt safety practices. It will also help plaintiffs present evidence of breach of a standard in their workers’ compensation hearings and personal injury claims. Finally, this Article will fundamentally impact three simultaneous discussions: (1) an investigation by the new House Select Subcommittee on the Coronavirus Crisis on how the country’s meatpacking companies handled the pandemic; (2) the development of a new Emergency Temporary Standard to combat the spread of COVID-19; (3) litigation involving a case accusing the world’s largest meat processing company of causing a worker’s COVID-19 death.
Marks, Mason, 'Drug Regulation for the COVID-19 Mental Health Crisis' (2020) (72) Administrative Law Review (forthcoming) Abstract: The COVID-19 pandemic is producing widespread loss of life, unemployment, and social isolation that is triggering a mental health crisis. Experts warn there could be record levels of depression, suicide, and substance use disorders. The U.S. healthcare system is not prepared. It lacks the resources to provide prolonged psychotherapy at scale, and existing drug treatments are ineffective for up to sixty percent of people. Fortunately, there is an untapped resource in the form of the experimental drugs psilocybin and MDMA. Clinical trials suggest that they are safe and effective for treating a variety of mental health conditions. Moreover, they act quickly, and their beneficial effects are often sustained.The U.S. Drug Enforcement Administration (DEA) classifies psilocybin and MDMA as schedule 1 controlled substances with a high potential for abuse and no currently accepted medical uses. However, a growing body of research undermines the DEA’s position. This Essay surveys the scientific evidence for the therapeutic use of psilocybin and MDMA. It argues that due to the urgent need for effective mental health treatments, the DEA should re-schedule these drugs and the Food and Drug Administration (FDA) should issue emergency authorizations for their use. To further enhance safety, the FDA should issue Risk Evaluation and Mitigation Strategies (REMS) requiring the drugs to be administered in controlled settings under professional supervision. The Department of Justice, which oversees the DEA, should pledge not to prosecute individuals who use psychedelics in jurisdictions, such as Denver, Oakland, and Santa Cruz, where they have been decriminalized.
Marks, Mason M., 'Controlled Substance Regulation for the COVID-19 Mental Health Crisis' (2020) 4(72) Administrative Law Review 649-718 Abstract: This Article explores the legal obstacles to administering psilocybin and MDMA to mitigate the COVID-19 mental health crisis.
Marouf, Fatma E., 'The Impact of COVID-19 on Immigration Detention' (2020) (2) Frontiers in Human Dynamics Article 599222 Abstract: COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.
Martin, John J., 'Mail-In Ballots & The Dormant Presidential Electors Clause' (SSRN Scholarly Paper No ID 3702995, 30 January 2020) Abstract: Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states have opted to allow voters to use mail-in ballots to vote in the general election. The Trump administration, nevertheless, has been proactively enacting policy changes to hamper the U.S. Postal Service’s (“USPS”) ability to effectively handle the rise in mail-in voting. Some states have sued the administration in response, raising a variety of claims in their lawsuits. One of the lesser discussed claims, though, is that the Executive’s actions violate Article II, § 1, cl. 2, otherwise known as the “Presidential Electors Clause.” This clause confers onto the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.” Thus, the Presidential Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the Executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors, such as popular vote by mail-in ballots, a conflict of powers arises. This Essay attempts to resolve this conflict of power, ultimately concluding that within the Presidential Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a Presidential election—what this Essay calls the “Dormant Presidential Electors Clause.”
Martin, Nicole and Steven Huefner, ‘State Legislative Vetoes: An Unwelcome Resurgence’ (2023) 61(2) Harvard Journal on Legislation 379–419 Abstract: Legislatures are having their moment. From the independent state legislature theory, to the major questions doctrine, to the potential scrapping of the Chevron doctrine, to efforts to constrain popular initiatives, legislative power today seems to be, or at least seeks to be, ascendant. At the state level, one example of the expansion of legislative power is the reinvigoration of legislative veto mechanisms. Legislative vetoes allow legislative branch actors to nullify duly authorized executive branch actions without enacting new laws. Forty years ago, the U.S. Supreme Court’s decision in INS v. Chadha invalidated the federal legislative veto as an unconstitutional end-run around the lawmaking requirements of Article I of the U.S. Constitution. But this decision had no binding effect on state legislative veto mechanisms. Today, legislative vetoes persist in many states, and efforts to enhance these mechanisms have surfaced specifically in response to the COVID-19 pandemic. During the COVID-19 pandemic, state legislatures sought heightened legislative veto authority on matters of public health. The pandemic presented public health authorities throughout the country with unprecedented challenges. But little did public health officials anticipate that one challenge would come in the form of legislative pushback against the deployment of public health expertise, as state legislators in many states objected to mask mandates, vaccination campaigns, and other public health measures undertaken by state agencies. Legislatures in several states either stripped public health agencies of some of their discretionary powers or imposed additional hurdles on the exercise of these powers. Many other states have contemplated similar retrenchments. In inviting closer examination of state legislative veto mechanisms, this Article argues that these mechanisms suffer from several anti-democratic defects. Specifically, these mechanisms erode the legitimacy of legislative power, inhibit transparency in governance, prevent formation of customized administrative policies, and threaten to skew the balance of the separation of powers beyond traditional constitutional parameters. Legislation during the COVID-19 pandemic provides a dramatic example of these democratic flaws inherent to the legislative veto, but state legislative vetoes could also hobble other public policy areas. It thus is time for additional attention to the place of the legislative veto in state government.
Marzen, Chad G., 'Principled Conservatism: The CARES Act and the Lone Voice' (SSRN Scholarly Paper No ID 3643959, 05 January 2020) Abstract: The Coronavirus Aid, Relief and Economic Security (CARES) Act was the largest spending bill passed by Congress and enacted into law in American history. This Article concludes that despite all of the criticism he has endured, Congressman Massie's lone voice calling for a vote for over $2 trillion in government spending will be remembered years from now as a beacon and clarion call for fiscal and principled conservatives. The Article also examines two prior historical instances which involved a lone voice in the United States House of Representatives: Congresswoman Jeannette Rankin's lone vote against a declaration of war with Japan in 1941 and Congresswoman Barbara Lee's lone vote against the war in Afghanistan in 2001. Both the lone votes of Congresswoman Ranking and Congresswoman Lee illustrate that taking a principled, highly unpopular stance at the risk to one's political career in the United States House of Representatives can result in a positive, long-term legacy. This Article predicts Congressman Massie's lone voice will be viewed in the same lens in the future.
Masiello, Helena, ‘CAFO’s Are a Public Health Crisis: The Creation of COVID-19’ (2022) 76(3) University of Miami Law Review 900–928 Abstract: Concentrated Animal Feeding Operations (‘CAFO’s’) are largely unregulated by State or Federal Laws in the United States. As a result of this lack of oversight, they are a breeding ground for deadly infectious diseases. The COVID-19 epidemic has demonstrated the threat that diseases pose to the United State like H1N1, SARS, and Ebola. The USDA needs to regulate CAFOs under the mandate given to them by congress in the AHPA to ensure that they are not the epicenter of the next wave of deadly infectious diseases. Scientists have been warning about the disease potential of CAFOs for the last decade, and it is time for policy makers to listen and take action.
Massaro, Toni M., Justin R Pidot and Marvin Slepian, 'Constitutional Norms for Pandemic Policy' (Arizona Legal Studies Discussion Paper No No 20-29, 25 January 2020) Abstract: The COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another. Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life. How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow. We argue that ingredients for consensus already exist, even if they are obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives and we share a fidelity to basic constitutional legal norms that can inform how we safely return. This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.
Massaro, Toni M., Justin R Pidot and Marvin J Slepian, 'Pandemics and the Constitution' (2022) 1(2022) University of Illinois Law Review 229-276 Abstract: The COVID-19 pandemic unleashed a torrent of legal and political commentary, and rightly so: the virus touches every corner of life and implicates many areas of law. In response to the virus, governments, civic institutions, and businesses struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another. Our early pandemic response largely failed. Our dysfunction led to deaths and lost livelihoods, in part because public perceptions about the virus, and interventions designed to address to it, substantially fell along predictable ideological lines. We must take stock of these failures so that we can do better when the next pandemic arrives, as it surely will. We argue that ingredients for broader consensus already exist, even if they remain obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives, and also share a fidelity to basic constitutional legal norms that can inform how we respond to pandemics in ways that allow safer returns. This Article identifies four constitutional principles to shape pandemic policies and enable them to garner broader public acceptance: substantive and procedural rationality, respect for fundamental liberties, equal treatment of similarly situated persons and entities, and sufficient government flexibility to enable officials to nimbly and effectively address emergencies that threaten life itself. Recognition of these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals. They will cooperate only if they have adequate confidence in the ability of institutions to protect their safety, liberty, and equality.
Masterman, Clayton, 'Stay-at-Home Orders and COVID-19 Fatalities' (SSRN Scholarly Paper No ID 3600905, 14 January 2020) Abstract: The COVID-19 pandemic has prompted most state governments to order residents to stay at home. The goal of such orders is to mitigate infection rates to prevent health care system overload, thereby dramatically reducing the death toll of the pandemic. This article investigates the effectiveness of stay-at-home orders in decreasing COVID-19 infections and fatalities. Using a differences-in-differences approach, I estimate that stay-at-home orders between mid-March and May 9 prevented 1.7 million COVID-19 cases and 55,000 deaths in the United States. Orders that state governments issued were more effective than local government orders, suggesting that consistent policy approaches across geographic areas is key. The effects were concentrated in urban and higher wage counties. Based on the day of the week that infections are prevented, I also find some evidence that the cases stay-at-home orders prevent are largely those that would have occurred at work rather than from recreation.
Matthew, Danya Bowen, 'Structural Inequality: The Real COVID-19 Threat to America’s Health and How Strengthening the Affordable Care Act Can Help' (2020) 6(108) Georgetown Law Journal 1679-1716 Abstract: This Essay addresses two of the many lessons America must learn from the COVID-19 pandemic in order to survive. Both lessons are about structural inequality. The first is that structural inequality threatens the health of our entire population. The COVID-19 pandemic laid bare the fallacy of imagining that inequality is only a problem for the marginalized among us. Although it is all too true that the pandemic has disproportionately ravaged poor neighborhoods as compared to wealthy ones, killed more blacks than it did whites, and afflicted the elderly more severely than the young, by attacking the most vulnerable, it crippled us all. The virus shut down at least one-quarter of the U.S. economy. No community was isolated from the dangers the disease that daily threatened the “essential” workers who delivered groceries, stocked shelves, harvested fruit, drove buses, and provided healthcare for everyone in the nation. The threat of death and economic destruction touched all, though it was borne most heavily by a few. Indeed, this pandemic has taught that we will ignore the disproportionate devastation suffered by the least privileged among us to our collective peril. The second vital lesson is that structural racism is the greatest threat America now faces to our democracy. Structural racism may be defined as the brand of structural inequality fomented by unchecked racial discrimination in housing, education, the environment, and criminal justice, and other major societal institutions. I argue that the key to overcoming this dual public health threat lies in health providers, patients, and lawmakers uniting to dismantle structural racism. First, we must rectify systemic racial discrimination in housing, education, the environment, and radically reform the American criminal justice system. Systematic discrimination in each of these domains not only disproportionately disrupts access to the basic building blocks known as the social determinants of health, but it also fixes disadvantage in black and brown communities, while concomitantly fixing advantage in white communities. This fundamentally defeats the core American value of equal opportunity and justice for all. Moreover, structural racism forges racial isolation and segregation fomenting the fear, stigmatization, stereotyping, and resentment that makes democratic reform impossible, and unchecked violent reactions likely. The result is an irrepressible eruption of hatred and violence; we must give credence to the cry of activists who are filling streets around the world: America must now “Know Justice, to know peace!” This essay calls upon lawmakers to reverse structural racism, beginning with equalizing access to high quality health care, that screens for and treats all inequities in the social determinants of health as medicine. I identify strengthening Section 1557 – the Health Care Civil Rights provision of the Affordable Care Act as a starting point. However that will not be enough. Beyond universalizing health care, we must universalize the example set for us by healthcare workers during the COVID-19 crisis. They have stood on the frontlines against a pandemic, to fight for the lives of all, especially the most vulnerable among us, putting their own lives at risk for the greater good. They have shown us what it means to regard all humanity as equally valuable before the Creator. I argue that it is time for lawmakers and the all of us to do the same.
Mauk, William L., 'Pro Bono Legal Services in the Time of Pandemic' (2021) 9(64) Advocate 40-42 Abstract: The COVID-19 pandemic had a major impact on low-income Idahoans during 2020 and, in turn, on the demand for and delivery of pro bono legal services extending into the current year.
Maxeiner, James R., 'America’s covid-19 preexisting vulnerability: a government of men, not laws' (2020) 1-2(8) The Theory and Practice of Legislation 213-235 Abstract: The legislative response of the United States of America to the covid-19 pandemic is a calamity. Incompetent leaders have turned a natural disaster into a national catastrophe. The catastrophe unmasks a weak rule of law that is closer to a reign of men than it is to a government of laws. Lousy legal methods predating covid-19 allowed tragedy to happen. This article summarises the legislative-like responses to covid-19 and identifies systemic failures, i.e. covid-19 preexisting vulnerabilities.
Maya, Joseph et al, 'Responsibilities and Rights of Employers and Employees During the COVID-19 Pandemic' (2020) Winter() Labor Law Journal 220-254 Abstract: The article focuses on responsibilities and rights of employers and employees during the COVID-19 Pandemic. It mentions Occupational Safety and Health Administration (OSHA) standards, the Equal Employment Opportunity Commission (EEOC), the Americans with Disabilities Act (ADA), and the Rehabilitation Act, together with the Families First Coronavirus Response Act, promulgate labor rules and regulations governing privacy and safety concerns during the COVID-19 pandemic.
Mazo, Eugene D., 'Voting During a Pandemic' (2020) (100) Boston University Law Review Online 283-297 Abstract: Richard Hasen dedicates his book "Election Meltdown" to illuminating four threats that undermine the trust American voters have in their elections. These include voter suppression, administrative incompetence, dirty tricks that spread false information to voters, and the incendiary rhetoric uttered by public officials. An example of the last threat includes President Trump's repeated statements to the public that American elections are "rigged" or "stolen," when, in fact, no evidence exists to support this claim. Professor Hasen is an astute observer of the American electoral landscape, and his book deserves our attention for its elucidation of these four threats. However, these threats, important as they are, have also recently been overshadowed by an additional threat to American elections: the COVID-19 pandemic. COVID-19 has transformed the way we work, travel, shop, socialize--and, importantly, vote. COVID-19 has changed the playbook for voting dramatically. Prior to March, most voters cast their ballots in person. In November, most voters will be casting their ballots by mail. This fact alone threatens to impede the participation of ordinary citizens in the electoral process to an extent most American voters have rarely witnessed. How states decide to register new voters, how new and existing voters will choose to cast their ballots, and which segments of the population will vote in the presidential election are all questions for which we do not have good answers. This Essay explains how several aspects of the voting process have changed as a result of the pandemic, focusing in particular on voter registration, voting by mail, and voting in person. It also explains how COVID-19 has spawned an unprecedented amount of election-related litigation. As of late-September, more than 260 COVID-19-related election cases have been filed. They seek to determine how candidates will compete and how voters will exercise their voice in November. The challenges posed by COVID-19 for our elections do not render the threats identified by Professor Hasen irrelevant. Rather, this Essay argues that COVID-19 will exacerbate the effects of any incompetence that might be displayed by our state and local election officials. Moreover, those who engage in voter suppression, dirty tricks, or incendiary rhetoric will now be able to use COVID-19 as cover for their wrongdoing. If the past few months have taught us anything, it is that the excuse of a pandemic can be used to block access to the ballot box just as much as the four threats to democracy that Hasen identifies in his book.
Mazzone, Jason et al, ‘The Impact of the COVID-19 Pandemic on State Court Proceedings: Five Key Findings’ (SSRN Scholarly Paper ID 4108078, 10 May 2022) Abstract: The University of Illinois System’s Institute for Government and Public Affairs and the National Center for State Courts jointly conducted the COVID-19 and the State Courts Study between August 2020 and July 2021. The first stage of the study involved focus groups of attorneys, judges, court administrators, court staff, jurors, and litigants in four states. This report describes some results of the second stage of the study, which involved nationwide surveys of judges, court personnel, and attorneys. The surveys asked participants questions about access to courts during the pandemic and their experiences with the new strategies courts adopted to continue hearing and processing cases. This report summarizes five key findings from the surveys concerning access to the courts. First, early in the pandemic, most attorneys thought that litigants’ access to judicial proceedings was worse than usual. Second, attorneys reported that litigants’ experiences in courts improved after September 2020. Over time, participants believed that some early access difficulties abated. Third, court personnel had a more positive view than did attorneys about the ability of individuals to participate in the judicial system during the pandemic. Fourth, attorneys with practices concentrated in landlord-tenant law and criminal law perceived somewhat greater problems than did attorneys who practice in other areas of the law. Fifth, while participants identified many benefits to online court proceedings, they also saw drawbacks. Assessing whether and under what circumstances to conduct court proceedings online after the pandemic is over will require careful consideration of benefits and downsides and balancing some competing factors.
McCarthy, Claudine, 'Campus partnerships play valuable role in managing legal ramifications of tough decisions tied to pandemic' (2020) 6(17) College Athletics and the Law 12 Abstract: College athletics administrators have long known the importance of considering the legal implications of the decisions they make as part of their daily work. But now those legal considerations have increased in scope and complexity due to a completely changed environment.
McCormick, John, 'New York on Pause, Crime on Hold' (SSRN Scholarly Paper No ID 3759277, 11 January 2020) Abstract: The COVID-19 pandemic abruptly changed American’s lives in the spring of 2020 with stay-at-home (SAH) orders. COVID-19 significantly impacted crime rates related to domestic violence. I used crimes per week in the categories of rape, general sex crimes, child crimes, and the total of those three to assess the change in crimes relating to domestic violence. There was a decrease of reported crimes in 2020 as compared to the base year 2019, with a 42.84%, or 13.19, decrease in crimes per week total across the different crime categories. Each borough also had significant increases or decreases in crime based on their relative population. The boroughs with higher populations showed higher levels of crimes per week. Overall, the effect of SAH orders had minor impacts on crimes per week. When they were significant, they showed a decrease of 0.248 total crimes per week for every week since the SAH order started. There is still a distinct possibility that crime is still occurring but is unreported; however, the evidence is clear that police departments have less reports after a SAH order is put in place.
McCuskey, Elizabeth Y., 'FDA in the Time of COVID-19' (2020) 3(45) ABA Administrative & Regulatory Law News 7-9 Abstract: Over the past century, Congress has made the Food & Drug Administration (FDA) responsible for regulating the safety and efficacy of drugs and devices being deployed in the fight against the COVID-19 pandemic. The FDA’s regulatory infrastructure was built for public health threats and to combat manufacturers' misinformation about treatments. This article spotlights the ways in which FDA has been adapting to a new challenge during the COVID-19 pandemic: combating misinformation emanating from within the executive branch.
McGarity, Thomas O, ‘I Don’t Want to, and You Can’t Make Me: Policy and Legal Battles Over Mask Mandates During the Pandemic’ (2024) 87(1) Albany Law Review 335–421 Abstract: This Article describes COVID-19 mask mandates as well as the reasons behind resistance before chronicling subsequent mask mandate legal battles and examining implications of such litigation on managing future pandemics.
McGarity, Thomas, Michael C Duff and Sidney A Shapiro, 'Center for Progressive Reform Report: Protecting Workers in a Pandemic: What the Federal Government Should be Doing' (Center for Progressive Reform Report No , 06 January 2020) Abstract: The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government's many missed opportunities to stem the spread of the virus in the nation's workplaces, and make recommendations for what needs to happen next to protect employees on the job.
McGee, Robert W., 'Are the CDC’s Corona Virus Statistics Fraudulent? An Accounting and Legal Analysis' (SSRN Scholarly Paper No ID 3590800, 01 January 2020) Abstract: This paper presents an overview of the Corona virus situation and examines the literature that seems to suggest that some, or perhaps much of the reporting of Corona virus deaths is actually the result of deliberate misclassification. The accounting and legal literature is also examined to determine whether the misclassifications amount to fraud.
McGee, Robert W., 'Does Closing a University because of the Corona Virus Constitute Negligence or a Breach of Fiduciary Duty?' (SSRN Scholarly Paper No ID 3590805, 01 January 2020) Abstract: This paper reviews the current Corona virus situation, then examines the legal definitions of negligence and fiduciary duty in an attempt to determine whether closing a university because of health concerns over the Corona virus might result in legal liability for the university’s board members and relevant university administrators.
McGhee, Marcus, ‘We Interrupt Your Broadcast [Ban] to Bring You [Greater Access]: New Consideration for Rule 2.17 during a Pandemic’ (2022) 31 Notre Dame Journal of Law, Ethics & Public Policy Online Supplement 477–500 Abstract: In March 2020, the COVID-19 pandemic closed down courthouses across Indiana. While trial courts in other states began conducting proceedings online and live streaming them on media platforms to ensure public access, Indiana Supreme Court rules explicitly outlawed that practice. The Indiana Supreme Court temporarily suspended that rule a month after the governor issued an executive stay-at-home order. While pragmatic, case law suggests the order was unnecessary. Trial courts could have utilized the audio and video accommodations afforded to absent parties to provide access to the public. Opponents argue the Sixth Amendment’s public hearing clause requires court proceedings, especially those criminal in nature, to be open to any and everyone who wants to view them. Those arguments fail to correctly recognize that the right to a public hearing does not require access for all, but instead access to those who wish to participate and who successfully gain entry. This article reviews the history of Rule 2.17, highlights how that history would have supported the Indiana Supreme Court’s decision to leave the rule unamended, and explain how the inclusion of some at the exclusion of many is still constitutionally sound.
McGullam, Ian, ‘Cold Calling through a Pandemic: Faculty and Students Navigate Legal Education in the COVID-19 Era’ (2021) 46(Spring) Cornell Law Forum 12–19 Abstract: The COVID-19 pandemic overtook Cornell Law School in earnest in March 2020. Over the past year, students and professors have had to adapt to radical changes in what getting, and giving, a legal education means— first with the overnight transition to online-only classes, and then, as students were able to return to campus in the fall, in figuring out how to integrate online and in-person students into a cohesive whole. As the anniversary of that first abrupt shift rolled around, the Cornell Law Forum spoke to faculty, students, and staff about how the Pandemic Year That Was reshaped the experience of teaching law, and of learning it.
McKay, Tara, Jonathan Metzl, Jonathan and Jennifer Piemonte, 'Effects of Statewide Coronavirus Public Health Measures and State Gun Laws on American Gun Violence' (SSRN Scholarly Paper No ID 3680050, 24 January 2020) Abstract: The coronavirus (COVID-19) pandemic dramatically shifted American public life, and with it patterns of gun violence. In this paper, we show that states’ efforts to contain COVID-19 infections through statewide emergency declarations, Stay at Home orders, and phased reopening have significantly altered prevailing patterns of firearm injuries and deaths. We provide a systematic analysis of how state policy responses to COVID-19 affected overall levels of gun violence and specific kinds of shootings, including multiple victim and mass shootings. While emergency declarations and Stay at Home orders had a dampening effect on many forms of gun violence, we find that the number of people injured or killed by a firearm per day increased more than 15% following state reopening, on average. Over the first 30 days of reopening, we estimate that the average state had an additional 5 mass shootings than would be predicted absent the epidemic in the first 30 days of reopening. Additionally, we examine how COVID-related public health measures affect the composition of gun violence. We find that gun violence has followed workers and children home; even though workplaces and schools have closed, gun violence has likely reappeared in Americans’ lives as domestic violence related shootings and child involved shootings during Stay at Home and school closure periods. Finally, we show that state gun laws worked together with COVID-related emergency declarations and Stay at Home orders to further decrease gun violence in some states. Conversely, in states with decreased criminal liability for firearm use, as in states with Stand Your Ground laws, we observe an exacerbating effect on firearm injuries and deaths during the emergency declaration and Stay at Home order periods. Only one policy, waiting periods for handgun purchases, significantly dampened reopening surges in gun violence. These findings suggest that state policy environments can substantially reduce the impacts of exogenous shocks like COVID-19 on American gun violence and provides guidance on which policies can be helpful and which can be harmful.
McKelvy, Shawn, L Uhl and Armand Balboni, ‘Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding the U.S. Military’s COVID-19 Vaccine Mandate’ (2024) 55(2) St. Mary’s Law Journal 405–473 Abstract: The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this ‘whole-of-government approach’ may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh the prevailing ethics, and appropriately apply the relevant law regarding exemptions, and instead adopted a more uniform approach that aligned with other federal agencies and not to the military’s unique population. And along the way, military leaders lost some of the trust and the faith of those they were seeking to protect, prompting the other two branches of government, the Judiciary and Congress, to intervene. Drawing from our diverse experiences as both practitioners and academics, this Article not only seeks to document the past but also provides some suggestions for the future should we face another such pandemic.
McLeese, Karen, ‘COVID-19 Testing: The Business Necessity Standard and Other Guidance’ (2022) 35(3) Benefits Law Journal 43-48 Abstract: The article offers information on the guidance specific to the use of a coronavirus test and the implication under the Americans with Disabilities Act, issued by the Equal Employment Opportunity Commission. Topics include meeting the business necessity standard for a screening test for employees; the medical inquiry by the employer only after a conditional offer of employment; and requiring confirmation from a qualified medical professional on an individual's safe return to the workplace.
Mello, Michelle M et al, ‘Legal Infrastructure for Pandemic Response: Lessons Not Learnt in the US’ (2024) 384 BMJ Article e076269 Abstract: Covid-19 related mortality in the US was higher than in every western European country. Compared with its closest neighbour, Canada, also a federated country with a decentralised health system, the US fared far worse. With over 1.1 million dead at the end of 2023,3 leaders and academics have begun a painful postmortem. What went wrong, and what can be done to make authorities in the US better equipped for the next pandemic?
Mello, Michelle M and Lawrence O Gostin, ‘Public Health Law Modernization 2.0: Rebalancing Public Health Powers And Individual Liberty In The Age Of COVID-19: Analysis Examines the Need to Rebalance Public Health Powers and Individual Liberty in the COVID-19 Era’ (2023) 42(3) Health Affairs 318–327 Abstract: Public health emergency powers laws in the US underwent a profound stress test during the COVID-19 pandemic. Designed with bioterrorism in mind, they struggled to meet the challenges of a multiyear pandemic. Public health legal powers in the US are both too limited, in that they don’t clearly permit officials to implement measures necessary to combat epidemics, and too broad, in that their accountability mechanisms fall short of public expectations. Recently, some courts and state legislatures have cut deeply into emergency powers, jeopardizing future emergency response. Instead of this curtailment of essential powers, the states and Congress should modernize emergency powers laws to balance powers and individual rights in more productive ways. In this analysis we propose reforms including meaningful legislative checks on executive power, stronger substantive standards for executive orders, mechanisms for public and legislative input, and clearer authority to issue orders affecting groups of people.
Mello, Michelle M.and Wendy E Parmet, 'Public Health Law after Covid-19' (2021) New England Journal of Medicine (advance article) Abstract: Covid-19 has spurred an outbreak of a different kind: litigation. To combat the pandemic, officials imposed extensive community-level mitigation measures using their broad but largely untested emergency powers. In response, more than 1000 suits challenged orders shuttering businesses, banning indoor worship services, restricting travel, and mandating mask wearing.1 As with other social aspects of the pandemic, this litigation will have lasting effects.
Menand, Lev, 'Unappropriated Dollars: The Fed's Ad Hoc Lending Facilities and the Rules That Govern Them' (European Corporate Governance Institute, Law Working Paper No 518/2020, 16 January 2020) Abstract: In response to the spread of COVID-19, the Federal Reserve has established fourteen ad hoc facilities to lend to financial firms, foreign central banks, nonfinancial businesses, and state and local governments. This Article reviews these facilities, explains what they are for, and examines the statutory rules that govern them. It distinguishes between seven liquidity facilities designed to backstop deposit substitutes issued by shadow banks and seven credit facilities designed to invest directly in the real economy. Ten of these facilities – three of the liquidity facilities and all seven of the credit facilities – are contemplated by the CARES Act, which appropriates money for the Treasury Secretary to invest in them. But all ten are inconsistent with at least one of the following three provisions of existing law, none of which the CARES Act explicitly amends: (1) section 13(3)(B)(i) of the Federal Reserve Act, which requires the Fed to ensure that 13(3) lending is “for the purpose of providing liquidity to the financial system”; (2) section 13(3)(A), which requires the Fed to “obtain evidence” that participants are “unable to secure adequate credit accommodations” from other banks; and (3) section 10(a) of the Gold Reserve Act, codified at 31 U.S.C. § 5302, which limits the Treasury Secretary to using the Exchange Stabilization Fund to “deal” in “securities” consistent with “a stable system of exchange rates.” Of the four liquidity facilities not contemplated by the CARES Act, two are inconsistent with any reasonable interpretation of section 14(2)(b) of the Federal Reserve Act, which authorizes the Fed to buy and sell government debt only “in the open market,” and one is inconsistent with a similar requirement in section 14(1) regarding foreign currency. (Although these facilities are permitted by sections 13(13) and 13(3) respectively.) Hence thirteen of the Fed’s fourteen facilities as currently constituted are in tension with either the Federal Reserve Act, the Gold Reserve Act, or both. Three conclusions follow. First, most of the Fed’s current, critical lending activities are an exception to the baseline statutory framework, permissible only in conjunction with the CARES Act. Second, Congress’s failure to amend that framework is obscuring the fact that it is asking the Fed to take on substantial new responsibilities – ones for which it was not designed and which it may struggle to discharge. Third, Congress should update our money and banking laws to clarify the rules governing Fed lending, reduce the need for monetary backstops, and improve the government’s ability to respond quickly and effectively to fiscal emergencies in the future.
Metzger, Pamela and Gregory J Guggenmos, 'COVID-19 and the Ruralization of U.S. Criminal Court Systems' (2020) (70) University of Chicago Law Review Online (forthcoming) Abstract: The COVID-19 pandemic is imposing typically rural practice constraints on the United States' urban and suburban criminal court systems. This "ruralization" of criminal practice offers lawyers, policymakers, and researchers a window into the challenges and opportunities that inhere in rural systems. This is no small matter. For decades, lawmakers, researchers, reformers, and philanthropists have overlooked, undertheorized, and underfunded rural criminal legal systems-and have done so at great peril. Nearly 20 percent of the nation's population lives in nonmetropolitan areas, where the opioid addiction crisis rages. Rural incarceration increasingly drives mass incarceration. The U.S. countryside warehouses the nation's prison populations, and rural pretrial detention rates continue to rise. Indeed, the success of criminal justice reforms depends in part on our ability to address the incarceration crisis in rural America. The authors discuss the impact of the COVID-19 pandemic on rural criminal courts highlighting their research at the Deason Criminal Justice Reform Center on small, tribal, and rural (STAR) criminal legal systems.
Meyers, Peter H, 'The Trump administration’s flawed decision on coronavirus vaccine injury compensation: recommendations for changes' (2020) 1(7) Journal of Law and the Biosciences Article lsaa082 Abstract: Part II of this Article discusses the importance of preparing for the likelihood that COVID-19 vaccines will, like other vaccines, have adverse effects on some small percentage of the population. Part III describes the limitations and problems with the flawed Countermeasures Injury Compensation Program. Part IV describes the better but still problematic Vaccine Injury Compensation Program. Part V describes the highly successful September 11th Victim Compensation Fund. Part VI contains the proposed provisions for the new compensation fund that should be created to handle injury claims that may be filed in connection with the coronavirus vaccines currently being developed, based on the best features of the Vaccine Injury Compensation Program and the September 11th Victim Compensation Fund
Miller, David S. and Sean Webb, 'The Tax Provisions of the HEALS Act' (SSRN Scholarly Paper No ID 3664120, 30 January 2020) Abstract: This paper summarizes the tax proposals in the Health, Economic Assistance, Liability Protection and Schools Act (HEALS Act) introduced on July 27, 2020.
Miller, Holly Ventura et al, 'Immigration Policy and Justice in the Era of COVID-19' (2020) 4(45) American Journal of Criminal Justice 793-809 Abstract: The U.S. immigration system has not escaped the challenges presented by the COVID-19 pandemic. Concerns have been raised about policy changes, enforcement actions, immigrant detention, and deportation practices during the outbreak. In response, dozens of lawsuits have been brought against the government on behalf of undocumented immigrants and detainees, ranging from the conditions of ICE detention facilities to the public charge rule. While most cases continue to move through the federal court system, a number of district court judges have already ruled in favor of the plaintiffs. This paper focuses on three particular areas of immigration policy and practice during COVID: ICE enforcement actions, immigrant detention, and deportations. We summarize the current state of extant data and evidence on each of these and examine questions that remain for further research.
Miller, J. Mitchel and Alfred Blumstein, 'Crime, Justice & the COVID-19 Pandemic: Toward a National Research Agenda' (2020) 4(45) American Journal of Criminal Justice 515-524 Abstract: The novel corona virus COVID-19 has become a worldwide public health pandemic that has induced anomic conditions impacting daily routines. COVID-19 response measures specifically alter regular schedules and both restrict and expand opportunities for various types of crime while presenting unprecedented challenges for the criminal justice system. For criminologists and criminal justice scientists, the virus also presents natural experiment conditions allowing for real-world theory tests and observation of the relative effectiveness of practice and policy options under weighty conditions. Toward synthesizing scientific discourse and forthcoming empirical work, we suggest the benefits of a COVID-19 crime and justice research program and offer some anchoring concepts. Contagion, containment measures (social distancing, facemasks, shelter-in-place, economic shutdown, virtual work and schooling, banned group gatherings), and social ordinance compliance (voluntary or enforced) posture a conceptual framework from which to align research on crime, justice, and victimization during the virus. After observing crime trends and justice system challenges, we suggest how the pandemic presents opportunities for review of various criminal justice, especially incarceration, policies. System change is a recurring theme across this special issue of the American Journal of Criminal Justice that features twenty additional contributions from a wide range of authoritative crime and justice scholars. These articles on traditional crime during the virus, virus specific hate crime and domestic violence, and the challenges posed by COVID-19 to law enforcement, the courts, and corrections will hopefully provide initial commentary toward deeper inquiry.
Miller, Mary-Lauren, 'Inoculating Title VII: The “Undue Hardship” Standard and Employer-Mandated Vaccination Policies' 5(89) Fordham Law Review 2305-2337 Abstract: The widespread administration of a vaccine is essential to bringing an end to the COVID-19 pandemic. Employers can contribute to this goal by requiring employees to be vaccinated. The ability of employers to impose vaccine mandates is theoretically limited in part by Title VII of the Civil Rights Act of 1964, which requires employers to accommodate religious employees unless doing so would impose an “undue hardship” on the employer. Under the current interpretation of undue hardship, employers typically cannot face legal liability for denying accommodations to employees refusing to receive an employer-mandated vaccine on religious grounds, though some employers may provide accommodations voluntarily. However, there are calls to reinterpret this standard so that employers must absorb greater costs before they may deny religious accommodations. If such calls are heeded, it may impair the ability of employers to mandate vaccines and, in turn, negatively affect public health. This Note argues that employers will not be required to provide religious accommodations to employer-mandated vaccines, even under the most employee-friendly version of the standard proposed. Nevertheless, any change to the standard should address the issue of vaccine mandates specifically to encourage employers to adopt vaccine mandates without voluntarily providing religious accommodations.
Miller, Robert T., 'Material Adverse Effect Clauses and the COVID-19 Pandemic' (University of Iowa Legal Studies Research Paper No No 2020-21, 18 January 2020) Abstract: This paper considers whether the COVID-19 pandemic, the governmental responses thereto, and actions taken by companies in connection with both of these constitute a “Material Adverse Effect” (MAE) under a typical MAE clause in a public company merger agreement. Although in any particular case everything will depend on the exact effects suffered by the company and the precise wording of the MAE clause, this paper concludes that, under a typical MAE clause, given the current tremendous contraction in economic activity, most companies will have suffered a material adverse effect as such term in used in the base definition of most MAE clauses. The question thus becomes whether the risks of a pandemic or of governmental responses thereto have been shifted to the acquirer under exceptions to the base definition. This paper considers some of the difficult causal questions that would arise in answering this question, including the relation of actions taken by the company to remain solvent while suffering the effects of COVID-19 and governmental lockdown orders, and concludes that, in some instances, a company will have suffered an MAE even if the MAE clause contains exceptions for pandemics, changes in law, or both.
Miller, Robert T., 'Material Adverse Effect Clauses and the COVID-19 Pandemic: How Sophisticated Parties Allocate Risk Contractually' (SSRN Scholarly Paper No ID 3707282, 07 January 2020) Abstract: Currently pending in the Delaware Court of Chancery and other courts around the country are numerous cases in which the parties to a public-company merger agreement are disputing whether the target (the company being sold) has suffered a "material adverse effect" (an MAE) because of the COVID-19 pandemic. Tremendous amounts of money are at stake in such cases. In the LVHM-Tiffany transaction, for example, if Tiffany has suffered an MAE, LVHM may terminate the agreement and walk away from the deal; otherwise, it will likely have to close and pay the full $16.6 billion purchase price for a company that, it says, is no longer worth anywhere near that amount. Sophisticated commercial parties allocate between them risks that may materialize during the pendency of the merger through MAE clauses, extremely elaborate contractual provisions that have given rise to more litigation than any other standard provision in public-company merger agreements. This short essay considers how courts will construe MAE clauses in connection with the COVID-19 pandemic and, in so doing, explains more generally how sophisticated parties allocate risks efficiently in order to create value in business combination transactions.
Miller, Tom, 'Will New Macromedical Regulation Be Prudential?' (2021) 5(82) Ohio State Law Journal 803-813 Abstract: The COVID-19 pandemic potentially offers many important lessons for health policy makers. However, among the ones more likely to be neglected or downplayed are healthier skepticism about reupholstered regulatory fixes, greater modesty about our underlying political and cultural habits, and realistic prioritization in identifying what is most feasible and necessary rather than desirable but elusive. Three overlapping spheres of regulatory policy history flash yellow caution lights and post speed limit signs—whether involving strained analogies to banking regulation, broader historical traits of regulation within the U.S. political system, or the dense web of chronic, preexisting conditions that frustrates efforts to overhaul regulation of our health care services and operations. All of them should help to curb our enthusiasm, before refocusing on more necessary initial steps.
Minkler, Meredith, Joseph Griffin and Patricia Wakimoto, 'Seizing the Moment: Policy Advocacy to End Mass Incarceration in the Time of COVID-19' (2020) 4(47) Health Education & Behavior 514-518 Abstract: The mass human and economic casualties wrought by the COVID-19 pandemic laid bare the deep inequities at the base of the disproportionate losses and suffering experienced by diverse U.S. populations. But the urgency and enormity of unmet needs requiring bold policy action also provided a unique opportunity to learn from and partner with community-based organizations that often are at the frontlines of such work. Following a review of Kingdon’s model of the policy-making process, we illustrate how a partnership in a large California county navigated the streams in the policy-making process and used the window of opportunity provided by the pandemic to address a major public health problem: the incarceration of over 2 million people, disproportionately African American and Latinx, in overcrowded, unsafe jails, prisons, and detention centers. We highlight tactics and strategies used, challenges faced, and implications for health educators as policy advocates during and beyond the pandemic.
Minnes, Odelia and Dov Solomon, 'Game of Thrones: Corporate Law and Bankruptcy Law in the Arena of Directors’ Liability' (2021) 1(27) Columbia Journal of European Law 1-33 Abstract: A company in financial distress is bound to experience turbulence. In particular, the zone of insolvency is a crucial time in a company’s life in which conflicts of interest between shareholders, managers, and creditors are sharply enhanced. Directors’ liability during this period is a recurring topic of interest. The current COVID-19 pandemic and the global economic crisis generated by it bring this topic to the forefront once more. This Article points to two distinct approaches to this issue. The first is represented by the U.S. legal system, in which directors’ liabilities do not change in the zone of insolvency but, rather, conform to the same standards set by corporate law. We call this the “corporate law approach.” The second method is represented by the U.K. legal system, which sets different standards for directors’ actions in the zone of insolvency, requiring them to minimize creditors’ losses. We refer to this as the “bankruptcy law approach.” This Article shows that there are significant shortcomings to the latter approach. As a result, this Article concludes that the corporate law approach is comparatively more efficient. This Article further demonstrates the superiority of the corporate law approach by analyzing the shared theoretical, normative, and practical linkages between corporate and bankruptcy law. Finally, this Article discusses two possible policy implications of our discussion, one broader and one specifically tailored to minimize the negative consequences from the COVID-19 crisis.
Mock, Rodney P. and Kathryn Kisska-Schulze, 'Saving the Nonessential with Radical Tax Policy' (2021) 1(90) University of Cincinnati Law Review 197-258 Abstract: Under the Internal Revenue Code of 1986, as amended, for-profit entities are distinguishable from tax-exempt entities in that they, among other factors, pursue profits, and enjoy unrestricted commercial activities. The COVID-19 lockdowns prevented commercial activity for numerous for-profit small businesses. For the first time in United States history, a distinction was made between "essential" and "nonessential" businesses. Such distinction is historically absent in both legal scholarship and tax law; instead, it is a product of governmental reaction to the COVID-19 pandemic. Via executive order, nonessential businesses were characterized as being trivial to the fabric of society, and thus shuttered, while essential businesses were permitted to remain operational with little, if any, interruption. Essential business’ profits have since amassed from such consolidation. To date, there have been no proposals at the state or federal levels that adequately address the monumental financial and social impact that mandated lockdowns have had on small businesses, which employ approximately 47.5% of the private workforce. This article suggests that restructuring and preserving those businesses most harmed by the pandemic serves an overriding public interest, and radical societal events require radical tax policy initiatives. As such, this Article proposes that nonessential businesses negatively impacted by pandemic closures should be granted temporary tax-exempt status and treated in a similar manner to non-profit organizations throughout their economic recovery period.
Mohapatra, Seema, 'Passports of Privilege' (2021) 5(70) American University Law Review 1729-1763 Abstract: All Americans sixteen and older are now eligible to receive a COVID-19 vaccination. However, many will not be able to access such vaccinations due to their work situation, health status, and inaccessible vaccination sites. Some have suggested that the use of vaccine passports, credentials used to gain access to places and countries by showing proof of vaccinations, may encourage people to get vaccinated. The COVID-19 pandemic has laid bare deep inequities in our society, and this Article argues that the use of vaccine passports would further exacerbate such chasms. Part I of this Article describes the differences between immunity passports and vaccine passports and the scientific uncertainty about their use, given the novel nature of this virus. Part II discusses whether the use of vaccine passports are legal in the United States. Part III discusses the ethical problems of immunity serving as a marker for the privilege to re-enter society, and the unwise focus on a technological fix for what is essentially a public health and equity disaster. While vaccine passports arguably may produce greater absolute economic benefits in the short term, a more equitable approach would be to address the social determinants of health and thereby spur far greater distributional economic benefits in the long term.
Mohler, George et al, 'Impact of social distancing during COVID-19 pandemic on crime in Los Angeles and Indianapolis' (2020) (68) Journal of Criminal Justice 101692 Abstract: Governments have implemented social distancing measures to address the ongoing COVID-19 pandemic. The measures include instructions that individuals maintain social distance when in public, school closures, limitations on gatherings and business operations, and instructions to remain at home. Social distancing may have an impact on the volume and distribution of crime. Crimes such as residential burglary may decrease as a byproduct of increased guardianship over personal space and property. Crimes such as domestic violence may increase because of extended periods of contact between potential offenders and victims. Understanding the impact of social distancing on crime is critical for ensuring the safety of police and government capacity to deal with the evolving crisis. Understanding how social distancing policies impact crime may also provide insights into whether people are complying with public health measures. Examination of the most recently available data from both Los Angeles, CA, and Indianapolis, IN, shows that social distancing has had a statistically significant impact on a few specific crime types. However, the overall effect is notably less than might be expected given the scale of the disruption to social and economic life.
Mok, Kenny and Eric A Posner, ‘Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic’ (2021) 102(6) Boston University Law Review 1729–1785 Abstract: We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.
Molk, Peter and D Daniel Sokol, 'The Challenges of Nonprofit Governance' (2021) 5(62) Boston College Law Review 1497-1553 Abstract: The stakes for proper nonprofit governance are extremely high. Over 1.5 million nonprofits are registered with the IRS, collectively employing 12 million people and accounting for 5.4% of US GDP. Yet while for-profit companies have significant checks on the behavior of boards and management, nonprofit firms lack many of the same types of internal and external governance control mechanisms. COVID-19 is just the latest in a long history of shocks to expose the lack of preparedness and capability of many nonprofit boards in fulfilling their essential governance functions.This Article contributes to the corporate governance literature by identifying aspects of nonprofit governance that create unnecessary risk to nonprofit entities and to society overall. Currently many governance failures that would be corrected in traditional for-profit entities go unaddressed among nonprofits. We make unique contributions to addressing these governance shortcomings by suggesting an enforcement reorientation by both public and private actors. Our novel solutions encompass disclosure, certification, oversight by state attorneys general, and federal actors.
Molldrem, Stephen, Mustafa I Hussain and Alexander McClelland, 'Alternatives to sharing COVID-19 data with law enforcement: recommendations for stakeholders' (2020) Health Policy (advance article, published 7 November 2020) Abstract: During the COVID-19 pandemic, in some jurisdictions, police have become involved in enforcing coronavirus-related measures. Relatedly, several North American jurisdictions have established COVID-19 data sharing protocols with law enforcement. Research across a range of fields has demonstrated that involving police in matters of public health disproportionately impacts the most vulnerable and does more harm than good. This is reflected in the consensus against COVID-19 criminalization that has emerged among civil society organizations focused on HIV, human rights, and harm reduction. The European Data Protection Board has also released guidelines against re-uses of COVID-19 data for law enforcement purposes. This article offers an overview of the harms of criminalizing illnesses and strategies for health stakeholders to seek alternatives to sharing COVID-19 data with police agencies while facilitating interoperability with healthcare first responders. It also presents case studies from two North American jurisdictions – Ontario and Minnesota – that have established routine COVID-19 data sharing with police. We recommended seven alternatives, including designating COVID-19 data as sensitive and implementing segmented interoperability with first responder agencies. These guidelines can help ensure that health information technology platforms do not become vehicles for the criminalization of COVID-19, and that health data stay within the health system. :
Mongiardo, Joseph, ‘Constitutional Law - How a 2019 Measles Outbreak Has Paved the Way for COVID-19 Vaccination Mandates - C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, 191 A.D.3d 52 (N.Y. App. Div. 2020)’ (2022) 18 Journal of Health & Biomedical Law 72–82 Abstract: Efforts to vaccinate a general population have a legacy of longstanding conflict, pitting the state’s duty to the general welfare, health, and safety of all its people against the fundamental freedom of free exercise of religion for its citizens. In C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, the Appellate Division of the New York Supreme Court addressed whether a municipal board of health’s vaccine mandate violated residents’ religious freedom under the 1st and 14th Amendments. Neutral laws of general applicability, which pass the rational basis test, need not stand up to strict scrutiny and do not implicate the Free Exercise Clause. The Appellate Division of the New York Supreme Court, with an eye toward potential COVID-19 vaccination mandates, affirmed that a vaccine mandate is a reasonable and proper exercise of a state’s police power and does not violate federal or state constitutional rights to the free exercise of religion when done for a ‘compelling state interest... narrowly tailored to apply only to a specific, confined geographical area with a high incidence of disease and only applied for a limited period of time’.
Moore, Kesha, ‘When an Arrest Becomes a Death Sentence: Overpopulation of U.S. Jails Increases the COVID-19 Threat to Every Community’ (SSRN Scholarly Paper No 4709348, 29 July 2020) Abstract: As the coronavirus continues to spread in the U.S. and surge in an increasing number of states, we must consider the role of jails in transmitting the virus. Even with highly effective social distancing outside of the jails, our national rates of COVID-19 deaths are projected to rise by 98% due to infections in jails. Jails act as a revolving door for the spread of COVID-19 in our communities. Inhabitants of the jails — both staff and incarcerated persons — come from our communities and soon return to them. Thus, the strategy of social distancing to limit the spread of COVID-19 can only be effective if it includes jails, which are a primary vector for the infection. In the age of COVID-19, an arrest could mean a death sentence because there is no way to effectively, safely, or fairly quarantine inside a jail. Jails are particularly vulnerable to rapid and severe outbreaks of COVID-19 because of the frequent movement in and out of jails from detainees and staff, the aggregation of people from a variety of geographic locations, the limited space available for medical isolation, the limited ability to practice disease prevention measures (e.g. handwashing) due to restrictions in access to soap, paper towels, and hand sanitizers; and the inability to social distance given the volume of people and the architectural design of the facilities. Numerous public officials can play a role in protecting the health and safety of our communities by reducing the jail population during this pandemic. When an Arrest Becomes a Death Sentence identifies the key front-end criminal justice system actors responsible for shaping the jail population and the actions they can take to protect everyone’s health and safety. To successfully address the coronavirus pandemic in the U.S., we must significantly reduce our jail population. Addressing pretrial detention enables us to protect public safety and improves our criminal justice system. These measures can be implemented quickly and will significantly improve safety for the staff and individuals held in jails and significantly improve safety for us all.
Moriarty, Jane Campbell, ‘Hysteria Redux: Gaslighting in The Age of Covid’ (SSRN Scholarly Paper No 4857257, 1 February 2024) Abstract: This article addresses the relationship among hysteria, gaslighting, and gender during the SARS-CoV-2 (‘Covid’) pandemic in the political and public-health messaging about Covid. Between early 2020 and January 2024, nearly 775 million cases of Covid have been documented worldwide, with a staggering death toll of almost 7 million. In the United States alone, 1.16 million people have died, and millions more continue to suffer the effects of the infection, with increased risk rates of cardiac problems, cognitive disorders, and autoimmune diseases. As a result of the Covid pandemic, at least 65 million people have been diagnosed with post-acute sequela of the virus (PACS), often termed ‘Long Covid.’ Some of those who were infected and recovered later develop cardiovascular, cognitive, and other major disorders related to that infection. The article analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the ‘feminization’ of masking, and the ‘vax and relax’ public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers how gaslighting occurs in the context of dismissing the potential long-term dangers of Covid infections and reinfections. There are numerous reasons the U.S. has fared poorly during Covid. This article explores another reason that deserves investigation: The role of gender and its relationship with extreme individualism in healthcare messaging.
Morley, Michael T, ‘Election Emergencies: Voting in Times of Pandemic’ (2023) 80(1) Washington and Lee Law Review 359–442 Abstract: Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to those pandemics, occurring against distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to address the impact of election emergencies, including public health crises, on the electoral process. States should adopt election emergency laws that both empower election officials to modify an election’s rules as necessary to respond to such disasters and set forth ‘redlines’ to identify certain policies that, even in a disaster, are too risky and problematic to adopt. Courts, for their part, must recognize the unique challenges that election emergency litigation poses and adapt their jurisdictional, procedural, and equitable requirements to be able to effectively adjudicate challenges arising from pandemics and other disasters that threaten the electoral process.
Morley, Michael, ‘Postponing Federal Elections Due to Election Emergencies’ (SSRN Scholarly Paper No ID 3619213, 4 June 2020) Abstract: Federal Election Day didn’t just happen. Instead, it reflects the culmination of a series of federal laws enacted over the course of nearly a century that each set a uniform time for a different type of federal election. These laws grant states flexibility to hold federal elections at a later date if there is a ‘failure to elect’ on Election Day. Earlier commentators have argued that these ‘failure to elect’ provisions are narrow, and only authorize runoff elections in states that require candidates to receive a majority (rather than plurality) of the vote to win. Based on a detailed examination of these provisions’ text, legislative history, and history of judicial application, this Essay argues that federal Election Day laws, including their ‘failure to elect’ provisions, empower states to postpone or extend federal elections when an unexpected emergency prevents them from conducting or concluding a federal election on Election Day. A court may also order the postponement or extension of a federal election when necessary to prevent a constitutional or statutory violation. The Supreme Court has emphasized that courts generally should not grant such relief at the last minute, however, although unexpected emergencies may sometimes render it necessary. And a court may not order an election postponement or extension unless other, less extensive changes to the rules governing the electoral process are insufficient to remedy the constitutional or statutory violation. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only when other alternative would be ineffective.
Morrison, Edward R. and Andrea C Saavedra, 'Bankruptcy’s Role in the COVID-19 Crisis' (SSRN Scholarly Paper No ID 3567127, 07 January 2020) Abstract: Policymakers have minimized the role of bankruptcy law in mitigating the financial fallout from COVID-19. Scholars too are unsure about the merits of bankruptcy, especially Chapter 11, in resolving business distress. We argue that Chapter 11 complements current stimulus policies for large corporations, such as the airlines, and that Treasury should consider making it a precondition for receiving government-backed financing. Chapter 11 offers a flexible, speedy, and crisis-tested tool for preserving businesses, financing them with government funds (if necessary), and ensuring that the costs of distress are borne primarily by investors, not taxpayers. Chapter 11 saves businesses and employment, not shareholders. For consumers and small businesses, however, bankruptcy should serve as a backstop to other policies, such as the CARES Act. Consumer bankruptcy law’s primary goal is to discharge debts, but that’s not what most consumers need right now. What they need is bridge financing, and perhaps forbearance, until the crisis ends, they get back to work, and they regain their ability to pay their debts again. These key policy levers—bridge financing and forbearance—are available in theory to small businesses in Chapter 11, especially if the government supplies the bridge financing when credit markets are dysfunctional. The practical reality is that bankruptcy is expensive for small businesses, which may deter them from using it in the first place. Equally important, our courts will be flooded if Chapter 11 is the primary rescue policy for small businesses.
Morten, Christopher and Charles Duan, 'Who’s Afraid of Section 1498? A Case for Government Patent Use in Pandemics and Other National Crises' (2020) (22) Yale Journal of Law and Technology (forthcoming) Abstract: COVID-19 has created pressing and widespread needs for technologies such as vaccines and medical treatments, needs that may conflict—indeed, have already begun to conflict—with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought to be invoked sparingly or not at all, even in extraordinary circumstances such as a pandemic.Yet that conventional wisdom is a recent one, and it conflicts with both history and theory. This article considers the role of § 1498 specifically in the context of national crises and emergencies like COVID-19, a context so far not addressed substantially in the literature on the statute. We find that government patent use is not nearly as exceptional as it is commonly made out to be, and indeed has been not only used but expanded (through statutory amendment) over the last century. Review of the development and use of the statute during both world wars and the post–September 11 period reveals widespread acceptance of government patent use as a tool for addressing imminent national-scale problems, and it illuminates particular features of government patent use that become especially pertinent in times of crisis. In the United States, government patent use and national emergencies have a close and special relationship; each has shaped the other.Drawing from the lessons of history and analysis of the statute, we develop a novel framework for comparing § 1498 to other policy tools, including prizes, research grants, and patent buyouts. Under this framework, four features of § 1498 stand out: speed of invocation, flexibility in the scope of its use, post-crisis determination of compensation, and use of an impartial adjudicator. Whenever these four features are advantageous—which will be true in most national emergency situations, as we show—the U.S. government should strongly consider government patent use over patent buyouts and other policy tools. We show the advantages of these four features in a case study: government patent use to expand supply and access to the COVID-19 treatment remdesivir. Accordingly, and contrary to the conventional view of § 1498, we conclude that government patent should be an ordinary and important tool of government policy.
Moss, Diana L., 'From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector' (SSRN Scholarly Paper No ID 3701158, 03 January 2020) Abstract: Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper “From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector” examines a major root of this problem—the Federal Trade Commission’s (FTC’s) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers—arguably the most effective remedy for fully restoring competition. AAI’s macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC’s policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets “changing hands” from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC’s role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of “industrial planning” rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC’s policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC’s merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.
Moustis, Matthew, ‘COVID-19 & The Illinois Health Care Right of Conscience Act: A Legal Analysis’ (2022) 43(1) Northern Illinois University Law Review 1–28 Abstract: During the COVID-19 pandemic, many people who refused to be vaccinated because of their religious or moral beliefs tried to use the Illinois Health Care Right of Conscience Act to block their employers’ vaccination requirements. In response, some elected officials argued that the Act was being misinterpreted. They believed it was intended only to protect health care providers who refused to provide certain services to patients, not to allow people to avoid measures taken to ensure public health during a pandemic. Their interpretations were incorrect. The Illinois Health Care Right of Conscience Act was properly construed as a right to refuse COVID-19 vaccines on religious or moral grounds. And it was properly construed as applying to anyone, not solely to health care providers. Contrary interpretations are inconsistent with the public policy, the statutory language, and the interpretive caselaw. Furthermore, the latest amendment was not a legislative clarification but a substantive change to the law.
Moyer, Rachel A. et al, 'Advocacy services for survivors of intimate partner violence: Pivots and lessons learned during the COVID-19 quarantine in Tacoma, Washington' (2022) Family Court Review (advance article, published 6 March 2022) Abstract: The Crystal Judson Family Justice Center (CJFJC), like many advocacy programs for survivors of intimate partner violence, transformed its structure and operating procedures amid the COVID-19 pandemic. The first confirmed case of COVID-19 in the United States was in Washington State, where CJFJC is located, and Governor Jay Inslee acted quickly with a strict stay-at-home order. This paper describes the pre-pandemic, in-person service model used at CJFJC and then the transition to a fully online service model utilizing phone, email and online procedures and platforms. The rapid transition posed many opportunities to learn how to provide services during public pandemics, and how to provide services virtually. We conclude with detailed lessons learned from the experiences of filing domestic violence protection orders online, Zoom court hearings, innovation surrounding community partnerships, and information technology development.
Muller, Lynn S., 'Changing Legal Landscape Observations Post-COVID-19' (2021) 6(26) Professional Case Management 309-312
Myers, William M and Davia C Downey, ‘Face Mask Mandates: Unilateral Authority and Gubernatorial Leadership in US States’ (2023) 45(3) Law & Policy 353–372 Abstract: During the first year of the COVID-19 pandemic in the United States, the coordination and cooperation between the federal government and the states failed. American governors were thus tasked with making critical public health policy choices—under extreme uncertainty—with varying institutional capacities, partisan pressures, and state demographic differences. Yet most of the nation’s governors chose to impose a face covering or mask mandate to limit the spread of cases. We collected each governor’s executive order that mandated the conditions under which their residents would be required to wear a mask and employed a sentiment analysis program to extract key qualities of crisis leadership communication. Our analyses provide insights into the institutional and partisan factors that determined a face mask mandate as well as the institutional, demographic, and leadership communication qualities that affected the total number of cases per capita in the states. Our findings have important implications for post-pandemic policy recommendations with respect to the effectiveness of policies that seek to lower the transmission of viruses in public spaces and the characteristics of impactful public health messaging by government leaders.
Nachmany, Eli, 'Conservation and economic recovery: Telling the story of the Great American Outdoors Act of 2020' (2021) 2(58) Harvard Journal on Legislation 425-459 Abstract: The article argues that the Great American Outdoors Act of 2020 is not just a conservation bill but also an economic legislation enacted amid the growth of unemployment in the wake of the COVID-19 pandemic in the U.S. Topics discussed include the legislative history of the Great American Outdoors Act, the establishment of a National Parks Restoration Fund, and the provision of full funding for the Land and Water Conservation Fund.
Narh, Christabel, ‘Zooming Our Way Out of the Forum Non Conveniens Doctrine’ 123(3) Columbia Law Review 761–803 Abstract: The effects of the pandemic have shed light on the evolution of technology in the legal space, including the use of technology in videoconferencing proceedings and facilitating court procedures. Despite the benefits associated with technology, the rapid adoption of videoconferencing proceedings in courts may have unprecedented impacts on the relevance and practicality of the forum non conveniens doctrine. Additionally, the drastically different approaches that federal courts have taken in response to the disproportionate geographic effects of the pandemic may give way to forum shopping. Plaintiffs may be more incentivized to bring their cases to forums that allow for videoconferencing proceedings as a strategic way to circumvent a defendant’s potential forum non conveniens argument in a motion to dismiss. This Note argues that videoconferencing technology allows courts to effectively transcend the restrictions of geography while mitigating arguments about the relative convenience of different forums. Creating more uniform rules for videoconferencing proceedings will ensure easier predictability and uniformity in the forum non conveniens analysis. Specifically, this Note recommends that Congress and the courts mandate standardized technological videoconferencing requirements and adopt the original understanding of the forum non conveniens doctrine for lower courts to more explicitly consider the benefits of technology when making a forum non conveniens determination.
National Center for State Courts, 'Jury Trials in a (Post) Pandemic World - National Survey Analysis' ( No , 06 January 2020) Abstract: The article discusses the results of a national survey commissioned by the National Center for State Courts and conducted by GBAO. Topics covered include the impact of the COVID-19 pandemic on state courts, health and family obstacles preventing potential jurors from reporting to their local courthouses, access to Internet services for potential online alternatives to in-person jury service.
Nazareno, Jennifer et al, 'From imperialism to inpatient care: Work differences of Filipino and White registered nurses in the United States and implications for COVID-19 through an intersectional lens' (2021) 4(28) Gender, Work & Organization 1426-1446 Abstract: In the United States, nursing is the largest healthcare profession, with over 3.2 million registered nurses (RNs) nationwide and comprised of mostly women. Foreign-trained RNs make up 15 percent of the RN workforce. For over half a century, the U.S. healthcare industry has recruited these RNs in response to nurse shortages in hospitals and nursing homes. Philippines-trained RNs make up 1 out of 20 RNs in this country and continue to be the largest group of foreign-trained nurses today. Recently, the news media has publicized the many deaths of Filipino RNs as a result of the COVID-19 pandemic in the United States. Given the imperial historical ties between these two countries in the context of the nursing profession and the enduring labor inequities that persist, this nationally representative study is one of the few to our knowledge to not only quantitatively examine the current work differences in characteristics and experiences of Philippines-trained RNs and U.S.-trained white RNs practicing in the United States today, but to also do so from an intersectionality lens. The overall aim of this paper is to illuminate how these differences may serve as potential factors contributing to the disproportionate number of Filipino nurses' COVID-19 related vulnerability and deaths in the workplace.
Neacsu, Dana, 'Social Services and Mutual Aid in Times of Covid-19 and Beyond: A Brief Critique' (Duquesne University School of Law Research Paper No 2021-04, 21 2021) Abstract: May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association (ABA) proposing new educational standards: law schools ought to build a curriculum centered on social justice, equity, diversity, and inclusion rather than the traditional fixation of “thinking like a lawyer” law programs. Unfortunately, it has also put volunteerism at odds with government-provided welfare services. This articles addresses this paradox and calls for improved systemic services for a systemic problem, poverty.
Netzel, Natalie et al, 'Mitchell Hamline School of Law Summer 2020 COVID-19 Legal Response Clinic' (2021) (28) Clinical Law Review 301
Neukom, William H. and Elizabeth Andersen, 'Covid-19 and the Access-to-Justice Crisis' (2020) 6(37) GPSolo 36-39 Abstract: The disparate impact of the COVID-19 pandemic on minority and poor communities reflects the justice problems they have disproportionately suffered. The pandemic strikes the United States during an ongoing access-to-justice crisis and, in many ways, makes it much worse. The pandemic makes clear that simply adding more lawyers will not meet the vastneed for justice-related services,nor is it a solution that is well matched to the problem.
Nevitt, Mark, ‘Climate Security Insights from the COVID-19 Response’ (2023) 98(3) Indiana Law Journal 815–862 Abstract: The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a ‘wartime footing’ to ‘defeat the virus.’ Perhaps not surprisingly, the military has played a critical role in the government’s pandemic response. The National Guard has staffed hospitals, vaccination sites, and schools. As our pandemic response continues, what insights are emerging that will inform our climate response? This Article identifies and analyzes several, focusing on the relationship between health security and climate security. These insights— particularly the U.S. domestic military response and how we conceptualize ‘security’—have normative implications for climate governance and disaster response.
Nevitt, Mark, 'Domestic Military Operations and the Coronavirus Pandemic' (2020) 1(11) Journal of National Security Law & Policy 107-129 Abstract: While the U.S. military is tasked with homeland defense and security, in this article Mark Nevitt highlights on the military’s role domestically to provide aid and support during the COVID-19 pandemic. The U.S. military is currently engaged in the largest domestic operation in American history. The article evaluates the responses of different branches of the … Continue reading Domestic Military Operations and the Coronavirus Pandemic →
Nevius, Alistair M, 'American Rescue Plan Act passes with many tax components' (2021) March Journal of Accountantcy Published 11 March 2021 Abstract: The House of Representatives passed the American Rescue Plan Act, H.R. 1319, on Wednesday by a vote of 220–211. It now goes to President Joe Biden for his signature. He is expected to sign it quickly. H.R. 1319 was first passed by the House on Feb. 27. The Senate made several amendments and passed its version of the bill on March 6. The bill then came back to the House for a final vote on Wednesday. Among the act’s many provisions are several tax items. Most of the tax provisions that were in the House version of the bill were unchanged in the Senate’s version, but the tax treatment of 2020 unemployment benefits, the phaseout ranges for economic impact payments, and the treatment of student loan debt forgiveness were changed by the Senate.
Nevius, Alistair M, 'Tax provisions in the year-end coronavirus relief act' (2021) March The Tax Adviser 1-8 Abstract: The Consolidated Appropriations Act, 2021, P.L. 116-260, the omnibus spending and coronavirus relief bill enacted in December, included many tax provisions, including the extension of various expiring provisions, extensions and expansions of certain earlier pandemic tax relief provisions, and much more. Among its general tax provisions, the act temporarily (through 2022) allows 100% deductibility of certain business meal expenses, extends the $300 charitable contribution deduction for nonitemizers, and enacts various disaster tax relief provisions.
Newman, Joel S., 'Is Self-Quarantining a Deductible Medical Expense?' (2020) Spring University of Illinois Law Review Online 117-124 Abstract: Self-quarantining expenses are probably not a deductible medical expense, under current law. I propose a statutory amendment to make them deductible under IRC section 213, provided:1) they are required by the CDC or a comparable governmental authority;2) they are limited to $200 per day for 14 days;3) there is no reasonable alternative to moving out of the taxpayer's home; and4) the place of quarantine is within 25 miles of taxpayer's principal residence.
Ng, Gar Yein, ‘Adaptation of Courts to Disruption’ (2023) 5(1) Law, Technology and Humans 111–120 Abstract: This article reflects on how courts in the USA and England have remained active and resilient in providing access to justice, or due process, during times of emergency and disruptive events. The focus here is not to define emergencies per se but to analyse the impact of emergencies and disruptive events that interrupt the functioning of courts and access to justice. The article provides a brief examination of some emergencies and disruptions and the expected responses to those interruptions. The question for this paper is: how do courts adapt (or are adapted) in times of emergencies that disrupt their ordinary operation, both in terms of continuity of operations and in terms of protection of rights through judicial review? This paper will primarily examine two common law examples (from England and the USA) of how the courts adapted to such disruptions.
Ni, Xiaoran, 'Litigating Crashes? Insights from Security Class Actions' (SSRN Scholarly Paper No ID 3591634, 01 January 2020) Abstract: Investors tend to litigate large stock price declines, i.e., file “stock-drop lawsuits”. Enterprising plaintiffs’ attorneys seek to take advantage of the stock market declines that have accompanied the COVID-19 outbreak in early 2020 by filing class action lawsuits. However, it is less clear whether the ex-ante threat of security class actions can deter stock price crashes. To address this question, we exploit the 1999 ruling of the Ninth Circuit Court of Appeals that discourages security class actions as a quasi-exogenous shock, and find that reducing the threat of security class actions leads to a significant increase in stock price crash risk. This effect is more pronounced for firms faced with higher litigation risk, with worse earnings quality and weaker monitoring from auditors, and is partially driven by decreased timeliness of bad-news disclosure. Our overall findings highlight the importance of security class actions in constraining bad-news hoarding and maintaining market stability.
Niebel, William, 'The Process Due When Rent is Due: Residential Nonpayment Evictions in New York after COVID-19' (2021) 2(49) New York Real Property Law Journal (forthcoming) Abstract: At this critical juncture, to prevent homelessness and the unnecessary displacement of families, it is imperative to review New York nonpayment eviction law, with a focus on the procedural protections available to tenants. Additionally, New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019 dramatically changed the eviction process only months before the COVID-19 pandemic hit. And laws enacted during the pandemic, such as the Tenant Safe Harbor Act, will continue to affect housing practice going forward. Thus, for the benefit of judges and advocates alike, it is important to highlight the unsettled issues that must still be litigated. This article considers the New York nonpayment eviction process chronologically. It first addresses the pre-commencement notices to which tenants are entitled. Then it discusses the court eviction proceeding and warrant process, with an emphasis on tenant protections that are built into the law.
Nielsen, Alyssa, 'Utilitarian Triage in Disasters' (2021) 1(46) BYU Law Review 217-248 Abstract: In the article, the author discusses the need to provide medical professionals and hospitals with legal immunity in cases where utilitarian triage is necessary to effectively respond to medical emergencies like the COVID-19 pandemic. Also cited is the proposal that U.S. state legislators should eliminate all factors other than the patients' existing medical statuses when enacting laws that provide immunity to medical professionals against lawsuits regarding their triage decisions.
Noah, Lars, ‘Eliding Consent in the Case of Pandemic Countermeasures Authorized Only for Emergency Use’ (2024) 58(1) Indiana Law Review (forthcoming) Abstract: Four months after the first vaccines against Covid-19 became available to the public, and just as some universities announced plans to require inoculations, the Boston Globe quoted me as (alone) suggesting that mandates would conflict with federal law. When Congress created a special mechanism for the emergency use of still investigational products, it directed providers to reveal, among other things, that individuals remained free to decline such an intervention; only after full FDA approval of a medical countermeasure would this disclosure obligation become inapplicable. I have watched with dismay over the last three years as nearly everyone—including Executive branch officials, federal and state judges, and various academic commentators—cavalierly dismissed an entirely valid statutory objection. This paper probes what accounts for the universal rejection of an argument that, on further reflection, continues to strike me as far from frivolous.
Noah, Lars, Law and the Public’s Health: Cases, Controversies, and Covid-19 (Carolina Academic Press, forthcoming May 2023) Link to book page on publisher website
Link to contents page and preface
Abstract: The varied responses to our latest pandemic have embroiled all three branches of the U.S. government—as well as the private sector—in a dizzying range of legal disputes, colored by growing partisanship and deepening ideological divisions. This casebook includes 140 judicial decisions, more than one-third of which are less than three years old and almost one-quarter of which relate to Covid-19. Other included case law covers the likes of smallpox, influenza, HIV and other sexually transmitted infections, salmonella and other bacterial threats, smoking and vaping, obesity and diabetes, drug and alcohol abuse, gun violence, motor vehicle accidents, and lead contamination. Instead of focusing on either discrete issue areas (e.g., respiratory contagions) or clusters of legal rules (e.g., free exercise of religion), this casebook groups the excerpted opinions and affiliated discussion by reference to the various tools available for promoting the public’s health, broadly divided according to whether government intervention aims to manage (1) people, (2) places, (3) things, or (4) information. Obviously, these tools often overlap, and the final chapter attempts to recombine them in assessing the multifaceted nature of policy responses to a handful of modern problems. Designed for use in law school, Law and the Public’s Health focuses specifically on public law rather than health law and medical ethics, makiing it an accessible casebook for law students without a background in medicine.
Norton, Katherine, 'Avoiding the Great Divide: Assuring Court Technology Lightens the Load of Low-Income Litigants Post-Covid-19' (2021) 4(88) Tennessee Law Review 771- 836 (forthcoming) Abstract: Starting in March 2020, various state officials across the United States began to issue stay-at-home orders to slow the spread of the Covid-19 virus. Initially, these stay-at-home orders required non-essential businesses to close and individuals to remain home for a minimum of two weeks. This meant that restaurants, schools, and even courts closed their doors to the public. Even as businesses re-opened, safety concerns required courts to remain closed to the public given the volume of individuals that visit courthouses on a daily basis. As the pandemic continued, courts could not remain closed given the rights at stake. Accordingly, courts turned to technology, such as virtual conference platforms, electronic filing portals, and even email to virtually open the courthouse doors. This shift had the potential to either help or hurt unrepresented low-income litigants. Unfortunately, there was insufficient time to evaluate these changes and the impact they could have on individual litigants. Given the significant difficulties that already existed in the United States for low-income litigants to obtain access to justice, the quick embrace of technology has the potential to widen or close the justice gap depending on the path taken. The pandemic brings a choice to the forefront. Courts can utilize technologies for the convenience of the court, potentially creating a heavier burden on low-income litigants, or they can adopt technologies to create better access to justice for low-income litigants. Other businesses have thrived by turning to technology, especially during the pandemic, making their products and services more accessible to individuals of all socio-economic backgrounds. Grocery stores utilized technology to assure the availability of essential products and helped address safety concerns by utilizing mobile applications for ordering and delivery. Telemedicine, via mobile devices, grew as an option to help patients while avoiding exposure to Covid-19. These other industries have one thing in common in utilizing technology, they focus on the “consumer,” the individuals who will be utilizing the technologies for their product (shoppers) or services (patients). If courts focus on the individual litigants as the consumer, not lawyers or judges, to determine how to best use technology, the opportunity exists to increase access to justice for low-income litigants. By failing to do this, the justice gap will grow.
Nousia, K., 'The Covid-19 Pandemic: Contract and Insurance Law Implications' (2020) 7(35) Journal of International Banking Law and Regulation 274-283 Abstract: The spread of COVID-19 has had a global impact, with the human toll being significant, and with the economic cost being unquantifiable. With regards to business and contractual relationships, legal liabilities owed to disruption, cancellations, or to the imposed halt of everyday life are perhaps the most notable. This article starts by examining frustration in English, US and continental contract law in relation to cases where the circumstances have changed due to unnatural events such as the ongoing COVID-19 pandemic. It then moves on to discuss the impact of Covid-19 on insurance, in particular business interruption, travel and general liability insurance. The likelihood of success of future claims, the scope of coverage, together with the meaning and interpretation of the term “force majeure” and how this will relate to exclusions from insurance coverage is discussed. Valuations methods are also considered and evaluated with a view to protect the policyholder as his business interruption policy is a contract of adhesion not having left him any room to negotiate. In addition, possible interpretations to be followed by courts in future claims and liability for catastrophic risks and methods of compensation are examined and conclusions on the role of insurance in the COVID19 pandemic are drawn.
Novasky, Michael and Tina Rosales, 'Mental Health And Homelessness In The Wake Of Covid-19: The Path To Supportive And Affordable Housing' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 130 Abstract: The COVID-19 pandemic has shone a bright light on the public health crisis faced by people experiencing homelessness, and particularly those with mental illnesses. The lack of clean, safe, and affordable housing in the United States’s largest cities, and the limited access to supportive care for people experiencing symptoms of mental illness, is emblematic of not just this current crisis, but of the longstanding inadequacies in our housing policies and the need for swift, long-term action to address them. While cities are stuck responding to this emergency with temporary measures to protect residents of their emergency shelter systems by moving them away from crowded congregate care settings to other forms of temporary housing, advocates are pushing for more comprehensive plans which appear to be gaining some political traction. In turn, many of these emergency solutions may have planted the roots of a healthier and more humane model of temporary housing, one that better addresses the needs of the chronically homeless and those suffering from mental illnesses. Now is the time to create a model for addressing our homelessness crisis that is based on affordable, stable, and supportive housing and, more importantly, on a human right to guarantee that it is permanent and available to all.
Novikov, Maksim A., 'Opportunities of Use of Option Agreements in the Post-COVID Economy: Comparative Legal Study from Russian Law and English and American Law Prospective' in Vladimir S Osipov (ed), Post-COVID Economic Revival, Volume I: Sectors, Institutions, and Policy' (Springer International Publishing, 2021) Abstract: This chapter, “Opportunities Of Use Of Option Agreements in the Post-COVID Economy: Comparative Legal Study From Russian Law And English And American Law Prospective” is devoted to different opportunities of use of option agreements in post-COVID economy and to the principal issues which may arise in connection with structuring share deals in joint-stock companies and limited liability companies, including merger and acquisitions (M&A), joint ventures (JV) deals and strategic partnership agreements as well as other transactions in relation to real property when entering into option agreements. The author analyzes the relevant legislation, jurisprudence and doctrinal materials on the relevant issues. Answers are consistently provided to the questions which, on the author’s opinion, are the most relevant when using options in the above transactions in view of current post - COVID economy in Russia and common law countries (in particular, in the United States of America and the United Kingdom).
Nowotny, Kathryn et al, 'COVID-19 Exposes Need for Progressive Criminal Justice Reform' (2020) 7(110) American Journal of Public Health 967-968 Abstract: Although some correctional entities have embraced the need for temporary reforms, many others remain opposed. This crisis reiterates the need for progressive criminal justice policy reforms—in particular, the wider adoption of compassionate release and the elimination of cash bail—and has shown that policy change is possible. Immediate action will have a positive impact on slowing the spread of COVID-19 and should become standard practice to alleviate the health harms caused by mass incarceration.
Nuñez, Fernando, 'Reentering During a Pandemic' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 144-154 Abstract: Criminal record clearing remains an important tool to combat the overrepresentation of Black and Latinx people in unemployment and homelessness statistics that is a consequence of systemic racism. Unfortunately, the COVID-19 pandemic has exacerbated these barriers by making it harder to clear criminal records while increasing the demand for employment and housing. Specifically, the pandemic has made it difficult to access vital criminal records, access the courts, and access reentry service providers. In so doing, the COVID-19 pandemic threatens to increase the existing racial disparities in access to jobs, housing, and other important areas of life. The pandemic, however, presents an opportunity for innovation and adaptation in the provision of reentry services with a race equity lens. It is something that reentry advocates have long called for.
Oakes, Anne Richardson, Ilaria DiGioia and Vanice Valle, Vanice, 'The Intersection of Federal, State and Local Government Responsibilities to Protect Public Health During the Pandemic in the United States and Brazil' (2021) 36(24) JURIS POIESIS 274-279 Abstract: The United States and Brazil are federal countries with constitutions that diffuse regulatory power away from the centre in favour of state and local governments. In the absence of strong presidential leadership, the frontline of response has been at these lower levels but the result has been intra-governmental conflict concerning allocation of responsibilities and a patchwork of responses that have done little to promote public confidence in the ability of their governments to control the spread of the disease. In both countries public health emergency orders which have closed businesses and schools, required masks to be worn on public transport and in public places and at their most extreme, required citizens to stay at home or ‘shelter in place’ have generated law suits framed not only in terms of infringement of constitutional rights but also of separation of powers at both horizontal and vertical levels. This paper focuses specifically on the way in which management of the pandemic has generated intragovernmental conflict at the vertical level. It notes that in the United States two- tier constitution which recognises only federal and state governments and has nothing to say regarding local autonomy, local authorities seeking to put in place increased measures of public health protection have struggled to develop legal strategies that can withstand state gubernatorial opposition. This is not the case in Brazil where the Brazilian Constitution of 1988 gives municipalities equal federative partnership with states and the federal government, a status recently confirmed in relation to the management of the pandemic by two recent decisions of the Federal Supreme Court of Brazil (SFT)
Odinet, Christopher K., 'Modernizing Mortgage Law' (2021) 1(100) North Carolina Law Review 89-165 Abstract: Modern mortgage law is designed for a world that no longer exists. The residential mortgage transaction of today looks nothing like it did during the formative period when the property laws governing mortgages were developed. What was once a local dealing between two individuals and largely for commercial or quasi-commercial purposes has now become a housing-centric financial transaction-turned-asset between multiple distant and often invisible parties that operate as part of a national market. Yet, although the mortgage transaction has changed, mortgage law has not. Property law rules that once balanced the rights of mortgagors and mortgagees now completely fail to furnish aggrieved homeowners with meaningful relief when faced with wrongs that stem from the complexities of the securitization of mortgage loans and the acts of intermediaries. The result is that consumers suffer wrongs at the hands of mortgage creditors and their contractors but have no remedies to right them. This is particularly true in light of the economic fallout from the COVID-19 pandemic and the threat of a coming wave of foreclosures that, if the 2008 financial crisis is any indication, promise to leave households vulnerable and completely at the mercy of the mortgage finance machine. This Article shows why an overhaul to residential mortgage law's most basic doctrines is long overdue.
Odinet, Christopher K., 'Predatory Fintech and the Politics of Banking' (2021) 4(106) Iowa Law Review 1739-1800 Abstract: With American families living on the financial edge and seeking out high cost loans even before COVID-19, the term financial technology or “fintech” has been used like an incantation aimed at remedying everything that’s wrong with America’s financial system. Scholars and supporters from both the public and private sector proclaim that innovations in financial technology will “bank the unbanked” and open new channels to affordable credit. This exuberance for all things tech in finance has led to a quiet yet aggressive deregulatory agenda, including, as of late, a federal assault via rulemaking on the ability of states to police the cost and privilege of extending credit within their borders. This deregulation and the ethos behind it have made space for growth in high cost, predatory lending that reaches across state lines via websites and smart phones and that is aggressively targeting cash-strapped families. These loans are made using a business model whereby funds are funneled through a group of lightly regulated banks in a way designed to take advantage of federal preemption. Fintech companies rent out and profit from the special legal status of these bank partners, which in turn keeps the bank’s involvement in the shadows. Stripping down fintech’s predatory practices and showing them for what they really are, this Article situates fintech in the context of this country’s longstanding dual banking wars, both between states and the federal government and between consumer advocates and banking regulators. And it points the way forward for scholars and regulators willing to shake off fintech’s hypnotic effect. This means, in the short term, using existing regulatory tools to curtail the dangerous lending identified here, including by taking a more expansive view of what it means for a bank to operate safely and soundly under the law. In the long term, it means having a more comprehensive and national discussion about how we regulate household credit in the digital age, specifically through the convening of a Twenty-First Century Commission on Consumer Finance. The Article explains how and why the time is ripe to do both. As the current pandemic wipes out wages and decimates savings, leaving desperate families turning to predatory fintech finance ever more, the need for reform has never been greater.
Okoh, Michele, 'Shining Light on COVID-19 Medical Waste' (2020) (46) Administrative and Regulatory Law News 1 Abstract: Without centralized monitoring of medical waste, there simply is no information available to the communities that are most at risk.
Oliva, Jennifer D., 'Policing Opioid Use Disorder in a Pandemic' (2020) University of Chicago Law Review Online (forthcoming) Abstract: This essay examines the federal government’s pandemic-provoked waiver of long-standing legal and regulatory barriers to evidence-based opioid use disorder (OUD) treatment aimed at enhancing access to OUD care while mitigating the risk of exposure to COVID-19. OUD is a highly stigmatized, chronic neurological disease with a poorly understood etiology. The prevailing approach in the United States, however, has been to criminalize individuals with OUD. This is because U.S. drug policy has been long dominated by the antiquated view that OUD is a deviant moral failing that deserves prosecution instead of a complex health care condition that demands evidence-based treatment. The persistence of such anti-scientific theories about OUD motivated the federal government’s creation of a surveille-and-supervise regulatory regime that isolates OUD treatment from the traditional health care delivery system and prioritizes the policing of individuals with OUD over the provision of expansive access to care. Unlike prior U.S. drug crises, which were attributed to the alleged immoral nature of targeted racial and ethnic minority groups, the country’s current drug use and overdose dilemma has been characterized as a predominantly rural and suburban white American problem instigated by clinical overprescribing and the aggressive and fraudulent marketing of opioid analgesics. This popular narrative, which shifts blame for use disorder from the white “victim,” to unscrupulous prescribers and Big Pharma, changed the substance use disorder solutions rhetoric from policing and punishment to public health interventions. Consequently, federal health officials were more amenable to policies aimed at enhancing assess to OUD treatment as the novel coronavirus began to sweep over the United States in early months of 2020. In fact, they quickly waived several of the rigid federal legal requirements that attend to OUD treatment—and have long-obstructed access to OUD therapeutics—at the inception of the COVID-19 national health emergency. The federal government’s decision to waive certain access to treatment barriers for individuals with OUD was a long overdue positive development. There is no question that the federal agencies that oversee the draconian U.S. OUD therapeutic regulatory regime ought to make those waivers permanent post-pandemic. This essay argues, however, that the benefits of the OUD-related COVID-19 waivers have disproportionately inured to individuals who use buprenorphine and are overwhelmingly white at the expense of individuals who use methadone and are overwhelmingly persons of color. This is particularly tragic given that it was considerably easier to obtain a prescription for officed-based buprenorphine than access methadone administration treatment under the drug control regulatory regime pre-pandemic. The essay concludes by advancing a series of additional reforms beyond the current COVID-19 waivers that the federal government should adopt to ensure more equitably enhance access to OUD treatment.
Oliva, Jennifer D., 'Public Health Surveillance in the Context of COVID-19' (2021) 1(18) Indiana Health Law Review 107-122 Abstract: Today, we are talking about public health surveillance in the context of COVID-19. My presentation will focus on contact tracing, so let me give you a roadmap for today’s discussion. I am going to start out by providing some background on traditional contact tracing, including its genesis, efficacy, and benefits. I will also highlight some of the significant challenges with contact tracing and disease surveillance with a focus on COVID-19 and the current state of track-and-trace in the United States. I will then explain the various digital track and trace technologies that have been developed or are under development to supplement traditional contact tracing to make the process more effective. I will also point out the strengths and weaknesses that attend to the current technologies that are available in the United States and abroad. I will then provide a survey of health data privacy laws. One of the themes that I want to emphasize today is that we do not have a federal-level general data protection law in the United States. Therefore, once we start talking about the collection of sensitive health care data outside the traditional health care system, we start to run into huge gaps in the law. I will touch on the California Consumer Privacy Act as well as the recent bills that have been introduced in Congress to protect health data captured by contact tracing applications. I will also give an overview of one of the most misunderstood laws in the United States—the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
Oliva, Jennifer D., 'Surveillance, Privacy, and App Tracking' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Over the last several months, global innovators have developed a heterogenous array of “smart” technology protocols and applications aimed at tracking, tracing, and containing the spread of the novel coronavirus, SARS-CoV-2, which causes the disease COVID-19. The United States, which has left it to the states to acquire or build their own automated track and trace platforms, currently lags behind other countries. However, technology companies Apple and Google have announced co-production of a digital tracing platform for their phones. As this Chapter details, the United States lacks a comprehensive federal health data privacy law that protects the privacy of sensitive information collected and stored by digital contact tracking applications. The Chapter also explains how digital COVID-19 surveillance applications work, assesses their effectiveness from a public health perspective, and enumerates the legal and ethical issues they implicate. It concludes with proposals aimed at maximizing the public health benefits of COVID-19 surveillance technology while minimizing its inherent and conceivable threats to privacy, civil liberties, and vulnerable populations.
O’Malley, Megan, ‘Taking Care of Business: An Empirical Examination of the Top S&P 500 Companies and Their Role as Public Health Regulators During the COVID-19 Pandemic’ (2023) 31(2) University of Miami Business Law Review 1–45 Abstract: Data from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance.
Onyediri, Jason, ‘Social Insurance for the Socially Distant: Reforming the Countermeasures Injury Compensation Program’ (2022) 101(1) Texas Law Review 237–271 Abstract: The various COVID-19 vaccines have done immeasurable good for society. The vaccines have slowed the spread of the virus, reduced hospitalization rates, and prevented deaths. Of course, the vaccines are not perfect. Of the hundreds of millions of people who have been vaccinated, some, albeit relatively few, have suffered serious adverse side effects from vaccination. How these individuals are compensated has significant implications for the nation’s vaccination efforts and public health. Pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act), broad liability protections are afforded to manufacturers and administrators of COVID-19 vaccines. Thus, those that allege harm from vaccines cannot bring suit to recover damages for their injuries. At present, the Countermeasure Injury Compensation Program (CICP) is the exclusive mechanism by which individuals injured by COVID-19 vaccines can seek compensation. However, the CICP was not designed with COVID-19 in mind. The program is woefully deficient, particularly when compared to its sister federal vaccine injury program, the Vaccine Injury Compensation Program (VICP). Moreover, other social insurance programs employ successful design principles that are lacking in the CICP. This Note argues that the CICP is best conceptualized as social insurance and draws from successful social insurance programs to suggest reforms to the CICP. Others have critiqued the CICP, compared it to the VICP, and proposed reforms. However, this Note is unique in developing its reform suggestions by viewing the CICP through the lens of social insurance. In doing so, this Note seeks to inform the current federal vaccine injury compensation reform discourse by extracting valuable design principles from social insurance programs.
Oseni, Alexandra Adetutu, 'Examining Implementation of Policy Effects on Coronavirus (Covid-19) in United State of America' (2020) (96) Journal of Law, Policy and Globalization 123-129 Abstract: This particular study examines public policy implementation theories on the various interventions to combat the Coronavirus (COVID-19) pandemic. As underscored in the literature COVID-19 is perceived to be a respiratory disease caused by a novel Coronavirus. The virus was first noticed in Wuhan in China. This global killer-COVID-19 has caused many countries, including the United States of America, to get on rigorous policies measures to help contain the spread. Some of the perceived preventive measures taken by the United States of America include travel restrictions, official and self quarantines, postponements of events facility closures and curfews. All these are possible immediate solution proposed by healthcare experts and professionals to flatten the COVID-19 curve. As a result of adding to public policy literature and to also assist policymaker to understand the implication of their choice of intervention procedures, the study uses the two main approaches of policy or program implementation-top-down and bottom-up to all governors, decision makers on possible ways to approach pandemic issues. In the face of this COVID-19 pandemic, the study recommended that all preventive care, possible treatment tools (or medication), screening and if possible vaccination must be either free or demanded at a subsidized rate in order make eradication possible
Osler, Mark William, 'Criminal Justice Amid the Pandemic of 2020' (Univerity of St Thomas (Minnesota) Legal Studies Research Paper No 20-23, 20 2020) Abstract: Tragedy is the very nature of criminal law. Every bit of it is about tragedy, from the pain of the victims to the harm done to offenders through punishment. The enterprise as a whole, even at its best, presents a practical and spiritual challenge to those that work within its dirty, clanking machinery. And then came 2020, bringing with it a pandemic which ravaged prisons, shuts down the courts, and destroyed the economy, especially for the least among us. Like a snow-globe that reveals its nature when shaken, the shocks of 2020 have revealed a striking and unsettling picture of criminal justice in the United States.This book chapter is a first cut at describing some of that picture. It looks at the impact of the pandemic on prisons and jails, on crime, on its intersection with the killing of George Floyd by Minneapolis police officers, and something more deeply hidden but significant: 2020’s grinding away of the last bits of emotional connection to their work for some of the people who work in this dystopian system.
Otey, Brittany Stringfellow, ‘The Disconnect: Reflections on the Virtual Connection Between Lawyers and Clients’ (2023) 62(3) Washburn Law Journal 617–633 Abstract: The 2020 pandemic turned the provision of legal services upside down, as it did across every sector. In a matter of days, Pepperdine Legal Aid Clinic, which provides civil legal services to a wide range of clients, including those experiencing homelessness, went from business as usual to a complete shutdown. This Essay reflects on the rise of technology use in the provision of legal services over the past few years, both at the Pepperdine Legal Aid Clinic and across the country, exploring both the benefits and the drawbacks. Section II introduces the challenges of providing legal services during the 2020 pandemic, as well as the many benefits afforded by the increased use of technological tools. Section III offers an invitation for reflection on the expanded use of technology, particularly as it affects unrepresented litigants, lawyer-client relationships, and lawyer mental health. Section IV provides suggested best practices as well as a call to proceed thoughtfully and intentionally as we continue to incorporate technological tools in legal practice.
Ouellette, Lisa Larrimore et al, 'Innovation Institutions and COVID-19' (SSRN Scholarly Paper No ID 3826687, 14 January 2021) Abstract: The COVID-19 crisis has starkly illustrated both the strengths and limitations of U.S. biomedical innovation institutions as deployed to fight a pandemic. These innovation institutions include not just intellectual property law, but also other legal systems that structure incentives for production and allocation of knowledge goods, including regulation by health agencies like the Food and Drug Administration, programs like Medicare and Medicaid that govern healthcare reimbursement, and government subsidies for research and development through agencies such as the National Institutes of Health. In this collection of essays from March 2020 through April 2021, originally published at Written Description, we explore the response of these legal institutions to a variety of COVID-19-related technologies including vaccines, diagnostics, pharmaceutical treatments, and medical devices. While each technology brings its own challenges, we find a number of common innovation inefficiencies present during the COVID-19 pandemic, such as a lack of robust interagency coordination, poor incentives to generate health information, and persistent difficulties in manufacturing health care technologies at scale. In addition, throughout our work we highlight inequities in the healthcare innovation ecosystem related to race, gender, wealth, and geography. Although U.S. innovation institutions have resulted in some remarkable successes—such as the record-breaking speed of vaccine development—the pandemic has also drawn attention to innovation policy failures. Policymakers should focus on addressing these problems now—before the next pandemic strikes.
Ouellette, Lisa Larrimore, ‘IP and Public Research in Health Emergencies: U.S. Law and Best Practices’ (SSRN Scholarly Paper No 4505930, 9 July 2023) Abstract: The urgent demands posed by the COVID-19 pandemic galvanized the scientific research community, with substantial support from government funding. The results of this research have often been protected by intellectual property (IP), including patents and trade secrecy, leading to substantial interest in the laws and policies that enable the public to benefit from publicly funded research. This discussion paper, prepared at the request of the World Intellectual Property Organization (WIPO) Patent and Technology Law Division, describes the U.S. approach to these issues and outlines best practices for future health emergencies. The U.S. government supports innovation through a pluralistic approach, mixing and matching the market exclusivity provided by IP with a host of other policy mechanisms. Most prominently, the government directly funds innovation ex ante through grants, R&D contracts, and national laboratories; supports additional ex ante R&D spending through tax incentives; and provides ex post innovation rewards ranging from government insurance like Medicare and Medicaid to procurement contracts like for the Department of Veterans Affairs and for COVID-19 vaccines and therapeutics. Under a broad definition that includes direct or indirect benefit from any of these forms of taxpayer support, every new medical product that reaches the U.S. public is at least partially ‘publicly funded,’ but most also depend on substantial private-sector investment. This paper examines these public funding policies, the legal framework for IP protections on publicly funded research, the implementation of these policies in contractual conditions attached to public R&D funding, and the application of these policies during the pandemic. COVID-19 presents both a global tragedy and an opportunity for structural changes. These reforms should not focus on whether an innovation benefited on any particular form of public funding, which has little bearing on key policy decisions such as who should have access to that innovation. Instead, two goals should guide reforms of IP and innovation systems: better aligning the rewards for new medical technologies with their social value, and providing widespread access to those innovations, both in the United States and around the globe.
Overbey, Jacob T, ‘Negotiating with a Virus: The NFL’s COVID-19 Response and What It Means for the Future of Collective Bargaining’ (2023) 62(3) Washburn Law Journal 647–685 Abstract: The article examines how the COVID-19 pandemic has influenced the future of collective bargaining in the National Football League (NFL), especially in the light of the collective bargaining agreement that was ratified before the outbreak of COVID-19 in the U.S.
Packin, Nizan Geslevich, 'In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19' (2020) 5 Wisconsin Law Review 1043-1064 Abstract: The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.In an effort to support the economy, the US government passed numerous stimulus acts, which included, among other things, a Paycheck Protection Program (PPP), and the distribution of relief checks to consumers. To effectuate the massive distribution of liquidity on an expedited basis, the government relied on big banks. But instead of prioritizing the public welfare, the banks were focused on their bottom lines and thus did not carry out the true intent of the stimulus. For example, with respect to the PPP, although the Small Business Administration was required to process the loans on a first-come, first-served basis, the banks were not. And absent that requirement, the banks prioritized richer and bigger customers. As a result, women and minority-owned small businesses, as well as peripheral area-based small businesses, found themselves facing more barriers to getting loans. Similarly, with respect to the direct distribution of relief checks to consumers, banks prioritized their own interests over those of their customers. For example, in an effort to collect bank debt, banks froze and seized the funds from government relief checks deposited into consumer accounts before the consumers that needed those funds received them. Consequently, various state attorney generals and courts had to intervene, and mandate that the consumers be permitted to use the funds as the government had intended—for necessities like food and shelter.There are several techniques we can employ to modify banks’ ethical behavior and cultural norms. This Essay discusses such methods, which include (i) a top-down regulatory approach; (ii) the creation of market-led initiatives; (iii) an interpretive fix, offered by the judicial system; and (iv) a public criticism and shaming semi-regulatory approach.
Packin, Nizan Geslevich and Srinivas Nippani, 'Ranking Season: Combating Commercial Banks' Systemic Discrimination of Consumers' (2022) 1(59) American Business Law Journal 123-174 Abstract: The recent disbursement of COVID-19 pandemic-related federal relief funds to businesses and individuals under the CARES Act exposed significant problems in the U.S. system of money and payments. U.S. banks' wealth maximization objectives clashed with the federal government's goals of diversity, equity, and inclusion (DEI). The discriminatory, self-interested behavior of banks, which essentially served as the federal government's long arm in these transactions, worsened the pandemic-induced economic crisis for many, especially women and minorities, and intensified racial injustice. The U.S. government's inability in 2020 to successfully execute its stimulus plan and give all its intended recipients the benefits it had designated due to the role played by banks begs the question: Should U.S. banks be subject to any legal obligations when they help the government execute its fiscal goals? This article argues that U.S. banks should help advance the federal government's fiscal policy, including the DEI social agenda, especially during critical junctures such as the economic crisis instigated by COVID-19, and proposes an agency theory approach to mandate the implementation of government social policy goals among commercial banks via a CAMELS rating-like system that includes social goals, such as DEI. This DEI rating system would create public consequences for noncomplying banks, including depositors withdrawing their funds from lower-rated banks and redepositing them in top-rated banks, resulting in higher-rated DEI banks overtaking lower-rated banks. This DEI rating system will also provide an incentive for banks to compete for more diversity and inclusion, which would solve many of the systemic discrimination-related issues that led to economic inequality and intensified the 2020–2021 crisis. Lastly, DEI-based scores could help prevent banks from finding themselves on the losing side of the growing public banking movement in the United States, enabling banks to reposition themselves and avoid future radical changes in the banking industry.
Paglialonga, Jacob, 'The COVID-19 Cover-Up; How Federal Courts Are Changing Constitutional Law to Uphold Unconstitutional State Actions' (SSRN Scholarly Paper No ID 3607298, 21 January 2020) Abstract: When a state deprives us of fundamental liberties, the judiciary is required to assess the government action using the strict scrutiny standard of review. Under this level of scrutiny, the state action must be narrowly tailored and serve a compelling state interest, or it is unconstitutional. An essential aspect of strict scrutiny is that the burden of proof is on the government. Meaning, when State actors infringe on our liberties, they must support the necessity of their actions with evidence. Amidst the COVID-19 pandemic, federal courts have largely failed to apply the strict scrutiny standard of review to state actions. Instead, courts have invented an entirely new standard of review specifically for state actions during a ‘public health crisis.’ Under this new COVID-19 standard of review, courts may only overturn state actions that lack a real or substantial relation to public health or that amount to a plain, palpable invasion of rights. This standard of review shifts the burden of proof from the state to the individual. Ergo, to earn back bereaved liberties, individuals must demonstrate that a state’s action is not somehow related to a public health crisis or provide evidence that a state’s action meets the court’s subjective definition of a ‘palpable invasion of rights.’ Unsurprisingly, the new COVID-19 standard of review vindicates state deprivations of liberty regardless of merit or necessity.This Article addresses the new COVID-19 standard of review federal courts are employing to reject constitutional challenges to state actions in response to the coronavirus. This Article describes the fundamental liberties abridged by state lock-downs, and the judicial scrutiny historically applied to these types of infringements on liberty. This Article examines the 1905 Supreme Court case of Jacobson v. Commonwealth of Massachusetts, which courts utilize to support the new COVID-19 standard of review. This Article reviews other legal precedents in the area of ‘quarantine law’ to expose how the COVID-19 standard of review is a radical divergence from traditional jurisprudence. Lastly, this Article compares federal court opinions using the new COVID-19 standard of review with the few court decisions still using strict scrutiny. This comparison demonstrates that once subjected to minimal scrutiny and the burden of proof, state governments utterly fail to support the efficacy and necessity of their COVID-19 ‘emergency’ actions.
Paloma, Wu and D Korbin Felder, 'Hell and High Water: How Climate Change Can Harm Prison Residents and Jail Residents, and Why COVID-19 Conditions Litigation Suggests Most Federal Courts Will Wait-And-See When Asked to Intervene' (2022) 2(49) Fordham Urban Law Journal 259-340 Abstract: This Article proposes that COVID-19 prison and jail conditions litigation provide insights into how federal courts may analyze future climate-related prison and jail litigation. The global COVID-19 pandemic and the exogenous threats associated with global climate change differ in critical ways. However, both pose grave public health hazards to people worldwide yet pose a greater risk of serious harm to prison and jail residents because they are confined without the physical ability to mitigate on their own or at all. Plaintiffs in both suit types will bring the same claims and types of actions to enforce their right to be free from illegal conditions of confinement or disability-based discrimination. Both will seek preliminary relief. To prevail, both will need to overcome the same thorny jurisdictional and remedial barriers imposed by the Prison Litigation Reform Act (PLRA) or habeas statutes. Observations about outcomes in COVID-19 prison and jail conditions litigation — when considered together with geographic projections of future climate change-related harm that predict the U.S. South will be hardest hit — suggest that prison and jail residents living in the Fifth and Eleventh Federal Circuit Courts of Appeals, who are disproportionately Black Americans, may be particularly disadvantaged when seeking preliminary relief from life-threatening climate-related crises.
Palumbo, Andrea and Karmen McQuitty, 'Tenant rights in the era of covid-19' (2020) 5(77) Bench & Bar of Minnesota 36-38 Abstract: Do you remember what you thought when you realized the magnitude of the covid-19 pandemic? Did you worry about whether you’d be able to pay your rent or mortgage? Or that you would suffer financially? For millions of people the financial impact was, and continues to be, a significant result of this pandemic. For renters in particular, the pandemic has presented unique challenges—both in paying rent and seeking relief under current (and future) leases. The law governing landlords and tenants is codified in Minnesota statutes and city ordinances. Evictions are one part of landlord/tenant law, and certainly the most contentious. An average of 17,000 evictions are filed every year in Minnesota.1 Hennepin and Ramsey counties account for the lion’s share of filings and more than a third of the evictions in the state. Evictions can be filed for nonpayment of rent, breach of the lease, or holding over after a notice to vacate. The majority of cases filed are against tenants who have not paid rent under their lease. By design, most eviction cases move quickly. Minnesota law requires that the first appearance in a case occur between seven and 14 days after a summons is issued.2 Expedited cases, brought on the basis that a renter is causing a nuisance, engaging in illegal activity, or endangering the safety of other residents or the landlord’s property, move even faster. These are summary proceedings and a tenant’s first appearance is often their only appearance in the case.
Pannu, Jaspreet et al, ‘Recommendations to Strengthen the US Government’s Enhanced Potential Pandemic Pathogen Framework and Dual Use Research of Concern Policies’ (SSRN Scholarly Paper No 4988425, Social Science Research Network, 8 July 2022) Abstract: The purpose of this document is to provide recommendations to the US Government (USG) and the National Science Advisory Board on Biosecurity (NSABB) as revisions are being developed regarding oversight of enhanced potential pandemic pathogen (ePPP) research and dual-use research more broadly. Research in the life sciences, especially research with microbial agents, addresses major challenges in medicine, public health, and the environment, and offers important benefits. However, life science research can also pose risks, particularly in the realm of enhancing potential pandemic pathogens (PPP) and other dual-use challenges. COVID-19 has shown the global impact of a highly transmissible virus that causes mortality and morbidity. Experiments that create the possibility of initiating such a pandemic require rigorous assessment. Increased access to the ability to create and engineer pathogens, driven partly by continued advancements in general purpose tools and methods, presents new challenges for carefully governing this work.
Papke, David Ray, 'The Stage Was Set for Disaster: For-Profit Nursing Homes, Federal Law, and COVID-19' (Marquette Law School Legal Studies Paper No 21-06, 17 January 2021) Abstract: For-profit nursing homes came to dominate nursing-home care in the United States in the second half of the twentieth century, especially after the passage of Medicare and Medicaid legislation in the 1960s. However, for-profit nursing homes on average provided inferior care when compared to state-run and nonprofit nursing homes. Congress attempted to address the problems in nursing homes in the final decades of the twentieth century, but massive statutes and abundant regulations served mostly to legitimize the problematic for-profit nursing home. COVID-19 then tragically underscored the flaws in the legally sanctioned for-profit nursing home as a major socio-legal institution in American life.
Paradise, Jordan, 'COVID-IP: staring down the Bayh–Dole Act with 2020 vision' (2020) 1(7) Journal of Law and the Biosciences Article lsaa073 Abstract: As the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty regarding the timeframe for prevention, detection, and treatment. 1 There is also concern about the eventual costs associated with approved products and the barriers to access created by the patent system. Industry, government, and academic collaborations are leading the charge in the discovery race, partnerships which have triggered calls for the activation of the federal governments so–called ``march–in rights'' established in the Bayh–Dole Act. 2 The Bayh–Dole Act dramatically altered the patent protections available to federally funded institutions and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government's authority. The COVID-19 pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public health future. Patent rights for therapeutic compounds, methods of delivery, and medical diagnostics will significantly impact access to and cost of life-saving innovations. This article examines current calls for the U.S. government to utilize governmental march–in rights to quell concerns about patent monopolization and product pricing in the face of our current pandemic.
Paradise, Jordan and Elise Fester, 'FDA Publicity and Enforcement in the COVID-19 Era' (2020) 1(60) Washburn Law Journal 77-106 Abstract: Global public health emergencies such as the current COVID-19 pandemic provide urgent context to the scope of the FDA's legal authority, including enforcement actions and widespread public health warnings issued through adverse publicity power to counter fraudulent and dangerous product promotion. In order to further study how the FDA is pursuing its public health mission in the COVID era, this Article both qualitatively and quantitatively explores recent FDA activity, through the mechanisms of publicity and warning letters, against allegedly violative medical products promoted or advertised for use as a treatment or prevention for COVID-19.
Pardo, Rafael I., 'On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State' (2021) (48) Fordham Urban Law Journal (forthcoming) Abstract: As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered system that nationalized bankrupts’ assets, some of which featured prominently in the business of slavery. This Article focuses on a specific episode from New Orleans, which at the time was the nation’s third-most-populous city, had the nation’s largest slave market, and had one of the nation’s largest money markets. One of the bankruptcy cases commenced in that city involved the administration and sale of Banks Arcade, which was a premier commercial exchange for auctioning enslaved Black Americans. This history about how the federal administrative state restructured one component of the U.S. slavery complex should prompt critical reflection on how present-day bankruptcy law manages the fallout from a financial crisis. This Article concludes that courts have the authority to permit the public to advocate for its interests in distressed assets redeployed through the federal bankruptcy system.
Pareja, Mary Leto, ‘Masking Vulnerability: Including PPE as a Covered Service in Health Insurance’ (2023) 102(2) Nebraska Law Review 389–429 Abstract: The COVID-19 pandemic laid bare the shared vulnerability inherent in the human condition, prompting a collective recognition of our physical susceptibility to infectious diseases. While great strides have been made in combating COVID-19 through vaccinations and treatments, a portion of the population remains profoundly vulnerable due to health conditions that make the disease more dangerous, that limit vaccine efficacy, or that prevent vaccination altogether. This article explores a path forward by proposing a solution within health benefit plans—encompassing both private health insurance and public health benefits. Specifically, the article advocates for a coverage mandate for over-the-counter personal protective equipment (PPE) at zero out-of-pocket cost for vulnerable individuals. Drawing on the experiences of those facing heightened susceptibility, such as immunocompromised patients undergoing chemotherapy, the article highlights the critical role of PPE in safeguarding against infectious diseases. The article proceeds with a comprehensive exploration, beginning with a background on infectious diseases and the context of COVID-19. It then scrutinizes the current landscape of health benefit plans and their coverage of personal protective equipment. The proposal is systematically presented, detailing how a mandate can be structured to implement comprehensive coverage and including an exploration of different design elements that could be utilized to broaden or narrow the coverage mandate. The article advocates for a paradigm shift in health benefit plans to address the ongoing vulnerability faced by a segment of the population. By mandating zero out-of-pocket costs for PPE, this proposal aims to empower vulnerable individuals to protect themselves against infectious diseases. In doing so, it seeks to bridge the gap in current health coverage and foster a more inclusive and resilient healthcare system in the post-pandemic era.
Parker, Brenda and Janet Lynn Smith, 'Policy Spotlight: Women's Housing Precarity During and Beyond Covid-19' (SSRN Scholarly Paper No ID 3896504, 29 January 2021) Abstract: As state and federal eviction moratoriums expire, millions of people across the country face the possibility of losing their homes, and the disparate impact of COVID-19 on women's economic prospects makes them especially vulnerable to eviction. This Policy Spotlight illustrates how everyday gender disparities contribute to housing instability for women and describes how COVID-19 amplified these disparities. The authors offer suggestions for policymakers looking to not only stem the coming wave of evictions but also to help women and families find long-term stability.
Parker, Richard W., 'Why America’s Response to the COVID-19 Pandemic Failed: Lessons from New Zealand’s Success' (2021) 1(73) Administrative Law Review 77-103 Abstract: COVID-19 is the ultimate test of administrative law and governance, as every country faces the common challenge of saving lives from a virulent pandemic at a manageable cost to the economy. Polls show that 48 percent of Americans think that COVID-19 posed an essentially impossible test and that the US has performed as well as most other countries in meeting the pandemic challenge. This Essay refutes that misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate despite over $2 trillion in U.S. deficit spending. In fact, U.S. performance at the level of South Korea, Australia, New Zealand, or Japan in containing the pandemic would have saved over 300,000 American lives in 2020 alone. This Essay then offers a detailed comparison of the COVID-19 response of the Trump Administration to that of New Zealand, which mounted a truly successful response. While some observers have dismissed New Zealand’s success as an artifact of good luck -- or of its geographic situation as a small, rural, island state -- this Essay offers evidence to suggest that these distinctions are of marginal importance compared to a more crucial contrast: New Zealand followed the pandemic containment “playbook” to the letter while in the United States the Trump Administration departed from that playbook at every turn. Moreover, New Zealand’s response was centrally planned and tightly managed while the U.S. response was incoherent and de-centralized. The evidence thus strongly suggests that the tragic disparity between America’s COVID-19 performance and New Zealand’s is primarily due -- not to geography or happenstance -- but to a stark contrast in the pandemic response strategy adopted by New Zealand’s Prime Minister Jacinda Ardern compared to that of President Trump. Leadership matters.
Parmet, Wendy E, Constitutional Contagion: COVID, the Courts, and Public Health (Cambridge University Press, 2023) Link to book page on publisher website
Book summary: Constitutional law has helped make Americans unhealthy. Drawing from law, history, political theory, and public health research, Constitutional Contagion explores the history of public health laws, the nature of liberty and individual rights, and the forces that make a nation more or less vulnerable to contagion. In this groundbreaking work, Wendy Parmet documents how the Supreme Court departed from past practice to stymie efforts to mitigate the COVID-19 pandemic and demonstrates how pre-pandemic court decisions helped to shatter social contracts, weaken democracy, and perpetuate the inequities that made the United States especially vulnerable when COVID-19 struck. Looking at judicial decisions from an earlier era, Parmet argues that the Constitution does not compel the stark individualism and disregard of public health that is evident in contemporary constitutional law decisions. Parmet shows us why, if we are to be a healthy nation, constitutional law must change.
Parmet, Wendy E, ‘From Deference to Indifference: Judicial Review of the Scope of Public Health Authority During the COVID-19 Pandemic’ (SSRN Scholarly Paper No 4892248, 14 June 2024) Abstract: For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic cases that presaged its decline. Part IV looks at how state and federal courts analyzed challenges to officials’ scope of authority during the pandemic. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court under the guise of the major questions doctrine, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. Part V considers the implications of this development for the government’s capacity to respond to new health threats and argues, paradoxically, that the decline of deference to agency determinations of the scope of their authority may be more dangerous to health than the denial of deference to agency fact-finding in particular cases.
Parmet, Wendy E., 'From the Shadows: The Public Health Implications of the Supreme Court's Covid-Free Exercise Cases' (2021) 4(49) Journal of Law, Medicine & Ethics 564-579 Abstract: This article analyzes the Supreme Court’s “shadow docket” Free Exercise cases relating to COVID-19. The paper highlights the decline of deference, the impact of exemptions, and the implications of the new doctrine for vaccine and other public health laws.https://doi.org/10.1017/jme.2021.80
Parmet, Wendy E., 'Immigration Law's Adverse Impact on COVID-19' in Burris, Scott; de Guia, Sarah; Gable, Lance; Levin, Donna E.; Parmet, Wendy E.; Terry, Nicolas (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Immigration law has played a large and deleterious role during the pandemic. In early 2020, the Trump administration relied on the Immigration and Naturalization Act to bar entry of non-nationals from affected areas. Once the pandemic spread widely in the United States, the administration imposed broad restrictions on immigration, including blocking entry at land borders, effectively overriding asylum laws. While furthering the administration’s pre-pandemic, anti-immigration agenda, these measures did little to keep the virus out of the country, or reduce its impact. Immigrants have also suffered disproportionately from COVID-19 due to numerous factors, including high rates of employment as essential workers, substandard housing, and immigration-based restrictions on non-citizens’ access to public benefits, including Medicaid. The recently promulgated public charge rule, plus ongoing immigration enforcement activities and antiimmigrant rhetoric, have compounded these vulnerabilities, leaving many immigrants afraid to access health care or interact with public health workers. SARS-COV-2 (the virus responsible for COVID-19) has also spread widely in immigration facilities, where detainees are unable to practice social distancing and lack access to adequate hygiene and health care.
Parmet, Wendy E., 'Rediscovering Jacobson in the Era of COVID-19' (SSRN Scholarly Paper No ID 3620353, 05 January 2020) Abstract: As courts continue to hear constitutional challenges to COVID-related orders, citations to the Supreme Court’s 1905 decision, Jacobson v. Massachusetts, have been proliferating. This essay re-examines Justice Harlan’s nuanced and ambiguous opinion in Jacobson, situating in in its epidemiological and jurisprudential context. The essay also looks at Jacobson’s complex legacy, and how judges, including Chief Justice Roberts in South Bay United Pentecostal Church v. Newsom, have been applying Jacobson as they review COVID-19 social distancing orders. Note: in this 1905 decision, the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.
Parmet, Wendy E., 'The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic' (2021) San Diego Law Review (forthcoming) Abstract: What powers do states have to protect the public from a public health emergency? For most of the last 100 years, the protracted and robust debate about that question has been largely hypothetical. Although courts had occasion to assess the scope of state public health powers in cases concerning HIV, measles, vaping, and Ebola, to offer just a few examples, until COVID-19, no court in the past century had to determine the full reach of state public health emergency powers during a widespread and highly lethal pandemic. Nor had any court been asked to reconcile contemporary understandings of constitutional rights with the states’ need to protect its residents from such a pandemic.In the spring of 2020, numerous state and local courts, including the U.S. Supreme Court, were presented with just those challenges. As cases of COVID-19 spiked in many American communities, governors and local officials across the country used their emergency powers to impose a range of social distancing orders (SDOs), shuttering businesses, restricting religious services, requiring the wearing of masks, and banning nonessential medical services, all in an effort to “flatten the curve.” Although the vast majority of the public supported these measures, at least initially, numerous litigants went to court seeking to enjoin SDOs. They did so against the backdrop of an increasingly polarized reaction to the pandemic, with President Trump, who had promoted social distancing in March, tweeting in April for the liberation of states as armed protesters shut down the Michigan legislature. Meanwhile, false and misleading information about COVID-19 and potential policy responses spread wildly across social media, some of it amplified by the President himself.Protests, polarization, and misinformation: these formed the environment in which state and federal courts confronted the initial wave of constitutional challenges to COVID-19 SDOs. In deciding those claims, and in the absence of significant contemporary precedent, most courts looked to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. A complex and multifaceted decision, Jacobson has been cited frequently in the 115 years since it was decided. But never before had it been used so prominently to decide the constitutionality of broad state SDOs in the midst of a pandemic. And never before had it been relied upon to such an extent in such a lethal, partisan, and heated moment.How did the courts respond to the initial wave of litigation? This Article offers some preliminary observations by examining court opinions published in Westlaw reviewing abortion, free speech, and free exercise claims that cited to Jacobson between March 21 and May 29, 2020, when the Supreme Court handed down its first COVID-19 opinions. This examination shows that although lower courts offered different interpretations of Jacobson, all accepted the importance of the state’s interest in protecting the public’s health. Moreover, no court questioned the seriousness of the pandemic; nor did any adopt the misleading information about the pandemic that was widely available on social media.Nevertheless, at least until May 29, when Chief Justice Roberts and Justice Kavanaugh issued concurring and dissenting opinions respectively accompanying the Supreme Court’s refusal to block the application of California’s social distancing order to religious services, the lower courts diverged over how to reconcile the deference that Jacobson accords to public health authorities with the protection of fundamental constitutional rights. Further, while factual distinctions regarding state-specific SDOs likely help explain some of the different outcomes, the shifting nature of the claims and the evolving politics around SDOs may also have played a role, raising critical questions as to how courts may respond should states impose new SDOs either in response to a “second wave” of COVID-19 or a future pandemic.
Parmet, Wendy E. et al, 'COVID-19: The Promise and Failure of Law in an Inequitable Nation' (2021) 1(111) American Journal of Public Health 47-49
Parmet, Wendy E and Faith Khalik, ‘Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications’ (2023) 113(3) American Journal of Public Health 280–287 Abstract: During the COVID-19 pandemic, officials in the United States at all levels of government utilized their legal authorities to impose a wide range of measures designed to control the spread of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19), including shutting down businesses, limiting the size of gatherings, requiring masking, and mandating vaccination. These orders and regulations were challenged in court cases that resulted in more than 1000 judicial decisions. Common claims were based on alleged procedural and substantive due process violations, violations of religious liberty, and violations of officials’ scope of authority. In more than three fourths of the decisions, the court refused to grant the plaintiffs the relief sought. However, plaintiffs found success in several notable cases, especially in federal court. These recent decisions, as well as broader prepandemic trends, have important implications for public health officials’ exercise of their public health powers, especially when those exercises implicate religious liberty. In this legal environment, officials may need to rely more on the powers of persuasion than on their legal authority alone.
Parmet, Wendy E. and Michael S Sinha, 'Covid-19: the law and limits of quarantine' (2020) 15(382) New England Journal of Medicine e28 Abstract: Extract from Introduction: As Covid-19 spreads around the globe, governments have imposed quarantines and travel bans on an unprecedented scale. China locked down whole cities, and Italy has imposed draconian restrictions throughout the country. In the United States, thousands of people have been subjected to legally enforceable quarantines or are in “self-quarantine.” The federal government has also banned entry by non–U.S. nationals traveling from China, Iran, and most of Europe and is screening passengers returning from heavily affected countries. Still, the numbers of cases and deaths continue to rise. Quarantines and travel bans are often the first response against new infectious diseases. However, these old tools are usually of limited utility for highly transmissible diseases, and if imposed with too heavy a hand, or in too haphazard a manner, they can be counterproductive. With a virus such as SARS-CoV-2, they cannot provide a sufficient response. In public health practice, “quarantine” refers to the separation of persons (or communities) who have been exposed to an infectious disease. “Isolation,” in contrast, applies to the separation of persons who are known to be infected. In U.S. law, however, “quarantine” often refers to both types of interventions, as well as to limits on travel. Isolation and quarantine can be voluntary or imposed by law.
Parnigoni, Kristen E, ‘Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era’ (2022) 63(8) Boston College Law Review 2743–2780 Abstract: Historically, the Supreme Court’s docket of administrative orders and emergency petitions has existed largely in the shadow of its merits docket. During the COVID-19 pandemic, the Court increasingly employed this ‘shadow docket’ in highly politicized challenges to both state and federal public health policies that affected millions of Americans. The Court draws upon longstanding statutory authority to grant and withhold emergency remedies, usually in the form of preliminary injunctions and stays of injunction. By maintaining the status quo, these forms of equitable relief offer temporary remedies and prevent alleged harms to litigants while courts consider the legality of the action at issue. The nature of emergency relief, however, requires the Court to depart from its usual procedure of oral arguments, briefing, and lengthy consideration of the substantive legal issues. As a result, when the Court grants or withholds such relief, it rarely offers an opinion that explains the standard of review or the rationale behind the decision. Though the Court’s jurisprudence offers at least three standards that govern emergency remedies, the Court continues to issue relief without expressly adopting or employing a uniform standard. This Note discusses the historical standards of review and the variations in recent shadow docket rulings regarding public health measures. In an era where pandemics seem increasingly unavoidable, governments will turn to health measures to contain perceived threats. In challenges to these measures, governments and aggrieved citizens will rely on emergency remedies to prevent purported irreparable harms while courts determine the validity of such measures. This Note argues that the Supreme Court should adopt a new, two-part standard that governs this important remedy, especially as applied to petitions for emergency relief during public health crises.
Patel, Khushbu, ‘COVID-19 Policies & Their Impact on Housing and Health Outcomes in the City of Chicago’ (2023) 24(1) DePaul Journal of Health Care Law 31–57 Abstract: The COVID-19 mandates and policies that were implemented by both the state of Illinois and the City of Chicago, such as the eviction moratorium, dramatically improved health outcomes by alleviating the financial stress of many households. Discussing social determinants of health and evaluating the impact that each social determinant had on housing and health outcomes allows for an in-depth look at the overall concept of housing in Chicago and the health outcomes of low-income individuals. Comparing the housing laws in place before COVID-19 at the federal, state, and local levels allows for analyzing the impact of the COVID-19 policies and state mandates in response to the pandemic. This paper will discuss the positive and negative impact of these policies and executive orders on housing in Chicago. Thus, highlighting the future importance of affordable housing in Chicago and health outcomes.
Paulson, Kristi J, ‘Mediation in the Covid-19 Era: Is Online Mediation Here to Stay?’ (2021) 51(1) Southwestern Law Review 142–155 Abstract: Though a return to in-person mediation may be inevitable, this Essay outlines how online mediation worked and how it worked well. Online mediation became something we had to do, but soon that will no longer be true. Part II describes the remote mediation process and then explains how to conduct these types of meditations. The question now facing the legal community is whether we should continue to use online mediation and develop it more going forward in the future. Part III explores this question by detailing the benefits and challenges of online mediation. Because COVID-19 variants are ever-evolving, practical insight on how to accomplish a successful remote mediation will be delineated in Part IV. It includes ten tips that can aid mediators and others attempting to settle disputes online. Thus, online mediation can be done, it can be successful, and there can be benefits to doing a virtual process. Is it the wave of the future? Ultimately, Part V concludes that online mediation will become a permanent method of alternative dispute resolution.
Pavlicko, Randy, 'The Future of the Americans with Disabilities Act: Website Accessibility Litigation After COVID-19' (2021) 4(69) Cleveland State Law Review 953-979 Abstract: The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. In 2019, the Supreme Court turned down an opportunity to settle this circuit split through a case presenting the issue of whether the ADA applies to websites and mobile apps. This was before the COVID-19 pandemic forced our society to utilize online technology more than ever before. During the COVID-19 pandemic, schools switched to online learning, employees worked remotely, restaurants depended on takeout services through online ordering and consumers utilized online shopping to avoid crowded stores. These online activities and many others, however, may be inaccessible to millions of individuals with disabilities. If the ADA does not apply to online technology, businesses would not be required to design websites and mobile apps that are effectively accessible to individuals with disabilities. These individuals could therefore experience several disadvantages in an internet-dependent society. In 2021, do arguments for a narrow application of the ADA, which limits its scope to physical places only, seem persuasive? This Note discusses why ADA protections should apply beyond physical places, specifically to websites and mobile apps, and why this approach should be adopted nationwide. Without a uniform interpretation of the ADA’s scope, uncertainty surrounding website accessibility litigation will continue as the utilization of online technology continues to increase. This Note also discusses other important aspects of ADA website accessibility litigation, such as establishing standing to sue and asserting statutory defenses against alleged discrimination.
Payne, Brian K., 'Criminals Work from Home during Pandemics Too: a Public Health Approach to Respond to Fraud and Crimes against those 50 and above' (2020) 4(45) American Journal of Criminal Justice 563-577 Abstract: This paper uses the public health framework to address the apparent impact of the coronavirus on the victimization experiences with a specific focus given to those over the age of 50. The bulk of attention is given to fraud victimization, with consideration also given to parent abuse, partner violence, and patient abuse. A review of data from the Federal Trade Commission shows that reports of most types of fraud grew significantly in the first three months of 2020 in comparison to the same time period in 2019. Differences between fraud experiences based on age are considered. Older persons lost much more to fraud than younger persons, and far more in 2020 than 2019. In addition, they reported being targeted more often for certain types of cybercrime (i.e., tech support scams). While devastating to everyone, it is concluded that the coronavirus will potentially have a more significant impact on the financial health of older persons than younger persons. It is concluded that minimizing the consequences of all forms of crimes targeting older adults will be best achieved by using a public health approach.
Peacock, Ian and Emily Ryo, ‘A Study of Pandemic and Stigma Effects in Removal Proceedings’ (2022) 19(3) Journal of Empirical Legal Studies 560–593 Abstract: This study examines how a rapid change in social perceptions of a national-origin group triggered by the COVID-19 pandemic influenced immigration judges’ decision-making in US removal proceedings. Using originally compiled court data on removal proceedings decided between 2019 and 2020, we applied a difference-in-differences framework to produce three key findings. First, consistent with theory of event stigma, Chinese respondents experienced a significantly higher removal rate during the early pandemic period. Second, consistent with theory of associative stigma, East and Southeast (E/SE) Asian respondents also experienced a significantly higher removal rate during the early pandemic period. Third, the removal rate declined for both Chinese and E/SE respondents during the later pandemic period, but this decline was more gradual and lagged for E/SE Asian than for Chinese respondents. Finally, increases in the number of cases involving Chinese respondents increased the removal rate for E/SE Asian respondents during the early months of the pandemic. The last two findings suggest that associative or indirect stigmatization may be harder to combat than direct stigmatization owing to the implicit nature of bias underlying associative stigma. This study highlights the socially constructed nature of national origin groups, and the importance of both direct and indirect stigmatization in the production of social inequality.
Pendo, Elizabeth, 'Protecting the Rights of People with Disabilities' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of underserved racial and ethnic groups with disabilities experience greater disparities in health status and access to health care (Yee, et. al, 2016). These longstanding inequities are compounded by the COVID-19 pandemic and by governmental and private responses that discriminate on the basis of disability. Legal protections of people with disabilities are governed by two key federal laws: the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (“Section 504” or “Rehabilitation Act”). Together, these laws ensure that people with disabilities have equal opportunities in employment, in state and local services and programs, and to goods and services. The broad reach of these laws impact a host of issues raised by the COVID-19 pandemic. Enforcing agencies have provided COVID-19-specific guidance on the application of the laws in health care and in employment. However, gaps in protections as well as widespread lack of knowledge of and noncompliance with the ADA and the Rehabilitation Act limit their impact. Recommendations include: continued enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.
Pendo, Elizabeth, Robert Gatter and Seema Mohapatra, 'Resolving Tensions Between Disability Rights Law and COVID-19 Mask Policies' (Saint Louis University Legal Studies Research Paper No 2020-10, 20 2020) Abstract: As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask. Mask-wearing has become a political flashpoint, putting people with disabilities at risk. There are reports emerging that people with disabilities have been challenged, excluded from retail establishments, and even threatened with arrest for not wearing masks. Some anti-mask activists encourage their followers to falsely represent themselves as disabled to confound mask requirements, which has the potential to amplify skepticism and mistrust of people with non-obvious disabilities. Reports of violent conflict over mask-wearing add to these tensions. The first lawsuit challenging a mask requirement under federal disability rights law was filed in late May, and more are likely to follow. Federal laws like the Americans with Disabilities Act (ADA) prohibit discrimination on the basis of disability and require appropriate modification of public and private mask-wearing policies to accommodate the needs of individuals with disabilities. These laws, like other civil rights statutes, remain in force during the pandemic and should operate as a check against any discrimination that might result from a mask requirement. However, misunderstanding of and noncompliance with these laws limits their effectiveness. This article provides the first expert analysis of the federal disability law framework that applies to mask policies issued by state and local officials, as well as by stores, restaurants and other businesses that serve the public, and the often confusing interaction between public and private policies. It argues that contrary to some popular assumptions, mask policies can be employed in a manner consistent with the ADA and the Rehabilitation Act. Finally, it offers specific recommendations for the design and implementation of mask policies in manner that accommodates both the rights of people with disabilities and developing scientific knowledge of efforts to slow the spread of COVID-19.
Perlstein, Olivia C., 'Covid Research Inequalities: Highlighting the Need for Increased Minority Participation in Clinical Trials' (2021) 2(52) Seton Hall Law Review 545-571 Abstract: Although minority communities are disproportionately affected by COVID-19, both treatment and vaccine clinical trials have failed to enroll sufficiently diverse participants. While the National Institutes of Health (NIH) has issued regulations requiring minorities to be represented in Phase III clinical trials receiving NIH funding, the U.S. Food and Drug Administration (FDA), which oversees clinical trials of drugs and medical devices, has merely issued non-binding guidance encouraging diversity in clinical trial participants. These efforts have been largely unsuccessful. This Comment will argue that to reduce racial disparities in clinical trials effectively, the FDA must promulgate binding regulations requiring drug developers to increase diversity of clinical trial participants, especially when the disease that the drug or intervention targets disproportionately affects minority populations.
Perry, Frederick V. and Miriam Weismann, 'Rationing Healthcare During a Pandemic: Shielding Healthcare Providers from Tort Liability in Uncharted Legal Territory' (2022) 2(30) University of Miami Business Law Review 142-187 Abstract: As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated "triage protocols," known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a medical decision rationing access to care. Research shows that various state protocols have been implemented to this end by either executive order issued by the governor; state legislation; or action by individual hospital ethics boards. This paper examines a legal question of first impression: Whether the right to institute suit for pandemic related healthcare injuries can be constitutionally eliminated using state triage protocol immunity provisions passed by executive order or state statute during the pandemic. The paper concludes that healthcare providers may still be subject to some legal liability depending upon each state's unique constitutional grant of powers to the executive and legislative branches and the dictates of the Fourteenth Amendment.
Persad, Govind, 'Allocating Medicine Fairly in an Unfair Pandemic' (University of Denver Legal Studies Research Paper No 20-26, 20 2020) Abstract: America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Essay, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of COVID-19 vaccines presents questions about racial disparity. Novel treatments like remdesivir, convalescent plasma, and monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that such a prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust. In Part I, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part II, I argue that randomly allocating COVID-19 treatments, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part III, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require policies that avoid such classifications, though they may consider race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part IV, I propose two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in occupations hard-hit by COVID-19, potentially alongside aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in school assignment policies, would narrow disparities without classifying individuals by race. The other approach would address stark racial disparities in mortality among younger patients by avoiding policies that prioritize all patients over a certain age without regard to risk.
Persad, Govind, ‘Considering Vaccination Status’ (2023) 74(2) Hastings Law Journal 399–432 Abstract: This Article examines whether policies--sometimes termed ‘vaccine mandates’ or ‘vaccine requirements’--that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines. Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. It concludes that such consideration is similarly allowed at the state level unless expressly foreclosed, and is allowed at the federal level if appropriately supported by federal regulatory authority. Part III examines what may be a future front in these debates: whether policies considering vaccination status may be required rather than merely permitted, just as some courts have found that mask requirements may be federally required in certain circumstances.
Pesapane, Filippo et al, 'Legal and Regulatory Framework for AI Solutions in Healthcare in EU, US, China, and Russia: New Scenarios after a Pandemic' (2021) 4(1) Radiation 261-276 Abstract: The COVID-19 crisis has exposed some of the most pressing challenges affecting healthcare and highlighted the benefits that robust integration of digital and AI technologies in the healthcare setting may bring. Although medical solutions based on AI are growing rapidly, regulatory issues and policy initiatives including ownership and control of data, data sharing, privacy protection, telemedicine, and accountability need to be carefully and continually addressed as AI research requires robust and ethical guidelines, demanding an update of the legal and regulatory framework all over the world. Several recently proposed regulatory frameworks provide a solid foundation but do not address a number of issues that may prevent algorithms from being fully trusted. A global effort is needed for an open, mature conversation about the best possible way to guard against and mitigate possible harms to realize the potential of AI across health systems in a respectful and ethical way. This conversation must include national and international policymakers, physicians, digital health and machine learning leaders from industry and academia. If this is done properly and in a timely fashion, the potential of AI in healthcare will be realized.
Petersen, Nancy et al, ‘Respectful Tribal Partnership: What Philanthropy Can Learn From the Navajo Nation’s Collaborative Response to the COVID-19 Crisis’ (2022) 14(2) The Foundation Review 93-103 Abstract: The gravity of the COVID-19 pandemic and its disparately harsh impact on Indigenous peoples are now well known. U.S. death rates normalized by population, for example, have been far higher for Native Americans than for the white population in the United States. Many funders, realizing that basic human services are lacking for many Native American and Indigenous communities, have responded to the crisis. While this desire to act is laudable, many fail to grasp the complexities and necessity of applying trust-based collaborative principles that respect tribes as sovereign nations. This article describes a successful model for collaboration among a tribal nation, funders, and subject-matter experts to address a critical problem — access to clean water for Navajo families — based on respecting the leadership and values of the Navajo Nation and born from the pandemic crisis taking place there. Collaborating partners were drawn from dozens of state and federal agencies, nonprofits, universities, and philanthropies. All were connected by honor and respect for the Diné — ‘The People,’ as the Navajo call themselves. This model can be replicated by funders working with multiple experts, agencies, and governments to continue to meet community resilience challenges that do not retreat with the pandemic and to promote equity and justice in any philanthropic venture.
Pham, Huyen et al, ‘The Limits of Immigrant Resilience’ (2024) 33(3) Southern California Interdisciplinary Law Journal 509–546 Abstract: Economists have identified important adaptations that immigrant workers have made to weather economic crises. During times of economic contraction, immigrant workers have moved across industries or geographical locations, downshifted to part-time work, and accepted lower wages to stay employed. Evidence from the Great Recession (2007–2009) shows the benefits of that economic resilience: immigrant workers were more likely than native-born workers to remain continuously employed, to have shorter periods of unemployment when they lost their jobs, and to regain jobs more quickly in the recovery period. Of course, these adaptations had significant personal costs for immigrant workers and their families, but in times of increased job competition, their resilience enabled them to keep jobs and crucial sources of income and had important, positive spillover effects for native-born workers. Our research, however, shows important limits to that immigrant resilience. In our analysis of Current Population Survey (‘CPS’) data during COVID-19, immigrant workers had worse employment outcomes than native-born workers. Looking at the restaurant industry as a case study, we found that immigrant workers were more likely to lose their jobs, keep only low-paying jobs within restaurants, or drop out of the labor market entirely, as compared to native-born workers. The sharply contrasting experiences of immigrant workers during these two crises can be explained by the nearly simultaneous and complete shutdowns that states imposed across the country during the pandemic. These shutdowns undercut any mobility and flexibility advantages that immigrant workers might otherwise have had and threatened immigrants’ already precarious economic positions. As we look to the real possibility of future pandemics, these limits on immigrant resilience counsel for increasing immigrant access to aid programs at both the federal and state levels to benefit both immigrant workers and the larger economy that relies heavily on immigrant productivity.
Phillips, Edward R and Brandon L Morrow, 'Employment Law: Navigating the New Paid-Leave Mandates' (2020) 5(56) Tennessee Bar Journal 16-19 Introduction: The Families First Coronavirus Response Act (FFCRA) represents the second phase of Congress’s response to the COVID-19 crisis. The FFCRA provides eligible employees with paid sick leave through the use of two new acts: (1) the Emergency Paid Sick Leave Act (EPSLA) and (2) the Emergency Family and Medical Leave Expansion Act (EFMLEA). These provisions took effect on April 1, 2020 and expire on Dec. 31, 2020. Additionally, the new law includes refundable payroll tax credits for employers who are required to provide paid leave under the EPSLA or EFMLEA.
Pill, Shlomo, ‘The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia’ (CSLR Research Paper No 14.2022-AFF, 31 July 2022) Abstract: This article explains and critiques the Supreme Court’s recent of constitutionally required exemptions from laws that burden religious practice. This change to long-standing free exercise doctrine was affected in a rapid series of ‘shadow docket’ rulings issues in response to religious challenges to public health capacity restrictions and mask mandates during late 2020 and early 2021 and was reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia.1 In these cases, the Court significantly narrowed the Smith test, which had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free exercise regime, however, facially neutral laws are ostensibly subject to strict scrutiny whenever they fail to accommodate religious practices while permitting any analogous secular conduct. After tracing the development of the Court’s free exercise jurisprudence and explaining the dramatic doctrinal shift that occurred during the height of the Covid-19 pandemic, this article criticizes the Court’s new approach for being analytically incoherent, manipulable, and unworkable. The article goes on to justify these claims by examining the Court’s own inconsistency in responding to free exercise challenges to Covid-19 vaccination mandates.
Piquero, Alex R. et al, 'Staying home, staying safe? A short-term analysis of COVID-19 on Dallas domestic violence' (2020) American Journal of Criminal Justice (advance article, published 14 June 2020) Abstract: COVID-19 has wreaked havoc on the lives of persons around the world and social scientists are just beginning to understand its consequences on human behavior. One policy that public health officials put in place to help stop the spread of the virus were stay-at-home/shelter-in-place lockdown-style orders. While designed to protect people from the coronavirus, one potential and unintended consequence of such orders could be an increase in domestic violence – including abuse of partners, elders or children. Stay-at-home orders result in perpetrators and victims being confined in close quarters for long periods of time. In this study, we use data from Dallas, Texas to examine the extent to which a local order was associated with an increase in domestic violence. Our results provide some evidence for a short-term spike in the 2 weeks after the lockdown was instituted but a decrease thereafter. We note that it is difficult to determine just how much the lockdown was the cause of this increase as the domestic violence trend was increasing prior to the order.
Pizzano, Dominick, Henrik Patel and Kenneth Barr, 'Expansion of the Million Dollar Compensation Deduction Limitation on the Horizon for Publicly Held Corporations' (2021) 4(34) Benefits Law Journal 94-103 Abstract: The article focuses on stimulus package portions of the American Rescue Plan Act (ARPA) of 2021 provide COVID-19 relief, funding and tax legislation which President Joe Biden signed into law on March 11, 2021. It mentions the impact of the Tax Cuts and Jobs Act of 2017 (TCJA) on Section 162(m) and provided a summary of the history. It also mentions compensation was required to be reported to shareholders pursuant to the U.S. Securities and Exchange Commission's (SEC) disclosure rules.
Platt, Elizabeth et al, ‘Trends in US State Public Health Emergency Laws, 2021–2022’ (2023) 113(3) American Journal of Public Health 288–296 Abstract: State laws setting the scope and limits of emergency authority are crucial to effective public health response. These laws are changing in ways that threaten to reduce response capacity. Tracking changes in health law infrastructure is important for evaluating changes in health authority and ensuring that stakeholders recognize these changes. The COVID-19 pandemic called for quick, decisive action to limit infections, and when the next outbreak hits, new laws limiting health authority will make such action even more difficult.
Platt, Ellen, 'Zooming into a Malpractice Suit: Updating the Model Rules of Professional Conduct in Response to Socially Distanced Lawyering' (SSRN Scholarly Paper No ID 3780249, 29 January 2021) Abstract: There has been a significant increase in the use of videoconferencing platforms in the practice of law during the COVID-19 pandemic. These platforms have raised numerous ethical concerns based on shortcomings in the Model Rules of Professional Conduct. This Comment will argue that more meaningful guidance is needed under both Model Rule 1.1 and Model Rule 1.6 in order to effectively govern the ethical obligations of a lawyer who uses videoconferencing platforms or other electronic means of communication for virtual practice. Assistive guidance will help lawyers differentiate between ethical and unethical conduct in an area that potentially has serious ethical consequences if not adequately addressed. This Article will propose that the ABA is in the best position to provide meaningful guidance by adopting new comments elaborating on technology competence and reasonable efforts to safeguard client confidentiality.
Plaza, Cecilia, ‘In It for the Long Haul: The American Legal System’s Failure to Protect Patients with Persistent COVID-19 Symptoms from Gender Discrimination in Healthcare’ (2022) 18 Journal of Health & Biomedical Law 33–71 Abstract: The rising incidence of chronic illness due to long COVID will contribute to rising healthcare costs and disability. As our healthcare system becomes more strained, lack of resources will continue to drive up costs for all Americans. Additionally, an increase in disability among American workers diminishes productivity, increases corporate costs, and weakens the American economy. Effective legal redress for gender discrimination in healthcare will likely decrease the long-term costs of chronic illness triggered by the COVID-19 virus by decreasing misdiagnosis of long COVID, particularly among women patients, which provides those disabled by long COVID with access to SSDI and ADA protections. Prompt legal reform is necessary to effectively deal with the fallout of this pandemic.
Policarpio, Khrystan Nicole and Grecia Orozco, ‘Together But Unequal: How the COVID-19 Pandemic Exacerbated the Inequities Harming Minority Law Students’ 55 (May) UC Davis Law Review Online 91–132 Abstract: The first Part of this Article explores the pre-pandemic law school structure and the inequities faced by Diverse students. The second Part examines the effects of the ongoing pandemic and the current cultural and political climate on the law student experience. This discussion incorporates findings from a survey we conducted in 2021, in which we gathered anonymous feedback from law students across the country regarding their experiences with online learning.13 This Section also discusses students’ reactions to the current political and cultural climate, including the nation’s response to police brutality and the 2020 presidential election as additional factors affecting law students. Lastly, the third Part of this Article offers recommendations to law schools on how legal education can be more equitable during and beyond this global crisis.
Pollack, Harold A., 'Disaster Preparedness and Social Justice in a Public Health Emergency' (2020) 6(45) Journal of Health Politics, Policy and Law 907-920 Abstract: The United States is now experiencing public health catastrophe on a scale not seen for more than a century. COVID-19 puts into stark relief the mutual obligations that reflect interdependence among participants in a common society. Drawing on the work of Amartya Sen concerning famine and related challenges, the author discusses the accompanying implications for social justice. Social justice in catastrophe requires strong social insurance structures and legal protections for the most vulnerable people, who would otherwise lack economic resources and political influence to protect their essential interests. Social justice also requires greater and more sustained attention to disaster preparedness and public health infrastructure—both of which are characteristically neglected, in part because the public health enterprise is identified with politically weak and often stigmatized populations.
Pollard Sacks, Deana, 'Judicial Protection of Medical Liberty' (SSRN Scholarly Paper No ID 3801253, 25 January 2021) Abstract: The article discusses the history of vaccine jurisprudence in the courts and in particular the lower courts' failure to engage meaningful constitutional review of state vaccination mandates. The lack of separation of powers in conjunction with the National Childhood Vaccine Injury Act and the Supreme Court's interpretation of the Act has resulted in unfettered discretion among legislators to mandate vaccines in order for the public to obtain necessary and very valuable services. Since late 2020, the Supreme Court has indicated that the judiciary may take a more active role in reviewing COVID-19 mandates and this may signal that the judiciary will also review vaccine mandates generally with more care. The balance of powers relative to vaccination law and policy that has been lost over a century of poor jurisprudence in the lower courts may be restored to protect individual liberties adequately.
Pope, Hallie Jay and Ashley Treni, 'Sharing Knowledge, Shifting Power: A Case Study of “Rebellious” Legal Design During COVID-19' (2021) 1(9) Journal of Open Access to Law 1-19 Abstract: Communicating legal concepts requires creativity and community-informed design, even— especially—when disaster strikes. In this article, we examine a theory of legal information design rooted in anti-subordination and share insights from our efforts to co-design visual resources with underserved Florida communities during COVID-19.
Pope, Miles, 'What We Have Wrought: Compassionate Release in the Time of Our Plague' (2021) 2(64) Advocate 20-26 Abstract: The article offers information on the U.S. federal criminal justice system which is driven by a deep-seated commitment to putting people in prison for really long periods of time. It discusses that even the basic screening questionnaire for those entering the facility is deficient, failing to ask about common symptoms of COVID-19 as the Second Circuit explained, Congress contemplated that a range of possible circumstances, including long sentences, could qualify as an compelling basis.
Posick, Chad et al, 'Child Victim Services in the Time of COVID-19: New Challenges and Innovative Solutions' (2020) 4(45) American Journal of Criminal Justice 680-689 Abstract: The impact of COVID-19 has been felt by all facets of the criminal justice system and victim services agencies. The ability to monitor and report maltreatment has been severely limited for organizations that work with children of abuse and neglect; this is particularly troubling given that abuse and neglect are likely to rise during times of distress and turmoil. The purpose of this paper is to discuss the importance of organizations that work with children exposed to maltreatment, highlight the novel approach of Child Advocacy Services, SEGA, Inc. (CASSEGA), the sponsoring agency for Court Appointed Special Advocates (CASA) and the Ogeechee Visitation Centers, in rural southeast Georgia and how the COVID-19 pandemic has challenged this work, and develop strategies that can be put into place to alleviate these challenges for other child-serving organizations.
Powell, Catherine, 'Color of Covid and Gender of Covid: Essential Workers, Not Disposable People' (2021) 2(32) Yale Journal of Law and Feminism (forthcoming) Abstract: We live in a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. The viruses of sexism, racism, and economic instability are the pre-existing conditions of an unjust legal system — baked into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property requirements for voting rights, and dispossession of Native Americans. COVID-19 has not recreated these conditions, but instead has amplified the persisting inequalities upon which the nation was built. At the same time, the current viral moment reveals that we all share common vulnerabilities, making a vulnerability analysis particularly timely in gaining support for solutions. As commentators have observed, “COVID-19 doesn’t discriminate[, but] America does.” Even while unmasking deeply embedded structural inequalities, this moment of interlinked pandemics of disease, economic insecurity, and violence affects us all and has torn at the very fabric of the social contract we owe to each other and, in fact, depend on. I propose a new concept, “viral convergence,” to both analyze this moment of interlinked crises and to utilize this moment, in which our share vulnerabilities are so clear, to theorize a way forward. The road ahead calls for legal paradigms that recognize both the need for universal and more targeted solutions. As Arundhati Roy suggests, we must both acknowledge the tragedy while also utilizing this crisis for transformational change by viewing the COVID-19 pandemic as a “portal” to a more just and equal world.
Powell, Catherine, '“Viral Convergence”: Interconnected Pandemics as Portal to Racial Justice' (Fordham Law Legal Studies Research Paper No 4081250, 11 January 2022) Abstract: Black intellectuals and leaders have been working to address the country’s “raced” nature since at least the Civil War, but, thanks in part to a narrow and privileged conception of national security, racism remains a deadly virus in the United States. Professor Powell argues that to live up to America’s founding ideals, national security observers must broaden the lens for analysis beyond military security to encompass economic, physical, and human security. This more expansive understanding of “security” in turn calls for transformative change, beyond incremental reform, with respect to policing, poverty, and racism.
Powell, Robyn M, 'Applying the Health Justice Framework to Address Health and Health Care Inequities Experienced by People with Disabilities During and After COVID-19' (2021) 1(96) Washington Law Review 93-137 Abstract: The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other socially marginalized communities. Indeed, an emerging body of scholarship has revealed that people with disabilities are experiencing striking disparities. In particular, scholars have shined a light on state and hospital triage policies that allow hospitals to ration critical health care and resources, such as ventilators, for people with disabilities if resources become limited and they cannot treat all patients during the pandemic. These injustices deserve extensive consideration from policymakers, legal professionals, and scholars. Elucidating how the inequities that people with disabilities experience during the COVID-19 pandemic result from deeply rooted historical injustices is crucial. This Article comprehensively analyzes the inequalities that people with disabilities experience before and during the pandemic, focused on examining how law and policy affect these disparities. It builds on, incorporates, and extends the existing scholarship about COVID-19 and disabled people by positioning it within the health justice framework. It also proposes normative legal and policy solutions to address deeply entrenched inequities that will affect people with disabilities during the COVID-19 pandemic and beyond.
Powell, Tia and Elizabeth Chuang, 'COVID in NYC: What We Could Do Better' (2020) 7(20) The American Journal of Bioethics 62-66 Abstract: New York City hospitals expanded resources to an unprecedented extent in response to the COVID pandemic. Thousands of beds, ICU beds, staff members, and ventilators were rapidly incorporated into hospital systems. Nonetheless, this historic public health disaster still created scarcities and the need for formal crisis standards of care. These were not available to NY clinicians because of the state’s failure to implement, with or without revision, long-standing guidance documents intended for just such a pandemic. The authors argue that public health plans for disasters should be well-funded and based on available research and expertise. Communities should insist that political representatives demonstrate responsible leadership by implementing and updating as needed, crisis standards of care. Finally, surge requirements should address the needs of both those expected to survive and those who will not, by expanding palliative care and other resources for the dying.
'The Practical NLRB Advisor: The NLRA in a Pandemic' (2020) Winter Labor Law Journal 189-219 Abstract: The article focuses on application of National Labor Relations Act (NLRA) and activity of National Labor Relations Board (NLRB) during COVID-19 pandemic. Topics discussed include United Auto Workers (UAW) successfully negotiated partial pay for bargaining unit members who were furloughed for six weeks and fought for employee rights; employees are entitled under the NLRA to engage in concerted actions in an attempt to improve their working conditions and refusal to work due to COVID-19.
Premkumar, Deepak et al, ‘What Happened When California Suspended Bail During Covid?’ (SSRN Scholarly Paper No 5142322, Social Science Research Network, 18 February 2025) Abstract: The efficacy and fairness of cash bail in promoting public safety has been a prominent policy question in recent years, but it is difficult to rigorously estimate the effects of bail, particularly at the state level, because of a lack of exogenous variation. California responded to the COVID pandemic by setting bail at zero dollars for many misdemeanors and felonies, increasing the number of people who were immediately released after being arrested. We separately estimate the impact of the implementation and revocation of these zero-bail orders on rearrests using a triple difference framework that relies on the staggered timing across counties and uses offenses that did not qualify for zero bail as a control group. The implementation of emergency bail orders significantly increased the likelihood and number of rearrests within 30 days of the initial arrest. The increase in rearrests was driven by felony offenses, but we find no evidence of an increase for violent felonies, a concern raised by some observers. For the counties that had an emergency bail order for at least a year, there was a statistically significant increase on rearrests initially, but the effect diminished over time. The average effect over the first year of implementation in these counties was not statistically significant. Notably, the rise in felony rearrests did not subside for these counties that extended an emergency order past 2020. Though the initiation of emergency bail orders led to increases in rearrests, lifting these orders had no significant effect on rearrests, regardless of offense type.
Price, Anna and Louis Myers, 'United States: Federal, State, and Local Government Responses to COVID-19' (Law Library of Congress Legal Report No , 11 January 2020) Abstract: The United States has responded to the COVID-19 pandemic at all levels of government. Congress has enacted legislation and the President and the executive agencies have promulgated rules and regulations and taken other action to implement responses to COVID-19 to alleviate economic and societal impacts. State governments have acted in similar ways, enacting legislation and relying on their own state agencies to respond to the pandemic, often targeting specific situations that impact their populations. Although local governments have narrower jurisdictional authority than state or federal governments, they have been on the front lines, supporting first responders and municipally-funded programs. Examples of local government responses range from creating mask mandates and policies to administrating funding received from state and federal governments for pandemic response.
Price, Shannon, 'Stay at Home: Rethinking Rental Housing Law in an Era of Pandemic' (2020) 1(28) Georgetown Journal on Poverty Law & Policy 1-33 Abstract: For more than a decade, scholars across disciplines have documented housing insecurity as a chronic condition of working poverty in the United States. Now, the COVID-19 economic crisis threatens a tsunami of pandemic-induced evictions. Widespread government mandates to “stay at home” ring hollow as eviction filings pile up in local courts, while tenant blacklisting ensures that the consequences of an eviction today will haunt a tenant for years. By offering an in-depth survey of lease-termination requirements and the role of housing conditions and retaliatory eviction across states, this Article illustrates the practical impact of subtle variations in landlord-tenant law on poor tenants facing eviction. It reviews a sampling of state housing policy responses to the pandemic and proposes concrete reforms to the law designed to mitigate power imbalances between landlords and tenants and slow the cogs of the Eviction Economy. The COVID-19 pandemic is a tragedy of unprecedented scale. It is also a call to action. The decisions that state and local governments make on housing policy in the coming months will alter the course of thousands of lives. America’s Eviction Economy stands to compound the worst economic effects of the pandemic. It is the sincere hope of the Author that state and local governments do not allow this result.
Purcell, Craig, 'How COVID-19 Has Affected the Practice of Tort Law in New York State' (2022) 1(94) New York State Bar Association Journal 26-30 Abstract: As a result of the COVID-19 pandemic, there have been various issues that both plaintiff and defendant tort practitioners have confronted, as they relate to important statutory time periods, immunity and/or limitation of liability. What follows is a discussion of these issues, which will hopefully be beneficial to the members of NYSBA.
Purser, Kelly, Tina Cockburn and Bridget J Crawford, 'Wills Formalities beyond COVID-19: An Australian–United States Perspective' (2020) 5() UNSW Law Journal Forum 1-14 Abstract: COVID-19 has brought a new focus to human mortality and a person’s need to prepare for the transmission of their property at death. However, stay-at-home orders and social distancing requirements have made safely executing wills practically difficult. Using a comparative Australian-United States perspective, Dr Kelly Purser, Associate Professor Tina Cockburn and Professor Bridget J Crawford investigate the purposes of traditional wills formalities, suggest their continued vitality in the context of remotely witnessed or electronic wills, and critically discuss the emergency measures adopted in both countries and the arguments for and against making these measures permanent.
Pyrooz, David C. et al, 'Views on COVID-19 from Inside Prison: Perspectives of High-security Prisoners' (2020) 2(3) Justice Evaluation Journal 294-306 Abstract: People confined in jail and prison are especially vulnerable to outbreaks of communicable diseases such as coronavirus disease 2019 (COVID-19). Corrections officials across the country have responded by shifting institutional practices, including suspending visitation and programming, as well as releasing some prisoners early. Missing from leading accounts of COVID-19 in correctional facilities are the perspectives of prisoners. This study examined perceptions of risks and responses among a random sample of 31 high-security male prisoners in Oregon. In-depth interviews were conducted by phone in private attorney rooms between April and May 2020. Mixed method data revealed that respondents felt it was a matter of when, not if, the disease would spread throughout the prison system, due primarily to transmission from correctional officers. Yet prisoners were not highly worried about contracting the disease. This was due, in part, to being physically and socially isolated in restrictive housing, which in this instance they viewed as advantageous. Respondents believed the threat of the virus was being taken seriously by prison officials but lacked confidence in their ability to prevent an outbreak or effectively treat infected prisoners. Strategies are needed to mitigate the spread, fear, and consequences of COVID-19 in correctional facilities, as this disease has the potential to upend the functions and purposes of the American prison.
Rachwał, Aleksandra, ‘Eviction Moratorium in the New York State During the COVID-19 Pandemic: Development and Analysis of Legal Solutions’ (2023) 24 Ad Americam 115–128 Abstract: The work aims to analyze and compare the development of the legal solutions for the eviction crisis that were introduced during the COVID-19 pandemic in the New York State by each branch of the authorities. The issue will be studied by analyzing documentsintroduced by the legislature, executive branch and judiciary, dealing with the prohibition of evicting tenants from residential and commercial premises during the COVID-19 pandemic. The paper will analyze short-term solutions in the form of ordinances, as well as long-term solutions in the form of laws. Furthermore, it will try to demonstrate the minor contradictions, problems, and complexities involved with the bifurcation of the introduced legal solutions, and to show that eviction moratoria in the New York State did not provide total protection and assistance to tenants, as well as that their solutions were rather short-term. The paper will also present solutions from the federal level and compare them to state solutions in order to show the difference in approach. The article will also demonstrate that acting at the state and local level, on a smaller scale, is more effective because it is easier to reach a specific group of stakeholders. Moreover, a change in the nature of legal solutions introduced at the state level will be observed, which was caused by the change of a governor general of the New York State and the Supreme Court’s ruling that one of the laws was illegal — the paper will show how this ban was circumvented by the new state authorities.
Radcliffe, Damian, 'COVID-19 Has Ravaged American Newsrooms : Here’s Why that Matters' (SSRN Scholarly Paper No ID 3693903, 20 January 2020) Abstract: COVID-19 has ripped through the industry. In the United States alone, over 36,000 journalists have lost their jobs, been furloughed or had their pay cut. The trendlines for this, however, pre-date the pandemic. This article examines the causes of the long-term decline seen by local newspapers, the impact of this on communities and democratic engagement, and looks ahead at some potential solutions and policy discussions aimed at resolving this crisis.
Raffish, Brett, 'Arbitrary Property Interference During a Global Pandemic and Beyond' (2022) 1(45) Harvard Journal of Law and Public Policy 407-463 Abstract: To stymie COVID-19’s spread, state and local governments imposed sweeping and burdensome lockdown measures that crushed American businesses and interfered with private property. Despite interfering with many Americans’ property rights, state and local governments have consistently prevailed on pandemic-related regulatory takings claims in federal court. By forcing governments to pay for deprivations, the Takings Clause can thwart arbitrary interference with private property. However, the dispensation of regulatory takings claims arising out of pandemic-related regulations suggests that the Takings Clause may presently fail to adequately thwart arbitrary property interference in the partial regulatory takings context when the government claims that it is acting in the name of public health or safety.This Note expands on existing literature and details how substantive due process may presently only protect property from extremely arbitrary or despotic interference. This Note then argues that when substantive due process fails to thwart arbitrary interference, the regulatory takings doctrine will also fail to shield property when interference is substantial but is made pursuant to states’ police powers. Because both doctrines may simultaneously fail to stymie arbitrariness, this Note contends that our Republic may constitutionally tolerate arbitrary property interference, a phenomenon highly detrimental to the rule of law. To incentivize legitimate and principled decision-making, and to protect private property from arbitrary interference, this Note urges states to pass laws that resemble the Texas Private Real Property Rights Preservation Act. These laws should, at a minimum: (1) require governments to compensate property owners for regulatory diminutions in property value that exceed a legislatively calibrated threshold; (2) excuse compensation when governments can satisfy a form of heightened scrutiny; and (3) permit governments to seek immunity from a law’s requirements in exigent circumstances.
Raifman, Julia, Jacob Bor and Atheendar Venkataramani, 'Unemployment insurance and food insecurity among people who lost employment in the wake of COVID-19' (2020) medRxiv (pre-print) Introduction: The impacts of Coronavirus Disease 2019 (COVID-19) extend well beyond morbidity and mortality. In the United States, COVID-19-related business closures and reductions in economic activity have led to a sharp rise in unemployment rates, from 3.5% in February 2020 to 14.7% in April 2020. As of June 2020, the unemployment rate stands at 11.1%. Job losses over this period have been concentrated among people living in low-income households, and resulting drops in income have made many individuals and families vulnerable to food insecurity. Food insecurity is defined by the U.S. Department of Agriculture as “household-level economic and social condition of limited or uncertain access to adequate food.” Food insecurity is associated with worse general health and well-being, physical hunger pangs and fatigue, psychological depression, anxiety, suicidal ideation, and interpersonal stress and challenges, as well as chronic disease, and worse developmental outcomes for children. Initial evidence suggests that food insecurity has more than doubled among all households and tripled among households with children during the COVID-19 pandemic relative to February 2020.
Ram, Natalie, Lance Gable and Jeffrey Ram, 'The Future of Wastewater Monitoring for the Public Health' (2022) (56) University of Richmond Law Review (forthcoming) Abstract: The COVID-19 pandemic has invited dramatic investment in and expansion of wastewater surveillance. This surveillance may enable early detection of an increasing presence of COVID-19 in the community. But the same technology may simultaneously or soon be turned to other uses, including for drug interdiction, community wellness, or environmental monitoring. All of these uses raise urgent legal and ethical questions.But the legal literature, to date, has almost uniformly failed to even consider the ramifications of wastewater-based epidemiology. Indeed, we are aware of only two articles discussing wastewater surveillance in the legal literature—one of which is our own prior work. In prior work, we have raised questions about the legal and ethical dimensions of wastewater surveillance in response to the COVID-19 pandemic. But that work arrived in the earliest days of the pandemic, when research efforts were not yet well established or as broadly implemented, and when legal and ethical consideration was focused almost exclusively on the drastic public health emergency at issue. This Article thus expands the extant literature by considering the legal and ethical dimensions of wastewater surveillance more thoroughly and more broadly. It arrives at an auspicious time, as the United States moves into a vaccine-mediated phase in which COVID-19 is less likely to give rise to broad stay-at-home orders and more likely to trigger narrower, more targeted interventions. It seeks to offer guidance for the legal and ethical use of wastewater surveillance along two dimensions. The first considers the circumstances under which wastewater monitoring should be deployed for detecting and responding to COVID-19 specifically. The second zooms out, to consider whether and how this surveillance infrastructure, largely created in response to the COVID-19 pandemic, might be deployed for other uses, and examines the legal and ethical difficulties that may attend these broader uses.This Article proceeds in three parts. Part I reviews the state of the science for wastewater-based epidemiology, focusing specifically on how this technique has been deployed to monitor for or detect the virus that causes COVID-19. One of the authors is a research scientist currently working to establish and oversee wastewater-based epidemiological efforts related to COVID-19 monitoring in the City of Detroit, Michigan, and Part I draws on that expertise. Part II then moves from what is possible to what is legal and ethical. If wastewater-based epidemiology is to be deployed now and in the future for detecting and responding to COVID-19, what parameters should guide the collection of wastewater signals, and how should that data be used by policymakers and others to enact further public health protections? Finally, Part III broadens its scope beyond COVID-19. Wastewater surveillance for COVID-19 sentinel surveillance can be well justified, provided guidelines are established ex ante for public health response to monitoring results. Other uses of wastewater surveillance infrastructure, however, may raise substantial privacy concerns, particularly if this infrastructure becomes denser and correspondingly more granular in the data it discloses. Such uses may, in turn, undermine both the legal soundness of and public trust in wastewater monitoring writ large.
Ram, Natalie and David Gray, 'Mass surveillance in the age of COVID-19' (2020) 1(7) Journal of Law and the Biosciences Article lsaa023 Abstract: Epidemiological surveillance programs such as digital contact tracing have been touted as a silver bullet that will free the American public from the strictures of social distancing, enabling a return to school, work, and socializing. This Article assesses whether and under what circumstances the United States ought to embrace such programs. Part I analyzes the constitutionality of programs like digital contact tracing, arguing that the Fourth Amendment’s protection against unreasonable searches and seizures may well regulate the use of location data for epidemiological purposes, but that the legislative and executive branches have significant latitude to develop these programs within the broad constraints of the ``special needs'' doctrine elaborated by the courts in parallel circumstances. Part II cautions that the absence of a firm warrant requirement for digital contact tracing should not serve as a green light for unregulated and mass digital location tracking. In light of substantial risks to privacy, policy makers must ask hard questions about efficacy and the comparative advantages of location tracking versus more traditional means of controlling epidemic contagions, take seriously threats to privacy, tailor programs parsimoniously, establish clear metrics for determining success, and set clear plans for decommissioning surveillance programs.
Ramaswamy, Megha et al, 'Criminal Justice: Involved Women Navigate COVID-19: Notes From the Field' (2020) 4(47) Health Education & Behavior 544-548 Abstract: In March–April, 2020, we communicated with a cohort of criminal justice–involved (CJI) women to see how they were navigating COVID-19, chronic illness, homelessness, and shelter-in-place orders in Oakland, Birmingham, and Kansas City. We report on conversations with N = 35 women (out of the cohort of 474 women) and our own observations from ongoing criminal justice involvement studies. Women reported barriers to protecting themselves given widespread unstable housing and complex health needs, though many tried to follow COVID-19 prevention recommendations. Women expressed dissatisfaction with the suspension of research activities, as the pandemic contributed to a heightened need for study incentives, such as cash, emotional support, and other resources. COVID-19 is illuminating disparities between those who can follow recommended actions to prevent infection and those who lack resources to do so. Concerted efforts are required to reduce inequities that put the 1.3 million U.S. women under criminal justice supervision at risk for infection and mortality.
Ramos, Athena K et al, ‘The Impact of the COVID-19 Pandemic on Medical-Legal Partnership Services and Cases’ (2025) Journal of Public Health Management and Practice (advance article, published online 7 January 2025) Abstract: Medical-legal partnerships (MLPs) are innovative, promising models that integrate legal service providers and medical professionals to prevent, detect, and address legal, social, and economic needs arising from social inequities that may negatively impact health. The COVID-19 pandemic impacted health care systems across the United States. MLP workflows and legal services were also interrupted by COVID-19 infection prevention and control measures such as no-visitor policies, social distancing, and the cancellation of non-emergent or routine health care services. We sought to describe the impact of COVID-19 on legal services provided by an MLP by exploring case types and services provided prior to the COVID-19 pandemic and during the pandemic.
Ramsey Mason, Kathryn, 'Lessons From Tenant Protection Provisions in Federal Financial Crisis Legislation' (2020) (14) University of St. Thomas Journal of Law and Public Policy 130 Abstract: 2020 has brought an unprecedented level of upheaval in the American economy and way of life. Coronavirus, known also as COVID-19, has ushered in what seems poised to be a long-lasting stretch of financial, public health, and social uncertainty. Low-income tenants, who are disproportionately people of color, are particularly vulnerable to the economic and public health effects of the coronavirus pandemic. But coronavirus is not the first crisis in the United States to threaten low-income residential renters; the Great Recession, from approximately 2007 to 2009, is the next most recent example, and its effects are still felt today. This article will examine federal tenant protection legislation from recent stimulus bills and suggest provisions that future legislation should include in order to best protect residential tenants and prevent waves of homelessness. Twice in the past fifteen years, Congress has passed huge financial relief bills to address the effects of the Great Recession and the coronavirus pandemic. The first, the Toxic Asset Relief Program (TARP), was passed in 2009 in the wake of the foreclosure crisis that devastated the American mortgage market in the first decade of the twenty-first century. The second, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, was passed in 2020 to deal with the sudden economic fallout caused by the international pandemic. Both of these pieces of legislation contained specific provisions designed to prevent or delay the eviction of residential tenants who were affected by these crises through no fault of their own.
Rana, Shruti, ‘Caring for the Caregivers: Reimagining Institutional Recognition of Caregiving Work After the COVID Care Crisis’ (University of Missouri School of Law Legal Studies Research Paper No 2025-04, 17 February 2025) Abstract: The COVID-19 pandemic washed over the already uneven landscape of legal academia with an unrelenting force, hitting the most vulnerable most harshly while leaving others bobbing or churning in the waves, loosening the tethers to the social and institutional structures that had previously supported them. Some of the most devastating losses were unsurprising and indeed played out as had long been feared or predicted in times of crisis. Other harms played out in entirely new ways, creating new scars and obstacles. As we survey the changes brought across this landscape in the pandemic’s wake, several emerging themes deserve further scrutiny and attention from the academy. First, many of the pandemic’s impacts on academia were not only asymmetrical and inequitable but also often operated with a particularly twisted or cruel logic. Measures meant to protect became shackles, while those who most needed a safety net or support found themselves becoming the safety nets and support of last resort. The negative health and social impacts of the pandemic and related safety measures put in place by institutional actors fell not only unevenly, but even worse, compounded one another and accumulated along and reinforced the lines of marginalization. Many of the perverse incentives embedded within academia were sharpened, further entrenching the disparate impacts and dynamics of hierarchy and power. Finally, the pandemic that began with a bang ended with a whimper, with its after-effects continuing to ripple through and multiply throughout all levels of academia, though increasingly met with indifference or inaction as the world moved on. This article aims to provide a snapshot of the COVID-19 pandemic’s impacts on caregivers in legal academia, focusing on some of its continuing impacts and implications and lessons we might draw for a more equitable future. It seeks to characterize and explain how the dichotomies, harsh logic and perverse incentives visible in the ways that the pandemic played out impacted academic caregivers and created what we might call a crucible for care work that has led us to a critical point in the social and institutional recognition of care work and caregivers. Applying principles from vulnerability theory, the article argues that we can and must flip this script by re-orienting academic support systems and dynamics around new logics and systems that build and support resilience, innovation, and human potential, rather than require and exploit them. It concludes with a call for dialogue and action, highlighting some of the opportunities and pathways we might pursue to achieve such goals during this pivotal moment of possibility and change.
Rangel-Medina, Evelyn Marcelina, ‘The Disposable “Essential” Workers of COVID-19’ (2025) 66(1) Boston College Law Review 69–120 Abstract: COVID-19 reshaped almost every aspect of economic activity and working life in the United States. It also amplified existing racial, gender, and economic disparities, significantly impacting working people. Specifically, low-wage essential workers of color experienced higher levels of exposure, long-term health complications, and COVID-19-related deaths than other workers. Thus, the episodic allocation of pandemic health risks tracks and illustrates inequalities that require more extensive solutions in the workplace. This Article demonstrates how race, gender, and citizenship shape the employment and life outcomes of essential workers who sustained the economy throughout the pandemic. Building on a health justice framework, it fills a gap in legal scholarship by identifying six employment-related factors compounding systemic inequalities. Profiling COVID-19-related lawsuits involving low-wage workers, it also analyzes the effectiveness of available legal remedies. Amid immense human loss, there are clear lessons in changing labor and employment structures to protect, rather than dispose of, essential workers from magnifying inequalities. Thus, this Article proposes adopting employment equity principles to address intersectional disparities in the workplace. Using the expertise of on-the-ground advocacy organizations, it also examines and critiques several administrative, legislative, and regulatory interventions. In light of impending health and climate change pandemics, this Article provides actionable steps to protect the most vulnerable among us.
Rasmussen, Robert K, 'COVID-19 Debt and Bankruptcy Infrastructure' (2021) (131) Yale Law Journal Forum 337-362 Abstract: Part I of the Essay describes the effect that the pandemic and the accompanying government responses have had on the balance sheets of large corporations. The upshot of this change is the potential for a large increase in the number of Chapter 11 cases over the next few years. Part II describes the existing state of bankruptcy infrastructure, which includes extensive reliance on three venues. Part III explains how Congress can prepare the judicial system for such an increase by mandating the creation of special Chapter 11 panels within each court of appeals.
Rattey, Justin D., 'Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana' (2020) Penn State Law Review (forthcoming) Abstract: Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s “construction zone.” The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.
Raunig, Brooke L., Aaron S Kesselheim and Jonathan J Darrow, 'Drug Shortages and the Defense Production Act' (2020) 10(110) American Journal of Public Health 1504-1505 Abstract: Amid the COVID-19 pandemic, US hospitals have faced shortages of critical drugs, including sedatives and neuromuscular blocking agents needed to intubate patients and maintain ventilatory support, opioids for pain control and sedation, antibiotics to address secondary bacterial infections, and bronchodilators to open airways.1 In response to limited supplies of ventilators and personal protective equipment, the Trump administration invoked the Defense Production Act (DPA), but shortages of personal protective equipment remain. Although the DPA—if applied more broadly—could be effective in helping to address remaining shortages of personal protective equipment, using the DPA to address drug shortages is more challenging, and additional government interventions to support the drug supply chain are needed.
Realon, Andrew Davidson, ‘How American Law Students Experienced Virtual Classroom Instruction During the COVID-19 Pandemic’ (Doctor of Education Thesis, George Washington University, 2023) Abstract: The COVID-19 pandemic affected both how instructors taught their courses and how students learned in those courses. The delivery of law school instruction online in America at this scale had never occurred. This study sought to understand how American law students experienced this pivot by analyzing how those students experienced the Socratic Method (the signature pedagogical tool of law faculty in the United States) in fully online classrooms. The study took place at an institution in a densely-populated city which responded significantly to COVID-19’s health challenges as to encapsulate the effect of the pandemic in the most extreme scenario. This qualitative study used a basic interpretive design. Data was collected by interviewing upper-level law students who experienced their instruction exclusively in the online modality during their first-year of law school. Data analysis included topic coding on Atlas.ti software. Five themes emerged which answered the research question. Garrison et al.’s (1999) Community of Inquiry was used as the interpretive lens to make meaning of the data. The three key findings included a discovery of the resilience of the law students who participated in the study; the impact that self-consciousness had on the participants’ academic experience; and success in using the Community of Inquiry Model as an interpretive lens for a study conducted at an American law school. This study was significant in that it further explored the impact of the COVID-19 pandemic. Through this investigation, knowledge was discovered about how law students responded to and experienced Socratic Method during the 2020-2021 academic year’s virtual instruction.
Rebouché, Rachel, 'Abortion opportunism' (2020) 1(7) Journal of Law and the Biosciences Article lsaa029 Abstract: Eleven states have tried to suspend abortion care in response to COVID-19. State officials claim that they will preserve medical supplies, hospital space, and health care capacity by classifying abortion as an elective, non-essential surgery that must be delayed. Advocacy groups representing abortion providers sued in several states to enjoin these bans. What has emerged is a fight that ignores medical evidence and threatens to exacerbate the current public health emergency. The Executive Order issued in Texas offers an apt example. Though abortion may be available in Texas for the time being, opinions from the U.S. Court of Appeals for the Fifth Circuit provide a troubling roadmap for suspending constitutional rights as a health emergency measure.
Rebouché, Rachel, 'Assuring Access to Abortion' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Over the spring of 2020, numerous states announced measures suspending abortions in response to COVID-19. Banning abortion during the pandemic is counterproductive. Impeding access to abortion will not help preserve healthcare resources. Moreover, prohibiting access to abortion care exacerbates the strain on the healthcare system. People who lack access to abortions will travel to neighboring states, induce their own abortions, or carry pregnancies to term, which will require prenatal care and assistance in childbirth. Perhaps more importantly, the people hit hardest by suspending abortion care are those for whom the pandemic already has had devastating effects. Lifting restrictions on medication abortion and expanding telehealth abortion services will conserve healthcare resources and improve public health. Recognizing the advantages of telemedicine, some states, as well as the federal government, have relaxed restrictions on remote diagnosis and treatment. However, many of those same states have carved out exceptions for abortion in their telemedicine policies. In addition, people seeking medication abortions still face unnecessary restrictions on access, none of which are applied to comparable office-based procedures. Policymakers can eliminate barriers to safe abortion services now and in the future. “No-touch” terminations, in which all medical supervision happens over the telephone or online, can better accomplish the goals that the present abortion suspensions cannot. Telehealth for medical abortion can ease the burdens on pregnant people, healthcare workers, and health systems in light of the unprecedented challenges presented by COVID-19.
Rebouché, Rachel, ‘Bargaining About Birth: Surrogacy Contracts During a Pandemic’ (2023) 100(4) Washington University Law Review 1265–1297 Abstract: Surrogacy contracts depend on the exchange of information. Intended parents want information about the surrogate’s pregnancy to make decisions regarding prenatal care, during-pregnancy behavior, and birth. Contract provisions can cater to those desires and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care and thus control information about their pregnancies. During the COVID-19 pandemic, travel restrictions, limits on hospital visits, vaccine mandates, and the threat of COVID contraction—with evolving understanding of effects on pregnant people and resulting children—upended the expectations of intended parents and surrogates. If anything, the pandemic encouraged intended parents to surveil the health of gestational surrogates because of the heightened threat of illness. The result was a change in contracting practices that ranged from incentives, such as ‘stay-at-home’ stipends for surrogates, to punitive measures, like the threat of liability under contract clauses governing prenatal behavior. More broadly, the pandemic has underscored the fragility of surrogacy arrangements and the surprising irrelevance of statutory protections when disputes about prenatal care arise. This essay assesses the challenges of negotiating, drafting, and enforcing gestational surrogacy contracts during the pandemic. It argues that new legislation in several states, which attempts to protect the interests of intended parents and surrogates through rights to parentage and bodily autonomy, respectively, is unlikely to affect what happens on the ground. Indeed, when conflicts arise, parties look to professionals, such as lawyers and fertility brokers, who in turn continue to rely on largely unenforceable contract provisions to diffuse conflict. These practices highlight the power of professionals and agencies—repeat players with their own agendas. Specifically, the question of vaccination highlighted the limits of honoring statutory and contractual commitments to surrogate autonomy and belie the assumption that surrogacy is an act of altruism, rather than economic exchange.
Redding, Jeffrey A., 'Queer/Religious Friendship in the Trump Era' (SSRN Scholarly Paper No ID 3681093, 26 January 2020) Abstract: Shortly after Black Lives Matter protests broke out around the United States this past spring, a curious protest took place in the state of Texas. Organized in response to the Texas governor’s coronavirus-related order to close businesses devoted primarily to the serving of alcohol, an alliance of Texas bar owners staged a “Bar Lives Matter” protest outside of the Texas State Capitol building in the city of Austin, while also coordinating a lawsuit challenging the governor’s order in U.S. federal court. This lawsuit instigated by the Texas Bar and Nightclub Alliance followed in the footsteps of other lawsuits brought by Christian churches around the nation challenging pandemic-related limitations on in-person religious services. In July, responding in apparent disgust to the activities of devoted drinkers in Texas and elsewhere, the well-known economist and liberal columnist Paul Krugman lamented the potentially deadly reopening situation facing U.S. schools and students in the fall, opining in The New York Times that “the reason we are in this position is that states, cheered on by the Trump administration, rushed to allow large parties and reopen bars. In a real sense America drank away its children’s future.” In this (draft) essay, I aim to explore the pandemic pitting of bars against babies, and then too churches against children. Moreover, I will demonstrate that the constellation of competing interests present in the coronavirus pandemic—the defining moment of the Trump presidency—cannot be broken down along neat political affiliations or dispersed across predictable camps on either the left or right. Rather, what we are seeing again is the crisscrossing of political, religious, and sexual interests defying easy categorization. These days, indeed, it seems almost as if Gayle Rubin’s ‘80s-era “bar dykes” have managed to commandeer the contemporary Texas Bar and Nightclub Alliance, and that Paul Krugman could have been writing for Phyllis Schlafly’s Eagle Forum rather than for The New York Times.
Reinbold, Jenna, ‘How COVID-19 Changed the World (of Free Exercise)’ (2022) 64(4) Journal of Church and State 562–580 Abstract: After more than two years in the midst of a global pandemic, life is returning to a semblance of normal for many Americans. This return to normal, however, has been tempered by an awareness of some of the irrevocable changes that COVID-19 has wrought. One realm of American life that has been permanently transformed by COVID-19 is the realm of church–state interaction—more specifically, the realm of litigation related to “religious freedom.” That COVID-19 would have a significant impact on the US church–state landscape is hardly surprising. For at least two decades, the issue of religious freedom has been both legally unsettled and highly politically charged in this country, a situation rife with opportunities to transform even mundane church–state disputes into potent legal flashpoints. In such a context, the sudden emergence of a pressing nationwide health crisis requiring government restrictions on many of Americans’ most basic communal activities was bound to have certain religious freedom implications. Beginning almost immediately with the onset of the pandemic in the spring of 2020, this is precisely what has occurred.
Reiss, Dorit Rubinstein, 'Anti-Vaccine Misinformation and the Law: Challenges and Pitfalls' (2021) 1(18) Indiana Health Law Review 85-94
Reiss, Dorit Rubinstein, 'Institutionalizing the Centers for Disease Control and Prevention’s Independence' (SSRN Scholarly Paper No ID 3682044, 27 January 2020) Abstract: The United States response to the COVID-19 pandemic was sub-optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in CDC efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Director, in an unusual step, published an op-ed calling out political intervention in CDC. This article proposes two changes to strengthen the CDC’s institutional independence: codifying the CDC’s role in preventing diseases and reducing harms in a statute, and restructuring the agency to be led by a multi-member Board appointed for long times and with removal protections (along the lines of the Board of the Federal Reserve System). These changes can send a strong message that expert advice in public health should be science-based and less, rather than more, political. It can also protect CDC’s long-standing independence, while preserving some political control.
Reiss, Dorit Rubinstein, ‘Laws Prohibiting Vaccine Mandates: An Overview’ 23(4) North Carolina Journal of Law and Technology 788–839 Abstract: During the COVID-19 pandemic, for the first time, a significant minority of states passed laws limiting or outright prohibiting vaccines mandates. The laws varied greatly in what they covered, the way they addressed the issue, and their intended results. This Article provides a detailed overview of these mandate bans. Consequently, this Article demonstrates that most of the bans target potential vaccine mandates limiting access to government buildings and services—and points out that no states adopted such mandates. That said, a growing sub-set of states also adopted laws or executive orders prohibiting private actors from imposing mandates—either on customers or on employees. These prohibitions are unusual in several ways, but one way is upending the usual political approaches, with Republican politicians supporting measures that limit individual business rights and Democrat politicians ranging themselves on the side of business rights. Other measures limit the ability of universities to mandate vaccines or preempt local governments from doing so. This Article is largely descriptive but argues that the main driver in enacting these laws and executive orders was the politicization of the pandemic rather than the direct efforts of the anti-vaccine movement. The laws were largely driven by mainstream politicians, not traditional anti-vaccine activists.
Reiss, Dorit R., 'Vaccines Mandates and Religion: Where are We Headed with the Current Supreme Court?' (2021) 4(49) Journal of Law, Medicine & Ethics 552-563 Abstract: This article argues that the Supreme Court should not require a religious exemption from vaccine mandates. For children, who cannot yet make autonomous religious decision, religious exemptions would allow parents to make a choice that puts the child at risk and makes the shared environment of the school unsafe — risking other people’s children. For adults, there are still good reasons not to require a religious exemption, since vaccines mandates are adopted for public health reasons, not to target religion, are an area where free riding is a real risk, no religion actually prohibits vaccinating under a mandate, and policing religious exemptions is very difficult.
Reiss, Dorit Rubinstein and John DiPaolo, 'COVID-19 Vaccine Mandates for University Students' (SSRN Scholarly Paper No ID 3874159, 25 January 2021) Abstract: Universities and colleges (“universities”) preparing to reopen after COVID-19 understandably seek to increase safety on campus and reduce the risk of a COVID-19 outbreak. One approach universities and colleges are considering is requiring vaccines from students. This article addresses the legal framework behind university vaccine mandates for students. It sets out the general constitutional framework and explains why universities are constitutionally permitted to impose reasonable vaccine mandates. It addresses whether universities need to offer a religious exemption, explaining that under current Supreme Court jurisprudence universities are likely not required to offer a religious exemption, but that may change, and public universities in states with a Religious Freedom Restoration Act may have to offer a religious exemption. The article discusses how federal disability law will require accommodations under a vaccine mandate in certain cases. The article asks whether the emergency use authorization (EUA) status of current COVID-19 vaccines is a barrier to requiring vaccines from students, and concludes that it is probably not a limit. Acknowledging the complexity of the issue, instead of offering a prescription for all universities, the article offers a matrix of strategies to consider for increasing vaccine rates including vaccine mandates, along with considerations for each option.
Reiss, Dorit Rubinstein and Madeline Thomas, 'More Than a Mask: Stay-At-Home Orders and Religious Freedom' (2020) 4(57) San Diego Law Review (pre-print) Abstract: COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is what is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny – depending on the specific order in question, as well as on whether the state has a RFRA. We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission – for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines (e.g. deciding whether gun stores are more important than churches). Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause’s separation of church and state; we explain why the answer is, probably, no.
Richards, Edward P, 'A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020' (2020) 1(11) Journal of National Security Law & Policy 83-105 Abstract: In response to COVID-19, U.S. states and localities are exercising various health actions under their inherent police powers—often facing stiff resistance by the public and the courts. Edward P. Richards outlines how states and localities enjoyed broad police powers over public health since the colonial period. The Supreme Court limited this authority only in cases of discrimination. Historically, courts deferred to local authorities or legislatures during health emergencies; the general public, in contrast, often demonstrated greater resistance. At times, this resulted in devastating outcomes, such as when public resistance to masks during the 1918-1919 flu pandemic caused a second wave and rise in deaths. COVID-19, Richards argues, is unprecedented because both the public and, unusually, the courts are resisting local public health orders. Many judges today are substituting their own judgment for that of public officials, raising questions over the future of traditional police powers.
Richards, Michelle, 'Going Viral?: Discouraging the Premature Use of Civil Liability Strategies as a Response to COVID-19' (2021) 2(19) The University of New Hampshire Law Review 491-521 Abstract: In addition to the myriad of issues caused by the COVID-19 pandemic in the United States, the virus has also placed our legal system in a position of creating problems that can contribute to the spread of this pandemic. Despite the fact that the United States has been mired in the COVID-19 pandemic and vaccine strategies have been recently developed to provide protection from this virus, much is still unknown about the etiology of this virus and how to effectively control its spread. As a result, public health agencies at the federal, state, and local levels have only been able to issue guidance protocols and best practices that reflect current knowledge of the virus and how to combat the spread as opposed to public health mandates. Regardless, as individuals return to work and other non-health care businesses, those guidance protocols have taken center stage as the basis for lawsuits filed by these individuals challenging the COVID-19 health and safety practices of those respective institutions. These lawsuits call upon the judicial system to determine whether those evolving best practices and guidance should and can be used as a form of an enforceable “standard of care” and creates a significant opportunity for judges to legislate inconsistent and arbitrary social health policies from the bench. In a corollary fashion to these claims, there has also been an effort to provide protection from liability through the use of waivers and immunities to those who wish to conduct certain activities conducive to the spread of COVID-19. However, the use of waivers, assumption of risk doctrines, and immunities to protect businesses from exposure may ultimately lead to inconsistency in interpretation of those guidance protocols and also creates incentives to disregard those guidance protocols and best practices. In short, the premature use of the legal system through liability claims and immunities to address safety and health concerns by individuals and institutions trying to operate during the pandemic has the potential for contributing to the spread of this disease and caution must be taken to avoid setting a risky precedent in dealing with future public health crises.
Richens, R. Chantz, 'Privacy in a Pandemic: An Examination of the United States' Response to COVID-19 Analyzing Privacy Rights Afforded to Children under International Law' (2021) 2(28) Willamette Journal of International Law and Dispute Resolution 244-290 Abstract: Extract from Introduction: The important nature of privacy rights and the national interest in these rights, as caused by the COVID-19 pandemic, create a situation where an analysis of children's privacy rights is long overdue. The United States, a signatory to the CRC, can do more to fulfil its obligations to the CRC and its youngest citizens, specifically in the protections it affords its children's privacy rights.14 The United States can do so by establishing a greater understanding of and respect for children's privacy rights through a new legislative undertaking, founded on ideas enshrined in the CRC that children and parents or caregivers 5 can together come to an understanding of children's rights, making decisions as informed by those rights. In advocating for such an approach, this paper will first discuss the CRC as well as the unique circumstances of the United States' relationship to the CRC and the United States' duties as a signatory. In addition, this paper will examine the current approaches the United States has taken to protect children's privacy rights both before and in light of the 2019 novel coronavirus and the shortcomings therein. Lastly, this paper will advocate for the implementation of a new framework, centered around a presumption that children and parents will work together to reach a greater understanding of children's role in the legal sphere. This will be informed by an analysis of obligations that have been recommended for states to consider in protecting such legal actors' right to privacy, specifically concerning identifying data that has quickly become one of the greatest legal concerns in the midst of the pandemic. By so doing, caregivers will be able to help children understand their inherent autonomy as players in the legal arena during especially formative years.
Richman, Barak D and Steven L Schwarcz, ‘Macromedical Regulation’ (2021) 82(5) Ohio State Law Journal 727–777 Abstract: The COVID-19 pandemic has dramatically shown that a localized disease can be transmitted to the broader population, nationally and worldwide. This Article analyzes how to design regulation to help control that transmission. To that end, we first observe that existing healthcare regulation focuses almost exclusively on regulating individual components of the medical and healthcare industry, while lacking a capacity to address how those components work together as a system—a system that pandemics can destabilize. Indeed, one factor that contributed to COVID-19’s spread was the inability of U.S. healthcare regulation to operate on a societal level, to protect certain components from the deficiencies of others. We contend that healthcare regulation must also include what we call ‘macromedical’ regulation: regulation that focuses on protecting the stability of the healthcare sector as a system of interconnected parts. We find some useful analogies in the Dodd-Frank Act and other post-crisis financial regulation, particularly in macroprudential regulation designed to protect the financial system as a system.
Ringsmuth, Eve et al, ‘SCOTUS in the Time of COVID: The Evolution of Justice Dynamics during Oral Arguments’ (2023) Law & Policy (advance article, published online 18 January 2023) [pre-published version of article available on SSRN] Abstract: We assess changes in oral arguments at the US Supreme Court precipitated by the COVID-19 pandemic and the degree to which those changes persisted once the justices acclimated to the new procedures. To do this, we examine whether key attributes of these proceedings changed as the Court experimented with telephonic hearings and subsequently returned to in-person oral arguments. We demonstrate that the initial telephonic forum changed the dynamics of oral argument in a way that gave the chief justice new power and reconfigured justices’ engagement during these proceedings. However, we also show that the associate justices adapted to this new institutional landscape by changing their behavior. The findings shed light on the consequences of significant, novel disruptions to institutional rules and norms in the government and legal system.
Rix, Ashley, 'How Data Privacy Regulations Affect Public Corporations That Profit From Consumers' Data During an Ongoing Pandemic' (SSRN Scholarly Paper No ID 3896785, 03 January 2021) Abstract: This research project examines how data privacy regulations, such as the California Consumer Protection Act and the General Data Protection Regulation, affect businesses that utilize big data to boost profits through consumer profiling and targeted marketing during an ongoing pandemic. In the current day and age, as a result of the vast growth in technological advancements, people are producing personally identifiable data at an exponential rate. This is becoming of increasing importance as there are businesses whose sole source of income is gathering and selling consumer's personal data. This information is often so unique to the person that it can be used to predict spending patterns, life choices, daily locations, and intimate details about one's life. The European Union has a regulation called the General Data Protection Regulation (GDPR), and the state of California has enacted regulations modeled after the GDPR called the California Consumer Protection Act (CCPA). The specific research question is what effect did the enaction and enforcement of the California Consumer Protection Act have on businesses that utilize big data to boost profits through consumer profiling and targeted marketing during the ongoing COVID-19 pandemic.
Robbins, Ira P, ‘Sunshine Laws Behind the Clouds: Limited Transparency in a Time of National Emergency’ (2022) 56(1) U.C. Davis Law Review 1–68 Abstract: The COVID-19 pandemic dramatically changed the way citizens lived their lives, businesses operated, and governments functioned. With most people forced to stay home, the pandemic also disrupted how people received their news and other essential information. Public records and public meetings had to adapt to face the growing challenges in a locked-down world. While some governmental bodies were able to keep up with the threat that COVID-19 posed against transparency, others either failed to acclimate to the new normal or actively took advantage of the circumstances to limit how much the public knew not only about the crisis, but about other public matters as well. During the pandemic, many state officials radically transformed public records laws and public meetings laws through executive action. Executive orders gave governors flexibility when tackling the widespread emergency, but this unconstrained power also reduced government transparency. As a result, people’s valuable insights and opinions were silenced during a time they were most needed. States had mixed reactions to COVID-19. Some welcomed the change to remote public meetings and used technology to keep the public engaged, while others took a passive approach that cut the public off from meetings. Regarding public records, several governments restricted or eliminated in-person access and made electronic copies of records a costly and impractical option. The experience since early 2020 makes clear that states should ensure that government transparency is a top priority — even during a state of emergency in which problems are indefinite and insurmountable. This goal can be achieved by enacting laws and establishing policies that balance foreseeably limited resources with the heightened demand for openness and accountability created by a public health crisis. This Article proposes a model statute that, when implemented and followed by state and local governments, would increase transparency and reduce the likelihood that officials will use another emergency event as an excuse to conceal their actions.
Robertson, Christopher T and Michael Shammas, ‘The Jury Trial Reinvented’ (2021) 9(1) Texas A&M Law Review 109–164 Abstract: The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable, but spurred some courts to begin using technology to transcend time and place restrictions. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments, and facilitating secretive deliberations infected by implicit bias. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement; better fostering civic education and democratic deliberation; improving accuracy in sorting truth from falsehood; and enhancing efficiency in terms of both time and cost.
Robinson, Daniel, 'Confrontation During COVID: A Fundamental Right, Virtually Guaranteed' (2022) 1(12) University of Miami Race & Social Justice Law Review 116-140 Abstract: The novel threats posed to our criminal justice system by the COVID-19 pandemic and attendant shutdowns of courts beg the question of whether our must fundamental pillars of law can withstand the ultimate test of time. And inherent in the ultimate test of time is the ultimate test of technology—this is, will there come a time that technology outgrows the confines of our legal landscape? Consider this: The United States Constitution guarantees every criminal defendant the right to confront their accuser in court; yet, for a substantial period of time in 2020, court, as we knew it, was nothing more than a live, two-way, video-telecommunications stream. Is confrontation via live, two-way video-telecommunication sufficient to comport with the fundamental rights guaranteed to criminal defendants under the Constitution? Fortunately, the era of the Coronavirus Court has largely come to an end with courts re-opening and the mass-dissemination of vaccines and booster shots worldwide; however, the question remains whether we, as a society, are prepared to recognize that the legal landscape of the criminal justice system is changing. And moreover, whether the law, as it is understood and applied today, contemplates this idea that traditional notions of fair play and substantial justice are ever-developing in light of technological and societal advancements.
Robinson, Kimberly Jenkins, 'Strengthening the Federal Approach to Educational Equity during the Pandemic' (2022) 1(59) Harvard Journal on Legislation 35-100 Abstract: Strengthening the Federal Approach to Educational Equity During the Pandemic provides a timely analysis of three issues of great national significance for education and the United States. First, it synthesizes preliminary research regarding the pandemic’s educational harms through the 2020–2021 school year, including learning losses and the disparate impact of the pandemic on particular subgroups of children. It concludes by noting that the disproportionate adverse impact of the pandemic on vulnerable subgroups should lead federal intervention to prioritize educational equity. Second, it describes the federal legislative and executive response to the pandemic and critiques how this response may impact educational equity. Finally, after explaining a comprehensive theory for education federalism that prioritizes educational equity, the article proposes how the federal response to the pandemic should be strengthened to advance a coherent and consistent approach to education federalism that focuses on educational equity.
Robson, Ruthann, 'Symposium: Pandemics and the Constitution: Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration' (2020) 1(12) ConLawNOW 15-37 Abstract: We have become accustomed to conceiving of our constitutional rights as affording protection only against government infringement, but not as granting us any positive rights to claim government protection or action. The circumstances surrounding the COVID-19 pandemic should make us question this reflexive resort to negative constitutionalism. The numerous failures of the present federal Administration to ameliorate and address the pandemic are startling. Even under current doctrinal limits of negative rights, the Administration’s failures should give rise to individual constitutional claims. Most importantly, we should reorient our constitutional frameworks, theories, and doctrines toward recognition of positive rights to health and life. We deserve a Constitution that protects our survival.
Rockwell, Casey and Chad Marzen, ‘Justice on the High Seas: Nonpecuniary Damages and the Death on the High Seas Act’ (2024) 16(1) William & Mary Business Law Review 147 Abstract: The COVID-19 pandemic has brought forth many discussions on liability issues. The Death on the High Seas Act currently prohibits recovery of ‘loss of society’ or ‘loss of consortium’ nonpecuniary damages. This Article contends that in the wake of the COVID-19 pandemic, with the harsh results of the application of DOHSA in COVID-19 cases, Congress has an opportunity to amend DOHSA. Allowing recovery of nonpecuniary damages in DOHSA cruise line cases, currently advocated for by a bipartisan group of lawmakers, will provide consistency and fairness to DOHSA.
Rocco, Philip, Daniel Béland and Alex Waddan, 'Stuck in Neutral? Federalism, Policy Instruments, and Counter-Cyclical Responses to COVID-19 in the United States' (SSRN Scholarly Paper No ID 3615329, 27 January 2020) Abstract: Federalism plays a foundational role in structuring public expectations about how the United States will respond to the COVID-19 pandemic, as both an unprecedented public-health crisis and an economic recession. As in prior crises, state governments are expected to be primary sites of governing authority, especially when it comes to immediate public-health needs, while it is assumed that the federal government will supply critical counter-cyclical measures to stabilize the economy and make up for major revenue shortfalls in the states. Yet there are reasons to believe that these expectations will not be fulfilled, especially when it comes to the critical juncture of the COVID-19 pandemic. Though the federal government has the capacity to engage in counter-cyclical spending to stabilize the economy, existing policy instruments vary in the extent to which they leverage that capacity. This leverage, we argue, depends on how decentralized policy arrangements affect the implementation of both discretionary emergency policies as well as automatic stabilization programs such as Unemployment Insurance, Medicaid, and the Supplemental Nutrition Assistance Program. Evidence on the US response to COVID-19 to date suggests the need for major revisions in the architecture of intergovernmental fiscal policy.
Rodriguez, Daniel B., 'Public Health Emergencies and State Constitutional Quality' (2020) (72) Rutgers University Law Review 1223-1245 Abstract: As I write this, we are in the midst of a historic era in American regulatory law, one in which state government officials have implemented draconian restrictions on individual and business behavior, all under the rubric of the state police power and accompanying statutes that authorize aggressive state governmental action. As disputes over the government’s legal authority to impose severe regulations continue to work their way through the courts, commentary will grow over the merits of particular decisions. Moreover, there have already been valuable contributions to the discussion of how best to frame these legal challenges under the rubric of Jacobson v. Massachusetts, the seminal 1905 case that addressed the balance to be struck between public health actions under the police power and civil liberties. My focus here is not on this constitutional adjudication, either in the particulars of the disputes or in the general approach courts should follow in resolving these controversies. Rather, I want to look at this issue from a structural perspective, asking how best to think about constitutional and institutional design given the challenges raised by the most remarkable health emergency presented by coronavirus disease 2019 (“COVID-19”). Consider this Article as a thought experiment, one that looks at how we might redesign state constitutions to enable government to respond most effectively to these kinds of emergencies.
Romanis, Elizabeth Chloe, Jordan Parsons and Nathan Hodson, 'COVID-19 and Reproductive Justice in Great Britain and the United States: Ensuring Access to Abortion Care during a Global Pandemic' (2020) 1(7) Journal of Law and the Biosciences Article lsaa027 Abstract: In this paper we consider the impact that the COVID-19 pandemic is having on access to abortion care in Great Britain (England, Wales, and Scotland) and the United States. The pandemic has exacerbated problems in access to abortion services because social distancing or lockdown measures, increasing caring responsibilities, and the need to self-isolate are making clinics much more difficult to access; and this is when clinics are able to stay open which many are not. In response we argue there is a need to facilitate telemedical early medical abortion in order to ensure access to essential healthcare for people in need of terminations. There are substantial legal barriers to the establishment of telemedical abortion services in parts of Great Britain and parts of the United States. We argue that during a pandemic any restriction on telemedicine for basic healthcare is an unjustifiable human rights violation and, in the United States, is unconstitutional.
Rose, Laura, ‘Protecting a Cornerstone Constitutional Right in the Age of Zoom: The History and Case Law Surrounding the Confrontation Clause’ (2024) 69(2) South Dakota Law Review 162–195 Abstract: As the legal field moves into the post-COVID-19 pandemic world, it is essential to evaluate the place virtual meeting software holds in the criminal justice trial system. This article traces the historical roots of the Confrontation Clause, considers the Supreme Court jurisprudence on the topic with special emphasis on Crawford v. Washington and Maryland v. Craig, traces the circuit split on the use of two-way video communication in criminal trials, and concludes with a review of state cases where the protections of the Confrontation Clause are evaluated with the use of Zoom testimony.
Rose, Paul, 'Toward a National Resilience Fund' (2021) Northwestern University Law Review Online (forthcoming) Abstract: The economic impact of COVID-19 has been catastrophic for state and local governments. By Federal Reserve estimates, income and sales revenues will have declined by over $50 billion in fiscal year 2020 and may decline by as much as $137 billion in 2021. Pandemics are, of course, not the only catastrophic risks we may face in coming years. Financial crises, natural disasters, social justice crises, and climate change-related catastrophes all present serious risks, and often have a compounding and exacerbating effect on one another. These risks are also especially salient for state and local governments, which are at the forefront of crisis response. The legitimacy of government is tested and measured by its ability to respond to these challenges, but existing state and local financial frameworks have proven too thin and brittle to absorb shocks like COVID-19 or the Financial Crisis. This commentary describes how a national resilience fund, with subaccounts created for each state and territory, would strengthen the ability of state and local governments to respond to crises that are likely to arise in the coming years. A national resilience fund could be based on a familiar, flexible structure that has been in use for decades: the unemployment trust fund. Such a structure would help insulate the resilience fund from local political pressures, yet would have the financial strength to help state and local governments absorb the costs associated with severe crises such as pandemics and natural disasters, thereby helping to preserve governmental legitimacy in times of severe social stress.
Rosenbaum, Sara and Morgan Handley, 'Caring for the Uninsured in a Pandemic Era' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: On the eve of the COVID-19 pandemic, millions of Americans were uninsured despite a booming economy and a decade of health reform. The pandemic and its associated job losses have significantly increased the number of uninsured Americans – predominantly low-income, working-age adults and their families. Underlying drivers are the pandemic-triggered economic crisis, the inherent limits of the Affordable Care Act (ACA), the 2012 United States Supreme Court’s ruling on the constitutionality of its nationwide Medicaid expansion, and policies pursued by the Trump administration and certain states that further restrict the ACA’s reach. Especially serious during a public health emergency, the uninsured are significantly less likely to receive necessary care and are more likely to forgo care because of cost. Health care safety net providers established and operated under federal, state, and local law offer vital care for the uninsured and medically underserved rural and urban populations and communities. Federal COVID-19 legislation enacted to date appropriates funding to directly support health care providers, but the administration’s implementation approach may be limiting the effectiveness of this funding for the highest-need populations and communities. Beyond reforms aimed at improving how federally appropriated emergency health care funding is spent, states should use Medicaid to foster greater safety net provider stability and should pursue policies that promote accountability by tax-exempt hospitals with charity care obligations.
Rosenberg, Lee, 'Love and family law in the time of COVID-19' (2020) 2(52) NYSBA Family Law Review 4-12 Abstract: Extract from Introduction: As New York State gradually entered “Phase 1” and then moved forward to where are standing at the time of this editorial, those who practiced “family law” were, with limited exceptions, incredulously considered “nonessential.” How that was even remotely possible, given the kind of services we perform for families already in crisis, is an absurdity. The bench and bar and their staffs were given short-shrift, and families, except in the most exigent circumstances, could not get their day in court nor even file new actions for a prolonged period of time. Despite the court system requiring special “Matrimonial Rules” for practicing in this field and the talk of the need to protect families, for some reason, it still feels as if other areas of law take precedence. It seems rare that any matrimonial lawyers are even asked to participate and serve on those task forces empowered to offer opinions on over-arching policy matters that affect what we do and those we represent. Clients and self-represented litigants frustrated—as the bench and bar were—with the lack of access to the system, which was finally and miraculously pulled into the age of technology, could not understand how they were in limbo at home as well as in court. Through it all, lawyers, judges, legal assistants, paralegals, court personnel, with a built-in need to serve justice, still had to rightfully worry about themselves and their own families. “Balance,” a repeated mantra for some time now, but rarely found and usually beyond our grasp, is now thrust squarely to the forefront– sometimes as a mandate in our own households. And so, as we have transitioned to virtual appearances, electronic filing, and with in-person matters at hand—at least to some degree, where do we go from here and how does this still on-going experience affect the practice of law and the advice we give?
Rosińska, Anna and Elizabeth Pellerito, 'Pandemic Shock Absorbers: Domestic Workers’ Activism at the Intersection of Immigrants’ and Workers’ Rights' in Anna Triandafyllidou (ed), Migration and Pandemics: Spaces of Solidarity and Spaces of Exception' (Springer, 2022) Abstract: During the current global pandemic, when the family or household has been considered the most basic unit of quarantine, the role of the domestic worker – someone who by definition crosses the threshold and enters the space of the home – became problematised quickly. These workers’ ‘outsider’ status – transgressing the boundaries not just of the physical household space, but often also of race, immigration status, and class – has meant that some household workers were more readily regarded as disease vectors who were too risky to allow into the home and let go with little or no warning. In the United States, many of the federal and state relief bills responding to the pandemic continue to exclude the sector or undocumented immigrant workers or both from accessing relief measures. Drawing on an online ethnography of organisations and policy reviews, we analyse the multilevel response of domestic workers’ organisations to address the crisis at both the federal and local levels, with focus on the state of Massachusetts. This chapter tackles the variety of ways in which worker centres in the United States have been at the frontline of the response to domestic workers’ needs, addressing a gap in mainstream and otherwise insufficient relief measures provided by the government. Because of these gaps and the sheer level of need faced by these workers and their families, these centres did what they were prepared to do: continue the service provision, education, organising, and advocacy efforts while expanding their efforts in each of these areas of work.
Roth, Lauren, ‘Sanitation: Judicially-Mandated Individualism in Public Health Law’ (SSRN Scholarly Paper No 4166201, 18 July 2022) Abstract: On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and prioritized individual liberties over population health. What makes this case different from other recent federal cases restricting the authority of administrative agencies is its redefinition of the term ‘sanitation’ away from the meaning it has long held under federal and state jurisprudence and in the public health field. While not binding on the states, this decision creates a path for state courts to follow when restricting actions taken by public health agencies, allowing judicially-mandated individualism to spread and courts to gain power as they narrow the boundaries of administrative discretion.
Rothschild, Zalman, 'Free Exercise Partisanship' (SSRN Scholarly Paper No ID 3707248, 07 January 2020) Abstract: The pandemic has put into question many assumptions about the way the world, politics, and the judiciary work. This article argues another sacred cow must be revisited: that in free exercise cases, there is no discernible correlation between judicial decision making and politics. This article surveys every merits-based federal court decision pertaining to challenges by religious institutions regarding prohibitions of religious gatherings during the pandemic. It has produced staggering findings: 0% of Democrat-appointed judges have sided with a religious institution, a sizable majority (63%) of Republican-appointed judges have sided with a religious institution, and 0% of Trump-appointed judges have sided with the state or city. Put differently, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city.The article tracks one particular set of free exercise cases, but the startling findings have broader implications. They suggest judicial partisanship rests as much on the extent to which pertinent law is ambiguous as it does on the extent to which the issues in play are controversial. The article shows how free exercise has recently become controversial. And it explains how the currently most significant aspect of free exercise—the meaning of religious discrimination under the Free Exercise Clause—is mired in confusion. It concludes if free exercise is left in its current state of ambiguity, it will continue enabling judicial partisanship in an area that holds great consequences for other rights, including the future of LGBTQ rights and access to contraception.
Rothschild, Zalman, 'Free Exercise's Lingering Ambiguity' (2020) (11) California Law Review Online 282-295 Abstract: Religious challenges to state-issued stay-at-home orders have become a staple of the litigation generated by the COVID-19 pandemic. Judges hearing these challenges have had to grapple with an old question imbued with new pandemic-related nuance: What constitutes discrimination against religion under the Free Exercise Clause? The answer—as evidenced by the wide divergence in courts’ responses—is anything but straightforward. In this article, I explore an ambiguity surrounding the meaning of religious discrimination in current free exercise jurisprudence, the role this ambiguity has played in recent religious challenges to stay-at-home orders, and how the Supreme Court next term may finally lay this ambiguity to rest.
Rothstein, Mark A., 'The Coronavirus Pandemic: Public Health and American Values' (2020) 2(48) The Journal of Law, Medicine & Ethics 354-359 Abstract: In 2004, the year after the SARS epidemic in Asia and Canada, I wrote an article in which I considered whether the United States would be able to replicate the large-scale quarantine and isolation strategies effectively implemented by the countries hardest-hit by SARS. I called it "Are Traditional Public Health Strategies Consistent with Contemporary American Values?". Although I cautioned against overreliance on social distancing measures, I questioned whether there would be adequate levels of compliance with quarantine in a society grounded on libertarianism, as distinguished from the more collective or communitarian societies of Canada, China, Hong Kong, Singapore, Taiwan, and Vietnam. More generally, I wondered whether the United States had the social solidarity to respond to a major public health threat. Now, 16 years later, we face a challenge much greater than SARS, and it seems appropriate to reexamine American values during the coronavirus pandemic and beyond.
Rothstein, Mark A., 'The OSHA COVID-19 Case and the Scope of the Occupational Safety and Health Act' (2022) 2(50) Journal of Law, Medicine & Ethics (forthcoming) Abstract: The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) for COVID-19 applicable to private sector employers with 100 or more employees. Among other things, the ETS required employers either to mandate employee vaccination or weekly testing and wearing masks. A 6-3 majority of the Supreme Court applied the major questions doctrine and held that Congress did not authorize OSHA to issue standards addressing broad public health matters. The implication of the decision is to limit the scope of OSHA regulations, shifting power away from federal agencies to Congress and the states over significant matters as determined by the courts. The practical effect is to weaken safety and health protections in the workplace and beyond.
Rothstein, Mark A. and Julia Irzyk, 'Lawsuits of Last Resort: Employees Fight for Safe Workplaces during COVID-19' (The Hastings Center Bioethics Forum No , 29 January 2020) Abstract: A worker whose employer is failing to provide adequate protections against SARS-CoV-2 generally has little legal recourse. The Occupational Safety and Health Administration (OSHA), which is charged with ensuring safe and healthful workplaces, has refused to enact an emergency temporary standard for COVID-19. Furthermore, OSHA has issued only two minor citations against employers for violating existing regulations, despite thousands of illnesses and deaths among essential workers in high-risk positions. A possible “last resort” legal strategy is to sue under public nuisance law, but these actions are usually reserved for governmental entities and often precluded by the existence of a statute that addresses the general issue.
Roudebush, Sue A., 'Reducing Workers' Compensation and OSHA Liability During COVID-19 and Beyond' (2021) 2(15) Journal of Health & Life Sciences Law 136-143 Abstract: As the world navigates work-from-home opportunities in the post-COVID era, health care companies are considering their options too. This article provides a practical look into workers’ compensation and OSHA considerations so that health care providers can determine whether the benefits of remote working outweigh any potential risks. If it is decided that a remote working arrangement is desirable, health care employers will be able to assist in creating safe work environments to prevent workers’ compensation claims and OSHA violations.
Rozell, Mark J. and Clyde Wilcox, 'Federalism in a Time of Plague: How Federal Systems Cope With Pandemic' (2020) 6-7(50) The American Review of Public Administration 519-525 Abstract: This article compares and contrasts the responses of Australia, Canada, Germany, and the United States to the COVID-19 outbreak and spread. The pandemic has posed special challenges to these federal systems. Although federal systems typically have many advantages—they can adapt policies to local conditions, for example, and experiment with different solutions to problems—pandemics and people cross regional borders, and controlling contagion requires a great deal of national coordination and intergovernmental cooperation., The four federal systems vary in their relative distribution of powers between regional and national governments, in the way that health care is administered, and in the variation in policies across regions. We focus on the early responses to COVID-19, from January through early May 2020. Three of these countries—Australia, Canada, and Germany—have done well in the crisis. They have acted quickly, done extensive testing and contact tracing, and had a relatively uniform set of policies across the country. The United States, in contrast, has had a disastrous response, wasting months at the start of the virus outbreak, with limited testing, poor intergovernmental cooperation, and widely divergent policies across the states and even within some states. The article seeks to explain both the relative uniform responses of these three very different federal systems, and the sharply divergent response of the United States.
Rozenshtein, Alan Z, 'Digital Disease Surveillance' (2021) 5(70) American University Law Review 1511-1576 Abstract: The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap. Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious-disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a “special needs with bite” standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.
Rub, Guy A, ‘Reimagining Digital Libraries’ (2024) 113(2) Georgetown Law Journal 191–252 Abstract: Public libraries are among the most cherished institutions in our society, and most Americans use and love them. However, many are unaware of the crisis that libraries face nowadays. The gradual shift towards digital distribution of copyrighted goods, a trend greatly accelerated by the COVID-19 pandemic, challenges both the role and operation of libraries in our society.
Rubin, Nathaniel, 'The Electors Clause and the Governor's Veto' (2020) Cornell Law Review Online (forthcoming) Abstract: This Essay examines whether the United States Constitution allows a governor to veto a state legislature’s bill governing presidential elections. The Constitution does not support this seemingly intuitive proposition directly, and on its face appears to vest control over presidential elections solely in the hands of state legislatures: while Article II of the Constitution explicitly provides for the “Legislature” of each state to control the “manner” in which electors are chosen, it makes no mention of state governors. This vagary in the Constitution’s text takes on particular import in light of political polarization over election administration in recent years. Moreover, the COVID-19 pandemic has prompted numerous states to make emergency modifications to their election systems, including delaying elections or attempting to cancel marginally competitive presidential primaries. Commentators have even expressed fear that a state legislature may eventually attempt to exercise its plenary authority to determine how presidential electors are appointed under Article II, Section 1 of the Constitution to choose electors without holding a popular vote. This Essay answers these concerns by arguing that a state governor can veto state legislatures’ bills governing presidential elections on the same terms as any other legislation. Although the Constitution may not explicitly provide for a state governor’s role, the Supreme Court’s precedents and longstanding practice strongly suggest that a state governor has the same powers over bills governing presidential elections as over other state legislation. This conclusion has further implications for other potential conflicts between state legislatures and governors over presidential elections, including rules for absentee balloting, awarding electors by congressional district, using ranked-choice voting, or entering the National Popular Vote Interstate Compact.
Rubinstein, Ira and Tomer Kenneth, ‘Taming Online Public Health Misinformation’ (2022) 60(2) Harvard Journal on Legislation 220–283 Abstract: The Covid-19 pandemic was shaped by a corollary infodemic: an abundance of public health misinformation (PHM), primarily online. Studies attest to the pervasive effects of online PHM, creating health hazards for individuals and hindering society’s attempts to confront this and other diseases. Troublingly, online PHM is a difficult problem to solve. It involves regulation of speech online, content moderation, public health law, First Amendment issues, and intricate questions in epistemology and misinformation studies, amongst others. This Article features a comprehensive discussion of the problems associated with online PHM, points to shortcoming in existing responses, and advances two primary solutions. The Article contributes to existing scholarship by developing a rich and compelling plan for confronting online PHM, thereby casting new light on online speech regulation. The Article begins by developing the concept of PHM and discussing the major harms it poses, using Covid-19 as a main example. Next, it surveys how major platforms confronted online PHM during the Covid-19 pandemic and explains the shortcomings of relying on platforms to set and enforce relevant policies. The Article then considers the existing regulatory measures that governments use to confront online PHM and finds them lacking. Positively, the Article promotes two promising paths for confronting online PHM. One is soft-regulation measures—specifically voluntary self-regulation and voluntary enforcement—which were successfully implemented around the world to confront online speech harms but so far mostly overlooked in the U.S. Second, it explores a new approach to regulating online speech: regulating algorithmic recommendation (and amplification). Drawing on a technical primer, recent bills, and caselaw, the Article argues (contrary to popular views) that regulation of algorithmic recommendation can survive First Amendment scrutiny.
Rudman, Jody L. and Sean O'D Bosack, 'Lemons into Lemonade: Enforcement Risks Associated with the Receipt of COVID-19 Government Assistance Funds, and Mitigation Strategies and Defenses for the Long Haul' (2021) 2(15) Journal of Health & Life Sciences Law 123-135 Abstract: The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) made available numerous funding mechanisims to individuals, businesses, and health care providers to help them deal with the health and economic impacts of COVID-19. This article will address some early enforcement actions and the announced vigilance toward policing CARES Act and COVID-related fraud. We will describe enforcement tools within the CARES Act and current law, followed by a discussion of defensive strategies aimed at mitigating risk for good faith actors who go through a post-relief investigation or enforcement action.
Rumel, John E, ‘The Right to Jury Trial in Idaho Civil Cases: Origins, Purpose, and Selected Applications’ (2022) 65(5) Advocate 26–30 Abstract: The article will explore the legal origins of the right to jury trial in Idaho and will delineate its laudatory purposes in both criminal and civil cases. It mentions selected decisions by the Idaho Supreme Court evaluating the jury trial right in civil cases and case law on the effect of judicial COVID-19 related orders.
Ryznar, Margaret, 'Emergency Funds in the Wake of the Coronavirus' (2020) 1(96) Tax Notes State 65-66 Abstract: The CARES Act targeting the economic effects of the COVID-19 pandemic allows taxpayers to withdraw up to $100,000 from their retirement savings, such as section 401(k) plans, without the typical 10% penalty for early withdrawal. However, retirement accounts do not make for ideal emergency funds. This Article therefore advocates that future legislation should incentivize separate savings funds.
Ryznar, Margaret, 'Evaluating Proposed Deductions for the COVID-19 Pandemic' (2020) 12(96) Tax Notes State 1469-1471 Abstract: This article examines two tax proposals recently made by U.S. government leaders in response to the coronavirus pandemic: that state and local tax deduction caps should be lifted and that entertainment expenses should again be deductible.
Ryznar, Margaret, 'Extending the Charitable Deduction Beyond the Covid-19 Pandemic' (2020) 3(167) Tax Notes Federal 463-464 Abstract: While the importance of the charitable deduction decreased in the 2017 tax reform, it has returned during the COVID-19 pandemic with the CARES Act. This Article lays out the reasons that the limited above-the-line charitable deduction authorized by Congress during the coronavirus pandemic should remain a permanent feature of U.S. tax law.
Sabbeth, Kathryn, ‘Eviction Courts’ (2022) 18(2) University of St. Thomas Law Journal 359–404 Abstract: This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.
Sachs, Rachel, 'Encouraging Interagency Collaboration: Learning from COVID-19' (2021) Journal of Law & Innovation (forthcoming) Abstract: In the health innovation context, federal regulatory authority is sharply fragmented among different agencies. The National Institutes of Health, Food and Drug Administration, Centers for Medicare and Medicaid Services, and other agencies all share responsibilities in the development and dissemination of new healthcare technologies. Scholars have previously written about the importance of interagency collaboration both in the healthcare area and more generally, and about strategies for encouraging collaborative efforts to promote various policy goals. Under these accounts, a failure to collaborate between federal agencies may be unfortunate, but it does not typically result in or exacerbate a crisis. In the COVID-19 context, however, failures of federal interagency coordination may have had much more severe negative consequences for the spread of the pandemic in the United States. This Article first spotlights two examples of healthcare innovation for COVID-19 – diagnostic tests and vaccines – and details both the ways in which agency failures of collaboration created serious problems for our COVID-19 response and the ways in which interagency collaborations have successfully driven innovation and access to these new technologies. The Article goes on to consider what lessons can be learned from the successes and failures of these innovative efforts about best – and worst – practices in interagency collaboration going forward.
Saenz, Rogelio and Corey Sparks, 'The Inequities of Job Loss and Recovery Amid the COVID-19 Pandemic' (University of New Hampshire, Carsey School of Public Policy, National Issue Brief No 150, 10 January 2020) Abstract: Extract from Introduction: This research is one of the first efforts to provide a broad and comprehensive overview of the inequities in job loss and recovery over the last several months of the pandemic. Our analysis highlights the wide variations in unemployment and the level of job loss over the last several months that have taken place to date across the nation’s demographic groups that have historically suffered disparities in the workforce, including persons of color, women, and immigrants. It is particularly unfortunate that the calamity of the pandemic comes on the heels of major improvements in job prospects that these groups made over the last decade, as the workforce emerged from the Great Recession.
Sage, William M, ‘What the Pandemic Taught Us: The Health Care System We Have Is Not the System We Hoped We Had’ (2021) 82(5) Ohio State Law Journal 857–868 Abstract: The United States spends nearly twice as much per capita on medical care as any other country. The United States has the world’s most advanced biomedical technologies, sophisticated hospitals, and skilled health professionals. The United States has a national public health body, the Centers for Disease Control and Prevention (CDC), that is generally considered the world’s leader in infectious disease detection and response. Nonetheless, the United States suffered among the world’s worst COVID-19 disease burdens and outcomes, inflicting largely avoidable harm on patients, health professionals, and the broader community. Why this happened is clearly important. But that it happened is itself significant. Criticisms of the U.S. health care system abound, but often have a Lake Wobegon character: The ‘health care system’ may be bad, but my personal doctor is good. A silver lining of the pandemic experience is the possibility that Americans will finally recognize that, whether or not one’s own doctor is in fact good, American health care is unreliable, wasteful, and unjust. Should this occur, the path forward should combine several issues of law and policy to which I have devoted much of my scholarly career. These include improving corporate governance, rethinking professional ethics and selfregulation, remaking health care delivery, and broadening competition policy— with the common objective of enhancing collective goals and obligations in U.S. health policy.
Sandomierski, David, John Bliss and Tayzia Colesso, ‘Pass for Some, Fail for Others: Law School Grading Changes in the Early COVID-19 Pandemic’ (2023) 56(2) UBC Law Review 605–664 Abstract: This article asks how historically under-represented groups experience one of the key features of legal education: grading. We examine this issue by exploring the singular moment in the history of the modern JD program when law schools across North America almost uniformly set aside curved grading in favour of Pass/Fail schemes at the onset of the COVID-19 pandemic in spring 2020. . The paper begins with a review of existing literature on equity and grading in legal education (Part I), along with a discussion of the motivations and design of our survey (Part II). We then report our data in detail, beginning with high-level findings from the study as a whole (Part III), and then delving into our quantitative analysis of equity considerations (Part IV). These statistical findings are then explored through the lens of students’ first-person accounts in response to open-ended questions (Part V). We conclude with policy recommendations for continued experimentation in grading schemes, and for leveling the playing field by bolstering support for students in their lives outside of the classroom (Part VI).
Sandoval, Alisson, ‘“It’s the End of the World as We Know It”: Redrafting Amendment to Federal Rule of Criminal Procedure 26 to Allow Remote Testimony’ (2024) 39(2) Touro Law Review 605–638 Abstract: During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.
Sandoval, Catherine J.K., et al, 'Legal Education During the COVID-19 Pandemic: Put Health, Safety and Equity First' (2021) 2(61) Santa Clara Law Review 367 Abstract: The COVID-19 viral pandemic exposed equity and safety culture gaps in American legal education. Legal education forms part of America’s Critical Infrastructure whose continuity is important to the economy, public safety, democracy, and the national security of the United States. To address the COVID-19 pandemic and prepare for future viral pandemics and safety risks, this article recommends law schools develop a safety culture to foster health, safety, robust educational dialogue, and equity. To guide safety-and-equity-centered decision-making and promote effective legal education during and following the COVID-19 pandemic, this article contends legal education must put health, safety, and equity first. It proposes an ethical framework for legal education that centers diversity and inclusion as the foundation of robust educational dialogue. This article’s interdisciplinary analysis of COVID-19 scientific studies recommends law schools follow the science and exercise extreme caution before convening classes in person or in a hybrid fashion. COVID-19 infection risks serious illness, long-lasting complications, and death. It has preyed on America’s inequities. African-Americans, Native Americans, Latinx Americans, older Americans, and those with certain underlying health conditions including pregnant women face higher levels of hospitalization and death from COVID-19 infection. COVID-19’s inequitable risks may separate those participating in class in person, or online, by race, ethnicity, tribe, age, and health. Law schools must ensure that during the COVID-19 health emergency, hybrid or in-person pedagogical models do not undermine diversity and inclusion that supports educational dialogue and First Amendment values. The COVID-19 pandemic underscores the imperative of putting health, safety, and equity first in legal education.
Sanga, Sarath and Justin McCrary, 'The Impact of the Coronavirus Lockdown on Domestic Violence' (SSRN Scholarly Paper No ID 3612491, 28 January 2020) Abstract: We use 911 call records and mobile device location data to study the impact of the coronavirus lockdown on domestic violence. The percent of people at home sharply increased at all hours, and nearly doubled during regular working hours, from 45 to 85 percent. Domestic violence increased 12 percent on average and 20 percent during working hours. Using neighborhood-level identifiers, we show that the rate of first-time abuse likely increased even more: 16 percent on average and 23 percent during working hours. Our results contribute to an urgent need to quantify the physical and psychological burdens of prolonged lockdown polices.
Sarat, Austin and Ryan Kyle, 'The Death Penalty in Dark Times: What Crises Do (or Do Not Do) to Capital Punishment' (SSRN Scholarly Paper No ID 3902095, 09 January 2021) Abstract: The COVID-19 pandemic temporarily stopped executions in the United States and played a part in a record low number of death sentences handed down in 2020. While many newspapers reported on the pandemic-related disruption of individual executions and court proceedings, little attention has been given to understanding whether other crises in American history have similarly disrupted the death penalty. This paper examines execution data from several major crises in American history – wars, economic downturns, and pandemics – to assess whether COVID-19’s disruption of the American death penalty represents an anomaly among pandemics and other crises. As we will show, the death penalty has shown remarkable resiliency. Through all manner of national disruptions, with the exception of the first months of the COVID-19 pandemic, America’s execution machinery has kept on running. This fact is one indication of this nation’s attachment to capital punishment.
Schanzenbach, Max M and Kim Yuracko, ‘What Is the University-Student Contract?’ [2023] Arizona Law Review (forthcoming) Abstract: Courts readily accept that the university-student relationship is fundamentally contractual but face difficulties discerning the agreement. This paper develops a coherent framework to discern the university-student contract in traditional four-year universities and colleges and then applies that framework to ongoing and highly contentious litigation arising from higher education’s response to COVID-19. The paper begins by considering the three most salient models of higher education: the human capital, sorting, and consumption models. Next, the paper explores how courts implicitly rely on these models to frame their contract analysis in university litigation over issues as varied as student misconduct, affirmative action, and COVID-19 remote learning. The paper demonstrates that the human capital model of higher education, under which students acquire knowledge and complex skills in a residential environment, is the best positive description of the university-student contract as well as the model emphasized in university writings. Next, the paper applies the human capital model to assess the contractual issues raised by higher education’s response to COVID-19. The paper argues that, under the human capital model, almost all universities promised in-person instruction. However, universities also have reserve powers under the contract to protect the learning environment, and consequently COVID-19 vaccine mandates imposed during contract performance were permissible when vaccines were reasonably thought to facilitate in-person instruction. Finally, the paper considers the broader normative issues raised by the human capital model and concludes that the model appropriately recognizes and enforces university promises while leaving universities discretion in zones that require it.
Schenewark, Tanner, '"Barbarians at the Ticket Gate": Private Equity's Arrival in American Sports Leagues by Tanner Schenewark ' (SSRN Scholarly Paper No ID 3825319, 13 January 2021) Abstract: The year 2020 will stand out for many reasons in the world of American sports, but one of the most impactful developments may be also be one of the least discussed: the arrival of private equity into the United States’ major sports leagues. For decades, private equity firms have been barred from taking equity stakes of any kind—minority or majority—in most of the top-tier leagues. The few exceptions to this rule have been just that. Now, rule changes to several leagues’ bylaws allow for a new influx of private equity capital with more changes likely on the horizon. In this article, I make the case for why U.S. sports leagues should not only welcome the current inflow of private equity investment but also make additional permanent changes to league bylaws in order to encourage and expand future investment. Specifically, leagues should expand private equity investment to include opportunities for majority ownership. Welcoming private equity into American sports promises a number of broad benefits to current franchise owners and league executives: First, competition for teams’ minority ownership stakes will increase as bidding on those stakes is opened to up to the significantly larger pool of buyers represented by private equity funds. This, in turn, will lead to higher team and league valuations, benefitting current owners. Second, broadening the pool of potentials owners ensures that those allowed to buy in will be better fits with the franchises they join. Third, increased involvement with private equity funds will lead to innovation in deal structures, creating value in a historically inefficient industry. Fourth, private equity’s involvement will improve governance and structure across American sports leagues. And, lastly, opening doors widely to private equity will reduce the threat that funds interested in sports might decide to compete directly with existing organizations. There are, of course, potential downsides to increasing funds’ involvement in sports. Most probable is public backlash against fund-led ownership groups, which the public are likely to perceive as being involved solely for the money as opposed to being in it for the love of the game. (And certainly funds will be in the game with a focus on profits.) This backlash could lead to increased calls for financial disclosures from team and league stakeholders. However, for reasons this article discusses, increased disclosure as a result of public ownership and trading of franchises seems likely to be in the cards regardless of whether private equity has a seat at the table.The article is organized into three main sections. The first section begins by exploring how private equity has both interacted with and been perceived by sports leagues in the United States prior to current developments. It then details the specific ways leagues’ recent organizational changes are inviting private equity investment and how managers of private capital have sprung into action to take advantage of these relaxed regulations. The role of the COVID-19 Pandemic in hastening and necessitating these changes is also briefly explored. The second section illustrates how private equity’s much more active involvement in European sports provides specific evidence that it is a positive development for sports leagues and teams generally. Finally, in the last section I lay out how private equity developments in the European market are a basis both for predicting future changes to American sports leagues and for arguing why American leagues ought to allow for expanded participation by private equity firms.
Schiltz, Elizabeth, ‘The Dangers of Being Disabled in the Time of COVID’ (2022) 18(2) University of St. Thomas Law Journal 405–421 Abstract: This essay will address three areas in which the pandemic has had a disproportionately negative impact on people with disabilities: health care, education, and employment. Each of these topics represent a set of moving targets, as the evolution of the COVID-19 virus forces constant shifts in the public policies responding to it. Each topic alone could be the subject of many long law journal articles; this essay does not attempt to provide more than a summary overview of the situation at a fixed point in time—as of the writing of this article.
Schmidt, Megan, 'The Hidden Foster Care System: A Parallel System in Legal Limbo During A Deadly Pandemic' (2022) 1(12) University of Miami Race & Social Justice Law Review 141-163 Abstract: In 2020, Josh Gupta-Kagan’s article on the American Hidden Foster System challenged the welfare system to face its coercive practices that effectuate in a child being removed from the home without formal state intervention and court oversight.1 Families find themselves struggling to stay together as child protection workers utilize threats and safety plans to force the removal of a child from the home and into the custody of a family member.2 The children’s, the parents’, and the kinship caregivers’ lives are forever impacted by the welfare state, yet they receive insufficient benefits or protections afforded to families, caregivers, and children placed in licensed foster care under the jurisdiction of the court.3 This paper will explore what Gupta-Kagan coined the “American Hidden Foster system”4 during the COVID era, as well as some solutions to the injustices these families face while in the system. Lastly, this paper hopes to offer an approach to balance the inevitable tension that surfaces when child welfare agencies push for “under the table” removals while impoverished families desperately try to stay together.
Schmidt, Molly, ‘Liberating Legal Aid: Reducing COVID-19’s Justice Gap and Promoting Health by Removing the Legal Services Corporation’s Class Action and Advocacy Restrictions’ (2023) 71(2) Cleveland State Law Review 509–544 Abstract: The Legal Services Corporation (LSC) is the single-largest funder of civil legal services, or legal aid, in the United States. The COVID-19 pandemic underscored a longstanding and growing problem faced by ow-income Americans served by LSC-funded legal aid organizations: the growing ‘justice gap.’ The justice gap represents the unmet civil legal needs of low-income Americans. The justice gap perpetuates poverty, conceals health-harming legal problems, and furthers racial disparities. Despite the LSC’s essential role in reducing the justice gap and promoting ‘equal access to justice,’ Congress consistently underfunded the LSC before and during COVID-19. Congress has also prohibited the LSC-funded legal aid organizations from participating in class action lawsuits and advocacy activities for the past twenty-five years. Throughout COVID-19, the justice gap has grown alongside the increase of health harming legal needs, such as access to safe and affordable housing and food insecurity. Consequently, there are more legal needs than legal aid attorneys in the United States. The justice gap demonstrates the need for systemic, high-impact remedies, such as class-action lawsuits and advocacy activities. This Note argues that to support the LSC and empower legal aid attorneys to reduce the justice gap considering COVID-19, Congress must remove funding restrictions on class-action lawsuits and advocacy activities. In doing so, this Note examines the history of the justice gap and legal aid, the relationship between the justice gap and health disparities, COVID-19’s impact on the justice gap and health inequity, and the harmful effects of the LSC funding restrictions. Ultimately, this Note proposes draft legislation that removes class action and advocacy restrictions on LSC-funded legal aid organizations.
Schmit, Cason D et al, 'Telehealth in the COVID-19 Pandemic' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: The COVID-19 pandemic highlights the value of telehealth as a public health measure by permitting health care at a distance, keeping providers and patients safe while enabling health care in strained health systems. This Chapter explores how states have acted through legislative, regulatory, and executive actions to leverage telehealth in the COVID-19 response. Congress passed three new pieces of federal telehealth legislation in response to COVID-19: The Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Telehealth Services During Certain Emergency Periods Act, and the Families First Coronavirus Response Act. These new federal laws provide additional funding and regulatory flexibility for telehealth under the Medicare and TRICARE programs. Additionally, 27 states have new telehealth authorities in response to COVID-19. These new state authorities generally expand telehealth by removing regulatory barriers, authorizing more telehealth providers or telehealth modalities, and expanding telehealth coverage. This Chapter includes a number of recommendations for policymakers including addressing inequities, eliminating telehealth barriers (e.g., location requirements), authorizing additional providers and telehealth modalities, and expanding telehealth coverage.
Schmit, Cason, Brian Larson and Hye-Chung Kum, 'Data Privacy in the Time of Plague' (SSRN Scholarly Paper No ID 3968130, 20 January 2021) Abstract: Data privacy is a life-or-death matter when it comes to public health. From late fall 2019 until summer 2021, two series of events unfolded, one that everyone was talking about, and one that hardly anyone noticed. The most reported news story of that period related to the greatest world-health crisis in at least 100 years, the COVID-19 pandemic. Meanwhile, in a story that received next to no news attention, the Personal Data Protection Act Committee of the Uniform Law Commissioners in the United States was busy working on a new model law. By July 2021, each of these stories had reached a turning point. In the developed, Western world, most people who wanted to receive the vaccine against COVID-19 could do so, and nearly 60% of people in the United States had received at least one vaccine dose. Nevertheless, the COVID pandemic surged in late summer. Meanwhile, the Uniform Law Commission adopted the Uniform Personal Data Protection Act (UPDPA) at its annual meeting, paving the way for state legislatures to consider adopting the uniform act in 2022 legislative sessions. At roughly the same time, Virginia and Colorado state legislatures also adopted comprehensive data privacy acts.These stories intersect in the public-health space. Public health researchers struggled with COVID-19 in the United States because they lacked information about individuals who were exposed and their contacts, among other matters. When the next pandemic arrives (and it is almost certain to do so), public health researchers will again have a critical need for access to personal data to monitor the progress of the disease and identify and implement population and individual interventions. In the meantime, understanding existing public health threats (e.g., obesity, opioid abuse, racism) requires leveraging and linking diverse data on the contributing social, environmental, and economic factors. The UPDPA does not clear the dense underbrush of barriers resulting from the patchwork of federal data privacy laws that interfere with public health practice and research. But it does provide an important route forward for public health, the full potential of which can be achieved only with active involvement of public health researchers and professionals. This article provides a conceptual framework for analyzing the regulation of uses of personal data and for public health and applies those frameworks to an analysis of UPDPA and other comprehensive state privacy statutes, focusing particularly on the ways that state adoption of UPDPA could promote—and hinder—public health. It concludes with recommendations for public health researchers and professionals to get involved in upcoming legislative debates on data privacy. Lives will depend on the outcomes.
Schmit, Jude and Rachel Albertson, ‘Witnessed From the Justice Bus: Covid Drove Equal Justice Off the Road, But Technology Grabbed the Wheel and Is Steering Us Into the Future’ (2022) 48(4) Mitchell Hamline Law Review 1173–1187 Abstract: This Article spotlights Legal Aid Service of Northeastern Minnesota’s (‘LASNEM’) response to the access-to-justice crisis in the age of COVID19. The first part briefly summarizes the civil justice gap, focusing on potholes littering LASNEM’s roads. The second part discusses the initiatives adopted by LASNEM since the pandemic struck, including the Justice Bus, Legal Kiosks, and the partnerships made with the courts and community partners to participate in eviction-diversion pilots. In short, this Article argues that bridging the access-to-justice gap in rural Minnesota requires a multidimensional approach utilizing technology as the vehicle.
Schmitz, Amy J., 'Arbitration in the Age of Covid: Examining Arbitration's Move Online' (2021) Cardozo Journal of Conflict Resolution (forthcoming) Abstract: Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (ODR), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (OArb) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (FAA). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the Covid-19 pandemic sparked the acceleration of arbitration’s move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb, and offers considerations for courts, policymakers and practitioners shepherding OArb development.
Schmitz, Amy J. and Claire Mendes, 'Online Arbitration Protocols' (University of Missouri School of Law Legal Studies Research Paper No 2021-13, 28 January 2021) Abstract: Arbitration has been moving online for some time, especially with the growth of Online Dispute Resolution (“ODR”), which includes using technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”) and other arbitration laws. Indeed, I have written about OArb on prior occasions, due to its unique status. However, OArb was relatively limited until the COVID-19 pandemic sparked its acceleration. It became the norm while in-person gatherings halted and courts closed, or severely limited the cases they could hear. Furthermore, most opine that OArb is here to stay due to its convenience and cost savings. The following is a chart that Mizzou Law student, Claire Mendes, and I put together noting main takeaways from a number of institutional OArb protocols. Although I identified most of the documents to be reviewed, Claire did the heavy lifting in putting the information into this chart. Thank you to Claire!
Schurle, Adam, 'Understanding the Tax Impact of Federal Covid-19 Relief Laws' (2020) 5(77) Bench & Bar of Minnesota 39-41 Abstract: mid the covid-19 pandemic, Congress recently enacted two pieces of legislation, the Families First Act and the CARES Act, which are designed to provide economic stimulus and tax relief to businesses and employees affected by the pandemic. Together, the acts provide benefits to employees who are unable to work, incentives to employers who keep employees on staff, and tax relief to businesses to assist with cash flow issues. Following is a summary of some of the key tax provisions of the Families First Act and the CARES Act
Schweikart, Scott J et al, ‘COVID-19 and Racial Justice in America’ in Abbe R Gluck et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 105–115 Abstract: The ongoing COVID-19 pandemic has impacted the world to devastating effect, yielding profound societal disruption around the globe. However, its impact throughout the world has not been equal among nations. In the United States, the impact of COVID-19 is influenced and exacerbated by an embedded social issue: structural racism and its attendant systemic inequities. This paper first addresses how structural racism, broadly construed as the deeply rooted discriminatory policies and systems that produce the chronic systemic inequities faced by BIPOC (Black, Indigenous, and People of Color) people in American society, have influenced, with notable detriment, COVID-19’s impact in the United States. This detrimental impact is most keenly demonstrated by the extreme disparate medical impact of COVID-19 itself, collectively in terms of the disease’s rate of infection, morbidity, and mortality on the BIPOC population versus that of the white population. As the United States crossed the threshold of 275,000 total deaths from COVID-19, it continued to see the significant inequities that were revealed in the early weeks of the pandemic. The latest data (as of November 2020) show that age-adjusted mortality rates for Indigenous people are 3.2 times higher than for white people; rates for Black and Latinx are 3.0 times higher than for whites. This translates into an unprecedented level of excess deaths across the country. If the COVID-19 mortality rate experienced in the white population applied universally to BIPOC communities, approximately 21,000 Black, 10,000 Latinx and 1,000 Indigenous people would still be alive today. The disparate impact is also evident regarding problems ancillary to the pandemic, such as the economic recession, which take a greater malignant toll on BIPOC communities, as well. Job and wage losses due to COVID-19 have hit marginalized and minoritized communities hardest; more than half of Hispanic (58 percent) and Black (53 percent) households in the US Census Bureau’s Household Pulse Survey reported a decline in employment income since mid-March. Black workers have experienced the highest rates of unemployment and the weakest recoveries since the March–April unemployment peak.
Scott-Hayward, Christine S., 'Correctional and Sentencing Law Commentary: Compassionate Release, the First Step Act, and COVID-19' (2021) 1(57) Criminal Law Bulletin 89 Abstract: The COVID-19 outbreak exacerbated all of the risks faced by elderly and sick people in prison. People who are older and those with chronic conditions, like many people in prison, are at higher risk from complications if they contract COVID-19, and less likely to receive adequate healthcare. Moreover, the main ways that people can protect themselves from contracting the virus—physical distancing, wearing masks, and frequent handwashing or hand-sanitizing—are far more difficult in a prison setting. As a result, there have been numerous reports of people who have tested positive for COVID-19 receiving inadequate or “virtually no” care; tens of thousands of people in jails and prisons have been infected with the virus and thousands have died. For these reasons, compassionate release is more important than ever, as a release mechanism that can protect the health and lives of people in prison. After briefly reviewing the history of compassionate release in the federal system and explaining the changes made by the First Step Act of 2018, this commentary examines how the Bureau of Prisons and federal courts have used compassionate release to alleviate the risks to sick and elderly people in prison during the COVID-19 pandemic.
Seamon, Richard H., 'How the U.S. Constitution Connects with COVID-19' (2021) 9(64) Advocate 20-23 Abstract: In the following, I discuss one such event: the federal residential eviction moratorium. The moratorium arguably exceeds the federal government’s statutory and constitutional powers. In the following discussion of the moratorium’s legal vulnerability, you will encounter cases that you might remember from your own law school course in constitutional law. I hope the discussion shows the continuing vitality and central relevance of the U.S. Constitution to the challenges that confront our country today.
Sears, Kathryn, 'Better Balance: Why the Second Judicial District in New Mexico Should Prioritize Use of Preliminary Hearings' (2021) 2(51) New Mexico Law Review 524-547 Abstract: The New Mexico Constitution guarantees that felony charges shall not be brought against a person prior to either a grand jury indictment or a preliminary hearing finding of probable cause. But in March 2020, due to the COVID-19 pandemic, New Mexico courts were forced to halt the use of grand jury proceedings. As a result, all felony charges brought for the remainder of the year 2020 were vetted through preliminary hearings. Moreover, New Mexico is a unique jurisdiction because it applies the Rules of Evidence in full strength at preliminary hearings. This Comment makes a case for the continued expansion in the use of preliminary hearings even as COVID-19 restrictions ease and grand juries become available again. Acknowledging the necessity to balance the use of preliminary hearings with grand jury proceedings this comment (1) illustrates the contours of both the grand jury and preliminary hearing rights in New Mexico; (2) describes the ongoing tension within the Second Judicial District regarding preliminary hearings and grand juries; (3) surveys states that either prioritize or offer prosecutors the discretion to use preliminary hearings and examines how these states treat the Rules of Evidence; (4) analyzes how the practical benefits of preliminary hearings are viable for both the prosecution and defendants; and (5) addresses how preliminary hearings balance the policy interests of the state with the rights of defendants.
Sebok, Anthony J., 'The Deep Architecture of American COVID-19 Tort Reform 2020–21' (2022) (71) DePaul Law Review (forthcoming) Abstract: The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”This article, prepared for the 27th Annual Clifford Symposium, “Civil Litigation In A Post-Covid World,” has two parts. First, it collects, as of the end of 2021, the various tort reforms adopted by United States jurisdictions and classifies them according to a variety of dimensions, including the scope of the immunities proposed and the changes to tort doctrines by which defendants were provided increased protections from suit. Second, it provides a theory of tort reform in the United States from the perspective of whether reforms are “tort negative” or “tort positive” and provides historical examples of both types, including the General Aviation Revitalization Act and the Federal Employers’ Liability Act.The Article analyzes the variety of tort reforms proposed and adopted since 2020 in connection with COVID-19 as a particular type of tort negative tort reform. Based on this analysis, policy makers can clearly see the lack of rational connection between the reforms adopted and the purported public policy goals upon which these legislative efforts were based. This Article should server as a cautionary tale of a failed effort at tort reform, and one that should not be emulated in the future.
Seifter, Miriam, 'Countermajoritarian Legislatures' (2021) 6(121) Columbia Law Review 1733-1799 Abstract: State and federal courts routinely cast state legislatures in the role of democratic hero. Recent events illustrate: Some states have embraced the nondelegation doctrine, striking down governors' pandemic responses based on the theory that those weighty choices belong to the legislature. During the 2020 election, federal judges invoked an "independent state legislature" doctrine to question voting rights measures from state executive actors and courts. Democratic romanticism regarding state legislatures permeates public dialogue too. The legislature is often described as the true majoritarian branch, unlike "unelected bureaucrats," courts, local governments, and governors. But this rhetoric is not reality. As this Article explains, state legislatures are almost always a state's least majoritarian branch. The combination of our districting scheme, geographic clustering, and extreme gerrymandering means that state legislatures are recurrently controlled by the state's minority party. Indeed, this Article finds that minority-party rule has afflicted state legislative chambers hundreds of times in the modern era. In contrast, state governors and state courts are overwhelmingly chosen via simple statewide elections, with no electoral college or lifetime appointment. This reframing destabilizes conventional narratives about state government. It opens a host of broader inquiries about the extent to which state and federal courts should and do rely on majoritarian analysis, the appropriate relationships between the state branches, and the vertical distribution of power between states and local governments. Most immediately, this Article offers a series of course corrections that can bring prominent doctrines in line with state legislative reality.
Sella-Villa, David, 'The COVID-19 Pandemic One Year On: Finding Balance Between Privacy and Public Health' (2021) (77) The Business Lawyer (forthcoming) Abstract: During the COVID-19 pandemic stay-at-home orders and social distancing requirements limited the possibility of safe and lawful in-person interactions for over a year. Many people in the United States responded to these circumstances by resisting challenges to their sense of decisional privacy – “non-interference in one's decisions and actions.” Instead, they chose to relinquish some data privacy by sharing both new and existing types of data about themselves in efforts to enjoy the simulacrum of human contact.Use of digital services that helped approximate in-person interactions increased dramatically. Video conferencing features in Zoom and dating apps, for example, collected new types of data about people and offered novel means by which information once exchanged primarily in person could be collected, processed, and stored. Privacy and data protection jurisprudence has helped address the circumstances where an individual’s privacy interests may have been compromised. An overview of the privacy litigation involving Zoom (Part II) provides an illustrative example of some of the privacy consequences of the pandemic.Many people have been very reluctant to share data in more collective efforts at fighting the COVID-19 pandemic. Attempts at adding a digital layer to activities traditionally perceived to be data-light met strong resistance (Parts III and IV). Decisional privacy and data privacy are compromised when some combination of infection, vaccination, location, and demographic data are aggregated, processed, and shared. Discussions of the limited successes of tracking apps and policies related to the administration of COVID-19 vaccine show that privacy interests during the pandemic may have trumped public health concerns.
Sevier, Justin, ‘Procedural Justice in COVID-19 Era Civil Trials’ (SSRN Scholarly Paper No 4908124, 3 June 2021) Abstract: The COVID-19 pandemic has altered the lives of millions of people worldwide. American courts have not been immune to the hardships created by COVID-19, and legal authorities have been placed in the difficult position of determining how to provide justice to civil litigants while keeping participants in the legal system safe from the coronavirus. Initially, many courts decided to suspend civil trials until the virus was contained or until adequate mitigation measures became available. As the pandemic dragged on, however, several courts turned to innovative solutions to continue resolving civil disputes. Some courts have opted for ‘sterilized’ in-person trials, in which courts allow for sufficient space to practice social distancing, require face coverings, and include plexiglass barriers in the courtroom, among other innovations. A select few courts have opted for a bolder solution: to hold jury trials entirely over Zoom videoconferencing software. Adequately understanding the extent to which jurors legitimize these COVID-19-era innovations requires understanding the ways in which they differ from normal civil trials. To that end, this symposium article explores this issue through the lens of construal level theory, a modern psychological theory that examines the effects of distance on people’s perceptions of their social surroundings--either by attending court masked, separated from others, or through plexiglass barriers; or by attending court on one’s computer miles away from the courthouse. This Article is ultimately a call for empirical research on public perceptions of the procedural justice provided in COVID-19-era civil trials. Specifically, this Article examines how perceptions of a legal tribunal’s procedural justice may be moderated by perceptions of psychological distance. It then suggests several avenues through which researchers can study the feasibility of COVID-19-era procedural innovations as they impact public perceptions of legal legitimacy throughout the pandemic and beyond.
Shammas, Michael, ‘Healing Our Republic with COVID-19 Era Innovations: Online Jury Trials as a Barrier to Democratic Backsliding’ [2022] Kansas Journal of Law & Pubic Policy (forthcoming) Abstract: The coronavirus (Covid-19) pandemic reshaped modern life. Due to its unprecedented demands, including ‘social distancing,’ long-standing institutions faced an abrupt choice: adapt or die. Across organizations, a key adjustment involved using the Internet to ensure continued functioning. Because the pandemic exacerbated our interrelated (a) democratic and (b) epistemic crises, and since the Internet usually exacerbates those crises, the courts’ pandemic-era integration of the Internet represents a rare instance where the Internet did not hurt but instead helped democracy. Necessity is the mother of invention. The realization in mid-2020 that Covid-19 was here to stay forced courts to evolve. Temporary changes fueled by necessity and marred by doubt were soon embraced for convenience; courts became reliant on platforms like Zoom to function. Benefits for lawyers, judges, and jurors included convenience, expanded access, increased efficiency, heightened transparency, and civic-education opportunities. The Internet’s potential to increase the frequency and transparency of jury trials is exciting. Hurdles obviously exist. Scholars have expressed special trepidation at the prospect of online criminal trials, flagging (for example) the Sixth Amendment’s Confrontation Clause (can a defendant ‘confront’ witnesses in cyberspace?). Leaving constitutional questions aside, there were privacy concerns; for instance, what if jurors or third-party hackers record proceedings, such as jury deliberation, meant to be confidential? Nonetheless, other factors — e.g., the constitutional guarantee that gives criminal defendants the right to a ‘speedy trial’ — ultimately trumped concerns surrounding the use of technology to resolve legal disputes. As the pandemic recedes and the exigencies that motivated courts to become more flexible dissipate, courts that have already (successfully) held online criminal and civil jury trials may backpedal. Such backpedaling would be a grave error. For even as our pathogenic crisis ends, our democratic and epistemic crises are nowhere near closure. And increasing the number of jury trials — in decline for most of the 20th century — can reinvigorate an institution that political philosophers such as John Stuart Mill & de Tocqueville, as well as the Founders, viewed as essential to this fragile, invaluable American experiment. Covid-19 revealed that institutions — even ones as traditionalist as courts — are not static. They are dynamic. Their ability to weather crises depends on their willingness to change. The constitutional and pragmatic problems posed by pandemic-era modernization efforts in the courts apply to lawyers, scientists, and cyber-security experts. Such problems have been extensively discussed. Still undiscussed are the pro-democratic implications of the continued, post-pandemic use of the online jury. Although most might think the Internet divides rather than unites society, the benefits of merging the Internet with courts, directly related to our most recent pathogenic crisis, have the potential to help solve our (a) epistemic and (b) democratic crises, increasing social cohesion at a time when Americans are more polarized than ever. This Article argues, broadly, that our democratic and epistemic crises are not intractable; for the Internet is not inevitably a source for social entropy but can be a fountain of good. We must retain the use of online jury trials post-pandemic, for the benefits of juries, beacons of participatory, deliberative democracy and epistemic rigor, can shock us out of our dual crises and help the United States stand tall once again — an imperfect yet vigorous democracy.
Shammas, Michael, 'The Verdict Is In: Online Jury Trials Are Possible' (SSRN Scholarly Paper No ID 3685422, 31 January 2020) Abstract: At the start of the COVID-19 pandemic, it was uncertain whether it would be possible to continue conducting civil jury trials. Now, however, the successful completion of both mock and real civil jury trials proves that online jury trials are possible, but that (due to confidentiality requirements) they will need to be at least partly conducted in person.
Shammas, Michael and Michael Pressman, 'Advocacy through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference' (SSRN Scholarly Paper No ID 3664014, 30 January 2020) Abstract: The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties? While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment's protections, especially if the Covid-19 pandemic continues longer than expected. If courts eventually allow digital jury trials, certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.
Shamuel, Natalia, ‘Telehealth Fraud and Abuse Before and “After” the Pandemic: Are Things Going to Get Better?’ (2023) 24(2) DePaul Journal of Health Care Law Article 3 Abstract: Telehealth and telemedicine have become increasingly useful to both patients and health care providers. The ease and comfort of attending a doctor’s appointment in the comfort of one’s own home made telehealth and telemedicine convenient, safe, and effective options for seeing a doctor during the height of the COVID-19 pandemic. However, with increased usage of telehealth and telemedicine came increased health care fraud and abuse. With increased health care fraud and abuse came increased regulations, both on the federal and state levels. This Note provides a brief analysis of health care fraud and abuse in the telehealth and telemedicine space. It also provides insight on state and federal telehealth and telemedicine regulations implemented both before and during the COVID-19 pandemic. In this Note, I analyze and discuss how the COVID-19 pandemic influenced health care fraud and abuse and how Congress and other regulators are responding.
Shanahan, Colleen F. et al, 'COVID, Crisis and Courts' (GWU Legal Studies Research Paper No No 2020-51, 31 January 2020) Abstract: Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression every day and will continue to do so with even more urgency in the future: state civil courts.
Shang, Carrie Shu, Wenli Guo and Charles Ho Wang Mak, 'Two Paths Leading to the Same End? A Discussion of Development and Regulation of Online Mediation Under the COVID-19 in the People’s Republic of China and the United States' (2019) 1(13) _World Arbitration and Mediation Review_ Abstract: The recent COVID-19 crisis has set the stage for a significant increase in the use of online dispute resolution. Under worldwide country lockdown and/or social distancing orders, behaviors of people have adjusted drastically. Further, the increased use of online mediation to resolve disputes has raised the legal community’s interest across jurisdictions. The purpose of this paper is to examine two different development paths of online mediation post-COVID-19 taken in the People’s Republic of China and the United States, the world’s two largest economies. The first part of the paper provides a background on the development of online mediation in China by examining a few newest judicial and administrative directives mandating state-wide experiment of online dispute resolution mechanisms. Moving on the discussion of the development of online mediation in China, it then focuses on the professional and self-initiated efforts of the dispute resolution community in the United States leading to the further surge in supply and demand of online mediation services. Building on the comparative analysis, the paper unpacks different roles of both public and private stakeholders play towards promoting the wider acceptance of online mediation initiatives in the world, speaking against any pre-fixed preference in dispute resolution for state-led or community-based approaches.
Shannon, Tyler, ‘Texas Proposition 3: A State Constitutional Response To Restrictions On Religious Gatherings’ (2023) 55 Texas Tech Law Review 559–598 Abstract: For centuries, religious groups of all faiths have assembled for in-person gatherings. For most of modern American history, civil law posed little or no barrier to this practice. The COVID-19 pandemic changed that. From the outset of the pandemic, state and local officials issued orders restricting in-person religious gatherings. Some prohibited religious gatherings of all sizes, while others placed restrictions on capacity or limited certain religious practices. As with most things in modern American life, legal challenges ensued, and outcomes varied greatly. Many turned to federal courts, seeking to enjoin state action under federal law. Others have taken a different approach: utilizing the substantive liberty guarantees of state constitutions. These proponents of religious liberty have turned to state constitutions for greater protection of religious gatherings during times of public emergency. In 2021, Texas voters approved their response to the COVID-era restrictions on religious gatherings: an amendment to their state constitution prohibiting government limitations on religious services. This Article analyzes that amendment by discussing its origins, scope, and potential conflict with the federal Establishment Clause.
Shannonhouse, Sarah, 'Quirks spurred by COVID-19 tax relief' (2020) December() Tax Adviser 1-3 Abstract: The article focuses on new tax legislative, regulatory, and procedural guidance that's been released associated with COVID-19. It mentions U.S. Internal Revenue Service (IRS) has announced extensive filing and payment relief in Notice 2020-23 for deadlines occurring between April 1-July 15, 2020. It also mentions clients needed to obtain their refunds quickly or perhaps because their economic impact payments were higher based on their 2019 tax returns.
Shanske, Darien, 'How the States Can Tax Shifted Corporate Profits: An Application of Strategic Conformity' (2020) Southern California Law Review (forthcoming) Abstract: The combination of pandemic, recession and federal dysfunction has put severe fiscal strain on the states. Given the scale of the crisis and the essential nature of the services now being cut, it would be reasonable for states to contemplate inefficient – and even regressive – revenue-raising measures. Yet surely they should not start with such measures. They should start with making the efficient and progressive improvements to their revenue systems that they should have made anyway. Improving the taxation of the profits of multinational corporations - the topic of this Article - represents a reform that would be efficient, progressive and relatively straightforward to administer. Not only would such a reform thus represent good tax policy, but it would raise significant revenue. And, if substantial revenue, efficiency, progressivity and administrability are not sufficiently motivating, then I will also add that it would be particularly appropriate to make these changes during the pandemic so as to raise revenue from those best able to pay during the current crisis.To be sure, the argument that states can and should tax multinational corporations more has the whiff of paradox. After all, there is general consensus that no nation-state is currently taxing multinational corporations very effectively and, further, that subnational governments are in an even worse position to do so. This is because MNCs can exploit the mobility of capital even more easily between parts of the same country. Nevertheless, I will argue that the American states find themselves in a particularly strong position to do better at taxing MNCs and this is in part precisely because of the missteps made at the federal level. The Tax Cuts and Jobs Act (“TCJA”), passed in December 2017, contained several provisions, including rules concerning Global Intangible Low-Taxed Income (or “GILTI”), that were meant to combat income stripping. The GILTI provision identifies foreign income likely to have been shifted out of the US and subjects it to US tax.In this Article, I argue that the states should and can tax GILTI income. The basic policy argument is simple: states should not miss a chance to protect their corporate tax bases. The amount of revenue at stake is not trivial; it could be as high as $15 billion/year for the states as a whole or the equivalent of a 30% boost in corporate tax collections.The basic legal argument is also simple: it cannot be the case – and it is not the case - that states need to take corporations at their word as to where their income is earned. If the states can make a reasonable argument that nominally foreign income has in fact been shifted out of the US, then their choices as to their tax system should be respected.This Article makes several other core arguments. First, the Article argues that returning to mandatory worldwide combination as a complete alternative to GILTI conformity would be preferable to GILTI conformity alone. Second, the Article argues that offering taxpayers a choice between GILTI conformity and worldwide combination is also preferable to GILTI conformity alone.Finally, this Article places all these issues in a larger framework of strategic conformity. As with GILTI, the states should look for other opportunities where they can take advantage of federal miscues while also advancing sound tax policy.
Shapiro, Ilya and James Knight, 'Election Regulation during the COVID-19 Pandemic' (CATO Institute Legal Policy Bulletin No 5, 20 2020) Abstract: Introduction: The ongoing pandemic has necessitated dramatic changes to nearly every aspect of American life. The ways we work, shop, eat, and socialize have been radically restructured to protect our own health and that of our communities. This November, that radical restructuring will extend to the way we vote. Changes to our voting systems to safeguard public health, such as by allowing mail‐in voting, are sorely needed, particularly if fears of another COVID-19 wave in the fall come true. At the same time, hastily switching from in‐person voting to more‐anonymized systems with which the states lack experience creates the potential for chaos, errors, and decreased electoral legitimacy in the eyes of voters. With little more than two months until the election, states must finalize decisions on what they are doing and communicate those plans to their citizens and the country as a whole.
Shayegh, Soheil and Maurizio Malpede, 'Staying Home Saves Lives, Really!' (SSRN Scholarly Paper No ID 3567394, 02 January 2020) Abstract: As coronavirus disease (COVID-19) is spreading around the world, many national and local governments have imposed social restrictive measures to limit the spread of the virus. Such quarantine measures in different cities across the world have brought a new trend in public safety improvement and crime reduction. Using daily crime reports in the US and European major cities, the aim of this project is to evaluate the effects of quarantine and "shelter-in-place" policies on different crime categories. We adopt a difference in difference strategy to evaluate the change in crime rates. Early results from Oakland and San Francisco in the U.S. suggest a drop by about 40\% across the communities and crime categories in both cities. While theft, homicide, and traffic accidents have fallen sharply, domestic violence incidents show no sign of reduction from our early observations. These trends although promising a glimpse of positive outcome for the community during the outbreak, may not have a lasting impact in the long term.
Shelby, Cary Martin, 'Profiting From Our Pain: Privileged Access to Social Impact Investing' (2020) (109) California Law Review (forthcoming) Abstract: Social impacting investing has become the latest trend to permeate the financial markets. With massive anticipated funding gaps for sustainable development goals, and a millennial driven thirst for doing good while doing well, this trend is likely to continue in the coming decades. This burgeoning industry is poised to experience yet an additional boost, since it provides an alternative mechanism for private actors to “profit from our pain” particularly in the wake of the COVID-19 pandemic and the Black Lives Matters movement. As to be expected, the law has not sufficiently adapted to this new wave of innovation as regulatory concerns have arisen such as the extent to which impact should be measured and disclosed. Even with this emerging focus, limited attention has been paid to whether the public/private divide under the federal securities laws has contributed to these harms. This Article seeks to fill this scholarly gap by exploring the extent to which the public/private divide under the federal securities laws induces reductions to the net social benefits generated by social impact investments. While social impact investing has the highest potential for impact along the continuum of socially conscious strategies, they largely operate as exempt entities due to the need for regulatory flexibilities such as the power to invest in illiquid assets. As a result, retail investors, which encompass all members of the general public, are restricted from accessing these privately held vehicles due to investor protection concerns. This serves to exclude affected community members as investors, who are the targeted beneficiaries of these schemes, while limiting transparency which would enable the general public as well as policy makers to make assessments about the extent to which these schemes are maximizing net social welfare. This is particularly problematic given the potential for such investments to generate unaccounted for negative externalities which can occur for example when seemingly clean energy technologies inadvertently destroy surrounding environments or habitats. Solely relying on privately ordered solutions can leave costly loopholes given that they are completely voluntary and lack standardization. Innovative regulatory solutions that reconceptualize antiquated notions of publicness may best address these harms. This Article therefore concludes with a novel proposal which seeks to combine existing indicators of “publicness” and “privateness” while perhaps creating new measures. This could be effectuated through the creation of an entirely new series of exemptions entitled the “Social Impact Exemptions” that would appear under the Securities Act of 1933 and the Investment Company Act of 1940. They would effectively recalibrate existing rules related to access and disclosure, while possibly creating new frameworks for accountability and management structure.
Sherman, John, 'The Contractual Balance Between ‘Can I?' and ‘Should I?’ Mapping the ABA’s Model Supply Chain Contract Clauses to the UN Guiding Principles on Business and Human Rights' (Harvard Kennedy School, Corporate Social Responsibility Initiative Working Paper No 73, 20 2020) Abstract: This paper examines the efforts of the American Bar Association to draft proposed Model Contract Clauses for businesses that prohibit modern slavery and child labor in supply chain contracts. This involves a careful balancing of a buyer's desire to avoid consuming goods manufactured with human rights abuse and its desire to protect itself legally, in order to ensure that the company is acting in alignment with its responsibility to respect universally recognized human rights under the UN Guiding Principles on Business and Human Rights. This subject is quite timely in light of the current efforts of many companies, in response to the COVID-19 pandemic, to exercise force majeure clauses in their contracts to dump suppliers without regard to the impacts of vulnerable workers in their supply chains.
Sherwin, Brie, 'Anatomy of a Conspiracy Theory: Law, Politics, and Science Denialism in the Era of COVID-19' (2021) 3(8) Texas A&M Law Review 537-581 Abstract: With COVID-19, we are facing the most serious public health threat of our lifetime. Now, more than ever, we need experts and sound scientific advice to guide critical decision-making during the pandemic. With conspiracy theories and other similar rhetorical weapons being used to discredit our scientific experts, we face a myriad of misinformation, mistruths, and all-out attacks on our experts, breeding distrust between the public and the policymakers leading the fight against the pandemic. As President Trump took office, scientists were routinely denigrated and isolated. Furthermore, science denialism has permeated its way up to the highest levels of government, resulting in disastrous public policy decisions that have been detrimental to environmental and public health. Funding was cut for much-needed research on zoonotic-borne diseases, the U.S. government pulled its support from the Paris Climate Agreement in 2017, and well-respected scientists were removed from various advisory roles in agencies. Until the COVID-19 pandemic, many of these decisions went unnoticed by the general public. But, in courtrooms over the past thirty years, judges have recognized the danger of fake experts and acted as gatekeepers to ensure that experts are credible and that science is reliable. The use of Daubert in the courtroom has provided judges with a tool for allowing expert testimony that has met certain indicia of reliability, so jurors can focus on making factual determinations instead of judging whether the sources of the expertise should be trusted. Without a similar gatekeeping function in society, citizens must make those determinations on their own. Scientists and advocates of science should employ their own rhetorical methods to restore the credibility and importance of science in protecting our environment and now our health. Change can only truly come from the ground up. Citizens must actually believe that the climate is changing; they must believe that the health advice they are receiving from public health experts is accurate and trustworthy enough to follow. It is time to put science first—we can only do that if we stop science denialism in its tracks and restore resources and trust in our scientific community.
Shill, Gregory H., 'Congressional Securities Trading' (University of Iowa Legal Studies Research Paper No 2020-11, 07 January 2020) Abstract: In March 2020, it was revealed that several U.S. Senators had cashed in their stocks after receiving intelligence on COVID-19, sparking both outrage and renewed interest in congressional insider trading. The pandemic trades exposed gaps not only in current law, but in scholarship and leading reform proposals. Congressional securities trading (CST) generates unique challenges, such as the risk of policy distortion, as well as more prosaic ones, like the management of benign trading by insiders. The current framework—which centers fiduciary regulation of theft—is poorly matched to both types. Surprisingly, rules from a related context have been overlooked.Drawing on SEC regulations that govern public company insiders, this Essay proposes a taxonomy of CST, situates the Senators’ conduct within it, and develops a novel, comprehensive prescription to manage it. Like Members of Congress, corporate insiders such as CEOs engage in securities trading despite possessing valuable inside information. The system designed to manage these trades provides a model. Specifically, Rule 10b5-1 plans (which disclose trades ex ante) and the short-swing profits rule of Section 16(b) (which disgorges illicit profits ex post) should be adapted to the congressional context. Both devices emphasize the management of legitimate trades rather than the punishment of criminal ones (which is already accomplished by other rules).Rules like these would address policy distortion and unjust self-enrichment by Members of Congress. To reduce those risks further, lawmakers should also be restricted from owning any securities other than U.S. index funds and Treasuries. None of these rules would require new legislation or regulation; all can be adopted by chamber rule. A third risk—the unjust enrichment of third parties—is often conflated with the others, but presents distinct tradeoffs and should be taken up separately. SEC rules provide useful precedent here as well.
Shinall, Jennifer, ‘Without Accommodation’ (2022) 97(4) Indiana Law Journal 1147–1201 Abstract: Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers—including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017–2018 data from the American Time Use Survey’s Leave and Job Flexibilities Module, I find that disabled workers report far less access to these pandemic-relevant accommodations than do nondisabled workers. I further present evidence that disabled workers’ lower rates of access to pandemic-relevant accommodations are due, in part, to occupational segregation. Because disabled workers are more likely to work in jobs that are not amenable to working from home, working flexible hours, and taking temporary leave, the results raise concerns about many disabled workers’ ability to maintain their employment during the pandemic. The results further highlight the inherent weaknesses of the ADA and the need for additional supporting legislation—including short-term insurance and educational funding programs—for disabled workers.
Shymansky, Ryan, ‘Justice Diseased Is Justice Denied: Coronavirus, Court Closures, and Criminal Trials’ (2020) 122(3) West Virginia Law Review Online 11–12 Abstract: This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.
Shvetsova, Olga et al, 'Policy Error and Policy Rescue in COVID-19 Responses in the United States and United Kingdom' (Binghamton University, Citizenship, Rights, and Cultural Belonging, Working Papers Series No 103, 01 January 2020) Abstract: The ongoing COVID-19 pandemic represents an existential threat to societies around the world. There has been considerable variation in both rhetoric and policy responses among the many national governments. This piece explains how democratic institutions, in particular federalism, can impact the speed and degree of policy responses protecting citizens, even when national leaders share similar public rhetoric that is non-conducive to speedy policy response. Comparing the policies of United States and United Kingdom with the backdrop of their national leaders’ public stances, we argue that having multiple decision points due to the redundancy inherent in federalism increases the chances that a citizen will receive the “correct” policy, even when policy-makers at some levels of government put forth “wrong” policy responses. However, in unitary government, society must rely on the central leader to determine the “correct” policy as sub-national policy-makers are constrained by institutions in their ability to respond. That, due to inherent error probability, delays policy response.
Siegler, Alison and Erica Zunkel, 'Rethinking Federal Bail Advocacy to Change the Culture of Detention' (2020) The Champion (Journal of the National Association of Criminal Defense Lawyers) (forthcoming) Abstract: The federal bail system is in crisis, with three out of every four people locked in a cage despite the presumption of innocence. Disheartening as the numbers are, we defense attorneys have the power to free our clients through zealous advocacy at bail hearings. Bond advocacy is all the more important now. As the COVID-19 pandemic ravages federal jails, pretrial release has become a matter of life or death. All of us who represent clients in federal court have a responsibility to redouble our efforts to defend our clients’ fundamental right to liberty. To change the culture of detention, we need to radically rethink our advocacy and ensure that all of the players follow the Bail Reform Act’s defense-friendly rules. This article provides statistics to illustrate the contours and costs of the federal pretrial detention crisis and action steps for bringing federal pretrial detention practices back in line with the law. We can change the culture of detention by using the action steps, tethering our arguments to the statute and the data, and filing more bond motions.
Silber, Norman I and Jeff Sovern, 'Placing Consumers at the Front of the Relief Effort: Redirecting Credit Card Interest Charges' (Hofstra University Legal Studies Research Paper No No 2020-04, 20 2020) Abstract: Catastrophes including the COVID19 pandemic of 2019-2020 impose great financial stress on consumers. This op-ed proposes the distribution of economic relief directly to consumers by authorizing credit card issuers to bill Congress for portions of the interest that otherwise would be charged to cardholders. Significant benefits include expanding access to consumer credit when it otherwise would be expected to diminish, reduced consumer default rates and bank charge-offs, and greater stimulus to overall economic welfare.
Silver, Carole and Swethaa Ballakrishnen, ‘Where Do We Go from Here? International Students, Post-Pandemic Law Schools, and the Possibilities of Universal Design’ (2022) 8 Canadian Journal of Comparative and Contemporary Law 313–373 Abstract: Following on our earlier research on the experiences of international students, this article uses the recent global pandemic as a revealing lens to revisit structural inequalities in American law schools. Over the years, law schools have simultaneously encouraged international student enrollment and functioned in ways that have marginalized these students. We suggest that this dissonance between postured inclusion and the actual experience of exclusion these students endure highlights important ways in which law schools’ commitments to equity and inclusion more generally can appear more performative than substantial. We argue that the pandemic has made stark inequalities that have always existed, and that despite its devastating consequences, this period offers new insights that could help reshape the future of legal education. Focusing on specific teaching and learning innovations (e.g. virtual learning), we begin to deliberate on the ways that law schools can better address inequality as they resume in-person activities. Ultimately, we caution that as law schools emerge from the pandemic, they ought to resist the urge to return to their old normal ways of doing equity. Instead, by concentrating on the differential needs of diverse students, there might be an opportunity for a collective shift to avoid recementing past embedded inequalities.
Silverman, Ross D, 'Contact tracing, intrastate and interstate quarantine, and isolation' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Contact tracing, quarantine, and isolation are core communicable disease control measures used by public health departments as part of a comprehensive case ascertainment and management strategy. These are practices with historic roots enabled by state laws and policies and have been used by other countries to slow and stop the spread of COVID-19. To date, their implementation as part of U.S. response efforts at the national, state, and local levels has been confounded by the scale of the COVID-19 outbreak; lack of a systemic infectious disease response; insufficient and fragmented funding streams; low levels of public accountability; and concerns about the impact of such efforts on individual privacy, liberty, and travel rights, as well as the financial and personal costs that may arise out of a positive diagnosis. Recommendations have been offered by expert groups on both the scaling up of contact tracing and ensuring ethical implementation of such measures. One state has passed legislation establishing an oversight framework for state contact tracing and associated data collection and use. Legal challenges to interstate quarantine rules have, thus far, been unsuccessful. Recommendations include: appropriating federal funding adequate to mount and sustain rapid, comprehensive, culturally-appropriate state and local testing, treatment, contact tracing, and supported quarantine and isolation service efforts; building contact tracing systems that cover social as well as health care supports for those affected; and, to bolster trust and participation in public health efforts, implementing contact tracing-related health communication efforts targeted to reach the diverse array of communities affected by the pandemic.
Simon, David A., 'A Legal Stimulus' (2020) _Northwest University Law Review NULR of Note, 2020_ Abstract: This short essay argues that any further congressional stimulus should allocate additional funds specifically for legal services to individuals who, as a result of COVID-19, face eviction, foreclosure, loan defaults, debt collection, bankruptcy, domestic violence, or denied insurance claims or coverage.
Sinha, Michael S, 'COVID-19: State and Local Responses to PPE Shortages' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: In mid-March, healthcare workers on social media and elsewhere sounded the alarm: #GetMePPE. This public plea was in response to shortages of personal protective equipment (PPE) at many hospitals, coinciding with surges in hospital emergency department and intensive care unit capacity due to COVID-19. Within days, the Strategic National Stockpile of PPE was depleted; states, localities, and hospitals had to act urgently to procure PPE and reuse or extend the use of existing PPE. A true cottage industry emerged, consisting of a network of designers, makers, engineers, and healthcare workers focused on designing and producing high-quality PPE to address urgent needs. Devices such as face shields were designed to protect healthcare workers from mucous membrane exposure. As N95 respirator masks became scarce, techniques for sterilization were developed, as were methods for ensuring a qualitative fit after multiple rounds of sterilization. Alternatives to N95 masks, known as powered air purifying respirators (PAPRs), were developed from scratch. Finally, ventilators and ventilator parts were produced in an effort to maximize resources during peak waves of COVID-19. The FDA released a series of guidance documents, accompanied by permissive emergency use authorizations (EUAs), to address the manufacture and use of PPE in healthcare settings. This article reviews actions taken by the FDA in response to the PPE shortage, evaluates the impact of local manufacturing of PPE in one U.S. state (Massachusetts), and offers solutions for federal and state policymakers to ensure robust state and community-level responses to shortages in the future.
Sirleaf, Matiangai, 'Entry Denied: COVID-19, Race, Migration, and Global Health' (2020) (2) Frontiers in Human Dynamics Article 599157 Abstract: This essay uses the novel coronavirus pandemic as an entry point to explore the intersections between race, migration, and global health. The pandemic is simultaneously reviving stereotypical colonial imaginations about disease directionality, but also challenging racialized hierarchies of diseases. This essay illuminates how the racialization of diseases is reflected in historic and ongoing United States’ migration law and policy as well as the global health law regime. By demonstrating the close relationship between often separately treated areas, the essay clarifies underlying currents in global health and migration law and policy that stem from fears of the racialized other. Rendering these intersections visible creates avenues for rethinking and reshaping both theory and praxis toward anti-subordination efforts.
Skahen, Rebecca K., 'Opportunity in a Pandemic: Ending the Eviction Cycle by Constitutionally Providing for Inclusionary Zoning with State-Enacted Land-Use Regulations' (2021) 3(43) Campbell Law Review 375-401 Abstract: Evictions invite instability into every aspect of daily life. Children are uprooted from schools because their parents are no longer able to rent a home in the school district. Parents are fired from jobs because they take days off to find patchwork solutions to avoid homelessness. COVID-19 forced the public to become aware of many social issues, including the harsh reality of evictions. With the end of the pandemic is in sight, the impact of evictions cannot be forgotten. Action must be taken to ensure stable housing for generations to come. Broadening a state's general zoning power to explicitly include affordable housing is the proper solution. This Comment explores the legal history of inclusionary zoning and provides model language to local governments for the constitutional implementation of such policies that ensure private developers receive a reciprocal benefit for their role in providing affordable housing. Constitutionally providing for inclusionary zoning is an important step towards ending the eviction cycle in many states, especially in North Carolina.
Skeel, David A., 'Pandemic Hope for Chapter 11 Financing' (2021) (131) Yale Law Journal Forum 315-336 Abstract: The pandemic revealed that the increasing complexity of debtor’s capital structure could supply much-needed competition in the Chapter 11 financing market, as other inside lenders increasingly challenge a debtor’s favored inside lenders. After discussing the benefits of this surprising development, the Essay identifies several impediments and offers strategies for removing them.
Skeen, Jackson, ‘Uptier Exchange Transactions: Lawful Innovation or Lender-on-Lender Violence?’ (2023) 40(1) Yale Journal on Regulation 408–452 Abstract: This Note examines the recent phenomenon of ‘uptier exchange transactions’: transactions in which a borrower takes assignment of existing loans from participating lenders—those lenders holding a majority of the principal amount of the loan—and then issues new superpriority tranches of debt to the participating lenders, subordinating nonparticipating lenders in the process. Uptier exchange transactions were born in the throes of the COVID19 pandemic and continue to evolve in the courts. This Note analyzes these transactions and all major litigation concerning them to date. It makes a normative argument in favor of curbing the reach of uptier exchange transactions through equitable judicial interpretation. Finally, this Note proposes an amendment to Article 9 of the Uniform Commercial Code that would protect nonparticipating lenders against these transactions, invoking the Trust Indenture Act of 1939 as a textual model.
Sklar, Tara, 'Implementation and Enforcement of Quality and Safety in Long Term Care' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Long before the new coronavirus struck, nursing homes and other long-term care facilities have had declining quality care that coincides with inadequate staffing and rampant infections. These prepandemic conditions increased the vulnerability of these facilities to an infectious disease outbreak. As the elderly death toll rises into the tens of thousands, an overdue national discussion on how to prioritize long-term care in the US has emerged, revealing an opportunity to better link quality care metrics with sufficient reimbursement and meaningful regulatory oversight. However, the opposite approach has also surfaced, which would allow the status quo to continue and may erode the minimum standards of care that currently exist. This concerning trend is on the rise with efforts to relax the Centers for Medicare and Medicaid Services (CMS) regulatory authority over nursing homes by waiving requirements and reducing enforcement penalties. In addition, states are passing measures to limit liability exposure for nursing homes during COVID-19 and similar protections are under consideration at the federal level, even as infection rates climb and there is no evidence of frivolous lawsuits. While political will is uncertain, public outcry is ready for legislative reform that will lead to better later-in-life care. The stakes have never been higher — act now and pass laws that connect funding with regulation to support quality care in nursing homes during and after the COVID-19 pandemic — or continue to condone practices that allow infection to spread and take many lives before their time.
Slamowitz, Charles, 'Profiteering Off Public Health Crises: The Viable Cure for Congressional Insider Trading' (2020) 1(77) Washington and Lee Law Review Online 31-46 Abstract: This article takes an approachable, forward-thinking, and academic dive into congressional insider trading in the wake of the coronavirus (COVID-19) pandemic. After a confidential briefing by the Senate Health Committee warned of COVID-19, massive stock sell-offs by members of Congress and their spouses suddenly ensued. Some senators even publicly disparaged COVID-19’s viral effects while their own shares were being offloaded. By the time the American people were made aware of its dangers, vast investment holdings by congressional insiders had already been sold. Shockingly, it is unclear if congressional insiders trading on confidential coronavirus information are actually breaking the law. Congress members are also not required to timely disclose trades, even during pandemics, leaving the American people in the dark. This article provides the only viable remedy to congressional insider trading, crucial for governmental transparency and accountability to precipitously curb public health crises moving forward.
Smelcer, Susan, Anne M Tucker and Yusen Xia, 'Regulating Dynamic Risk in Changing Market Conditions' (SSRN Scholarly Paper No ID 3905506, 13 January 2021) Abstract: How successful are the SEC’s attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks—the Puerto Rican debt crisis and COVID-19—we find evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in regulating dynamic, future risk. We find evidence of widespread and, often, detailed disclosures for new risks. But not all funds disclose new risks, and those that do vary in specificity ranging from individualized to generic disclosures. This creates perverse incentives for funds to opt-out of disclosure or downplay threats with boilerplate language when new risks are emerging. We recommend several SEC interventions to improve dynamic risk disclosures including empirically monitoring disclosures, issuing guidance when problematic variation is observed, and enforcing disclosure standards.
Smith, Clytisha, 'A Policy Without Enforcement is Meaningless: The Effect of COVID-19 on Incarcerated Individuals, the Courts’ Focus on Policy, and the Solution' (SSRN Scholarly Paper No ID 4052058, 07 January 2022) Abstract: Though it’s easy to focus on the effect that COVID-19 has had on the general population, many have shut their eyes to its effect on one of the most vulnerable populations—incarcerated individuals. The first case of the Coronavirus named COVID-19 in the United States was confirmed on January 20, 2020, and has caused panic and affected the day-to-day routine of individuals globally. Due to the way COVID-19 is contracted and the environment of prisons and jails, incarcerated individuals are five times more likely to contract COVID-19 than the general population. Since the initial rise of COVID-19, incarcerated individuals have challenged the conditions of prisons and jails, claiming that the environment and treatment to which they are being subjected are cruel and usual, in violation of the Eighth Amendment of the United States Constitution. The Eighth Amendment provides a fundamental right that protects persons from cruel and usual punishments. Although courts disagree, in the author’s opinion, conditions that incarcerated individuals are being subjected to due to the COVID-19 pandemic do in fact violate incarcerated individuals’ protections provided by the Eight Amendment. This article examines how courts have responded to Eighth Amendment cruel and usual punishment challenges due to the COVID-19 pandemic. It reviews prison conditions since the beginning of the COVID-19 pandemic, incarcerated individuals’ experiences during the pandemic, the history of the Eighth Amendment, and how “cruel and usual punishment” is defined. It concludes with suggestions for the courts—that courts alter the “deliberate indifference” standard and work actively to create a solution that will remedy the present day effect on those incarcerated during the COVID-19 pandemic.
Smith, Lindsay R et al, ‘Pandemic Procedures: Adapting Problem-Solving Court (PSC) Operations and Treatment Protocols During COVID-19’ (2023) 53(3) Journal of Drug Issues 490–498 Abstract: With an ongoing pandemic claiming hundreds of lives a day, it is unclear how COVID-19 has affected court operations, particularly problem-solving courts (PSCs) which have goals rooted in rehabilitation for participants in their programs. Even with practical recommendations from national organizations directing courts on how to manage COVID-19, whether and how PSCs met the needs of PSC participants during this time is underexplored. This study, drawn from a larger national study using a survey of PSC coordinators, examines the COVID-19 responses of PSCs to remain safely operational for participants. A sub-sample of survey respondents (n = 82 PSC coordinators) detailed how the COVID-19 pandemic led to changes to their court and treatment operations amidst the constraints of the pandemic. The courts’ shifts in policy and practice have important impacts for court participants’ treatment retention and success in the PSC program, and these shifts need more in-depth research in the future.
Smith, Michael L., 'The Citation of Unpublished Cases in the Wake of COVID-19' (2021) Chapman Law Review (forthcoming) Abstract: California’s Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states’ courts. This may result in problems, such as limiting courts’ and parties’ authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases.COVID-19 was a stress-test that brought the problems with California’s citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts upheld some of these claims and overturned others at the pleading stage, federal courts took a virtually uniform approach in dismissing complaints by insureds. As time went on, however, litigants in California state courts could not rely on any of the favorable state court rulings, as they were were prohibited from citing those cases. Instead, courts and parties turned to the next best source of authority: California federal court rulings, which led to a skewed perspective of the case law.This Essay contemplates overturning California’s prohibition on citing unpublished state court cases altogether, and evaluates the benefits and disadvantages of such a step. Ultimately, this Essay concludes that a less-dramatic solution may solve some of the most acute problems with California’s citation rules: the simple proposal that courts and litigants interpret the rules as written, rather than in the expansive manner that courts have interposed. Under this approach, courts and parties can cite unpublished superior court opinions, so long as they are not issued by superior court appellate divisions, as persuasive authority. In situations where an unexpected technology, disaster, or pandemic gives rise to widespread litigation, this approach would give California state courts a more complete picture of the law.
Smith, Molly and Nancy R Gartner, ‘Institutional Corrections and COVID-19’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 227–241 Abstract: This chapter gives an overview of the impact that the COVID-19 pandemic has had on institutional corrections in the United States and the responses correctional institutions have taken to lessen those impacts. The impacts of the COVID-19 pandemic on correctional institutions within the United States were more pronounced due to the demographic characteristics of inmates and facility challenges. Responses to outbreaks or potential outbreaks in jails and prisons in the United States included screening measures, restricted inmate movement and visitation, and decarceration efforts.
Smith, Steven R, ‘COVID and Bar Admissions’ (2022) 75(3) Arkansas Law Review 527–605 Abstract: COVID significantly disrupted the bar admissions process, particularly the 2020 Summer bar examination. The question during the pandemic was not whether to change the bar admissions requirements permanently. Instead, the question was what would protect the public while accommodating students dealing with the unique COVID challenges. Because the purpose of licensing is to protect and assure the public, the public should be the primary focus of bar admissions and exceptions to the regular admission process. The pandemic accommodations included a delay of the test, special health precautions for in-person tests, remote (online) testing, and temporary supervised practice. In addition, five states offered one-time (summer/fall 2020) diploma privileges (licensing without examination). However, the vast majority of states rejected requests for diploma privileges. Law schools focused primarily on applicants’ interests and often sought diploma privileges. The public, however, was decidedly unenthusiastic about law licensing without a bar examination. In a public opinion survey, only 5% of participants preferred a diploma privilege for licensing attorneys. Even as an accommodation for COVID problems, that increased only to 6%. Other, narrower accommodations were more protective of the public interest, and most states used those successfully. Every state (except Delaware), including the diploma-privilege states, held winter and summer/fall examinations in 2020 and 2021. For the 2020 summer/fall tests, it appears that, except for state-developed remote and cheating detection software, difficulties were not out of the range of the usual number of issues during an examination or were handled with dispatch. That there were as few problems as there were was a great tribute to NCBE, bar examiners, and the flexibility and patience of applicants. There were no reported cases of COVID transmission during the examinations. In most states, passing rates increased in 2020 compared with 2019.Applicants who took the examinations under challenging and changing circumstances were heroes. So were the bar examiners and courts that worked under similarly difficult circumstances and those law schools that provided extraordinary resources and support services. There are now promising discussions about improving future bar admissions. Those efforts will be a positive development if the public interest is the foundation of reform. In the immediate future, law schools and bar examiners should discuss why there is such a ‘disconnect.’ That is, there is an apparent disagreement between some law schools and bar examiners regarding the minimum competency required to begin law practice. The public will benefit when law schools and bar admissions authorities are partners in bringing well-educated and prepared members into the legal profession.
Smith, Stephen, ‘The Online Criminal Trial as a Public Trial’ (2021) 51(1) Southwestern Law Review 116–132 Abstract: Technical barriers to conducting criminal trials online may have been largely overcome, but legal barriers still exist. This Essay addresses one of those legal barriers: whether the public’s ability to attend a criminal trial online—via Zoom or some other service—is sufficient to satisfy the Sixth Amendment’s right to a public trial. This Essay concludes that the Constitution should treat online attendance as sufficient to satisfy the requirement of a public trial. This may be an ambitious claim, however; there are certainly arguments to the contrary.
Smith, Stephen, 'The Right to a Public Trial in the Time of COVID-19' (2020) 1(77) Washington and Lee Law Review Online 1-15 Abstract: Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis, and turns on a case’s specific circumstances. This essay proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.
Smith, Steven R., 'Supreme Court 2019–2020: Insanity, Discrimination, and DACA—And a Pandemic' (2020) 4(46) Journal of Health Service Psychology 181-199 Abstract: The 2019–2020 Supreme Court session was an extraordinary session. One major ruling involved insanity defense and whether the two prongs of cognitive capacity and moral capacity were required. Sexual identity was ruled to be covered by the Civil Rights Act in relation to employment. Unanimous criminal jury decisions were ruled a required condition for conviction. The rescindment of DACA was overturned on procedural grounds. Other decisions related to conditions of abortion, habitual residence in international custody cases, police immunity from civil liability, guns, HIV, and capital punishment. Thirty-five percent of cases were unanimous (down from the recent average), and 22% were decided by a 5–4 vote (slightly above the recent average).
Sommer, Udi, Jonathan Parent and Quan Li, ‘Opportunistic Legislation under a Natural Emergency: Grabbing Government Power in a Democracy during COVID-19’ [2023] Regulation & Governance (advance article, published online 23 March 2023) Abstract: With increasingly frequent emergencies related to pandemics, climate change, or any other as yet unforeseen disaster, it is imperative to develop our understanding of how opportunistic legislation and policy grabs may appear even in democracies. Circumventing a lengthy process of public debate and government regulation, declaration of emergency may be conducive to such opportunism. Underlying mechanisms may involve national interest groups, whereby early in the pandemic a group quickly develops a messaging strategy focused on broad public health concerns. This strategy is then implemented by state affiliates lobbying local officials and mobilizing their supporters to push executive branch officials to effectuate restrictions. We examine state-level abortion restrictions during the outbreak of COVID-19. Our Qualitative Comparative Analyses indicate that at least in the political context of reproductive rights and under the emergency of COVID-19, it was level of emergency, levels of religiosity in the state and Republican dominance in government that strongly predicted the likelihood of opportunistic legislation.
Soucek, Brian, 'Discriminatory Paycheck Protection' (SSRN Scholarly Paper No ID 3628709, 16 January 2020) Abstract: Lobbyists and strip club owners have both gone to court recently to challenge their exclusion from the $659 billion Paycheck Protection Program, one of Congress's largest responses yet to the economic devastation unleashed by the COVID-19 pandemic. So far, surprisingly, strip club owners have been successful while political lobbyists have failed. Appeals are still pending in three circuits, with more surely to come.This Essay argues that when it comes to the Constitution, these split decisions get things exactly right: strip clubs have a stronger free speech claim than lobbyists do, despite the fact that lobbyists engage in expression closer to the core of the First Amendment. Seeing why requires us to answer what the Supreme Court recently referred to, and dodged (in Matal v. Tam), as a "notoriously tricky question of constitutional law": how to draw the line between selective subsidies for expression and targeted attempts to suppress it. The strip club cases ask when the government's funding priorities become a form of discrimination--an abridgment of speech rather than an ordinary decision about what to support during the current crisis.
Soule, George W and Anna Veit-Carter, 'Democracy goes to court: Litigating voting rights and election administration in Minnesota in 2020' (2021) 3(78) Bench & Bar of Minnesota 18-25 Abstract: The 2020 elections were hard-fought, high-stakes affairs that drew intense scrutiny. The covid-19 pandemic greatly influenced campaign methods, voting, and election administration, and the government’s response to the pandemic created major political issues. It is no surprise that in this electoral tinder box, parties resorted to courts to press their concerns over voting and election issues. While the candidates’ positions and personalities dominated campaign news, reports of election litigation made plenty of headlines as well. Parties litigated voting and election procedures heavily in the presidential swing states, but most states experienced significant election litigation. Minnesota was no exception. Minnesota political parties, voter organizations, voters, and election officials fought in court over many aspects of voting and elections. The lawsuits continued after the election, contesting the results of several Minnesota races. This article will review the key Minnesota legal battles over voting and elections in 2020.
Spieler, Emily A, ‘Occupational Safety and Health, Essential Workers, and the Covid-19 Pandemic in the U.S.: Report to the International Labour Organization’ (SSRN Scholarly Paper No 4426624, 23 April 2023) Abstract: This Report on the U.S. occupational safety and health response to the pandemic was prepared at the request of the International Labour Organization as part of the ILO review of the protections provided to workers on the frontline of the pandemic in multiple countries. As requested by the ILO, the Report provides an overview of U.S. occupational safety and health and related law; traces the effects of the pandemic on workers in the U.S.; reviews the federal agencies’ responses to the risk of COVID-19 within workplaces; explores the variability among state responses to the occupational health threats; provides a summary of COVID-related workplace litigation, including novel legal theories that relied on public nuisance and common law health and safety doctrine; and briefly outlines the social and economic supports provided to workers in the U.S. before and then during the pandemic. The Report concludes with an analysis of the shortcomings of the U.S. response, including underlying problems of state variability, lack of overall protection of employee voice, a weak overall public health system and an overly bureaucratized federal system of occupational safety and health regulation. The Report was provided to the ILO in April 2022 and the status of litigation and public health orders was updated through March 31, 2023. It is circulated with permission of the ILO. Findings from this Report have been incorporated into a broader analysis: See Sean Cooney, Olivia de Quintana Figueiredo Pasqualeto, Tzvetomira Radoslavova, Emily Spieler, Iván Williams Jiménez, OSH AND THE COVID-19 PANDEMIC: A LEGAL ANALYSIS, ILO Working Paper No. 90 (March 2023).
Spillane, Ed, ‘The End of Jury Trials: Covid-19 and the Courts: The Implications and Challenges of Holding Hearings Virtually and in Person During a Pandemic from a Judge’s Perspective’ (2021) 18(2) Ohio State Journal of Criminal Law 537–554 Abstract: Covid-19 has vanquished many institutions. Those who have not completely succumbed to the virus’ onslaught have been slow to recover their usual form. Courts have been no different. Initially, we closed our court in mid-March 2020. Virtually every court in Texas and the United States by late March had done the same. At that point, those embracing technology attempted to adapt Zoom and Zoom-like virtual meeting places to the judiciary. By late April and May, many courts reported that the virtual court of Zoom allowed courts to move some dockets. As a judge, I have been able to do multiple arraignments, sentencing hearings, pretrials, and even bench trials via Zoom. By the end of May, judges became eager in various states to have jury trials, in-person court hearings, and even hybrid virtual hearings. This almost seemed to follow the desire of citizens to get out of quarantine and live ‘normally’ again. I’ll examine the challenges and process of trying to ‘hold court’ during the pandemic.
Stagg, Edrius, 'Different Pokes for Different Folks: The Importance of Ensuring Mandatory Vaccinations Remain a State Police Power Even in the Midst of a Pandemic' (SSRN Scholarly Paper No 4077327, 06 January 2022) Abstract: In an effort to combat the COVID-19 pandemic, the federal government sought to issue an emergency temporary standard through its federal agency, OSHA, as a way to mandate employers with 100+ employees to create policy that will mandate those employees to become vaccinated or submit to weekly testing and wearing face masks. However, Jacobson v. Massachusetts has long established that mandatory vaccinations of Americans is a police power that belongs to the states, not the federal government. How should one feel when it is the government, whether federal or state, giving direction as to what should be injected in their body? The issue that this article addresses is whether there is ever a time the federal government has a right to usurp the authority of the states’ police power. Also, this article demonstrates that while the federal authorities have no power to force vaccinations, the states do, and that the autonomy that citizens hold over their bodies is not absolute when it involves the general health, welfare, and safety of others. These issues are addressed by the recent opinions of the U.S. Fifth and Sixth Circuit Courts of Appeals in National Federation of Independent Business v. Department of Labor, OSHA, by the Supreme Court of the United States, and by case law that governs the police powers that states have in requiring vaccinations.
Stark, Barbara, 'Inequality, Covid-19, and International Human Rights: Whose Lives Matter?' (2021) 2(27) ILSA Journal of International and Comparative Law 251-273 Abstract: Part 1 of the article shows that the poor, everywhere, are more likely to get sick and more likely to die when they do. In many countries, they are also more likely to starve.Part II explains why this is a matter of human rights. The ongoing deprivation of basic rights to healthcare and an adequate standard of living are major factors. As this Part demonstrates, however, the extreme vulnerability of the poor is grounded in earlier violations of human rights, including state-sanctioned segregation in the American south in the 1950s and what one author has called “the darker side of American hegemony,” referring to the United States’ role in the overthrow of leftist regimes in Latin America during the Cold War.Part III argues that the current crisis demands a broader, deeper, and more authentic commitment to human rights. We are living in a world of brutal economic inequality, in which some lives matter and others do not. The United States has played a major role in creating this world, in part by violating the human rights of Black Americans, immigrants, and asylum-seekers. This Article argues that the United States should take responsibility for these violations and suggests how it may begin.
Steele, Daiquiri, ‘Preserving Pandemic Protections’ (2021) 42(2) Berkeley Journal of Employment and Labor Law 321–370 Abstract: Though violations of workplace laws are typically viewed as private matters between employee and employer, such violations often transcend these private relationships and impact third parties and the broader society. As an important example, violations of workplace laws can impact public health, particularly during public health emergencies like the COVID-19 pandemic. Empirical research has consistently shown that access to paid sick leave decreases transmission of infectious diseases. In the wake of the COVID-19 pandemic, Congress created a statutory entitlement to paid sick leave to help ease the economic burden on workers and prevent community spread of the novel coronavirus in the workplace and surrounding communities. However, workplace laws are only as strong as their protections against retaliation. This Article critically assesses the retaliation provision Congress drafted as part of this legislation. That provision inadequately incorporates the holdings of previous cases in which the judiciary interpreted retaliation and whistleblowing provisions of other statutes. In so doing, Congress failed to provide the robust retaliation protections needed to support the underlying goal of the emergency entitlement. This Article proposes how the legislature can strengthen anti-retaliation statutory text to allow for the broadest interpretation possible in accordance with goals of the private enforcement scheme Congress created, particularly in times of national crisis.
Steele, Graham, ‘The Tailors of Wall Street’ (2022) 93(3) University of Colorado Law Review 993-1060 Abstract: The narrative that emerged in the aftermath of the COVID-19 financial crisis has focused on nonbank financial inter-mediation as the primary vulnerability that plagued financial markets starting in March of 2020 and the exogenous nature of a public health crisis as a unique precipitating event. As a result, the crisis has largely been viewed as vindication for financial regulation as it applies to banks, with the Federal Reserve playing the role of heroic rescuer of the financial system. This Article offers an alternative—and critical—analysis of the performance of banks during the COVID-19 financial crisis and the Fed’s role as a financial regulator. Charting the course from the landmark reforms of the Dodd-Frank Wall Street Reform and Consumer Protection Act to the COVID-19 crisis reveals disconnects between the legal and policy objectives of financial regulation and the actions taken by policymakers. Rather than completing the implementation of Dodd-Frank and addressing known sources of financial fragility, the Fed pivoted to a focus on ‘tailoring’ regulations for the largest bank holding companies. Tailoring resulted in a banking system that was unable to respond effectively to the financial market disruptions imposed by the COVID-19 pandemic, necessitating unprecedented fiscal and monetary support. A thorough analysis of the financial policy choices in the lead-up to, and policy responses during, the COVID-19 pandemic yields important insights into the ideological underpinnings and substantive impacts of the Fed’s role as a financial regulator. The Fed’s emphasis on tailored regulation and its financial support for a range of markets during times of stress should be seen as two sides of a financial regulatory policy that has prioritized efficiency above resiliency and situated private interests above the public interest. Above all, this analysis reveals that, rather than being value-neutral, the project of tailoring, as practiced during this period, is fundamentally deregulatory. A better alternative to tailoring is a ‘precautionary approach’ to financial regulation, ensuring that large bank holding companies are able to withstand a wide range of existing and emerging financial risks.
Stein, Elizabeth, ‘An Exacerbated Power Imbalance: The Danger in Allowing AI to Render Arbitral Awards in Employment Arbitration’ (2024) 50(2) Mitchell Hamline Law Review 423–452 Abstract: The article focuses on examining the potential dangers associated with using artificial intelligence (AI) to make arbitral decisions in forced employment arbitration. Topics include the functionality of AI, concerns about its use in the legal field, and the application of AI risks to forced employment arbitration, along with recommendations for its regulation in the future. It discusses the increased adoption of AI accelerated by the COVID-19 pandemic.
Stemler, Taylor, 'Construction law: Covid-19 forces contractors to examine AIA agreements' (2021) 3(78) Bench & Bar of Minnesota 12-13 Abstract: Implied in contract law is the assumption that the world will remain the way the contracting parties imagined at the time of formation. This principle originated from an early English case, where a venue owner was excused from renting out a music hall unexpectedly destroyed by fire.1 The covid-19 pandemic has sparked many “fires” of its own—not only for parties left unable to fulfill contractual obligations, but also for lawyers attempting to determine their client’s exposure under these agreements. The cumulative effects of the pandemic are especially problematic in the construction industry, as supply chain and workforce issues slow operations to a halt.2 Fortunately, contract attorneys have learned from situations like the burned down music hall and have developed contractual devices to assign unforeseen risks to parties. These force majeure clauses are now common and variants have even made their way into the American Institute of Architects industry standard contract form.3 Whether covid-19 is covered under these clauses depends largely on their terminology and the yet-to-be-understood effects of the pandemic.
Stevens, Patrick A., 'Constitutional Interpretation Remains Unsettled After Sixth Circuit's Preliminary Assessment of University Vaccine Mandate' (2022) (83) Ohio State Law Journal Sixth Circuit Review 1-5 Abstract: At the beginning of the 2021 school year, Western Michigan University (WMU) instituted a policy requiring student-athletes to be vaccinated against COVID-19, and sixteen student-athletes requested religious exemptions to this requirement, which the university denied. Barred from participation in team activities, these student-athletes sued WMU in federal court for allegedly violating their rights under the First Amendment. The case reached the Sixth Circuit Court of Appeals as WMU sought a stay of the district court’s preliminary injunction, which kept the school from enforcing the vaccination requirement against the plaintiffs. Because the likelihood of success of a plaintiff’s claim is typically the determinative factor when the Sixth Circuit decides whether to stay a district court’s preliminary injunction, the court declined to stay the preliminary injunction in Dahl v. Board of Trustees of Western Michigan University. 5 The court’s analysis in Dahl delineates the distinctions between WMU’s vaccination requirement and mandates that are constitutionally valid. This decision also spotlights the precarious balance between proper deference to sincerely held religious beliefs and misguided deference to what may instead be political and social ideologies masquerading as—or entangled with religious beliefs.
Stevens, Shawn K, 'COVID-19: Contractual Protection of “Force Majeure” Clauses' (2020) 4(234) National Provisioner 8-10 Abstract: The article discusses the impact of COVID-19 pandemic on contractual obligations which contains force majeure clauses. Topics discussed include the common-law doctrine of supervening impracticability, the restatement of Contracts and common contractual clause that discharges parties of their performance obligations.
Stevenson, RJ and Sapphire M Andersen, ‘Present and Future Impacts of the Covid-19 Pandemic on Employment Law in the United States’ (2022) 55(4) Creighton Law Review 397–426 Abstract: The COVID-19 pandemic has undoubtedly shifted the landscape of employment law in the United States, and it continues to do so. As new COVID-19 variants and challenges arise, so do new questions in the workplace concerning employment policies, government mandates, and compliance. Employers have been forced to constantly adapt to changing legal obligations and keep up with the latest developments. Beyond the direct threat of the virus, COVID-19 will have a lasting impact on employment law and compliance efforts going forward. This Article addresses the quick evolution of employment law, thus far, during the COVID-19 pandemic with a focus on major congressional legislation and federal agency action impacting employment law. This includes a discussion on the fierce legal battle over COVID-19 vaccine mandates and a look at how existing federal agency frameworks were adapted to novel COVID-19 issues. Finally, this Article establishes how key United States Supreme Court determinations and federal agency response on COVID-19 issues may shape the future of employment agency rules and state responses.
Stock, Melissa, 'Facial Recognition and Detection Technology: Developments and Challenges' (2020) 3(25) Computer and Telecommunications Law Review 161-166 Abstract: Highlights the privacy risks posed by facial recognition and detection technology, including the potential for fraud and other criminal misuse, and errors in detection, particularly among Asian or African ethnic groups and women. Explores legal challenges relating to the use of face recognition brought in the UK, Sweden, France, Belgium, and the US. Considers the role digital surveillance has played in tackling the coronavirus pandemic.
Storrow, Richard, ‘Legacies of a Pandemic: Remote Attestation and Electronic Wills’ (2022) 48(4) Mitchell Hamline Law Review 826–862 Abstract: The coronavirus pandemic has compelled governors and legislatures to fast-track remote attestation laws, a previously prohibited form of witnessing that has largely been left out of the thoughtful, nearly two-decades-long but largely unsuccessful, effort to validate electronic wills. This Article examines the unforeseen problems that have arisen in the rush to institute remote attestation in the current crisis, urges lawmakers to interpret the presence requirement as encompassing remote attestation, and predicts that the current experiment with remote attestation will speed the enactment of electronic-will legislation.
Storslee, Mark, 'COVID-19, Neutrality, and the Free Exercise of Religion' (2021) Journal of Law and Religion (forthcoming) Abstract: In a series of cases over the past year, the Supreme Court upheld then struck down COVID-19 restrictions on worship in various states across the country. Those decisions clarified the meaning of the requirement that, under the Free Exercise Clause, laws burdening religion must be “generally applicable.” But they were also criticized for relying on contestable claims that churches and other religious gatherings were comparable to places like grocery stores in their likelihood of spreading the virus.This Article offers a different perspective. In addition to general applicability, the Court has said the Free Exercise Clause also requires that laws be “neutral” with respect to religion. The Court mostly ignored that requirement in the COVID cases. But rightly understood, it may have provided a simpler path for resolving them—and one that didn’t depend on controversial comparisons between churches and campgrounds. Instead, focusing on neutrality would have yielded a common-sense conclusion: where a law or policy grants favored treatment for activities it explicitly deems “essential,” “critical,” or “life-sustaining,” one of those things must be religion. And understanding the rationale behind that conclusion provides important insights about the meaning of the Free Exercise Clause and several other issues at the heart of the First Amendment.
Stothers, Christopher and Alexandra Morgan, 'IP and the supply of COVID-19-related drugs' (2020) 8(15) Journal of Intellectual Property Law & Practice 590-593 Abstract: Considers the implications for intellectual property law of the widespread collaboration between pharmaceutical companies in developing treatments for COVID-19. Examines the mechanisms developed in the UK, the US, Austria, Germany and the Netherlands for bypassing trading rights and patent rights.
Strasser, Mark, ‘COVID-19, Free Exercise, and Most Favored Nation Status’ (2023) 27(1) Lewis & Clark Law Review 1–38 Abstract: Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities are relevantly similar, misapplying the overly protective approach that it has invented. Given the great diversity of religious belief and practice in our country, it will be impossible to apply this Most Favored Nation status across all religious beliefs and practices, which will mean that the courts will have to pick and choose which religious practices to protect. The Court’s current approach cannot help but undermine religious freedom and respect for the Court.
Strassle, Camila and Benjamin Berkman, 'Prisons and Pandemics' (SSRN Scholarly Paper No ID 3644635, 06 January 2020) Abstract: This Article examines the public health response to COVID-19 within federal and state prisons and local jails. Prisons and jails are often a hotbed of airborne infections like COVID-19 as a result of chronic overcrowding, unavoidably close living quarters, and incarcerated people’s underlying health risk factors. Proposals for handling coronavirus vary but tend to include the incorporation of prevention measures within congregate settings as well as the return of individuals to their local communities in order to facilitate physical distancing. This Article identifies ethical tradeoffs and sets priorities for incarcerated people’s return to communities. In Parts I and II, we provide background on why the COVID-19 pandemic is especially dangerous within correctional facilities and lay out the various enacted and proposed public health responses. In Part III, we provide moral, practical, and legal arguments for supporting the early release of incarcerated individuals that stand independently of specific views about criminal detention and theories of legal punishment. In the last part, we set priorities for which individuals to release first. These are individuals who (1) have low risk of recidivism for a violent offense, (2) are being held pretrial, (3) have high risk of mortality from COVID-19, (4) are nearing the end of their sentences, and (5) have custodial responsibilities to third parties.
Strausfeld, Dave, 'Offer-in-compromise scams expected to increase' (2020) December() Tax Adviser 1-4 Abstract: The article reports that U.S. Internal Revenue Service (IRS) provide offer-in-compromise scams expected to increase. It mentions tax debt resolution businesses are legitimate, others cross ethical boundaries, harming vulnerable taxpayers. It also mentions problem will probably grow worse during the COVID-19 recession as a greater number of taxpayers struggle financially and face possible tax troubles.
Stojanović, Aleksandar, Lauren Sweger-Hollingsworth and Dashiell Anderson, ‘Reinforcement of Economic Inequality and Extra Economic Power—Law and Political Economy of the US Pandemic Policy Response’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 463–506 Abstract: In this chapter, by adopting a Law and Political Economy (LPE) approach, we show that the US policy response resulted in increased inequalities. Moreover, economic policy was the main tool used by the federal government to tackle the pandemic and it was used in a manner reflective of existing power structures. As policy measures assisted the private sector and the owners of capital before workers; and big business and the stock market were prioritized, the existing power structures were entrenched. Additionally, major contradictions plagued the balance of powers and representation by democratically-elected individuals. Declarations of emergencies within individual States granted excess powers to governors and the emergency circumstances allowed experts great decision-making powers. State governments partnered with the private sector for surveillance and control measures, often with the state outsourcing the enforcement of these measures to the private sector. The pandemic allowed for an unprecedented rise in the surveillance of private citizens, by state and local governments and employers.
Subramanian, Guhan and Caley Petrucci, 'Deals in the time of pandemic' (2021) 5(121) Columbia Law Review 1405-1480 Abstract: The COVID-19 pandemic has brought new attention to the period between signing and closing in mergers and acquisitions (M&A). Transactional planners heavily negotiate the provisions that govern the behavior of the parties during this window, not only to allocate risk between the buyer and seller, but also to manage moral hazard, opportunistic behavior, and other distortions in incentives. Prior literature, both academic and practitioner, has focused virtually exclusively on the material adverse effect (MAE) clause. COVID-19, however, has exposed an important connection between the MAE clause and the obligation for the seller to act “in the ordinary course of business” between signing and closing. This Article is the first to examine the interaction between the MAE clause and the ordinary course covenant in M&A deals. We construct a new database of 1,300 M&A transactions along with their MAE and ordinary course covenants—by far the most comprehensive, accurate, and detailed database of such deal terms that currently exists. We document how these deal terms currently appear in M&A transactions, including the sharp rise in “pandemic” carveouts from the MAE clause since the COVID-19 pandemic began. We then provide implications for corporate boards, the Delaware courts, and transactional planners. Our empirical findings and recommendations are relevant not just for the next pandemic or “Act of God” event, but also the next (inevitable) downturn in the economy more generally.
Sudeall, Lauren, Elora Lee Raymond and Philip ME Garboden, ‘Disaster Discordance: Local Court Implementation of State and Federal Eviction Prevention Policies During the COVID-19 Pandemic’ (2023) 30(3) Georgetown Journal on Poverty Law and Policy 545–587 Abstract: Eviction sits at the nexus of property rights and the basic human need for shelter—the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords’ economic interests in property are consistently vindicated. The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health—and the need for shelter to prevent the spread of disease—over typically dominant property rights. In doing so, they presented courts with an unusual dilemma: how to implement policy directives that run counter to existing legal, historical, and procedural frameworks. While most studies of eviction during the COVID-19 pandemic have explored eviction trends over the period or the impact of these policies, this Article delves more deeply into the question of local implementation—which varied widely across jurisdictions—and asks when and why such policies may not have their full intended impact. Relying on a series of interviews conducted with judges, clerks, and lawyers working in eviction courts, the Article suggests that the phenomenon of discordance can help explain how and when policy implementation is most likely to be effective. Where accordance—functional and norm-based alignment—existed between judges’ understanding of the eviction process and COVID-19 policy directives, they were more likely to be proactive and focused on implementation. However, where judges experienced discordance—misalignment between the aims of these directives and those of the underlying legal structure and process—they were more likely to cast themselves as passive and highly restricted in their ability to act outside of the normal order of operations. Although set against the backdrop of the COVID-19 pandemic, the findings and conclusions set forth in this Article are not unique to that context. The insights presented here regarding the implementation of state and federal policy at the local court level provide critical guidance to policymakers in all areas about the need to consider local dynamics in crafting policy—particularly in times of crisis—and how to structure policies so that local motivations can be used to spur innovation rather than obstruction.
Suk, Julie C, ‘After the “Shecession”: Post-Pandemic Law and Policy for Working Mothers’ in The Routledge Companion to Gender and COVID-19 (Routledge, 2024) Abstract: Law and public policy responded to the gender inequalities in employment exacerbated by the pandemic political economy, particularly the disadvantages faced by working mothers. The onset of the pandemic led to an exodus of women from the workforce, due to the pandemic’s shutdown of schools, which multiplied the caregiving responsibilities of working parents. The added pressures of caregiving fell disproportionately on women. Litigation by women who lost their jobs during the pandemic under various legal theories, including pregnancy and disability discrimination. This litigation spotlighted the deficiencies of antidiscrimination law and the absence of a policy infrastructure that supports working motherhood in the United States. The EEOC issued new guidelines on caregiver discrimination in 2021 and Congress passed the federal Pregnant Workers’ Fairness Act in 2022. This chapter assesses the potential and limits of these new developments and engages noteworthy constitutional innovations outside the United States to support caregiving.
Sullivan, Barry, 'COVID-19 and American Democracy' (2020) 102(66) Il diritto dell’economia 123-146 Abstract: This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.
Sullivan, Barry, ‘Lessons of the Plague Years’ (2022) 54(1) Loyola University Chicago Law Journal 15–137 Abstract: The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to ‘follow the science.’ During the 2020 election, the Democrats sought to portray themselves as the ‘party of science,’ touting their willingness to ‘follow the science,’ and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not ‘believe in science.’ As this Article shows, however, the issue was more complicated than ‘following the science’ or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent. The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to ‘take Care that the Laws be faithfully executed.’ For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called ‘unitary executive’ theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have. This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.
Sullivan, Charles A., 'Noncompetes in a Downsizing World' (SSRN Scholarly Paper No ID 3775706, 29 January 2021) Abstract: As the nation confronts multiple federal and state attacks on employee noncompetition agreements (NCAs), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs. This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues implicated in the question. Ultimately, it sees the rule as rooted in concerns about fairness to employee that are typically given short shrift in current doctrine. This is true even for a Restatement that otherwise seems decided to opt for an economic approach that would validate NCAs that are “reasonably tailored” to defined legitimate employer interests.Adoption of a rule denying enforcement in such situations also poses some interesting second-order questions, such as how to determine when a termination is performance-related and probable employer responses to a new dispensation. All are explored in the pages that follow.
Summer Ghaith et al, 'Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options' (2021) 1(49) Fordham Urban Law Journal 1-30 Abstract: The real-time development of multiple, efficacious vaccines through federal alliances with U.S.-based pharmaceutical companies via Operation Warp Speed during the COVID-19 pandemic is a shining achievement. The health and safety of U.S. residents rely on a national vaccine campaign led by the Biden Administration seeking to rapidly achieve “herd immunity,” especially among populations in denser, urban environments. Immunizing millions of persons in urban locales is complicated by their vulnerabilities to COVID-19, initial lack of access to vaccines, issues of eligibility, and vaccine hesitancy. This Essay explores these challenges and how they are addressed through legal and policy responses promoting national mass vaccination efforts affecting U.S. urban populations.
Sutton, Victoria, ‘Online Learning in Law Schools: The Pandemic Experiment’ (SSRN Scholarly Paper No 4969711, 27 September 2024) Abstract: Using methods from epidemiology and disaster research methods and data collected by the National Conference of Bar Examiners (NCBE), this study observes the effects of law students learning online during the COVID-19 Pandemic government mandated closure and transition to online learning. The effects are measured by two measures: Multi-state Bar Examination (MBE) scores because this is consistently given in all states (except one); and the bar passage rate for all jurisdictions. This experimental method is used in catastrophic events when conditions not normally testable can be tested due to the extreme events. These effects can be observed over all law schools which online learning during the period for the classes of 2020, 2021, 2022 and 2023. The findings did not agree with at least one hypothesis. Overall, law students performed slightly better on standardized testing on legal analysis and knowledge (the MBE) with all online learning; but did progressively worse on the overall bar examinations for their jurisdictions the more years they experienced online learning. This presentation will seek to explore this analysis and explain the findings and conclusions.
'Swain v. Junior: Eleventh Circuit Holds that a Florida Jail Was Not Deliberately Indifferent to the Spread of COVID-19' (2021) 7(134) Harvard Law Review 2622-2629 Abstract: Recently, in Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020), the Eleventh Circuit held that the existent measures taken by a Florida jail to mitigate COVID-19’s spread were sufficient under the Fourteenth Amendment. Swain’s emphasis on the jail’s reasonable response, despite the rising rates of COVID-19 in the jail, shows how even the more plaintiff-friendly objective liability standard imposed in Kingsley will fail to protect incarcerated people.
Swalwell, Rep. Eric and R Alagood, 'Biological Threats Are National Security Risks: Why COVID-19 Should Be a Wake up Call for Policy Makers' (2021) 2(77) Washington and Lee Law Review Online 217 Abstract: A national security strategy is the “nation’s plan for the coordinated use of all the instruments of state power—nonmilitary as well as military—to pursue objectives that defend and advance its national interest.” Perhaps the most straightforward national security objective is to protect the country from foreign invasion, but national security involves other objectives that aim to protect people in the United States as well as their values. For example, protecting U.S. elections from foreign interference is a security objective that advances the nation’s interest in democratic governance. The outbreak of a highly contagious disease like COVID‑19 strikes at the core of national security and the nation’s interest in protecting its citizens from unnecessary harm.
Swanson, Joshua A, 'Do not boast about tomorrow: Lessons we can learn from today's COVID-19 court cases to prepare for future disasters' (2021) 2(96) North Dakota Law Review 207-235 Abstract: Over the course of the last year, lawyers across America, including in North Dakota, have been forced to appear in courtrooms remotely through teleconference or video conferencing because of the COVID-19 pandemic. Not only that, attorneys used to that comfortable and familiar practice of sitting across tables from one another at depositions, or engaged in the shuttle diplomacy of a mediation, are now staring at computer screens hitting the Share Screen button in Zoom to ask a witness about an important exhibit, or responding to a too low, or too high, counteroffer delivered by the mediator. More important, though, than any new norms of practice that attorneys have adjusted to, is the impact the COVID-19 pandemic has had on our current, or potential, clients. Whether it's an insurance company disputing coverage for losses that a restaurant or pub suffered when a government order mandated they shut their doors, putting them on the brink of financial ruin, or a force majeure clause leading one party to a contract to pull out of that big business deal, courts across the country are seeing lawsuits dealing with the impacts left in the wake of the COVID-19 pandemic. This article discusses several important cases that have addressed some of the emerging issues and questions involving the law and the COVID-19 pandemic. It is incumbent on us as lawyers to be aware of these cases, and advise our clients accordingly, in order that we, and they, not only learn from these decisions, but plan for and navigate the minefields of future disasters. Because in a post-pandemic world. the question is not if the next disaster will come, but when.
Sweat, Bryanna, ‘A Discussion of Constitutional Protections in a Pandemic-Susceptible World’ (SSRN Scholarly Paper No 4357392, 23 December 2022) Abstract: The Constitution grants us the right to a speedy trial and the right to confront witnesses against us. This comment addresses the following question: Can a litigant’s constitutional protections be held intact in a pandemic-susceptible world? The author discusses the historical background of these two important constitutional protections and illustrates how COVID-19 impacted these rights in the criminal justice system. This topic is important because there will be another pandemic, and when that happens, the criminal justice system needs to be equipped to handle it. The comment discusses four topics: (1) the precautions that were put into place during the pandemic; (2) the impact of the pandemic on the execution of justice; (3) whether the reasoning for constitutional protections can still be in place with the modernization of technology; and (4) the preparation for the next pandemic. The author’s main research method was reviewing case law and breaking down the Sixth Amendment through legislative websites. The author also interviewed Judge Nicholas Chu of Travis County, Texas, who conducted the nation’s first criminal trial via Zoom. He provided not only insight into the trial but also his thoughts on the progression of criminal procedure in the courtrooms. The author concludes that it is possible for constitutional protections to stay intact in a pandemic-susceptible world. Whether the current court system will adopt those methods used during the pandemic poses another question. The author concludes that advancing current courtroom procedures is necessary to move the needle forward in the criminal justice system.
Swinburne, Mathew, 'Using SNAP to Address Food Insecurity During the COVID-19 Pandemic' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: The United States Department of Agriculture’s most recent food insecurity data indicated that 37.2 million Americans were food insecure, meaning they did not have access to enough food to lead happy and healthy lives. Food insecurity is linked to a plethora of health issues including diabetes, hypertension, hyperlipidemia, asthma, poor mental health, birth defects, and impaired cognitive development in children. Like many public health challenges, there are severe racial disparities. White Americans experience food insecurity at a rate of 8.1%, while Black Americans and Latinx Americans experience it at rates of 21.2% and 16.2%, respectively. The COVID-19 pandemic has devastated the US economy with over 44 million Americans filing for unemployment by mid-June 2020. This economic devastation is expected to force an additional 17.1 million Americans into food insecurity. Federal and state governments are adapting key food security programs and implementing new interventions to meet these challenges. This Chapter will examine how the Supplemental Nutrition Assistance Program (SNAP), the nation’s largest nutrition program, is being leveraged during the pandemic. While key adaptations are being made to increase the effectiveness of these programs, additional measures are needed to protect vulnerable Americans during the pandemic. This Chapter’s recommendations include, but are not limited to: increasing the maximum SNAP allotment; withdrawing or repealing regulations that limit access to SNAP; repealing the national ban that prohibits individuals with drug felonies from accessing SNAP; making online SNAP utilization available in all states; and providing for the delivery of online SNAP orders with no additional cost to the beneficiary.
Tahiri, Ryan, 'Legal and Ethical Implications of U.S. and Canadian Vaccine Contracts: The Impact of Vaccine Nationalism on the Global Pandemic Response' (2021) 1(53) University of Miami Inter-American Law Review 231-266 Abstract: This note explores the COVID-19 vaccine contracts between the U.S. and Canada and the impact of these types of agreements on the global pandemic response. These “pre-purchases,” many of which were executed before the development of a vaccine, have afforded a select few nations the opportunity to stockpile vaccines, while other nations with fewer resources are unable to secure any doses. An effective method to counter the effects of the pandemic is the creation of a global vaccine network that provides equitable access to vaccine doses for nations in need. COVAX was launched to ensure that lower and middle-income nations have the opportunity to purchase vaccine doses at reduced costs for their respective populations. This initiative offers a realistic solution to shortening the timeline of the COVID-19 pandemic and bringing the global population closer to herd immunity.
Talwar, Sawan, ‘Is Jacobson v. Massachusetts Viable After a Century of Dormancy? A Review in the Face of COVID-19’ (2024) 39(1) Touro Law Review 247–297 Abstract: The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts was the ‘silver bullet’ for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis of Jacobson. Finally, this Article discusses Jacobson’s efficacy and future. While the rationale of Jacobson has in some instances been limited, its reasoning has in other ways been expanded, as seen in its application with respect to rationalizing COVID-19 mandates in the interest of protecting the public’s welfare.
Tanana, Heather, 'Learning from the Past and the Pandemic to Address Mental Health in Tribal Communities' (University of Utah College of Law Research Paper No 381, 02 January 2020) Abstract: When COVID-19 hit, it devastated Tribal communities. Based on past federal policies, American Indians and Alaska Natives suffer various health and socioeconomic disparities that make them not only more vulnerable to contracting COVID-19, but also more susceptible to negative outcomes once infected. Much attention has focused on COVID-19 infection rates and related deaths in Indian country. However, the pandemic’s reach has gone beyond physical impacts on the body. COVID-19 has also affected the mental health of Tribal members and their access to mental health services. This Article dives into the effects of the coronavirus pandemic on the mental health and general well-being of Tribal communities. A brief history of federal and Tribal relations is provided, followed by a summary of the current state of mental health in Indian country. The impacts of COVID-19 on Tribal communities is discussed as well as the rise of telehealth to provide much needed mental health services during the pandemic. The article concludes by providing recommendations to continue the progress made to fill the historic gap in mental health services in Indian country post-pandemic.
Tanana, Heather et al, 'Universal Access to Clean Water for Tribes in the Colorado River Basin' (University of Utah College of Law Research Paper No (forthcoming), 07 January 2021) Abstract: The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence. This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water services than any other racial group; (2) Inadequate water quality is pervasive in Indian country; (3) Existing water infrastructure is deteriorating or inadequate; and (4) Operation and maintenance of water systems is a critical component of ensuring long-term water security. The report also examines existing federal assistance programs to provide drinking water access to Tribes. In exchange for the cession of millions of acres of lands, Tribes received certain promises from the federal government. These promises often included the establishment of a reservation as a permanent homeland for Tribes. Based upon an underlying trust responsibility, the federal government has a duty to protect Tribal treaty rights, lands, assets, and resources. Access to a clean, reliable supply of water is basic to human health and clearly a necessary component to providing a habitable and permanent homeland. In at least partial recognition and fulfillment of its treaty and trust responsibility to provide access to clean water for Tribes, various federal agencies have established programs that provide support for water related projects. However, these programs are often underfunded and have other limitations. As a result, obtaining significant progress in providing universal access to clean water for all Americans has remained elusive. Finally, the report concludes with policy recommendations to address Tribal community water needs. Key recommendations include adopting a whole of government approach and fully funding federal programs related to Tribal drinking water projects. A window of opportunity has opened to address water insecurity in Indian country. It is critical that action be taken before that window closes and these issues are ignored for several more generations.
Tang, Shui Yan and Brian An, 'Responses to COVID-19 in China and the United States: How Governance Matters' (2020) Abstract: Emergency management necessarily requires collaboration across multiple layers and units of government. A country’s governance and intergovernmental system shapes its approaches to emergency management. This article focuses on two countries that have different governing systems—China and the United States. China’s administrative contracting system relies on vertical mechanisms such as hierarchical personnel control to hold local government officials accountable, thus creating incentives for delays in addressing crises when they first emerge. The United States’ polycentric system allows local officials, who are held accountable to local electorates, to sound alarms on emergencies early on. Yet the system may easily suffer from a lack of coordination across levels and units of government. A comparison between the two countries lays the foundations for comparing government responses to COVID-19 and other crises. It also illustrates the need to think about broader governance issues in preparation for large-scale crises in the future.
Taschner, Dana and Ashley Atwood, 'COVID-19: Legal Framework for Vaccine Distributions and Mandates' (2021) 1(24) Science and Technology Law Review 65-96 Abstract: The COVID-19 pandemic has created heightened turmoil for at-risk populations, solidified laws allowing the use of mask mandates, raised legal issues surrounding vaccine mandates, and presented the new issue of a vaccine passport. As a nation, we have failed to implement vaccination schemes that properly protect vulnerable populations. Specifically, the homeless population has been overlooked, creating an additional layer of hardship, and contributing to greater community spread. This article contemplates the various methods by which an equitable vaccination scheme could have been achieved and the division of powers that created complications. Additionally, the legality of vaccine mandates is discussed, and shows how our case law lays a foundation that would make a vaccine mandate legal. There are a multitude of vaccines already required for entry into school and other events. While the relatively low fatality rate of COVID-19 has been the source of backlash, this article shows how sufficient risk to an individual is not synonymous to sufficient risk to the community. Finally, the novel implications of vaccine passports are presented, and possible treatments of this issue in court are contemplated.
Taschner, John, 'Transformation of the American Legal System: Permanent Measures from COVID-19' (2021) 2(24) Richmond Public Interest Law Review 1-26 Abstract: The COVID-19 pandemic upended virtually every aspect of everyday life, from grocery stores to judicial procedures. The American judicial process is a unique adversarial system that guarantees the right to confront, often before a live jury. Yet, the necessities of social distancing and protecting public health means that these once unshakeable tenets of the United States justice system have been forced to undergo watershed transformation throughout the pandemic. The word transformation is carefully chosen, as certain measures are no longer temporary. Rather, a fundamental shift in the formerly concrete facets of judicial procedure has occurred – almost certainly never to be fully reversed. In the article, I describe the potential benefits of the unprecedented shift, while comparing both the original design and social perceptions of the American court system and judicial procedure. While great potential presents for virtual hearings and trials to continue to provide justice throughout this chaotic period, there are many serious nuances to the untested digital shift that must be acknowledged and accounted for in creating new and permanent change.
Taylor, Henry, ‘Is Justice by Zoom Justice Denied?: Judicial Stakeholder and Legal Advocate Experiences of Video-Mediated Trial Courts in Washtenaw County’ (SSRN Scholarly Paper No 4087709, 25 March 2022) Abstract: Previous research has drawn conflicting conclusions regarding the administrative and adjudicatory benefits and detriments of video-mediated (remote) court proceedings. After the universal adoption of remote court during the COVID-19 pandemic, it has become increasingly important to resolve this tension. By conducting and qualitatively analyzing interviews with Washtenaw County trial court judges, defense attorneys, prosecutors, and legal advocates, this study contributes to the growing body of remote court socio-legal scholarship by exploring the administrative and adjudicatory impact of videoconferenced proceedings from the perspectives of Washtenaw County judicial stakeholders, with a non-exclusive focus on domestic violence case proceedings. The research findings suggest that remote court creates favorable administrative efficiencies in the following ways: reduced transportation time and cost, perceptions of higher defendant appearance rates, and enhanced work flexibility for court practitioners. On the other hand, this study suggests that remote proceedings create adjudicatory conditions that negatively affect the administration of justice, namely inadequate technology access and user competency, attorney-client relationship impairment, and a diminished ability for judges, defense attorneys, and prosecutors to evaluate the veracity of court participant testimony. In regards to remote domestic violence proceedings, these findings further observe reduced interpersonal rapport between legal advocates and survivor-complainants, and the proliferation of novel coercion tactics deployed by assailants to discourage survivor-complainant case participation and adjudication. Future research can expand upon this research by engaging with larger interviewee sets and/or interviewing remote court litigants directly. These research limitations, and others, offer an opportunity for future scholarship to establish generalizable findings on remote court’s impact as it intersects with the broader population of court practitioners and participants. By exploring the administrative and adjudicatory effects of universal remote court since the COVID-19 pandemic, future research can better delineate and recommend how a post-pandemic criminal legal system should incorporate elements of remote court.
'Tax-saving opportunities for the housing and construction industries' (2020) December Tax Adviser 1-5 Abstract: The article focuses on Paycheck Protection Program loans, navigating the tax law changes in the Coronavirus Aid, Relief, and Economic Security (CARES) Act and keeping their businesses moving forward despite significant challenges created by the COVID-19 pandemic. It mentions tax-saving opportunities for the housing and construction industries and the research and development (R&D) credit may be second nature. It also mentions how tax preparers can claim tax benefits.
Tepepa, Martha, 'Public Charge in the Time of Coronavirus' (SSRN Scholarly Paper No ID 3571721, 08 January 2020) Abstract: The United States government recently passed legislation and stabilization packages to respond to the COVID-19 (i.e., coronavirus disease 2019) outbreak by providing paid sick leave, tax credits, and free virus testing; expanding food assistance and unemployment benefits; and increasing Medicaid funding. However, the response to the global pandemic might be hindered by the lassitude of the state and the administration’s conception of social policy that leaves the most vulnerable unprotected. The administration’s “zero tolerance” immigration campaign poses public health challenges, especially in the prevention of communicable diseases. In addition to the systemic obstacles noncitizens face in their access to healthcare, recent changes to immigration law that penalize recipients of some social services on grounds that they are a public charge will further restrict their access to treatment and hinder the fight against the pandemic.
Terman, Sharon, 'Protecting Workers’ Jobs and Income During COVID-19' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: The COVID-19 pandemic has exposed and exacerbated the harmful impacts of disparities in access to workplace supports like paid leave and unemployment benefits, and has led to worsening economic conditions for people already living on the margins. Workers in the United States have long experienced a crisis around care – too often having to risk their jobs and income when they or their loved ones become ill. The United States is one of the only countries in the world without universal, guaranteed, job-protected paid leave. A complex patchwork of laws allows some workers to take time off work to care for themselves and their families, but low-wage workers are often excluded from coverage or otherwise face barriers to accessing these protections. The unemployment insurance system provides temporary, partial wage replacement to those who lose their jobs through no fault of their own. But some workers, including undocumented immigrants, are excluded, and cumbersome rules and administrative obstacles prevent many others from accessing benefits. In March 2020, Congress enacted temporary emergency paid sick and family leave for the first time, as well as expanded unemployment benefits, but both programs have serious gaps that disproportionately impact women, people of color, low-income workers, and immigrants. This Chapter examines the income and job protection policy responses to COVID-19 and recommends additional solutions that center the needs of low-wage workers and families, and prioritize racial and gender equity and access for immigrants.
Termini, Roseann B., 'An Essay on Public Health and Liberty - The Impact of the 1905 United States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police Power vs. the Individual Right to Refuse a Vaccination in this Modern-Day Era of the COVID-19 Pandemic' (2021) Widener Law Review (forthcoming) Abstract: The COVID-19 pandemic has thrust vaccines in the forefront. Undoubtedly, vaccines are far from a new phenomenon. Over two centuries ago, Edward Jenner was credited with inventing a vaccine to prevent smallpox. Other notable vaccines include Pertussis (1914), Diphtheria (1926), Tetanus (1938) combined at DTP in 1948. The licensing of the polio vaccine in 1955 was cause for celebration. Fast forward to early 2020, the dire necessity for a vaccine to combat COVID-19 became apparent as an unprecedented pandemic infiltrated the United States. To comprehend the issue of the right to refuse a vaccination for COVID-19, the past is examined by the United States Supreme Court decision of Jacobson. This decision impacted the right of an individual to refuse a vaccine versus compulsory vaccination under state police power to protect the public.
Terry, Nicolas P., 'Liability and Liability Shields' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: This Chapter first examines the liability of businesses and medical professionals for acts and omissions involving COVID-19 mitigation, treatment, and reopening. Second, it provides an analysis of the federal and state liability shields, those that were in existence before COVID-19, those introduced more recently, and calls for more and broader shields. Claims will be brought by consumers (predominantly nursing home residents) alleging that businesses failed to protect them, patients treated at the height of the pandemic when emergency departments were overrun, and consumers who contract the virus during reopening. There are few federal liability shields applying to private actors, the most important being the PREP Act of 2005. A substantial number of states have adopted some type of liability waiver specifically related to the COVID-19 pandemic, initially providing immunity protections for health care providers and more recently protecting businesses as they reopen. Many of the health care providers shields present difficult questions of interpretation, particularly with regard to whether they are limited to emergency triage decisions, mitigation, or treatment efforts in contrast to broader acts or omissions that may have contributed to the infection outbreak, such as poor hygiene control. There is no evidence that a broad federal shield is necessary. State policymakers also should resist calls for broader shields and should provide transparent, data-driven guidance on reopening which can inform the existing and appropriate reasonable care standard. Court should carefully scrutinize the constitutionality of shields and not show the same deference as given to prior tort reform legislation.
Tessler, Hannah, Meera Choi and Grace Kao, 'The Anxiety of Being Asian American: Hate Crimes and Negative Biases During the COVID-19 Pandemic' (2020) (45) American Journal of Criminal Justice 636-646 Abstract: In this essay, we review how the COVID-19 (coronavirus) pandemic that began in the United States in early 2020 has elevated the risks of Asian Americans to hate crimes and Asian American businesses to vandalism. During the COVID-19 pandemic, the incidents of negative bias and microaggressions against Asian Americans have also increased. COVID-19 is directly linked to China, not just in terms of the origins of the disease, but also in the coverage of it. Because Asian Americans have historically been viewed as perpetually foreign no matter how long they have lived in the United States, we posit that it has been relatively easy for people to treat Chinese or Asian Americans as the physical embodiment of foreignness and disease. We examine the historical antecedents that link Asian Americans to infectious diseases. Finally, we contemplate the possibility that these experiences will lead to a reinvigoration of a panethnic Asian American identity and social movement.
Thaler, Jeff, '2020 Vision: What Can a Governor Do When the 2nd COVID-19 Surge Comes?' (SSRN Scholarly Paper No ID 3604706, 25 January 2020) Abstract: Memorial Day weekend, and the U.S. is about to exceed 100,000 deaths and 1.7 million confirmed cases from COVID-19--while more and more lawsuits are being filed challenging governmental restrictions on gathering or travel..This pandemic is not the first, nor will it be the last, pandemic or epidemic to ravage the world. This is the first essay to assess in detail our current pandemic in the context of previous ones, in terms of important medical, policy and legal trends and precedent. It is important to understand how past pandemic history should inform 2020 litigation and governmental responses, so that the mistakes of the past can be avoided. It also reviews current litigation decisions, primarily at the federal level. Additionally, the essay analyzes what the federal government could legally mandate to contain the spread of COVID-19, but more importantly focuses upon what a State Governor can do now or in anticipation of the likely new surges of COVID-cases and deaths-- in the context of case law focused upon such primary constitutional rights or liberties as the right to travel, the dormant commerce clause, and the right to gather (including, for churches, the Free Exercise Clause). The essay concludes that a State can best protect its residents’ health through properly-drafted regulations or executive orders, drawing on legal and medical precedent that will survive court challenges.
Thaler, Jeff, 'The Next Surges Are Here: What Can American Governments Lawfully Do In Response to the Ongoing COVID-19 Pandemic?' (2021) 1(42) Mitchell Hamline Law Journal of Public Policy and Practice 165-221 Abstract: Extract from Introduction: Part I of this article addresses what needs to be done going forward by first looking at the current pandemic in the context of previous pandemics and epidemics, and best approaches to respond to them. Part II looks at what the federal government legally could do and cannot do to contain the spread of the virus. Part III then looks in detail at some of the legal opportunities and obstacles at the state and local levels to control the spread of COVID-19 in the United States by such means as social distancing, stay-at-home, travel restriction, and face covering orders. Arguments about the “right” to interstate travel, the dormant commerce clause, and “rights” to worship, dine or shop wherever and whenever one wants, are not new—in fact, one of the leading cases on point is over 100 years old, and arose out of a smallpox epidemic. Part IV concludes with suggestions for how, collectively, we can best exercise clear vision and foresight to reduce the human and economic toll from the pandemic
Thomas, Jeffrey E, ‘COVID-19 and Business Interruption Coverage in the United States: An Example of Judicial Regulation’ in María Luisa Muñoz Paredes and Anna Tarasiuk (eds), Covid-19 and Insurance (Springer, 2023) 107-134 Abstract: Insureds in the United States have initiated thousands of lawsuits for business interruption losses caused by the COVID-19 pandemic. This litigation shows the significant regulatory role of the judiciary in the United States. Courts have developed and apply rules for insurance policy interpretation and for good faith behavior of insurers addressing claims. Although in the past the state and Federal courts applying judicial regulation have reached a variety of results, the judicial response to the COVID-19 claims has been surprisingly consistent in favor of insurers. The great majority of decisions have held that pandemic-related closures are not covered because they were not the result of physical damage or loss of property. This chapter describes the current state of the law in the United States for business interruption coverage for losses due to the pandemic. It suggests that the relative uniformity of decisions may reflect judicial concern that pandemic losses could overwhelm the insurance industry and an implicit recognition that the government is already providing substantial relief to businesses. It then identifies some procedural differences between judicial and administrative regulation for these determinations which results in a focus on individual cases rather than historical context and national public policy concerns.
Thomas, Kimberly, 'Voices from a Prison Pandemic: Lives Lost from COVID-19 at Lakeland Correctional' (2021) (19) Ohio State Journal of Criminal Law (forthcoming) Abstract: Coronavirus tore through jails and prisons like wildfire. In some states, more than half of the people incarcerated there tested positive for COVID-19; nearly 400,000 people in prison across the United States have tested positive. For people in prison, COVID-19 brought the loss of close friends, solitary confinement, loss of connection with family and programming, lack of information, and fear of contracting the virus. It has also reminded those who are incarcerated of the one-dimensional way in which people in prison are perceived. As stated by one collaborator, Cory Souders, “[s]o many men and women who come to prison are identified by the crime they committed. In my eyes, many on the outside have forgotten the fact that we are still human.”Before society’s collective consciousness fades, the authors of this Commentary seek to document the experience of the coronavirus from inside the prison walls and to remember of the lives of the men who died from COVID-19 inside one prison, Lakeland Correctional Facility, a 1,400-person state prison in rural Michigan where coronavirus hit early and hard.
Thomas, Robert H., 'Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority' (2020) (43) University of Hawaii Law Review 1-52 (forthcoming) Abstract: Hawaii’s government has a long experience responding to public health emergencies. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices. The law’s first major test has been a dramatic one: the COVID-19 worldwide pandemic. Hawaii’s governor exercised his authority to issue a declaration of emergency, and later issued supplemental proclamations purporting to extend the termination date for the emergency. This article analyzes whether the statute’s internal limitation on delegated emergency power—the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued—may be enforced by the courts. It argues that that the circumstances in which a court would sustain a challenge are limited, and that the primary remedy will be a political one. It should not be so, however, because Hawaii precedents confirm that the courts should enforce the essential separation of powers boundaries between the other branches. This article examines the prominent narrative threads that have emerged from Hawaii’s history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.
Thomson Reuters Institute, 'Law Schools and the Global Pandemic: New Research' (White Paper No , 21 2021) Abstract: This spring, the coronavirus pandemic changed the face of legal education across the country as schools moved to bring instruction online. To better understand the response of law schools to this new reality, and to illuminate the challenges and opportunities they face in the coming semesters, Thomson Reuters sponsored a survey of 2,897 law school students, faculty, and administrators in August 2020. The vast majority of students in the survey — 89% — were taking classes entirely online when the survey was conducted. Overall, the survey found a high level of alignment between students, faculty, and administrators. This level of camaraderie was likely heightened by the necessity of responding to the pandemic. However, this fellowship broke down on some issues, demonstrating a disconnect between administrators and faculty and students. For example, while students understand that faculty are doing the best they can in a difficult situation, they are nonetheless concerned about the value of the legal education that they are receiving online. Administrators have much different expectations than students or faculty regarding a return to in-person classes. The survey also unearthed opportunities for law schools to take a step back and consider what the future of legal education might look like, given a newly accelerated acceptance of online instruction.
Thomson, David K., 'Appellate Advocacy in the Age of COVID-19' (2020) 4(23) Judicial Division Record 1-4 Abstract: Still, interacting over video has its drawbacks and judges and attorneys alike are learning as we go about how to make court proceedings held over video as smooth, simple, and professional as possible. Q: Do judges foresee video arguments becoming a permanent option for court proceedings that will be available after the pandemic has subsided? The orderliness of the arguments seems to have mitigated, at least to a degree, the inherently choppy nature of remote proceedings and the trouble of the attorneys talking over the justices.
Thornburg, Elizabeth G., 'Observing Online Courts: Lessons from the Pandemic' (SSRN Scholarly Paper No ID 3696594, 21 January 2020) Abstract: Before the COVID-19 pandemic, few adults would have asked themselves the question, “what are courts?” If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings.In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions.This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings “work”? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts?The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself improves.From a human standpoint, consider some snapshots: an adoption ceremony was witnessed by 75 people from around the world; an out-of-state witness was able to testify; a mother was able to participate in her hearing without having to give up a day’s pay; an arresting officer was able to appear by taking a few moments off rather than spending hours traveling and waiting to testify; a lawyer avoided two hours of travel for a fifteen minute hearing; another lawyer was able to work productively while in a Zoom waiting room instead of. sitting on the courtroom benches for docket call; a judge serving multiple rural counties saved hours that would have been spent driving among courthouses.After reporting on the observations, the article turns to lessons for the future. Even when courts are able to return to fully in-person hearings, should they? What processes should continue to be done online? What absolutely needs to hang onto in-person processes unless completely infeasible? More fundamentally, what has this taught us about what courts are really about? Courts and judges have done an admirable job adapting to the online environment, but can we also see opportunities for more fundamental innovation? When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to doing everything in person, at the courthouse. It does not have to be that way. These lessons should not be lost, and the courts can reach beyond “normal” -- they can reach for better.
Thornton, Tonya E et al, ‘The Nexus between Emergency Management, Public Health, and Equity: Responding to Crisis, and Mitigating Future Hazards’ (2023) 83(5) Public Administration Review 1166–1169
Thumma, Samuel and Marcus W Reinkensmeyer, ‘Remote Court Hearings (Past, Present, And Future): Arizona’s Next Steps for A New World to Enhance Access to Justice’ (SSRN Scholarly Paper No 4989716, Social Science Research Network, 13 September 2024) Abstract: In this article, the COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (“Plan B Workgroup”) provides an update from its prior efforts, building on the Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup, 75 SMU LAW REVIEW FORUM 1 (2022). This article focuses on the Plan B Workgroup’s February 2022 Recommended Remote and In-Person Hearings in the Arizona State Courts in the Post-Pandemic World and developments after those Recommendations.
Thusi, India, ‘The Biopolitics of Maskless Police’ (2021) 18(2) Ohio State Journal of Criminal Law 555–574 Abstract: Despite the recent movement against police violence, police officers have been endangering their communities by engaging in a new form of violence—policing while refusing to wear facial coverings to prevent the spread of COVID-19. Many states advise people to wear masks and to socially distance when in public spaces. However, police officers have frequently failed to comply with these guidelines as they interact with the public to enforce these COVID-19 laws. Police enforcement of COVID-19 laws is problematic for two reasons: (1) it provides a method for pathologizing marginalized communities as biological threats; (2) it creates a racialized pathway for the spread of the virus.
Tillman, L. Christine, 'The Louisiana Health Emergency Powers Act: What Would the Louisiana Supreme Court Say?' (2022) (49) Southern University Law Review (forthcoming) Abstract: This Article explores the background of the Louisiana Health Emergency Powers Act (“LHEPA”), including proclamations that have summoned its current applicability, historical development, and, most importantly, Lejeune v. Steck, the only reported case to date involving the LHEPA. The Author extracts legislative purpose, relevant points, and conclusions, and develops three issues presented in the form of challenges. A simulation of the Louisiana Supreme Court’s responses to these challenges exposes the inherent fallacies of the LHEPA and the Lejeune decision. Approximately eleven years after the LHEPA was adopted, the Louisiana Fifth Circuit Court of Appeal handed down the Lejeune decision, sending shockwaves throughout the legal community. The Lejeune decision established that during a state of public-health emergency, the LHEPA’s scope relative to which health-care providers are afforded liability protections is essentially unlimited, encompassing all health-care providers, and gross negligence is the prevailing standard rather than the longstanding general negligence standard set forth in the Louisiana Medical Malpractice Act.The Author explores how the LHEPA leads to absurd consequences because of its unlimited reach and how courts should limit its application. A declared state of public-health emergency is the only prerequisite for a health-care provider to be shielded from liability for causing injury or death to another person, e.g., the provider does not have be in the course and scope of employment or even providing health care. The LHEPA could be applied if a health-care provider “accidently” and “negligently” caused a fatality while operating a motor vehicle during a state of public-health emergency. The Lejeune decision also allows the LHEPA to reach beyond the boundaries of the statute’s very function and legal designation as a statutory immunity. The Author opines that allowing an affirmative defense that has not been pled or proven to lower the standard from negligence to gross negligence is legal error—applying incorrect principles of law that are inherently prejudicial by casting a more onerous standard than the law requires. The Author concludes by encouraging lawyers to continually challenge the LHEPA until new precedents ensue.
Tinto, Katie and Jenny Roberts, ‘Expanding Compassion Beyond the COVID-19 Pandemic’ (2021) 18(2) Ohio State Journal of Criminal Law 575–603 Abstract: Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.
Tobias, Carl, 'The Federal Law Clerk Hiring Pilot and the Coronavirus Pandemic' (2020) 1(54) UC Davis Law Review Online 1-20 Abstract: Just when law students attained a comfort level with the arcane intricacies of the federal law clerk employment process, as increasingly exacerbated by the second year of an experimental hiring pilot plan, the coronavirus attacked the country and has been ravaging it ever since. To date, the virus has inflicted the most profound harm on the jurisdictions that comprise all of the “coastal elite circuits” that span the District of Columbia north to Maine, as well as the United States Courts of Appeals for the Seventh and Ninth Circuits, which apply the pilot. This piece examines impacts that the coronavirus’ rampant spread putatively has on law clerk employment and how students, courts, and judges can address these problematic circumstances.
Todaro, Elizabeth, 'Access to Justice in the Time of COVID-19' (2021) 2(57) Tennessee Bar Journal 20-25 Abstract: Many in the legal community are seeking solutions to ordeals we did not face a year ago. We are working in different settings, forming new collaborations and recognizing the need for an unprecedented level of flexibility. Effectively serving clients during COVID-19 has required nearly all attorneys to make shifts in how they work, and legal services organizations are no different. Some of the challenges the access to justice community is grappling with are consistent with what other attorneys and business in general are also dealing with. However, given the vulnerable, low-income and isolated client populations legal service organizations are serving, some of the barriers are more formidable.
Tokarz, Karen L. et al, 'Addressing the Eviction Crisis and Housing Instability Through Housing Court Mediation' (2020) Washington University Journal of Law and Policy (forthcoming) Abstract: The United States faces a massive eviction crisis. There were 128.6 million households in the United States in 2019, of which 37% were renters; of those 47.6 million renter households, more than two million, or one in every twenty-five, were at risk of losing their homes through evictions. Current and future economic challenges, such as that brought on by the Covid-19 pandemic, will inevitably increase evictions and exacerbate housing instability. While eviction lawsuits are an important legal remedy, evictions lead to homelessness, harm family member health, cost landlords money, destabilize the housing market, disrupt neighborhoods, increase crime, and overwhelm the courts. Many aspects of mediation make it a more just and effective dispute resolution approach than court evictions. This Article demonstrates the effectiveness of mediation and advocates for increased use of mediation to decrease evictions and housing instability.
Tomori, Cecília et al, 'Your Health Is in Your Hands? US CDC COVID-19 Mask Guidance Reveals the Moral Foundations of Public Health' (2021) (38) EClinicalMedicine Article 101071 Abstract: In the second year of the COVID-19 pandemic, US public health policy remains at a crossroads. The US Centers for Disease Control and Prevention’s (CDC’s) May 28, 2021 guidance, which lifted masking recommendations for vaccinated people in most situations, exemplifies a troubling shift — away from public health objectives that center equity and toward a model of individual personal responsibility for health. CDC Director Rochelle Walensky emphasized that "your health is in your hands," undermining the idea that fighting COVID is a "public" health responsibility that requires the support of institutions and communities. The social impacts of this scientific guidance, combined with the emergence of new variants, have exposed the fallacy of this approach, with most local mask restrictions lifted and infections rising dramatically among disadvantaged populations. Rapidly rising cases prompted the CDC on July 27th to recommend resuming indoor masking even for vaccinated people in "areas of substantial or high transmission," but US policy continues to frame the pandemic largely as a matter of individual responsibility to the detriment of public health. As public health professionals and advocates, we call for a renewed commitment to core public health principles of collective responsibility, health equity, and human rights.
Tonti, Lauren, 'Symphony or Cacophony? Orchestrating Federal Mechanics toward Covid-19 Response in the United States and Germany' (2022) European Journal of Health Law (advance article, published online 4 March 2022) Abstract: Abstract Governance is a critical upstream tool in public health emergency preparedness, for it provides structure to emergency response. Pandemics, singular public health emergencies, pose challenges to inherently fragmented federal governance systems. Understanding and utilizing the facilitators of response embedded within the system is critical. In its examination of how contemporary federal systems addressed fragmentation in the face of the Covid-19 pandemic, this article uses two mitigation measures, community masking and vaccination administration to compare elements of federal system mechanics in the United States and Germany’s respective pursuits of public health goals. With particular focus on federal-state power-sharing, it analyzes the division and application of federal-state authority, therein examining mechanisms of executive expediency, as well as the cooperation of multilevel actors. Comparing the jurisdictions identifies inter-federal coordination, availability of exigency mechanisms, and federal guidance as facilitators of public health goal achievement.
Toomey, James, 'Too Important for the Bureaucrats: Rethinking Risk and Regulatory Presumptions in Times of Crisis' (2021) 2-3(47) American Journal of Law & Medicine 249-263 Abstract: The posture of American regulation of medicine is negative—we assume that a new drug is unsafe and ineffective until it is proven safe and effective. This regulatory posture is a heuristic normative principle, a specific instance of the so-called precautionary principle in public health law. It is defensible, if debatable, in many ordinary circumstances. But like many normative heuristics, this negative posture may compel suboptimal decision-making in emergencies, where context-specific decisions must be made and a range of unique values may apply. This Article considers the challenge of emergency normative decision-making—a fundamental challenge of democratic legal design—in the context of authorization of new drugs or vaccines in public health emergencies. I conclude, for the same reasons of political theory that apply in the analogous context of emergency military decision-making, that the President ought to have the authority to deviate from the normative heuristics of our drug law in emergencies. This is so for two reasons. First, because emergency decision-making must happen quickly and decisively, it is best situated in one person. Second, normative decisions are political decisions, and in democracies we make political decisions through electoral processes. If we are to situate emergency decision-making in one person, it ought to be the most broadly democratically responsive federal official—the President. Because, however (and unlike the military context), the President’s constitutional authority in public health emergencies is debatable, and the current emergency provisions in our drug laws are inadequate, the federal drug laws should be amended to grant the President clear statutory authority to deviate from the ordinary process of premarket approval where necessary to combat public health emergencies. In short, just as we recognize that war is too important to be left to the generals, notwithstanding their military expertise, we ought to recognize that balancing risk and reward in public health emergencies is too important to be left to the scientists, and value Presidential control over the Food and Drug Administration just as we value civilian control of the Pentagon.
Toth Jr., Robert J., 'Revisiting Jacobson V. Massachusetts: The Covid Cases' (2021) 4(54) Creighton Law Review 559-604 Abstract: How should the political branches of state and local governments cooperate with one another to promulgate emergency public health legislation? And how much deference should the judiciary allocate state executives and legislatures when reviewing such legislation? This Note proposes a local application of the War Powers Resolution's "sliding scale of deference" in an effort to strike a constitutional balance between state executives and state legislatures. A local application of this fluid system of checks and balances would protect against unnecessarily burdening emergency executive orders by allowing state legislatures to recalibrate hurried emergency orders. Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive orders. This process extends an additional layer of security to public health and fundamental rights in light of a declared emergency. In sum, granting state legislatures more deference in redressing emergency public health orders and mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to public health and fundamental rights during declared emergencies.
Toussaint, Etienne, 'Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man' (2021) Columbia Human Rights Law Review (forthcoming) Abstract: The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy. This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights.In recent years, scholars have sharply critiqued human rights law as a tool for social transformation. Accordingly, this Article grounds its assertion on three claims, using the issue of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across America embodies not merely discrete instantiations of historical governmental neglect, but more poignantly, the collective rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans, the future of American democracy demands new tools to confront the embeddedness of racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, too often tinged with liberal assumptions about the human condition that enshrine structural inequality and contain economic power. Third, human rights discourse expands the social imaginary, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextual notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of ‘sacrifice’ from ongoing discussions of social and economic inequality, a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Even more, drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of ‘dignity’ in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.
Trotogott, Rachel, 'A Comparative Analysis of Data Privacy Impacted by Covid-19 Contact Tracing in the European Union, the United States, and Israel: Sacrificing Civil Liberties for a Public Health Emergency' (2020) 1(27) ILSA Journal of International & Comparative Law 55-76 Abstract: The purpose for choosing this topic is to explore privacy issues being faced in distinct parts of the world by countries exploring the use of digital contact tracing phone applications to help gain control over the COVID-19 global pandemic. First, this article will provide a brief history of the United States, the European Union, and Israel, and explore the applicable privacy laws governing its corresponding citizens in relation to the usage of digital contact tracing applications. Then, this article will compare the similarities and differences between such laws, and how the United States, the European Union, and Israel are addressing such laws relative to digital contact tracing application usage. Finally, this article will conclude with an assessment on the current contact tracing situation in the United States and what can be learned by looking towards the European Union and Israel.
'Trump Administration Further Restricts Asylum Seekers at the Southern Border Through the Migrant Protection Protocols, Asylum Cooperative Agreements, and COVID-19 Procedures' (2020) 3(114) American Journal of International Law 504-511 Abstract: During the spring of 2020, the Trump administration continued efforts to reduce the ability of individuals to seek asylum in the United States, particularly at its southern border. The administration received temporary authorization from the U.S. Supreme Court to put into effect the Migrant Protection Protocols (MPP)—an arrangement that requires non-Mexican asylum seekers to wait in Mexico for the duration of their immigration proceedings—while the administration petitions the Court to reverse a lower court decision enjoining the MPP's implementation. The administration has also sought to implement its asylum cooperative agreement with Guatemala, whereby the United States sends certain non-Guatemalan migrants to Guatemala to apply for asylum there. The legality of this agreement is presently being challenged, and, in March of 2020, the COVID-19 pandemic caused Guatemala to stop accepting flights of migrants sent by the U.S. government. Citing COVID-19, the Trump administration itself issued various suspensions of entry into the United States of noncitizens during the spring of 2020, including with respect to asylum seekers at the U.S.-Mexico border.
Tsiftsoglou, Anna, ‘American Lessons: The COVID-19 Pandemic and the US Supreme Court’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 113–124 Abstract: Ever since the outbreak of the COVID-19 Pandemic in America in March 2020, several US states imposed harsh measures to combat the pandemic. Such state measures have at times seriously violated human rights, such as freedom of religion or freedom of movement. This chapter attempts to look at how the US Supreme Court has responded to the pandemic and reviewed several state measures over the past couple of years through selected cases on freedom of religion and compulsory vaccinations. We particularly look at its views on the role of the judiciary during the crisis, the scrutiny applied on human rights violations, as well as whether changes in the Court’s composition during the Trump Era have in fact influenced its judicial reasoning. Overall, has the COVID-19 pandemic had an impact on judicial review and the Court’s role? If so, how?
Tur-Sinai, Ofer and Leah Chan Grinvald, 'Repairing Medical Equipment in Times of Pandemic' (2021) 2(52) Seton Hall Law Review 461-505 Abstract: The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and third-party service providers is the lack of access to service manuals, service keys, schematics, replacement parts, and repair tools. The ability to block access to these critical items is abetted, in large part, by intellectual property laws. In August 2020, a new federal legislation was introduced to address this problem--the Critical Medical Infrastructure Right-to-Repair Act of 2020 (the "Act"). The Act was designed to facilitate repair of critical medical infrastructure during the current COVID-19 pandemic, and to do so, it addressed various relevant intellectual property issues. Although it failed to pass in 2020, the Act was the first attempt to enact federal repair legislation. Given this, this Article provides a critical analysis of the Act and examines the extent to which it could have served its prescribed goal. In addition, in the event the Act is reintroduced (or similar legislation is introduced) in the coming years, we provide constructive suggestions to improve it. We also investigate the role that courts could play, alongside such legislation, by using policy levers that already exist in intellectual property law to provide relief to hospital-based and independent service technicians and to mandate manufacturers to cooperate with them in certain circumstances.
Turner, Jenia I., 'Virtual Guilty Pleas' (2022) 1(24) University of Pennsylvania Journal of Constitutional Law 211-275 Abstract: The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice. Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants' understanding of the process, impedes effective confrontation of witnesses, and prejudices the court's perceptions of the defendant and witnesses. Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings. This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas. Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coerced, or uninformed guilty pleas. But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings. The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over. To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings. Judges must review virtual pleas more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting. These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.
Turner, Jenia Iontcheva, ‘Remote Criminal Justice’ (2020) 53(2) Texas Tech Law Review 197–271 Abstract: The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom. The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic. Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.
Tushnet, Mark V, ‘Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State’ (2023) 98(2) Indiana Law Journal 335–369 Abstract: This Article offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific inquiries showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVID crisis in 2020. The COVID virus had characteristics that made it difficult to develop policies to limit its spread until a vaccine was available, and some of those characteristics went directly to the claim that the administrative state could respond flexibly to rapidly changing conditions. The relevant administrative agencies were bureaucracies with scientific staff members, though, and what those bureaucracies regard as ‘the science’ was shaped in part by bureaucratic and political considerations, and the parts that were so shaped were important components of the overall policy response. Part II describes policy-relevant characteristics of knowledge about the COVID virus and explains why those characteristics made it quite difficult for more than a handful of democratic nations to adopt policies that would effectively limit its penetration of their populations. Part III begins with a short presentation of the aspects of the science and technology studies (STS) critique of claims about disinterested science that have some bearing on policy responses to the pandemic. It then provides an examination shaped by that critique of the structures of the Food and Drug Administration and the Centers for Disease Control, showing how those structural features contributed to policy failures. Part IV concludes by sketching how the STS critique might inform efforts to reconstruct--rather than deconstruct--the administrative state, proposing the creation of Citizen Advisory Panels in sciencebased agencies.
Tweedy, Ann E., 'The Validity of Tribal Checkpoints in South Dakota to Curb the Spread of COVID-19' (SSRN Scholarly Paper No ID 3622836, 09 January 2020) Abstract: This essay examines the question of whether, during a public health emergency, tribes located in a state that has adopted minimal protections to curb the pandemic may enact stronger protections for their own citizens and territories. May they do so, even when enforcement of these protections causes inconvenience to those simply passing through the reservations and when the regulations affect non-member residents of the reservations? Based on Supreme Court case law, the answer is yes—tribes are within their rights in adopting and enforcing regulations designed to protect their citizens and other reservation residents from a public health emergency.
Tyler, Amanda L, ‘Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic’ (2023) 109(3) Virginia Law Review 489–594 Abstract: This Article explores the role of judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic. It also surveys debates on either side of the competing visions of the Constitution and the judicial role during emergencies. Finally, the Article suggests that even if one has significant concerns over the processes by which the current Supreme Court has decided some of the recent pandemic cases and/or the underlying merits of the decisions rendered by the Court, there is much to welcome in recent opinions positing that emergencies do not automatically diminish the individual rights protections in the Constitution or, for that matter, the judicial role. All the same, the Article concludes by critiquing the inconsistency in the Court’s approach to its role during the pandemic. Further, it suggests that it is not so much a desire to revive the judicial role in times of emergency that is driving the searching review we have witnessed in some of the pandemic cases, but instead the proverbial tail that wags the dog. In short, many of the Justices seem far more driven by the particular merits of the cases than a consistent approach to judicial review in times of emergency. A better approach would transcend the merits of any given context to embrace a model of judicial review that remains consistent regardless of the underlying merits and, most of all, the existence—or not—of any kind of emergency.
Underhill, Kristen; Johnson, Olatunde C.A, 'Vaccination Equity by Design' (2021) (131) Yale Law Journal Forum 53-88 Abstract: This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.
Unger, Wayne, 'How Disinformation Campaigns Exploit the Poor Data Privacy Regime to Erode Democracy' (SSRN Scholarly Paper No ID 3762609, 14 January 2020) Abstract: The U.S. is under attack. It is an information war, and disinformation is the weapon. Foreign and domestic actors have launched information operations and coordinated campaigns against western democracies using dis/misinformation. While the U.S. is both a disseminator and recipient of global or regional disinformation campaigns, this article focuses on the U.S. and its people as the recipient.From Russian election interference to COVID-19 conspiracies, disinformation campaigns harm the presumptive trust in democracy, democratic institutions, and public health and safety. While dis/misinformation is not new, the rapid and widespread dissemination of dis/misinformation has only recently been made possible by technological developments that enable mass communication and persuasion never seen before.Today, social media, algorithms, personal profiling, and psychology, when mixed together, enable a new dimension of political microtargeting—a dimension that disinformers exploit for their political gain. These enablers share a root cause—the poor data privacy and security regime in the U.S.At its core, democracy requires independent thought, personal autonomy, and trust in democratic institutions because an independently thinking and acting public is the external check on power and authority. However, when the public is misinformed or disconnected from fact and truth, the fundamental concept of democracy erodes—the public is no longer informed, independently thinking, and autonomous to elect its representatives and check their power. Disinformation, not rooted in fact and truth, attacks the core of democracy, and thus, the public check on governmental power. This article addresses a root cause—the lack of data privacy protections—of the dis/misinformation dissemination and its effects on democracy. This article explains, from a technological perspective, how personal information is used for personal profiling, and how personal profiling contributes to the mass interpersonal persuasion that disinformation campaigns exploit to advance their political goals.
'United States Seeks Answers on COVID-19's Origin While Stepping Up “Vaccine Diplomacy”' (2021) 4(115) American Journal of International Law 732-739 Abstract: As the COVID-19 pandemic continues to rage across the world, the United States and its allies are pushing for answers about the virus's origins while China rebuffs inquiry into its early handling of the outbreak. Meanwhile, a growing U.S. stockpile of vaccines has opened new avenues for “vaccine diplomacy,” and the Biden administration has thrown its weight behind an effort to suspend cross-border intellectual property (IP) rules for vaccine manufacturing. In the near term, however, experts expect vaccination rates and access will continue to vary widely between countries depending on their wealth.
'Unprecedented opportunities in gift planning' (2020) December Tax Adviser 1-6 Abstract: The article focuses on unprecedented opportunities in gift tax planning as interest rates and asset values affected by the COVID-19 pandemic and other current events. It mentions rates the Internal Revenue Service (IRS) uses to calculate minimum interest rates to apply to loans and the discount rate applied to remainder interests and life estates. It also mentions grantor retained annuity trust (GRAT) is an irrevocable trust and right to receive an annuity payment.
Upchurch, Angela, ‘Parenting in a Post-Pandemic World: The Impact of COVID-19 on Custody Disputes’ (2023) 15 Elon Law Review 223-280 (forthcoming) Abstract: The Supreme Court has long held that parents have a fundamental right to the care and custody of their children. When parents divorce or are unable to share custody, child custody disputes can become volatile. Family law practitioners attempt to counsel their clients through conflicts and help them plan for potential future conflicts in agreed parenting plans. The COVID-19 pandemic brought uncertainty into the lives of many families. Schools were closed or moved to alternative forms of education, and many parents found themselves working from home. Court-ordered shared custodial arrangements were stressed with the disruption of family schedules and concerns associated with navigating a widespread and deadly novel virus. For families sharing custody, COVID-19 exacerbated tense parental relationships and interjected new and challenging legal issues for parents, legal practitioners, and courts. Courts were faced with determining whether the emergent nature of the initial COVID-19 lockdowns permitted a parent with primary custody to deny, or alter the nature of, visitation rights by the other parent. Pre-pandemic, a parent would not be permitted to adjust a visitation arrangement without consent or court approval. During the pandemic, however, courts faced challenges by parents who argued that they were not able to comply with visitation due to state-ordered lockdowns or due to the practical challenges and risks associated with the virus. Additionally, parents with primary custody sought to condition visitation on compliance with a variety of safety measures, including regular COVID-19 testing or vaccination of the other parent. Such requests were met with varied results. In addition, parents challenged prior custodial orders, seeking modification of physical and/or legal custody. Courts were asked to determine whether COVID-19 created a sufficient change in circumstances to permit a change in the custodial arrangement and whether a change would be in the child’s best interest. Courts were forced to re-evaluate how these legal standards should be applied in the context of an ever-evolving global public-health crisis. Not surprisingly, there were varied approaches taken by courts throughout the pandemic. This article examines the impact of COVID-19 on child custody disputes, focusing primarily on child custody modification determinations and the enforcement of visitation rights. It will examine how the pandemic influenced the role of the court in interjecting notions of public health concerns when resolving parental disputes. Additionally, this article will analyze the ways in which custodial determinations were impacted by the COVID-19 pandemic; it will examine possible implications on post-pandemic child custody disputes with an eye towards providing guidance to legal practitioners in drafting parenting plans to accommodate future disruptions that might arise due to future spikes in COVID-19 infections. Finally, this article will propose revisions to the current legal standard and procedure used for considering child custody modification petitions when large-scale disruptive events, like the pandemic, happen in the future.
Upton, Geoffrey C, ‘Locke in Lakewood: Locating the Proper Meaning of the Free Exercise of Religion in the Time of COVID-19’ (2022) 64(4) Journal of Church and State 581–599 Abstract: One disturbing aspect of the United States’ experience with the COVID-19 pandemic has been the threats and other verbal attacks against elected officials trying to protect public health to the best of their ability. In the most shocking case, which came to light in October 2020, thirteen men plotted to kidnap Michigan Governor Gretchen Whitmer in response to her executive actions to curb the spread of the deadly virus, seeing the Democratic politician as a ‘tyrant’ who had exceeded her legitimate powers. Several months earlier, four hundred miles south, right-wing agitators protesting Kentucky’s public health measures and in favor of gun rights hung that state’s Democratic governor, Andy Beshear, in effigy outside the governor’s mansion at the state capitol in Frankfort, again claiming he was acting as a tyrant. Garnering less attention were extremists acting to defend their governor’s actions against their fellow defiant citizens. One example was in New Jersey, where a man was so irate at the failure of the Haredi (ultra-Orthodox) Jewish community in the town of Lakewood to cooperate with Governor Phil Murphy’s executive orders that he threatened violence in antisemitic terms. The man, Anthony Lodespoto, resided in Howell Township, just north of Lakewood, and sent messages on Facebook on March 26, 2020, in the early days of the pandemic, threatening to beat members of Lakewood’s Jewish community with a baseball bat. While Lodespoto’s anger took a menacing form—he pled guilty to bias intimidation—his frustration with the religious community’s actions amid a public health crisis was shared by other people in New Jersey and across the country. Just a ninety-minute drive north, in South Williamsburg, Brooklyn, the Hasidic Jewish community drew similar condemnation when its members persistently ignored the COVID-related edicts of New York’s then-governor, Andrew Cuomo, and New York City’s then-mayor, Bill de Blasio. One local activist critical of ‘extremist’ Hasidic leaders told The New York Times, ‘There has been a total disrespect to everything medical authorities and the government have been telling us to do … It is total defiance.’
van Rooij, Benjamin et al, 'Compliance with COVID-19 Mitigation Measures in the United States' (SSRN Scholarly Paper No ID 3582626, 22 January 2020) Abstract: The COVID-19 mitigation measures require a fundamental shift in human behavior. The present study assesses what factors influence Americans to comply with the stay at home and social distancing measures. It analyzes data from an online survey, conducted on April 3, 2020, of 570 participants from 35 states that have adopted such measures. The results show that while perceptual deterrence was not associated with compliance, people actually comply less when they fear the authorities. Further, two broad processes promote compliance. First, compliance depended on people’s capacity to obey the rules, opportunity to break the rules, and self-control. As such, compliance results from their own personal abilities and the context in which they live. Second, compliance depended on people’s intrinsic motivations, including substantive moral support and social norms. This paper discusses the implications of these findings for ensuring compliance to effectively mitigate the virus.
Van Tassel, Katharine A. and Sharona Hoffman, 'Vulnerable Populations and Vaccine Injury Compensation: The Need for Legal Reform' (Case Legal Studies Research Paper No 2021-9, 21 2021) Abstract: This chapter argues that the potential for vaccine-related harms raises acute concerns for vulnerable populations. These harms have a disparate impact on low-income people, who are disproportionately non-White, and who have limited financial resources to obtain medical care, weather job losses, and pursue injury compensation. When a vaccine is given as a countermeasure during a declared public health emergency (PHE), the problem is acute because of the limited availability of injury compensation.
Vasaly, Mary, 'Law in the Time of Coronavirus' (2020) 4(23) Judicial Division Record 1-4 Abstract: The corona-virus pandemic has required all of us who are part of the judicial system to learn new approaches to legal procedures in record time. Knowing that "justice delayed, is justice denied", we all have felt pressure to adopt new methods of delivering justice in a timely fashion, despite the absence of the ordinary legal processes that have been a hallmark of our justice system. We should remember that our clerks are facing the same constantly changing requirements, and as a result, they must quickly learn new file processing methods, and new remote hearing technologies and procedures, and then, when they are modified, the amended methods and procedures.
Vazquez, Andrew, 'Abusing emergency powers: How the Supreme Court degraded voting rights protections during the COVID-19 pandemic and opended the door for abuse of state power' (2021) 4(48) Fordham Urban Law Journal 967-1020 Abstract: The article focuses on emergencies affecting elections, and summarizes actions states and cities have taken to combat the COVID-19 pandemic in the U.S. Supreme Court in the case Purcell v. Gonzalez. It mentions intersection of state emergency powers and cases applying the Purcell principle that arose during the 2020 general election. It also mentions Supreme Court's case principle is inconsistently applied by lower courts and leaves a gap in voting rights protections.
Velazquez, Alvin and Muyi Zhang, ‘Labor Laws and Surveillance in the Time of COVID-19: A Demand for Better Worker Protections’ (2024) 38(1) ABA Journal of Labor and Employment Law 93–106 Abstract: Since March 2020, workplaces have been changing rapidly and permanently due to the COVID-19 pandemic. With the widespread introduction of remote work and the economic and social impact that the pandemic has had upon people, two trends have become apparent: COVID leave laws enacted to protect workers have been insufficient in actually protecting them, and the pandemic has brought about an increase in workplace surveillance. The first section of this paper will analyze the impact, or lack thereof, of COVID-19 sick and vaccine leave laws enacted across states during the pandemic upon the workforce. The second section of this paper will focus on the rise of workplace surveillance due to the rise of remote work during the pandemic, and the chilling effects of such surveillance. Finally, this paper will argue that the pandemic has resulted in detrimental workplace trends that will continue to severely affect future workplace environments and will give recommendations as to how to stop or curb these trends.
Veuger, Stan and Jeffrey Clemens, 'Politics and the distribution of federal funds: Evidence from federal legislation in response to COVID-19' (AEI Economics Working Paper No 2021-08, 05 January 2021) Abstract: COVID-19 relief legislation offers a unique setting to study how political representation shapes the distribution of federal assistance to state and local governments. We provide evidence of a substantial small-state bias: an additional Senator or Representative per million residents predicts an additional $670 dollars in aid per capita across the four relief packages. Alignment with the Democratic party predicts increases in states’ allocations through legislation designed after the January 2021 political transition. This benefit of partisan alignment operates through the American Rescue Plan Act’s sheer size, as well as the formulas through which it distributed transportation and general relief funds.
Viola, Pasquale, 'Climate and environmental approaches in the United States and Canada at the outbreak of the 2020 pandemic' (2020) Opinio Juris in Comparatione (pre-print) Abstract: The essay deals with the issues triggered by environmental policies and Covid-19 pandemic in the United States and Canada. The analysis starts with an outline of the environmental law systems and the main responses to the pandemic, then emphasizing the focal legal concerns about the emergency measures and environmental policies. The last section draws critical conclusions that show some current patterns and the way forward in the entanglement environmental law/pandemic.
Visconti, Olivia, ‘The Wills of COVID-19: The Technological Push for Change in New York Trusts and Estates Law’ (2022) 95(3) St. John’s Law Review 951–975 Abstract: Because the spread of COVID-19 caused a global shutdown, several states took action to maintain individuals’ ability to execute legal documents remotely, through technological means including e-notarization and e-attestation. For example, New York’s governor, Andrew Cuomo, signed Executive Order 202.72 with the intention of allowing legal documents to be issued through e-notarization. Soon after, Governor Cuomo signed Executive Order 202.14, which allowed for e-attestation of wills. Because the breadth and repercussions of the pandemic are still unclear, the duration of efforts such as e-notarization and e-attestation remain uncertain. Furthermore, whether these changes will effectively fulfill the purposes of codified due execution formalities can only be determined when the wills are eventually submitted for probate. Therefore, because the traditional means of validity, such as attestation and notarization, will not be met, whether electronically executed wills will be probated if submitted to a court remains unclear.
Voegel, Conner J, 'The Syringe That Drips Money: How Title VII Affects Employer-Mandated Vaccinations in the Manufacturing Sector' (2022) 1(19) Indiana Health Law Review 217-247 Abstract: While novel viruses such as SARS-CoV-2 and H1N1 have caused extreme economic hardships and widespread morbidity, communicable diseases have also been doing so for decades. Nevertheless, many private employers outside the healthcare industry have never implemented mandatory vaccination policies.7 While there are multiple reasons employers may refuse to enact such policies,8 fearing legal action under Title VII of the Civil Rights Act of 1964 (“Title VII”) is among the most prevalent. This Note will analyze the legal ramifications Title VII has on employer mandated vaccination policies, specifically focusing on the manufacturing sector. Section II provides relevant background information for vaccine mandates in the industry. Section III analyzes Title VII, including the different claims employees have under the statute and certain affirmative defenses available to employers. Section IV then applies reasonable accommodation and undue hardship to the manufacturing sector. Section V provides certain factors manufacturers should consider when determining whether a vaccine mandate is the best option for their facility. Finally, Section VI concludes that, with guaranteed exceptions, Title VII poses little legal threat to mandatory vaccination policies in the manufacturing sector.
Vorotyntseva, Inna, Ivanna Hranina and Maryna Pysarenko, 'Comparative Legal Research on Contract Law Changes Under Covid-19 Pandemic: England, United States, Asia and Ukraine | Ius Humani. Law Journal' (2021) 1(10) Ius Humani Law Journal 123-150 Abstract: The study aims to characterize the changes in contract law under the influence of the Covid-19 pandemic in Ukraine and the world. For this purpose, we used systemic, comparative-legal, and formal-legal methods. The paper consists of an introduction, methodology section, bibliography review, results, discussion, conclusions, and references. In the result of the study some distinctive features of changes in contract law under Covid-19 pandemic at the level of national law of Ukraine and some foreign countries were characterized and highlighted. The authors came to the conclusion that changes in contract law are typical for the countries of continental law. Instead, common law states remain resistant to changes in contract law, particularly, the force-majeure application. The reason for this lies in the specific doctrine of the common law countries, as England and the United States. These countries’ courts remain unshakable in terms of managing the contracts performance. In contrast, some Asian and European states (including Ukraine) are characterized by dynamic changes in legislation, given the pandemic situation. The paper also discusses similar institutions like hardship and frustration of purpose, which are both applicable in continental and common law countries.
Vu-Dinh, Kim, ‘Where’s the Beef? Meat Shortages, Farmer Needs, and Long-Term Recovery Policies in a Pandemic Era’ (2022) 13(2) Journal of Animal and Environmental Law 65–115 Abstract: COVID-19 not only affected every hospital bed in the nation--if not the world; it also affected nearly every dinner table in America and beyond. Supply chain disruptions caused by the pandemic highlighted deep-seated problems with how we get our meat, and how difficult we make it for American farmers to sell to the family next door. Within a few months of the first reported case in the US, hundreds of workers from just two meat-processing plants on American shores became infected with COVID-19, and imports from around the world came to a standstill as factories and shipping companies were forced to shut down. Instantaneously, the US supply of meat seemed to contract, flying off supermarket shelves as Americans began to shelter in place. Meanwhile, nationwide closures of restaurants and school cafeterias posed serious problems for farmers who were forced to cull and dispose of their herds, unable to get them processed at commercial butchers that were either closed or backlogged. In a nation that raises more than 94 million heads of cattle alone, we somehow found ourselves in a meat shortage in 2020, with grocery store shelves looking as ‘patchy and unpredictable as those in the former Soviet bloc’. This article analyzes the state of American agriculture as it pertains to the meat industry, using the beef sector as a case study. This article also proposes potential solutions that should be considered in any stimulus package seeking to create long-term, impactful growth in rural America, where one in five Americans live.
Vyas, Nisha N and Matthew Warren, 'From Commodities To Communities: Reimagining Housing After The Pandemic' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 190-202 Abstract: While COVID-19 is not the root cause of housing insecurity, the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss. This Article describes the existing eviction process that values individual property rights over the human right to housing, and describes proposed legislative solutions to prevent evictions en masse before considering urgent long-term changes. This moment calls for us to question the historical commodification of property, and to more towards a system that treats housing as a social good necessary for public health rather than a commodity to generate wealth for the privileged few.
Wagner, Jennifer K., 'Health, Housing, and “Direct Threats” during a Pandemic' 1(7) Journal of Law and the Biosciences Article lsaa022 Abstract: The COVID-19 pandemic brought into stark relief the intimate nexus between health and housing. This extraordinary infectious disease outbreak combined with the astounding lack of a clear, coordinated, prompt, and effective public health response in the United States created conditions and introduced practical challenges that left many disoriented—not only health care providers but also housing providers. Projected health care surges sent health care providers scrambling for ways to procure personal protective equipment for employees; to develop and implement clinical triage policies for the responsible and fair allocation of scarce critical care resources to COVID-19 and non-COVID-19 patients; and to make ethically and scientifically sound decisions regarding the conduct of research during the pandemic. Concurrently, individualized directives for self-quarantining and isolation as well as localized and statewide “stay at home” orders sent housing providers scrambling to make sense of their own ethical and legal responsibilities. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, the triggering of force majeure clauses in contracts, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and even possible abatement of rent or homeowner/condominium association dues in light of closed common facilities (such as fitness areas) or reduced benefits to be enjoyed with residential property; however, this article focuses on fair housing law and the “direct threat” exemption during a pandemic; finds it unlikely that COVID-19 is a disability, likely that the “direct threat” defense is available, and both determinations to be case-specific inquiries dependent upon rapidly-changing scientific understanding of this disease. By highlighting adequate housing as a human right for which the government has primary responsibility for ensuring its achievement, this article underscores the importance of finding a holistic solution to public health and adequate housing problems in the U.S. before the next public health emergency arises.
Wake, Luke, 'Taking Delegations Seriously' (2022) 3(15) New York University Journal of Law & Liberty (forthcoming) Abstract: The non-delegation doctrine has become a flashpoint in COVID-19 litigation since March, 2020, as both state and federal authorities sought to exercise unprecedented emergency powers to control the spread of SARS-COV-2. This article examines the failure of state courts to give serious consideration of non-delegation arguments in the face of broad delegations of police powers, and the countervailing approach that the U.S. Supreme Court has taken in stressing the major questions doctrine as a bulwark against excessive delegations. In addition to examining the perverse implications of an impotent non-delegation doctrine, this article argues that the principle argument against invalidating unfettered delegations is overstated and can only potentially justify emergency orders on a short-term basis until such time as the Legislature is capable of reconvening. :
Wald, Ezekiel, ‘Election Law’s Efficiency-Convergence Dilemma’ (SSRN Scholarly Paper No ID 3678254, 24 September 2020) Abstract: We are facing a moment of unique reflection in American democracy. Data suggests that marginalized communities feel persistently ignored by political actors—on a bipartisan basis. The scale of wealth inequality is soaring to unprecedented heights. Domestic indifference to foreign interference in our elections has poisoned public confidence in the political process. Mass reckonings with institutionalized racism and police violence have rocked major cities, facing deep and violent resistance from the President and the federal government. A global pandemic disproportionately devastated Black and Brown communities, and the federal government’s response prioritized economic liberty over health and safety. Americans are reconsidering the nature of our relationship to the federal government, and the pressure for reform may now exceed any moment since the New Deal. In this setting, Iowa’s dramatic failure to efficiently administer the Democratic Presidential Caucus hardly seems worthy of a footnote in the history of 2020. Yet, at the time, it became a national story. Iowa’s failure to administer an efficient election was new—but election law’s marriage to economic efficiency is much older. Understanding the depth of efficiency’s roots in the law of democracy requires turning back to that same New Deal era. The conflict between the American Legal Realists and the laissez faire Lochnerism of the Supreme Court laid the groundwork for efficiency’s lasting role in law—and for the century of criticism that sprung up to contest it. Efficiency—and specifically, the conceptions of efficiency proffered by Chicago School Law and Economics and Virginia School Public Choice Theory—emerged victorious from those contests. But, we are facing a moment of unique reflection, and in such a moment, an opportunity arises. By looking back through efficiency’s rise, we can chart a course forward. This article offers a framework with which to do so: the efficiency-convergence dilemma. Part I builds the efficiency-convergence, outlining the intellectual history of efficiency’s role in election law. Part II builds the dilemma, highlighting critical legal theory and heterodox economics traditions that contour the normative concerns with the efficiency-convergence. Part III presents the framework. I develop a typology of efficiency arguments within election law, derived from novel primary source analysis of the legislative history for the Voting Rights Act and the National Voter Registration Act, along with case law and scholarship across election law. I theorize that this typology demonstrates an efficiency-convergence dilemma, functioning to institutionalize racial subordination as a neutral principle undergirding legal thought in the law of democracy. I offer a series of critiques for this efficiency-convergence, built from the critical theories discussed. Finally, Part IV offers two normative implications of the efficiency convergence. The first is to look outside the law, developing an operationalized definition of equity based on similar research in public health and public policy. The second is to highlight election law scholarship that bucks the efficiency convergence, charting a path forward. I present one such path: reimagining the right to vote as a constructive right implemented through constitutional conventions and norms and protected as an instrumental right.
Walters, Adrian, 'The Small Business Reorganization Act: America's New Tool for SME restructuring for the COVID and post-COVID era' (2020) 10(41) Company Lawyer 324-325 Abstract: Highlights the passage of the US Small Business Reorganization Act 2019 and its implications for corporate restructuring in the wake of the coronavirus pandemic. Reflects on its key provisions, its aim of facilitating consensual plans of organisation within short timeframes and at low cost, the significant role of the supervisory trustee, and the difficulties it is likely to face.
Walters, Ashley, Taryn Painter and Heidi Meyers, ‘“I Don’t Know What Tomorrow Will Bring”: Understanding COVID-19’s Impact on the United States’ Stateless Population’ (2023) 5(2) The Statelessness & Citizenship Review 186–201 Abstract: In March 2020, COVID-19 was declared by the World Health Organisation (‘WHO’) as a global pandemic. Since the WHO’s declaration, it has become increasingly clear that the most vulnerable communities have experienced the brunt of the pandemic. Though race, ethnicity and economic status are considered in a majority of reports on the social, physical and financial impacts of COVID-19, there is little to no information on the impact of COVID-19 on stateless communities within the United States (‘US’). This research endeavours to add to the understanding of statelessness in the US by determining the impacts of COVID-19 on stateless people in the US through a survey scoping project. Through anonymous questionnaires completed by stateless individuals (n=19) in the United States, this study explores how stateless individuals have been impacted by the pandemic, including experiencing economic hardships, mental health challenges, physical health concerns and issues with documentation and legal status.
Walters, Robert, 'Close out Netting Provisions: Their Current Value in a Time of International Uncertainty!' (2020) 10(31) International Company and Commercial Law Review 564-595 Abstract: The world is facing significant geopolitical and economic challenges. This article explores the current value of close-out netting provisions as a result of the recent coronavirus outbreak. It examines the netting provisions of Australia, European Union, United Kingdom and the United States. The article makes the argument that as states increasingly turn inward, upholding the current international legal framework will be more important.
Wang, Chan, Yushim Kim and Karen Mossberger, ‘Governor’s Political Affiliation and Stringent COVID-19 Policy’ (2024) 84(1) Public Administration Review 40–55 Abstract: The political affiliation of governors has been highlighted as the most important predictor of a state’s aggressiveness in responding to the pandemic, that is, Democratic governors advocated for more stringent policies than their Republican counterparts. However, of the 39 states that issued a statewide stay-at-home order (SAHO) mandate, nearly half were led by Republican governors. Using a qualitative comparative analysis, we find that gubernatorial partisanship alone cannot explain SAHO mandates. If partisanship played a role at all, it did so only in states with large metropolitan areas or with fewer public health resources. Regardless of the governor’s partisanship, the combination of problem severity and public health resources was sufficient to produce a stringent policy outcome. Emphasis on gubernatorial decisions as purely political overlooks material needs relevant for future pandemic response and the potential for evidence and future coordination.
Wang, Deborah, ‘Expanding Judicial Discretion to Grant Compassionate Release During COVID-19’ (2022) 97(4) Washington Law Review 1283–1308 Abstract: In the 1980s, Congress introduced compassionate release to counteract the increased rigidity of our federal sentencing system. This mechanism allowed courts, through a motion filed by the Bureau of Prison’s director, to reduce a prisoner’s sentence if ‘extraordinary and compelling’ circumstances warrant such a reduction. However, because the Bureau of Prisons (BOP) seldom brought these motions, few people were released early via compassionate release. At the same time, public discourse and concerns regarding mass incarceration have continued to grow, causing lawmakers to revisit and revise compassionate release through the First Step Act of 2018 to ensure that this mechanism’s potential is fully realized. From the First Step Act’s passage in 2018 until 2020, however, compassionate release was still more modestly utilized than legislators envisioned. This changed when the COVID-19 pandemic swept the United States and its prisons. The pandemic has presented courts with new opportunities to expand the use of compassionate release. While some legal scholars have examined the pandemic’s impact on courts’ compassionate release decisions, this Comment is the first to address a split among district court judges on how to interpret the relevant compassionate release statute’s exhaustion requirement. Some courts have interpreted the statute to allow prisoners to file a motion for compassionate release thirty days after a warden’s receipt of the request, regardless of whether the warden acted upon the request within that timeframe. In contrast, other courts have held that, if the warden denied the request within thirty days of receipt, the defendant must first exhaust administrative remedies within the BOP before filing a motion with the court. This Comment argues that courts should allow prisoners to directly file a motion with the court even if the warden timely denied the request. Not only is this interpretation more faithful to the statutory text, but it also allows courts to reach the merits of the case and thus grant more motions for compassionate release, which aligns with the First Step Act’s purpose of alleviating our current mass incarceration crisis.
Wang, Yanbai Andrea and Justin Weinstein-Tull, ‘Pandemic Governance’ (2022) 63(6) Boston College Law Review 1949–2005 Abstract: The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations. This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments undermined each other by destabilizing each other’s actions upward (when local governments undermined states), downward (when the federal government undermined states), and across (when the federal government undermined itself). They abdicated responsibility by failing to act. Governments collaborated by actively working together to harmonize policies. And they engaged in bandwagoning to avoid being the first mover in making pandemic policy, opting instead to follow or oppose the leads of others. Despite the seeming chaos of the early pandemic response, these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping policy roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided battles, providing a default set of relationships that became organizing principles for the early pandemic response. This Article uses these insights to sketch the contours of a way forward. It proposes a federal pandemic statute that emphasizes role clarity, state independence, and explicit governmental action to disrupt inequality. It additionally advocates for decentralized but inclusive subject-matter networks among federal, state, and local authorities to lessen the pull of partisanship.
Wasilczuk, Madalyn, ‘Lessons from Disaster: Assessing the COVID-19 Response in Youth Jails & Prisons’ [2021] (2) Arizona State Law Journal Online 221–245 Abstract: In many states, the law requires a child’s custody to be for rehabilitation, not for punishment. Nevertheless, to stop the spread of COVID-19, some youth jails and prisons have halted all rehabilitative programming, educational services, and family visits. These ostensibly evidence-based positions fail to account for the underlying conditions of the children held in youth jails and prisons and discount the long-term effects of trauma on the developing brain. Black and Native youth are overrepresented in youth facilities, and their families are overrepresented in COVID death tolls. While the COVID-19 crisis barrels down on these children’s communities, they are cut off from regular contact with those they love, statistically diminishing their chances of successful reentry. Children in youth facilities are also disproportionately likely to have mental illnesses, intellectual disabilities, and extensive trauma histories. These underlying conditions exacerbate the effects of lockdowns, withdrawal of services, and the prohibition on family visits. Moreover, studies in the wake of Hurricane Katrina demonstrate that the traumatic effects of a disaster fall disproportionately on children. Those who have studied children’s experiences during the hurricane expect similar patterns to emerge after the coronavirus. Children in custodial settings, further separated from community supports, are especially vulnerable. Moreover, as COVID-19 trauma affects children in custody at a critical developmental stage, those who care for them must take steps to prevent the effects of trauma from continuing into adulthood. This essay argues that courts and others with the power to protect young people in custody across this country must take the mental health harms to children as seriously as physical ones and take serious steps toward decarceration in the juvenile legal system.
Watson, Danika Elizabeth, 'Free and Fair: Judicial Intervention in Elections Beyond the Purcell Principle and Anderson-Burdick Balancing' (2021) 2(90) Fordham Law Review 991-1027 Abstract: The United States's politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle. This Note examines the equal protection challenges raised in courts throughout the country in 2020 to demonstrate the need for a voter equity-based approach to equal protection claims that goes beyond the Purcell principle's weak threshold protections. This Note proposes the Carolene test, a novel threshold test for equal protection claims in voting rights cases that determines the appropriateness of judicial intervention based on: (1) whether an election process or procedure change relates to voters' ability to participate in the political process, (2) whether the change prejudices discrete and insular minorities, and (3) whether the change would expand or diminish the franchise.
Webb, Julia M, ‘HIPAA & Telehealth during COVID-19: A Legal Review’ (SSRN Scholarly Paper No 4235321, 3 March 2022) Abstract: Patient privacy has always been important, but the shift in virtual healthcare during the COVID-19 pandemic brought about different challenges. This brief legal analysis focuses on the nationwide efforts to increase access to care in the pandemic while still protecting privacy.
Weeks, Elizabeth, 'Private Insurance Limits and Responses' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The Patient Protection and Affordable Care Act of 2010 (ACA) dramatically overhauled health insurance in the United States. But those reforms have been under continuous threat of dilution or wholesale repeal, including a case currently pending before the U.S. Supreme Court that could strike down the entire Act. Thus, any evaluation of the benefits or demerits of the private insurance market must be read against the possibility that existing consumer protections could be eliminated with the stroke of a pen.
Weisburd, Kate, 'Punitive Surveillance' (2022) 1(108) Virginia Law Review 147-221 Abstract: Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people of fundamental rights, including privacy, speech, and liberty. Building on the critique that punitive surveillance is a form of racialized carceral control, this Article makes three contributions: First, drawing on original empirical research of almost 250 public agency records governing the operation of electronic ankle monitoring, this Article reveals non-obvious ways that punitive surveillance, like incarceration, strips people of basic rights and liberties. In particular, the records show how monitoring restricts movement, limits privacy, undermines family and social relationships, jeopardizes financial security, and results in repeated loss of freedom. Unlike traditional probation and parole, punitive surveillance is more intensive, restrictive, and dependent on private surveillance companies. Second, this Article explains how, and why, courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and punishment jurisprudence. Third, and most ambitiously, this Article raises the question of whether a fundamental rights analysis, a regulatory response, or an abolitionist approach is the most effective way of limiting—if not outright eliminating—punitive surveillance.
Weisburd, Kate et al, 'Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System' (GWU Legal Studies Research Paper No 2021-41, 21 2021) Abstract: The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise. The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration. As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed. This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release. Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring. The report reveals the degree to which monitoring rules and policies restrict movement, limit privacy, undermine family and social relationships, extract wealth and result in repeated loss of freedom. Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive. The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration. And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.
Weiss, Allison, 'Habeas Corpus, Conditions of Confinement, and COVID-19' (2020) 1(27) Washington and Lee Journal of Civil Rights and Social Justice 131-158 Abstract: Incarcerated individuals, worried about contracting the disease in prison without adequate healthcare and often serious health risks, have filed lawsuits challenging their incarceration in the age of COVID-19. Overall, very few have been successful. This virus has changed our world and the reality for those in prison. The traditional legal avenues available to incarcerated individuals to challenge their continued confinement are often ill-equipped to allow for comprehensive and expedited review. The author argues that during these unprecedented times, courts should recognize that the “duty to defend the Constitution” requires them to grant motions for habeas corpus by the most vulnerable prisoners—those who are elderly or suffer from certain medical preexisting conditions—and that “a public health emergency does not absolve [courts] of that responsibility.” To the contrary, the pandemic has underscored the necessity of courts to step into and embrace their roles as protectors of those who are currently unconstitutionally incarcerated.
Weiss, Avi, 'Binding the bound: State executive emergency powers and democractic legitimacy in the pandemic' 6(121) Columbia Law Review 1853-1893 Abstract: The COVID-19 pandemic has triggered an unprecedented increase in unilateral lawmaking by governors under each state’s emergency executive power statute. These actions have been met with controversy and a significant amount of resistance. This Note argues that the resistance to COVID-19 rules in the United States may be partially attributable to the way state emergency power statutes concentrate virtually all the power to enact emergency rules in the hands of governors. As this Note demonstrates, the state executive emergency power regime, like all emergency power frameworks, grapples with the inherent tension between technocratic agility and democratic legitimacy. Drawing on a novel fifty-state survey, this Note shows how, notwithstanding the drafters’ attempt to balance executive power with legislative constraint, the statutes as written effectively place all substantive decisionmaking in the hands of the governor, leaving only a binary on/off switch for the legislature to terminate the state of emergency. This consolidation of power in a chronic emergency bypasses the deliberative legislative process, increasing technocratic agility at the expense of democratic legitimacy. This Note suggests a revision to the statutes, inspired by the Congressional Review Act, that would encourage legislative deliberation through a fast-track approval process, while still preserving the prerogative of the governor to enact pandemic policy.
Weissert, Carol S et al, 'Governors in Control: Executive Orders, State-Local Preemption, and the COVID-19 Pandemic' (2021) 3(51) Publius: The Journal of Federalism 396-428 Abstract: The nation’s governors took strong and decisive action in responding to the 2020 COVID-19 pandemic, often directly affecting their local governments. These actions allow us to examine this question: Will governors’ actions in an unprecedented emergency situation centralize the authority of the state or rely on local governments to deal with localized problems? Additionally, what factors affect those decisions? We examine all governors’ executive orders affecting local governments in the first five months of the 2020 pandemic. We find that preemption did occur, especially in the early months of the pandemic. States that gave their localities more autonomy were associated with preemption throughout the pandemic; the governor’s party affiliation and her ideological match with local officials were associated with greater preemption in some phases of the pandemic but not others.
Wendel, Brad, ‘Learning How to Teach Again’ (2021) 46(Spring) Cornell Law Forum 20–23 Abstract: By mid-March 2020, Law School classes had gone fully remote. A heroic effort by our IT support staff resulted in a substantial number of not particularly tech-savvy faculty members figuring out the quirks of webcams, home internet access, and the ubiquitous Zoom platform. More important, however, faculty had to rethink law teaching from the ground up, and do so in a matter of weeks. The traditional law school Socratic classroom experience is difficult to replicate online. Experienced teachers read the room to see whether students are following the discussion or getting confused. Tone and body language help soften what could otherwise come off as an intense grilling process. Eye contact with other students keeps them involved while someone else is on the hot seat. All of this is lost in the Zoom environment, with its Brady Bunch grid of faces, raising of little blue hands, reminders that ‘you’re on mute,’ connectivity issues, and awkward pauses to avoid talking over each other. Techniques like polling and breakout rooms helped to some extent, but going online still represented a fundamentally new approach to teaching.
Wenger, Kaimipono David, '1200 Dollars And A Mule: COVID-19, The CARES Act, And Reparations For Slavery' (2020) Special Issue: Law Meets World(168) UCLA Law Review Discourse 204-216 Abstract: The COVID-19 pandemic casts into sharp relief a number of questions relating to reparations. In particular, the COVID-19 crisis highlights the medical vulnerability of the Black community, illustrating the very real physical harm caused by slavery and racism in the United States. At the same time, government responses to the crisis demonstrate the ability to distribute money to large swaths of Americans. This juxtaposition makes clearer than ever the moral necessity to provide reparations today.
Wetlitzky, Tobias, 'Water Under the Bridge? A Look at the Proposal for a New Chapter 16 of the Bankruptcy Code from a Comparative Law Perspective' (2021) 2(37) Emory Bankruptcy Developments Journal 255-284 Abstract: In light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the ineficiencies in bond workouts by proposing a streamlined debt reorganization procedure for borrowed money in a new chapter 16 of the Bankruptcy Code. This Article argues that now is time to take a new look at the 2014 proposal from a comparative law perspective. Considering the legal situation in England and Wales as well as Germany, the Article outlines a proposal for a modern workout mechanism for bond debt.
Wetter, Sarah and Eric A Friedman, 'US withdrawal from the World Heath Organisation: Unconstitutional and unhealthy' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: On May 29, 2020, during the same week that U.S. deaths from COVID-19 topped 100,000, President Trump announced that the United States would end relations with the World Health Organization (WHO). In the beginning of July, the administration formally notified the United Nations of the decision to withdraw. Withdrawing the United States from the WHO would threaten both national and global health interests. The loss of U.S. funding would derail WHO’s ability to detect and respond to emergencies like COVID-19, and could reverse hard-won progress in combatting infectious and noncommunicable diseases, and addressing the social determinants of health globally. The United States also would cede its position as a global health leader, curtailing its ability to engage in global health diplomacy. Yet President Trump’s apparent attempt to unilaterally withdraw the United States from the WHO raises major constitutional implications, and Congress must not let the move go unchallenged. As the United States entered the WHO through a joint congressional resolution, the same process should be required to exit the WHO. That joint resolution also imposes withdrawal requirements of one year’s notice and full payment of dues for that year. These two conditions indicate Congress’ intent to maintain a role in any decision to vacate the WHO. Congress must now step into that role and prevent the president from ending WHO membership and funding.
Whelan, Allison, ‘Executive Capture of Agency Decisionmaking’ (2022) 75(6) Vanderbilt Law Review, 1787–1877 Abstract: The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack--executive interference in agency scientific decisionmaking. It offers a new conceptual framework, ‘internal agency capture,’ and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency’s scientific decisions, which are distinct from its policymaking decisions. With its ‘internal agency capture’ framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration (‘FDA’), glaringly reflected in the Agency’s decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm’s-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation. The Article considers existing methods to oversee and provide a check on internal agency capture and describes the limitations of these approaches. It offers a novel solution, the creation of a new and independent Scientific Integrity Office, which would address many of these limitations and promote the important values of accountability, credibility, and public trust.
White, Michael D. and Henry F Fradella, 'Policing a Pandemic: Stay-at-Home Orders and What they Mean for the Police' (2020) 4(45) American Journal of Criminal Justice 702-717 Abstract: The COVID-19 pandemic has dramatically altered life globally during the first 4 months of 2020. Many countries, including the United States, responded to the pandemic by issuing stay-at-home orders/shelter-in-place orders (SaHOs/SiPOs) to their citizens. By April 2020, more than 90% of the U.S. population was subject to an order. SaHOs/SiPOs raise a number of complex issues for the police, ranging from concerns about infringement of constitutional rights to potential sanctions for violations of an order. This article delves into the issues surrounding SaHOs/SiPOs and highlights their complexity for the police. First, we examine the “why the police?” question, and point to key features of their role which make enforcement of SaHOs/SiPOs the proper business of the police. Second, we examine the relevant legal doctrines that can serve as the basis for police actions against violators of orders, most notably the special needs doctrine. Last, we offer police legitimacy as a lens for viewing the appropriateness of police responses to violators of SaHOs/SiPOs.
Wiemken, Timothy L., Ana Santos Rutschman and Robert Gatter, 'The Case for Face Shields: Improving the COVID-19 Public Health Policy Toolkit' (Saint Louis U. Legal Studies Research Paper No 2020-26, 02 January 2020) Abstract: As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications and opportunity costs of creating policy guidance with only a small subset of scientific data, much of which is limited. We conclude by arguing that existing federal guidance should be expanded to include face shields as a policy option.
Wiley, Lindsay F, ‘The 2023 US Supreme Court Term: Implications for Public Health’ (2023) 113(3) American Journal of Public Health 269–271
Wiley, Lindsay F, 'Federalism in pandemic prevention and response' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: Federal-state conflicts over business regulations, controls on personal movement, and financial support and coordination of supply chains have dominated headlines during the coronavirus pandemic. States hold the reins on most community mitigation measures (e.g., quarantine and isolation, physical distancing, and mask wearing), which may vary depending on local conditions. The federal government has authority to promulgate national guidelines and surveillance capabilities that states rely on when implementing, modifying, and easing community mitigation measures, but these guidelines have been inconsistent or absent. The federal government has provided limited financial support and coordination of supply chains to provide a foundation for state and local implementation of more targeted mitigation measures, which depend on widespread testing and disease surveillance. Federal-state conflicts have stymied efforts to ramp up and coordinate need-based distribution of resources for: 1) implementing widespread testing, tracing, and supported isolation and quarantine of individuals; 2) ensuring widespread availability of adequate personal protective equipment for health workers, other essential workers, and the general public; and 3) ensuring widespread access to therapeutics and vaccination based on equitable and public health-based criteria.
Wiley, Lindsay F, ‘The Jacobson Question: Individual Rights, Expertise, and Public Health Necessity’ in Abbe R Gluck et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 206–218 Abstract: From the earliest weeks of the pandemic, courts and commentators turned to Jacobson v. Massachusetts for guidance. The 1905 Supreme Court case upheld a statute authorizing local boards of health to make smallpox vaccination compulsory if, in the board’s opinion, it was necessary for the public health. Led by the Fifth Circuit, many courts interpreted Jacobson as dictating a highly deferential ‘suspension’ standard for judicial review of public health emergency orders – a throwback to the standard commonly applied to any constitutional violation in 1905. Judges relied on Jacobson to uphold infringements upon abortion rights, voting rights, and freedoms of worship, assembly, association, and movement. In a November 2020 decision, the Supreme Court majority apparently rejected the Jacobson suspension standard, at least for Fourteenth Amendment claims. This chapter parses the fractured opinions in Roman Catholic Diocese of Brooklyn v. Cuomo and subsequent lower court opinions for indications of Jacobson’s continued vitality as a lodestar for public health powers. The chapter rejects the Jacobson suspension doctrine in favor of a broader reading that provides guidance for judicial review on separation of powers and federalism questions as well as individual rights. Jacobson offers enduring and flexible guidance on the two tensions at the heart of public health law and policy, which have been brought into stark relief by the pandemic but will continue to be litigated long after the COVID-19 threat has subsided: first, the tension between individual rights and the common good; and second, the tension between bureaucratic expertise and democratic accountability.
Wiley, Lindsay F. and Samuel R Bagenstos, 'The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law' (2020) Arizona State Law Journal (forthcoming) Abstract: The personal responsibility ethos that has driven the US response to the coronavirus pandemic has been ineffective, atomizing, and unjust. Restrictions on public services and private activities have disproportionately burdened people living in low-income households, people with disabilities, people of color, and women. At the same time, the severe illnesses and deaths that have continued to occur in spite of public health responses have been disproportionately concentrated among people of color, disabled people, and low-wage workers. This paper argues that fundamentally individualistic employment and antidiscrimination laws have undermined—rather than supported—disempowered workers’ ability to protect themselves and others. The law has failed to protect people who live and work in congregate institutions (including nursing homes, prisons, jails, detention facilities, factories, and warehouses . . . and, perhaps soon, schools) and thus has failed to protect the broader communities with which these institutions are interconnected. Together, public health and employment laws have put the onus on individuals to adopt protective behaviors without providing them with the supports, accommodations, and protections they need to do so. We identify three key areas for reform to ensure more effective and just pandemic response—for this pandemic and the next one—built on a core commitment to social solidarity in public health law and employment and antidiscrimination law. First, public health law should prioritize supports that create the conditions required mitigate the spread of infection over punitive measures targeting individuals. Second, employment law should protect workers from infection, including through workplace safety, privacy, and antidiscrimination protections that enable them to adopt protective health behaviors. Third, for individuals for whom returning to work would be especially unsafe—whether because their employers maintain particularly dangerous conditions or because of their own, or their family members’, underlying health conditions—employment law should remove any obligation to return to work while the special dangers associated with the pandemic persist. In addition to making concrete proposals for reform, our argument contributes to the academic literature in both public health and employment law. First, we show that a broad vision of public health law that encompasses action on the social determinants of health in “non-health” sectors such as employment and antidiscrimination law is not only tenable, but essential. The US experience with the coronavirus pandemic puts the final nail in the coffin of the “old” public health, which its cramped focus on microbial and behavioral interventions. Second, we bring to the foreground an additional justification for employment and antidiscrimination law—to promote solidarity by ensuring that the burdens and benefits of measures that serve the public as a whole are shared equitably. Social solidarity may offer a useful way of understanding the application of these bodies of law in other health-related contexts as well, such as genetic discrimination and workplace injuries. Third, we show that the attribution of fault and responsibility is a persistent obsession of employment and antidiscrimination law. These points should be of broad interest to employment and public health law scholars alike.
Wiley, Lindsay F. et al, 'Health Reform Reconstruction' (2021) 2(55) U.C. Davis Law Review 657-742 Abstract: This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a halfcentury, a cramped "iron triangle" ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures -- individualism, fiscal fragmentation, privatization, and federalism -- that distort and diffuse any reach toward social justice. The profound racial disparities and public health failures of the U.S. pandemic response have agonizingly manifested the limitations of pre-2020 health reform and demand a reconstruction. Health reform reconstruction begins with a new conceptual framework that aims to realize health justice. Health justice requires commitments to anti-racism, equitable distribution of the burdens and benefits of public investments in health care and public health (for which health care access, quality, and cost are useful, but not exhaustive, metrics), and community empowerment. These commitments put health justice on a collision course with the fixtures of individualism, fiscal fragmentation, privatization, and federalism. Thus, incremental reforms must be measured by the extent to which they confront these fixtures. This Article describes how health reform reconstruction can chart the path for legal change and proposes "confrontational incrementalism" as a method for recognizing the necessity of reconstructive reform, along with its near impossibility.
Wiley, Lindsay F and Stephen I Vladeck, 'Coronavirus, Civil Liberties, and the Courts: The Case Against 'Suspending' Judicial Review' (2020) 9(133) Harvard Law Review Forum 179-198 Abstract: For obvious reasons, local and state orders designed to help “flatten the curve” of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?
Wiley, Lindsay F, Ruqaiijah Yearby and Andrew Hammond, ‘United States: Legal Response to Covid-19’ in Jeff King and Octávio Luiz Motta Ferraz (eds), The Oxford Compendium of National Legal Responses to Covid-19 (Oxford University Press, 2024) Abstract: As of 31 December 2022, there were more than one million reported deaths due to Covid-19 in the United States (US). People who identify as Black, Hispanic, Latino, American Indian, or Alaska Native were more likely to be infected and hospitalized and more likely to die of Covid-19 than their non-Hispanic white peers. Mortality rates were higher in counties with low average household income and high economic inequality. The fragmentary, highly privatized health care system was severely stressed by the pandemic and hospitals were overwhelmed in many areas at the peak of local outbreaks. Mortality rates varied considerably from hospital to hospital, reflecting deep inequities in health care and social resources along geographic, racial, and socioeconomic lines. At the national level, the US experienced five major waves of reported deaths in 2020–2021 and two smaller waves in 2022. In the first year of the pandemic, each wave at the national level roughly corresponded to a different geographic region being hit especially hard. At the state and local level, epidemic curves varied considerably. The spring 2020 wave of reported deaths, which peaked in April, was driven largely by outbreaks in the Northeast, including New York City, where exponential spread took hold before significant interventions were implemented. States across the US implemented their most stringent interventions during the first wave. Most states eased restrictions as national trends began to improve, but the national trend-line was driven almost exclusively by improving conditions in the highly populous New York City area, meaning that many states eased interventions just as outbreaks were beginning within their own jurisdictions. The summer 2020 wave of reported deaths, which peaked in August, was significantly less severe, driven primarily by outbreaks in Southern and Western states, including Florida, Texas, Arizona, and California. The winter 2021 wave of reported deaths was the largest of the pandemic. It was initially driven by outbreaks in Midwestern states, including Michigan, Minnesota, and Wisconsin, but became widely geographically dispersed by the time it peaked in January 2021. In the spring of 2021, reported cases rose again somewhat at the national level. But as vaccination rates increased rapidly, deaths declined and then plateaued, rather than rising at the national level. In a few states, spread of the more transmissible B.1.1.7. (Alpha) variant outpaced vaccination leading to a new wave of deaths in the spring of 2021. Another national wave of reported deaths began in July 2021, driven by the even more transmissible B.1.617.2 (Delta) variant. Deaths during this fourth wave, which peaked in September 2021, were concentrated in areas with low vaccination rates, primarily in the Southern and Midwestern regions. A fifth wave driven by Omicron variants was widely dispersed nationally. Peaking in January 2022, it was the second largest wave of reported deaths in the US. A sixth wave peaked in July 2022 and a seventh wave peaked in early January 2023.
Wiley, Luke, Kristen Jennings Black and David Ross, ‘Too Stressed to De-Stress? The Experience of Work Stress and Recovery among Attorneys during the COVID-19 Pandemic’ (2024) 31(3) Psychiatry, Psychology and Law 440–465 Abstract: It is well-established that legal professionals experience high stress and often high rates of associated health problems. Much less is known about attitudes and behaviours around stress prevention in this occupation. Our study examined views of stress and recovery among 131 U.S. attorneys. In open-ended data, attorneys commonly expressed that their job is very demanding, and it impacts their health. Many respondents felt it was important to manage their stress but had difficulty doing so. Quantitative analyses showed that attitudes about stress (stress-related comparisons, viewing stress as achievement, stress-related impression management, and stigma around stress concerns) demonstrated several significant relationships with perceived stress, recovery experiences, remorse for relaxation, and work–family conflict. Our findings suggest that practical interventions to support the health and well-being of legal professionals may need to target the workload norms, as well as attitudes and beliefs about the normalness of high stress and insufficient recovery.
Wilks, Stephen, 'Disturbing the Modern Plantation: How COVID-19 is Reinforcing the Food Supply Chain’s Function as a Social Sorting Tool' (2021) 3(30) Cornell Journal of Law and Public Policy 539-585 Abstract: This paper captures the plight of workers within the U.S. food supply chain. It describes the zero-sum thinking in our social discourse about the food and agricultural workers well call heroes. This thinking presumes the miseries of their marginalization as essential workers are somehow essential to society’s survival and that we use the language as a self- soothing device to put moral distance between ourselves and those our dependencies actively marginalize. The discussion begins by canvassing statistical data outlining the structure and composition of this workforce as well as the nature of their working conditions. It examines how the impeachment fight and China’s trade war with China factored in the slow U.S. response to the pandemic before chronicling covid19’s immediate impacts – all of which produce dramatic supply chain disruptions. The paper links these disruptions to law’s role in narrowly limiting the autonomy of workers inside the food supply chain while giving license to anti-lockdown protests. The paper culminates in an argument about heroism’s role in glossing over these disparate treatments of autonomy as a kind of balm that both essentializes and ignores oppression.
Will, Jennifer, 'The Case for the 'No-Collar' Exemption: Eliminating Employer-Imposed Office Hours for Overworked, Remote-Ready Workers' (2022) (15) University of St. Thomas Journal of Law and Public Policy (forthcoming) Abstract: The conventional 40-hour workweek has been a fixture of the American workplace for almost a century. Standard working hours of nine-to-five, Monday-to-Friday, are customary even for workers exempted from overtime under the federal Fair Labor Standards Act of 1938 (FLSA). But the traditional 40-hour workweek is no longer a fit for the modern family or the modern worker. It is time for its demise. In the decades since passage of the FLSA, the influx of women in the workforce and the growth of exempt knowledge work have rendered the traditional 40-hour workweek both needlessly restrictive, in the case of work-life conflict, and effectively meaningless, in the case of the information age worker who labors 24/7. The recent revolution in remote work, precipitated by the COVID-19 pandemic, auspiciously permits a new approach to working hours, especially for exempt, “remote-ready” workers—that is, white-collar workers engaged in cognitive labor, who have the proven capacity to work offsite. Where exempt, remote-ready workers are already widely expected to work outside of so-called office hours, they should not be beholden to keep regular office hours, too. We should release them from the false confines of nine-to-five, for more fluid integration of work and life. By amending the FLSA regulations to make scheduling freedom a condition of white-collar exemption, and restricting employers from setting hours of work for this cohort, we could productively disrupt the outdated workweek for all.
Williams, Brendan, 'COVID-19, Constitutional Law, and Catastrophe' (2021) 1(20) The University of New Hampshire Law Review 153-193 Abstract: This article examines common actions states took to mitigate the spread of COVID-19 and court actions associated with those unprecedented measures. It begins by examining the seminal 1905 U.S. Supreme Court case recognizing the right of government to exercise its police power in matters of public health, which was invoked in many cases involving state action relative to COVID-19. It then addresses state restrictions —sometimes pejoratively referred to as “lockdowns” — on activities and movement, including gatherings, that were employed as a means of reducing the risk of respiratory virus spread. It moves on to focus on the convoluted U.S. Supreme Court treatment of restrictions upon religious services. It details one of the cultural clashes engendered by the pandemic — particularly over mandates that citizens wear masks — as well as general challenges to local control where states refused to act. Finally, it concludes by commenting upon a public health failure of an unprecedented magnitude.
Williams, Bryan, 'Identification of Potential COVID-Related Insider Trading by US Representatives Based on Financial Disclosures' (SSRN Scholarly Paper No ID 3807508, 18 January 2021) Abstract: Just over a year after the initial COVID-19 shutdown, the United States finds itself as one of the worst-hit nations in the world in terms of COVID infections and deaths per capita. While the cost of delayed action in addressing the pandemic can be debated, one thing that cannot be is when the US Congress learned of the seriousness of the virus. While our previous paper focused on the US Senate, this one focuses on the lower chamber of Congress, the US House of Representatives. Like their senate counterparts, representatives learned of the potential impact of COVID-19 on the US in a closed door meeting in late January, nearly a month-and-a-half before the initial shutdown. As in the previous paper, we sought to find signals of insider trading US Representatives based on this non-public information.Much like the upper chamber, the public also has access to stock transactions of US Representatives thanks to the United States House of Representatives Financial Disclosures database. Using the original source data as well as Quiver Quantitative's cleaned version, Novatero Investments ran three analyses on US Representative stock transactions. These analyses looking for signs of insider trading centered around the late-January closed-door COVID-19 briefing: alterations in transactional volume, significant changes in strategy relative to the US market, and a market timing advantage relative to two baselines. Unlike the clear-cut findings from the Senate analyses, we found 15 representatives whose transaction activity and patterns range from "doubtful" to "strong likelihood" of insider trading, reflective of the myriad of results we've obtained from this data. While there are strong suggestions of insider trading within these results, the data provided can only go so far in terms of solid evidence, and we hope to see a deeper analysis and investigation by those who have access to a more-complete picture of these transactions.
Williams, Christina M, 'Policy and law changes to address healthcare inequities for minority populations during COVID-19' (2020) 3(1) Journal of Allergy and Infectious Diseases 49-52 Abstract: Introduction: While other countries have begun to see a flattening of the Severe Acute Respiratory Syndrome – Coronavirus-2 (SARS-CoV-2) curve, the United States continues to see a rise in cases, with approximately 7.4 million confirmed cases to date. Even more worrisome, various news articles have begun to shed light on the healthcare inequities that have become increasingly more transparent during this crisis. The current literature shows that during this coronavirus disease-2019 (COVID-19) pandemic, viral transmission has disproportionately affected Black, American Indian/ Alaska Native, Latinx, Asian-American, and the Pacific Islander communities. More specifically, in states such as Chicago and Louisiana, African Americans experience at least a 50% higher total death count as compared to their White counterparts. In states such as New York, the deaths per 100,000 for African Americans has been around double that of Whites since the beginning of the crisis. A recent study from the New England Journal of Medicine has shown that 76.9% of patients hospitalized with COVID-19 and 70.6% of those who died were Black, despite the fact that only 31% of the Ochsner Health Population in the state is African American. Healthcare in Alabama has highlighted similar glaring issues. An increasing number of White Americans are being infected with COVID-19, but African Americans continue to represent a higher percentage of total COVID-19-associated deaths. Interestingly, fewer African Americans have been infected with COVID-19 in Alabama, but a higher mortality rate exists even for African Americans who were found to have no other underlying medical conditions. Based on the COVID Racial Data Tracker, which measures data from the District of Columbia and 41 states, the Latinx community has been disproportionately testing positive as well. In 30 states, the rates have been around double that of non-minority populations, and over four times the rate in eight alternate states. The American Indian community, specifically the Navajo Nation, has accounted for 60% of cases in New Mexico, while only comprising 9% of the total population. The pandemic has brought healthcare inequities that have existed for decades to the forefront of policy conversations—there are steps that can be taken in both the short and long-term to address the needs of these vulnerable populations.
Williams, J. Corey et al, 'Reopening the United States: Black and Hispanic Workers Are Essential and Expendable Again' (2020) 10(110) American Journal of Public Health 1506-1508 Abstract: Introduction: By May 15, 2020, all 50 states had announced plans to reopen their economies. These plans emerged on the heels of an increasing awareness that COVID-19 had hit minority communities particularly hard, especially Black communities. Despite constituting only 13% of the US population, Blacks have made up 24% of the deaths from COVID-19 nationally, rendering them at least twice as likely to die from COVID-19 than are other groups. A recent survey from Johns Hopkins University and the American Community Survey indicated that the death rate for predominantly Black counties is sixfold higher than the rate in predominantly White counties. The disproportionate impact of COVID-19 on minority communities has been partly attributed to the racial composition of the workers in economic sectors deemed essential, including home health care, nursing homes, and community food and housing services. In these sectors, where employees are likely to come into contact with COVID-19 (i.e., high-contact jobs), Blacks and Hispanics are more likely to be employed than are Whites. Data from a recent McKinsey Report2 show examples from critical economic sectors where the laborers are predominantly people of color. For example, in jobs such as psychiatric aid, nursing assistant, and orderly, Blacks make up more than twice their relative proportion of the broader US population (i.e., 13%). Because it is difficult for these jobs to be performed remotely, racial minorities have shouldered more than their share of essential labor during the COVID-19 pandemic, and their communities have been disparately endangered as a result.
Wilson, Melanie D., 'The Pandemic Juror' (2020) 1(77) Washington and Lee Law Review Online 65-96 Abstract: While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” There is no justice without jurors. Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict – any verdict – or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.
Wilson, Robin, ‘The COVID-19 Worship Cases Lessons for Governors in Democratic Governance and Transparency Over “Edicts”’ (2022) 18(2) University of St. Thomas Law Journal 422–509 Abstract: As different highly transmissible variants sweep the country, the COVID-19 Worship Cases hold the key to what governors must do to issue public safety orders that will withstand constitutional scrutiny. Absent a colorable explanation for why churches need to be regulated differently, the governors will find themselves facing a hard reality: ‘Deference, though broad, has its limits,’ as Chief Justice Roberts reminded.
Wilson, Robin Fretwell, Moira Zellner and Ahoura Zandiatashbar, 'Visualizing Vulnerability and Capturing the Pandemic's Human Toll' (University of Illinois College of Law Legal Studies Research Paper No 21-19, 28 January 2020) Abstract: COVID-19 has created a crisis with little precedent. Illinoisans have lost family members. People have died in hospitals alone. But the human toll of the pandemic can be measured in more than lives lost. There have been other health effects, such as delayed surgery and lack of access to primary and behavioral healthcare. Many have lost jobs, which means lost health insurance, lost wages, and food insecurity. In Illinois, a half million people filed for unemployment in five weeks. For most people, the ability to shelter, clothe, feed, and care for ourselves and our families comes through productive work. Staying at home has created the potential for increased incidents of partner and child abuse. Sheltering in place has led to feelings of hopelessness and isolation. It has frayed emotions and relationships. The existential threat posed by COVID-19 is unlike anything most Americans have experienced—except, perhaps, those who lived through the Great Depression. The Institute of Government and Public Affairs (IGPA) launched a series of Pandemic Stress Indicators to measure and document the social and economic toll of the pandemic. For the first Pandemic Stress Indicator, IGPA collaborated with the University of Illinois Chicago’s Urban Data Visualization Lab to develop maps that visualize and identify compounding vulnerabilities, both to COVID-19 and to the socio-economic impact of the pandemic. Many Illinoisans face compounding vulnerabilities: to the virus itself and to the economic repercussions. Some came into the pandemic with hypertension, cardiovascular, and other health conditions that increase the risk for being a severe patient. Others struggled financially long before the pandemic. Persons of color and those living in poverty number among those hardest hit by the pandemic. Developing a wholistic understanding of the pandemic’s human toll and visualizing vulnerabilities of persons and communities is crucial to minimizing the pandemic’s total harm, while helping fragile persons and populations to emerge as unscathed as possible.
Winder, Shany, ‘Court Litigation over “Major Questions”: On Ambitious Regulatory Policymaking Related to the Health Pandemic and Climate Crisis’ (2023) 27(1) Jerusalem Review of Legal Studies 126–143 Abstract: This article begins with a discussion of Professor Margit Cohn’s thoughtful book, A Theory of the Executive Branch: Tension and Legality. In it, Cohn recognizes the need to provide a general and universal theory of the executive branch—one that is valid beyond domestic borders, irrespective of the complex structures of political regimes. Cohn’s book makes significant contributions to the nature and scope of executive powers and executive dominance. Specifically, it offers an insightful account of the ‘legal fuzziness’ that generally helps to empower the executive branch and ensure its dominance. One form of legal fuzziness—which is also the focus of this article—is produced by legislation through open-ended, broadly interpretable statutory provisions. This form of legislation-generated fuzziness allows administrations to lay claim to expansive executive policymaking authority—as exemplified by U.S. administrations’ attempts to address salient (major) policy issues. This article seeks to contribute to the debate on major regulatory action in the United States, in light of recent impediments in this area that have had profound consequences for regulatory policies aimed at tackling national—and even transnational—challenges.
Witt, John, ‘American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures’ (2022) 18(2) University of St. Thomas Law Journal 510–524 Abstract: With this article, I aim to trace three different features of the law of pandemics. First, I will describe an unexpected history of epidemics in the United States, one that I think will be surprising to many Americans and that looks different than one might have imagined. Second, I will turn to our unwieldy present, with its cacophony of different points of view and perspectives and account for some of the controversies that have arisen in the law of pandemics in the last year or so. Third, I will do what historians should never do: I will make a couple predictions about our contested future—or at least try to shine a light on some of the directions we might be headed.
Wolf, Michael Allan, 'COVID-19 Pandemic and Real Property Law: An Early Assessment of Relief Measures for Tenants and Residential Mortgagors' (SSRN Scholarly Paper No ID 3623281, 09 January 2020) Abstract: This Special Alert for Powell on Real Property looks at governmental measures, enacted on an emergency basis, regarding real property during the COVID-19 pandemic — especially moratoria on residential evictions and foreclosures. The Alert uses examples of COVID-19 emergency measures by state governments as well as examples of emergency measures by the federal government. It anticipates ongoing changes to such measures as the COVID-19 situation evolves, suggesting that we not wait until the governmental measures abate before considering their impact and implications. The current stream of property-related COVID-19 litigation promises to become a flood. Litigators are relying on provisions of federal and state constitutions to challenge the emergency measures on behalf of landlords, lenders, and business owners. The Alert identifies several key U.S. Supreme Court precedents that will almost certainly form part of the judicial response to those challenges. Those cases, discussed in the Alert, provide the foundation for judicial consideration of the constitutional legitimacy of eviction and foreclosure moratoria.
Wolf, Michael Allan, ‘Fever Check: A Status Report on Judicial Treatment of COVID-19-Related Real Property Issues’ (2023) 58 Real Property, Trust and Estate Journal 47–82 Abstract: It was inevitable that residential landlords would challenge the foreclosure moratoria featured in state and federal COVID-19 emergency orders, regulations, and legislation. At the same time, commercial landlords and tenants are wrestling in court over the question of whether the pandemic and restrictions that governments imposed in response can excuse the nonpayment of rent. While these issues will continue to appear and percolate through state and federal trial and appellate tribunals, this Article provides an interim report on the progress (or lack thereof) of constitutional (Takings and Contract Clauses) and common-law (force majeure, frustration of purpose, impossibility of performance) theories enlisted to vindicate the alleged violation of property and contract rights or to support or oppose efforts to recover full rental payments during a global crisis. Even the U.S. Supreme Court, via its ‘shadow docket,’ has had a word in this debate, invoking the newly emergent and problematic ‘major questions’ doctrine. The Article closes with a consideration of the roles stare decisis and respect for precedent are playing in the emerging COVID-related real property jurisprudence.
Wolf, Michael Allan, ‘Superfluous Judicial Activism: The Takings Gloss’ (2023) 91(2) George Washington Law Review 287–352 Abstract: In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the ‘too far’ test introduced by Justice Holmes in Pennsylvania Coal. The ‘Takings Gloss’ is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, the Takings Gloss (original Clause in bold) now reads: [N]or shall private or public property, including rights in property such as the right to exclude, be taken for public use, purpose, or benefit (even if the property taken by eminent domain is transferred to a new private owner), or subjected to regulation that goes too far, or be physically occupied even temporarily, or exacted as an unreasonable development condition, by the government or by private parties delegated by the government, without just compensation, unless the property owner is seeking only injunctive relief. This Article highlights the three newest takings cases (Cedar Point Nursery, PennEast, and Pakdel); introduces a broad range of alternative, non-takings avenues of relief for aggrieved property owners (in constitutional, statutory, and common law); and demonstrates the real dangers of the Takings Gloss in three critical contexts: (1) climate change mitigation and adaptation, (2) COVID-19 restrictions and regulations on landlords and business owners, and (3) land use regulations designed to increase the crucial supply of affordable housing and create more diverse, equitable, and inclusive communities. The Court can abandon the Takings Clause expansion project, secure in the knowledge that landowners and other property owners are adequately protected from government harms.
Wolf, Michael Allan, 'Zoning Reformed' (2021) 2(70) Kansas Law Review, 171-242 Abstract: It has been roughly a century since early advocates of zoning took notice of how crowded and congested housing conditions contributed to the spread of disease (including the then-recent H1N1 pandemic). The U.S. Supreme Court had just rejected on property rights grounds a city ordinance that expressly segregated neighborhoods by race. One hundred years later, the exposure of the weaknesses embedded in our system of public land use regulation during the crises of 2020 presents a unique and timely opportunity for serious consideration of major and minor adjustments to state statutes, local ordinances, and judicial decisions. This Article calls for a comprehensive reform of zoning, eschewing pie-inthe-sky or revolutionary changes. It presents for the first time to state legislators, local officials, judges, academic commentators, and law and planning professionals a comprehensive set of achievable steps to take now in anticipation of future pandemics, in response to current and anticipated public health emergencies caused by climate change, and in addressing (at long last) social justice issues directly tied to undeniable elements of systemic racism caused and exacerbated by the paucity of safe, affordable housing. History will determine whether American public officials and private-sector participants will have attended to the painful lessons from the current crises in order to fine-tune zoning and land use regulation, or whether the U.S. will go back to our old and harmful habits once again.
Wolf, Susan M. and James G Hodge, 'Designing COVID-19 Vaccine Mandates in Colleges and Universities: A Roadmap to the 10 Key Questions' (2022) Journal of Law & the Biosciences (forthcoming) Abstract: COVID-19 transmission among students, faculty, and staff at U.S. institutions of higher education (IHEs) is a pressing concern, especially with the dominance of the highly contagious Delta variant and emergence of the Omicron variant. To protect their populations and surrounding communities, IHE administrators are increasingly considering COVID-19 vaccine requirements. Roughly one-quarter of the nearly 4,000 college and university campuses across the U.S. have announced COVID-19 vaccine mandates for students or employees. Deciding to require vaccination is only the first of multiple decisions, as IHEs face complex issues of how to design and refine their mandates, including whether to require boosters. Mandates vary significantly in stringency, implementation, impact on members of the college or university community, and net benefit to the institution. This essay examines 10 key questions that IHEs face in designing or refining a COVID-19 vaccination mandate. Showing that these 10 questions were carefully considered may be crucial if the institution’s mandate is challenged. Ultimately, how an IHE designs its mandate may make the difference between meaningful risk mitigation that advances institutional goals and benefits students, faculty, and staff versus a public health failure that erodes trust, raises equity concerns, threatens to undermine preexisting vaccination requirements, and divides the campus.
Woods, Kyra Babcock, ‘Corpus Linguistics and Student Loan Debt’ 31(3) Boston University Public Interest Law Review 203–237 Abstract: An American college degree is both elite and very expensive. Thus, with the average annual tuition list price hovering in the tens of thousands of dollars, large swaths of students are forced to take out student loans to fund their educations. Unfortunately, unpredictable job opportunities resulting from the COVID-19 pandemic require each student loan debtor to ask: How do I pay my loans back? The bankruptcy code, found under 11 U.S.C. § 523(a)(8), offers student loan debtors an opportunity to discharge their loans—provided they can show that repayment will inflict ‘undue hardship.’ There is currently a shallow circuit split over undue hardship’s meaning. The majority view found in the Second Circuit’s Brunner decision rarely permits discharge under section 523(a)(8), essentially requiring debtors to prove complete destitution.1 Conversely, the minority view under the Eighth Circuit’s Long decision is more lenient, merely requiring the court to balance various factors on a case-by-case basis.2 Neither scholars nor members of the judiciary agree over how strict or lax Congress intended undue hardship to be.
Wright, James E. and Cullen C Merritt, 'Social Equity and COVID-19: The Case of African Americans' 5(80) Public Administration Review 820-826 Abstract: Emerging statistics demonstrate that COVID-19 disproportionately affects African Americans. The effects of COVID-19 for this population are inextricably linked to areas of systemic oppression and disenfranchisement, which are further exacerbated by COVID-19: (1) healthcare inequality; (2) segregation, overall health, and food insecurity; (3) underrepresentation in government and the medical profession; and (4) inequalities in participatory democracy and public engagement. Following a discussion of these issues, this article shares early and preliminary lessons and strategies on how public administration scholars and practitioners can lead in crafting equitable responses to this global pandemic to uplift the African American community.
Wrigley, Jaklyn, 'Impact of the Families First Coronavirus Response Act' (2020) 3(67) Mississippi Lawyer 31-33 Abstract: On March 18, 2020, the federal government passed the Families First Coronavirus Response Act (the "Act"), an economic stimulus plan designed to address the impact of the COVID-19. The Act went into effect on April 1, 2020. Among other things, the Act requires employers with fewer than 500 employees to provide paid leave benefits to employees who have been impacted by COVID-19. There are two paid leave provisions in the Act: a new federal paid sick leave obligation and an emergency expansion of the Family Medical Leave Act (FMLA). Both programs will remain in effect until December 31, 2020.
Wroldsen, Jack, 'Emergency Electronic Savings Accounts in a Post-COVID World' (2021) 2(52) Seton Hall Law Review 507-543 Abstract: The shutdowns stemming from COVID-19 revealed the need for emergency cash savings, especially for unbanked and low- to middleincome people. As COVID-19 emerged, the US turned to impromptu solutions like government stimulus payments and expanded unemployment benefits. But those solutions were only available because a large-scale emergency galvanized political support around immediate aid. The stop-gap measures suggest the need for a transformational and long-term strategy for people to be more prepared for emergencies, as most emergencies in life are not nationwide events, but personal shocks where government rescue packages are not available. This Article proposes the creation of tax-favored Emergency Electronic Savings Accounts ("EESAs") to address two concerns. First, EESAs should be designed to help low- to middle-income people save for future emergencies. The tax code incentivizes savings for other anticipated life expenses, such as retirement and medical expenses. But many middle- to low-income people do not have retirement accounts in the first place. And for those who do, raiding a retirement account is a perverse way to survive an economic emergency, for it sacrifices the future to endure the present. Additionally, medical savings accounts are too limited because emergencies are not confined to healthcare expenses. Furthermore, this Article proposes that EESAs should include refundable tax credits paid electronically as matching savings funds deposited directly into EESAs, like employers' matching investments deposited directly into employees' 401(k) accounts. Addressing an additional concern, EESAs should be designed to help unbanked people establish online bank accounts. By not having a bank account, unbanked people lose out on lower-cost and more-efficient financial products and, instead, often resort to payday lenders that charge exorbitant interest rates. Capitalizing on innovations in scalable financial technologies that make free online accounts with no minimum balance requirements (such as PayPal and Venmo) easier to access than ever before, EESAs should usher unbanked people into free or low-cost online banking relationships. An added benefit of establishing electronic EESAs is that they can serve as a bridge to, or integrate seamlessly into, the future development of a central bank digital currency ("CBDC").
Wurman, Ilan, 'Constitutional Laboratories: Some Reflections on COVID-19 Litigation in Arizona' (2022) NYU Journal of Law & Liberty (forthcoming) Abstract: In federal court case after federal court case, plaintiffs challenging COVID-19 restrictions lost. The reason is obvious. Under modern equal protection and substantive due process doctrine, states receive enormous deference when restricting rights that federal courts do not consider to be fundamental. State cases that raised issues of state law fared, on the whole, better. Reflecting on my own litigation in Arizona, this Essay makes the case that in several areas of law—nondelegation, judicial review of executive acts, state “equal privileges or immunities” clauses, and the obligations of contract—state constitutional law provides more fruitful grounds for future challenges for at least some kinds of assertions of emergency authority, and that the independent development of state constitutional law in these areas should be encouraged. Of course, not all government measures will be unconstitutional under state law, and many will be necessary and desirable. But some assertions of authority might be unconstitutional under state law even if constitutional under modern federal doctrine.
Wyman, Noelle and Sam Heavenrich, 'Vaccine Hesitancy and Legal Ethics' (2021) Georgetown Journal of Legal Ethics (forthcoming) Abstract: While the COVID-19 vaccine rollout has been underway since 2020, vaccine hesitancy remains a critical impediment to America’s successful emergence from the pandemic. This Article analyzes the role that legal ethics can play in countering hesitancy. Though the Rules of Professional Conduct do not obligate lawyers to be vaccinated, several prohibit lawyers from spreading disinformation about the importance, safety, and effectiveness of vaccines. As the recent fallout from the 2020 post-election litigation shows, however, professional discipline for spreading disinformation is possible but rare. Accordingly, we propose alternative avenues for aligning legal ethics with public health: requiring vaccine passports for court appearances, incorporating public-health concerns into the Comments accompanying the Rules, countering vaccine disinformation through continuing legal education, and encouraging third-party advocacy.
Yang, Y. Tony and Brian K Chen, 'Liability Waivers for COVID-19: Law, Policy, and Practice' (2021) Journal of Public Health Management and Practice (advance article, published online 30 June 2021) Abstract: As businesses reopen, the practice of asking customers to sign COVID-19 liability waivers is increasing throughout the United States. Although the courts have not yet decided the enforceability of COVID-19–related liability waivers, existing case law, as well as new executive and legislative actions, suggests that such waivers may offer some protection to businesses from liability. Nevertheless, we believe that the legal and ethical rationales underlying liability waivers are not applicable to a pandemic. We further argue that the challenging nature of and the substantial unknowns about the novel coronavirus make waivers contrary to public policy. Fears over floods of litigation appear thus far unfounded, and businesses should not be relieved from their obligation of taking reasonable safety precautions. Waivers are not a panacea to reopen businesses in an ongoing pandemic, and the ultimate protection against liability is to operate in a manner that minimizes the spread of the virus consistent with evidence-based guidelines.
Yarrell, Chris, ‘Education Equity After the Pandemic: The Case for a Private Right of Action Under Title VI’ (2023) 46(4) New York University Review of Law & Social Change 515–548 Abstract: The coronavirus (COVID-19) pandemic has wreaked havoc on the U.S. education system. Indeed, since March 2020, every state in the nation has imposed recommended or mandatory school closures in an effort to mitigate the spread of this devastating virus. More concerning still, as the pandemic continues to rage, school finance scholars have projected substantial cuts to public education in the coming months—cuts that are estimated to far outstrip those adopted in the wake of the Great Recession. In fact, ‘[i]f these projections are correct, the resulting hit to education spending would be two and a half times worse than the lowest point of the last recession.’ Moreover, as 55 million public schoolchildren nationwide transitioned to remote learning over the past two years, the prevailing disparities within and between the nation’s most vulnerable schools have not only been laid bare, but also exacerbated. Despite the treatment that the school recovery effort has received in judicial opinions and legal scholarship to date, neither has undertaken an exhaustive analysis of the school recovery process from an equity lens. This Article aims to fill that gap. To do so, it makes two broad claims. First, this Article offers a timely analysis of the federal response to the pandemic within and between our nation’s public schools. It then argues that the Congressional response to the pandemic has failed to advance educational equity in any meaningful sense. Second, this Article provides a critique of the American Rescue Plan Act, one of the most recent Congressional measures enacted to support elementary and secondary school recovery. It then proposes a novel alternative: to meaningfully advance equity in the pandemic’s wake, future education litigants should look to the doctrine of stare decisis and examine the viability of a legal challenge to Alexander v. Sandoval under its analysis. In so doing, the communities most impacted by the educational harms of the pandemic will no longer be left to rely on a political process that has failed to meaningfully advance education equity; to the contrary, overturning Sandoval will not only restore a private right of action under Title VI, but will also add an arrow of empowerment to parents’ collective quiver to challenge inequitable education policies after the pandemic.
Yearby, Ruqaiijah, 'Protecting Workers that Provide Essential Services' in Scott Burris, Scott et al (eds), Assessing Legal Responses to COVID-19' (Public Health Law Watch, 2020) Abstract: States and localities, which retain the right to protect the health and safety of their citizens, have designated more than 55 million Americans as “essential workers” during the COVID-19 pandemic. Most essential workers are employed in health care (30%) and in food and agricultural (21%) (McNicholas & Poydock, 2020). A majority (76%) of all essential health care workers are women, while half of all essential food and agricultural workers are racial and ethnic minorities. Consequently, many women and racial and ethnic minorities are unable to shelter at home or socially distance themselves because they are deemed “essential workers” (Yearby & Mohapatra, 2020). Even though these workers are deemed “essential workers,” they have not been provided with the employment and safety protections (e.g., paid sick leave, health insurance, and workers’ compensation) that are essential to keeping them and their families healthy and safe. To address the lack of economic protections, which is discussed in more detail in Chapter 28, essential workers should be provided with a guaranteed basic income, paid sick leave, health insurance coverage, and survivorship benefits regardless of their worker and/or immigration status (Yearby & Mohapatra, 2020). To keep workers from being killed or otherwise harmed at work, the government (federal and state) must issue mandatory health and safety laws and regulations that are aggressively enforced to prevent workplace COVID-19 infections and deaths. Finally, to ensure that essential workers and their families do not suffer financially if they contract COVID-19, the government (federal and state) and businesses should be financially responsible for the harm caused as a result of a worker’s COVID-19 infection or death.
Yearby, Ruqaiijah and Seema Mohapatra, 'Structural Discrimination In COVID-19 Workplace Protections' (Saint Louis University Legal Studies Research Paper No 2020-09, 29 January 2020) Abstract: Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage workers. This leaves them and their families more vulnerable to COVID-19 infection and death. In this context, structural discrimination refers to the ways in which laws are used to advantage those in power, while disadvantaging powerless workers. In the COVID-19 pandemic, the lack of legal protections for many workers is a reflection of structural discrimination.
Yearby, Ruqaiijah and Seema Mohapatra, 'Systemic Racism, the Government’s Pandemic Response, and Racial Inequities in COVID-19' (2021) 7(70) Emory Law Journal 1419-1473 Abstract: During the COVID-19 pandemic, the federal and state governments have ignored racial and ethnic minorities’ unequal access to employment and health care that results in racial inequities in COVID-19 infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from COVID-19. Although these actions seem race “neutral,” they exemplify systemic racism. Racial and ethnic minorities are deemed inferior to white people, and thus they do not receive the same access to resources, such as employment and health care. This essay illustrates how systemic racism has resulted in racial inequities in COVID-19 infections and deaths through case studies in employment and health care. Using the health justice framework, it concludes with suggestions to eradicate systemic racism, redress harm, and engage community in implementing an equitable pandemic response.
Yeoh, Peter, 'COVID-19 legal-economic implications of a pandemic' (2020) 3(41) Business Law Review 74-84 Abstract: Assesses the impact of the COVID-19 pandemic on global and national economies, focusing on the US and the UK. Looks at legal implications, including force majeure clauses in commercial contracts, the doctrine of frustration, material adverse change clauses, and companies' reporting obligations.
Yetter, Katheryn and David X Swenson, 'Judicial Stress and Resiliency Survey COVID-19 Update Pandemic Focus' (2021) 1(57) Court Review 4-7 Abstract: In the months since this research was conducted, judges and the judicial system have been subjected to brand-new stressors and tests of their flexibility and adaptability. A global pandemic disrupted personal and professional lives, and judges, as people, were not exempt from this disruption. The impact of the pandemic has had ripple effects across much of our current way of life that affects not only judges but all the stakeholders in the courts (e.g., attorneys, parties, court staff, and service providers). Judges have been forced to reconsider the ways in which the system operates and balance the health and safety of themselves, their staff, and the public against access to justice. In addition, the pandemic has created unique stressors that are beyond the normal stressors of judicial work and require resiliency practices that may need daily use beyond our usual habits.
Yoo, Christopher S. and Apratim Vidyarthi, 'Privacy in the Age of Contact Tracing: An Analysis of Contact Tracing Apps in Different Statutory and Disease Frameworks' (2021) (5) University of Pennsylvania Journal of Law and Innovation (forthcoming) Abstract: The COVID-19 pandemic is a once-in-a-generation pandemic that has claimed the lives of more than two million people, and infected more than one hundred million. The novel, interconnected nature of the contemporary global economy has accelerated the transmission of an already infectious disease. Yet the ubiquity of smartphones, the Internet, and data collection has also enhanced the effectiveness of an important tool for technologists and public health agencies to track and slow the spread of the pandemic: digital contact tracing.The idea of contact tracing is not novel. Plague crosses, which were placed on buildings occupied by the victims of plague, served as a rudimentary mechanism for minimizing the risk of contagion in the seventeenth and eighteenth centuries. During the AIDS crisis in the 1980s, public health officials debated the balance between contact tracing and discrimination against the LGBTQ community. The trend continues in our latest health crisis, with digital contact tracing apps using the mobility and accessibility of Internet-connected smartphones to track and slow the spread of COVID-19. But this latest iteration of contact tracing also raises concerns about data privacy inherent with all Internet-connected apps and devices. To fulfill their purpose of tracing the spread of a disease, contact tracing apps necessarily need to collect some type of location data and test result data and upload them to the Internet. Both location data and test result data can be considered intimate and private, revealing the granular details of where data subjects travel, with whom they associate, and what potential locations might have caused them to test positive. If an app is to collect such data, what design decisions help protect against the misuse of this data and mitigate concerns of surveillance? Do existing privacy regimes provide adequate guidance to guide app developers as they balance the importance of protecting privacy against the need to perform critical public health functions through technology? Do such statutes provide adequate flexibility in addressing the changing needs of particular public health crises? And how do we balance the public health needs of preventing the spread of a deadly disease against individuals’ privacy rights and expectations?In this paper, we attempt to answer these pressing questions by using three leading privacy regimes—the Health Insurance Portability and Accountability Act (HIPAA), the California Consumer Privacy Act (CCPA), and the European Union’s General Data Protection Regulation (GDPR)—as a benchmark for understanding what types of design choices they encourage for the developers of contact tracing apps. We measure the performance of five COVID-19 contact tracing apps from across the globe against the standards across eight design categories set forth in these three regulatory schemes. We then look at what these regimes cover and what they miss.In Part I, we describe the statutory landscape and the apps we assess: Germany’s Corona-Warn-App, Israel’s HaMagen, North Dakota’s Care-19 Diary and Alert apps, and India’s Aarogya Setu app. In Part II, we look at eight factors in the statutes that implicate design decisions of each of these apps: notice and consent, consent requirements for medical data disclosed to third parties, location identifying technologies, data profiles and data collection, minimizing data categories collected, data sale and sharing with non-research third parties, third party and researcher access to data, and affirmative user rights. We assess how each of the apps measures up against the HIPAA, CCPA, and GDPR benchmarks in each of these eight categories. In Part III, we look at how disease variables affect some of these common factors assessed and analyze whether the statutes provide adequate flexibility to balance different public health concerns of three other diseases—SARS, Ebola, and HIV—against privacy. In Part IV, we assess privacy issues in the context of contact tracing that go beyond issues of public health. Ultimately, we conclude that the three privacy regimes encourage app developers to make design choices that favor privacy that also allow these apps to succeed at contact tracing. The statutes also provide some flexibility for issues of public health, which likely weigh in favor of public health concerns, at the expense of individual privacy under appropriate circumstances. Nonetheless, there are some aspects of privacy, like dignitary concerns, that are not captured by these statutes and that require a more complex framework to address.
Young Ran (Christine) Kim, 'Taxing Teleworkers' (2021) 2(55) U.C. Davis Law Review 1149-1226 Abstract: Since COVID-19 has forced many governments to restrict travel and impose quarantine requirements, telework has become a way of life. The shift towards teleworking is raising tax concerns for workers who work for employers located in another state than where they live. Most source states where these employers are located could not have taxed income of out-ofstate teleworkers under the pre-pandemic tax rules. However, several source states have unilaterally extended their sourcing rule on these teleworkers, resulting in unwarranted risk of double taxation -- once by the residence state and again by the source state. At this time, there is no uniform guideline by state or federal governments. Recently, New Hampshire, supported by fourteen other states, asked the U.S. Supreme Court to exercise its original jurisdiction challenging Massachusetts' telecommuting taxes of nonresident teleworkers. Tax commentators believed this case would be one of the most significant tax decisions in recent years, but the Supreme Court declined to hear it. New Jersey also opposes New York's long-standing telecommuting taxes under the "convenience of the employer" rule. This Article examines the constitutional challenges of maintaining pre-pandemic work arrangements for tax purposes, arguing that a source state's extraterritorial assertion to tax nonresident teleworkers' income likely violates the Dormant Commerce and Due Process Clauses. Also, this Article finds the Supreme Court's decision not to exercise original jurisdiction dissatisfying in light of the substantial increase in remote work. The problem of taxing teleworkers is not temporary because the pandemic drastically reshaped where and how people work. Recognizing the need for a uniform long-term solution, this Article argues Congress should enact federal law to preempt conflicting state law positions and enforce the primacy of residence-based taxation on teleworkers' income. This proposal would reduce the impact various source states' tax laws have on interstate commerce, preserve due process, and bolster policy rationales, such as taxpayers' choice in where they reside and pay taxes as their social obligation to the community.
Young, Rachel, 'Forced play: Was the MLB Commissioner's decision to force a 202 MLB season amid coronavirus unenforceable, or just a bad idea?' (2021) 2(28) Jeffrey S. Moorad Sports Law Journal 1-55 Abstract: This Comment discusses the various contract doctrines under which the MLBPA’s performance could have been excused, ultimately assessing why these legal arguments reflect that the decision to play a 2020 MLB season was a bad idea (as implemented) regardless of whether the agreement was enforceable. Part II discusses the history of MLB negotiations (including negotiations for the 2020 Agreement), assessing why the 2020 season interruption is unique. Part III defines the legal doctrines the MLBPA could have relied on to defend a refusal to perform under the 2020 Agreement. Part IV of this Comment analyzes the potential arguments the MLBPA would make under each of the defined doctrines and assesses why the arguments the MLBPA could make under each doctrine are also arguments likely to cause a stoppage during 2021 collective bargaining agreement negotiations. Part V of this Comment analyzes the lessons the MLB and MLBPA can learn from their surprisingly successful 2020 season. Finally, Part VI predicts how the forced season and the ugly negotiations surrounding it could negatively impact the MLB moving forward.
Zahari, Luke, 'Retroactive COVID-19 'Immunity': Useless for Patients, Devastating for Plaintiffs' (SSRN Scholarly Paper No ID 3791463, 01 January 2021) Abstract: This Note argues that the retroactivity provision of Iowa’s COVID-19 Response and Back-to-Business Limited Liability Act violates the due-process protections belonging to Iowans under both the U.S. and Iowa Constitutions. Passed in response to the challenges faced by Iowa businesses in reopening following the advent of the novel coronavirus, the Act expressly extinguishes civil causes of action already accrued under the common law. Generally, the rule against retroactivity prohibits legislatures from extinguishing rights in such a retroactive fashion. Moreover, despite Iowa jurisprudence contemplating that emergency conditions might validate retroactive laws that would otherwise be unconstitutional, the effects of COVID-19 in Iowa do not rise to a level that would warrant such a dramatic relaxation of the judicial check on legislative power. The Iowa Supreme Court should hold the retroactivity provision of the Act unconstitutional and eliminate the emergency exception to the ordinary rule against retroactivity both to bolster the constitutional protections for the rights of individual Iowans and to maintain the separation of powers that is integral to limited government.
Zaring, David T, ‘The Government’s Economic Response to the COVID Crisis’ (2021) 40(2) Review of Banking and Financial Law 315–421 Abstract: The COVID-19 crisis has been an economic, as well as a public health, disaster, and the government has responded to it by trying to loan money to as many institutions as it could, offering corporations, cities, states, banks, foreign central banks, and nonprofits access to cheap credit. The lending has been routed through the Federal Reserve Board, making the nation’s central bank not just a resource for banks, but a backstop for the entire economy. The deputization of the Fed, with the assistance of the Treasury Department, as an unfettered economic firefighter is something that can perhaps be legally justified, given that both agencies’ governing statutes were promulgated almost a century ago, when Congress freely established administrative authorities, and provided them with broad scope to regulate as they wished. Nonetheless, the unprecedented steps taken by the Fed need to be endorsed by the legislature much more clearly, Treasury’s role in economic response should be clarified, and both should be paired with some safeguards, because they have distributional consequences. The interventions have benefited firms over individuals, and big and small businesses over medium sized ones. The Fed and Treasury’s regulation-by-credit taken in this financial emergency more broadly calls into question the role of legal constraint when emergencies arise. Law matters, so legal reform is appropriate. Treasury’s and especially the Fed’s economic firefighter roles should, in the future, be triggered by a declaration of economic emergency by the President, a politically accountable figure.
Zatz, Clifford J, ‘Employers Owe No Duty to Prevent “Take-Home” COVID-19, California Supreme Court Holds.’ (2023) 49(3) Employee Relations Law Journal 24–27 Abstract: California employers will not face tort liability to employees’ household members who contract COVID-19, the California Supreme Court has ruled. Answering questions certified by the U.S. Court of Appeals for the Ninth Circuit, and declining to follow its ruling in ‘take-home’ asbestos cases, the court in Kuciemba v. Victory Woodworks, Inc., held that ‘recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.’ California thus becomes the first state to reject, at the highest court level, the potentially limitless liability for negligence based on employee transmission of the coronavirus.
Zelinsky, Edward A., 'Coronavirus, Telecommuting, and the 'Employer Convenience' Rule' (2020) 13(95) State Tax Notes 1101 Abstract: New York's "convenience of the employer" doctrine overtaxes nonresident telecommuters on the days they work at their out-of-state homes. This doctrine was poor tax policy in normal times. It is particularly bad tax policy during the Covid-19 crisis, penalizing individuals who work at home.
Zelinsky, Edward A., 'New York's Ill-Advised Taxation of Nonresidents During COVID-19' (Cardozo Legal Studies Research Paper No 614, 07 January 2020) Abstract: For 2020, New York should tax neither the incomes of nonresident telecommuters nor the incomes of the volunteers who came from across the country to help New York confront the COVID-19 emergency.If New York will not act in this sensible fashion, Congress should. In the next round of coronavirus legislation, Congress can prohibit the states from taxing, for the duration of the coronavirus emergency, the incomes of nonresident telecommuters and out-of-state medical volunteers.
Zentner, Aeron, 'Assessing the Impact of the CARES Act on Online Students: A Case Study of Two-Year Public College' (SSRN Scholarly Paper No ID 3591519, 02 January 2020) Abstract: The COVID-19 pandemic has made a major impact on higher education and affected students’ livelihoods and attainment of education. To help students during these challenging times the Federal CARES Act was established to provide financial relief and support students in their time of need, However, not all students are eligible to participate and these limitations have impacted funding to specific institutions. The following research study examined the implications of the CARES Act for higher education by assessing the current factors associated with the national funding model. Additionally, three additional models were created to estimate the FTE impact and approximated the financial implications of the Act in relation to the unserved or excluded populations. A survey was conducted to understand current student essential needs and the implications of COVID-19 on their livelihoods. The survey was reverse engineered to understand enrollment patterns to determine the proportionality of needs based on the enrollment patterns. Note: this article is not about law schools, but tertiary education more generally.
Zettler, Patricia J., Micah L Berman and Efthimios Parasidis, 'Drug and Vaccine Development and Access' in Scott Burris et al (eds), Assessing legal responses to COVID-19' (Public Health Law Watch, 2020) Abstract: This Chapter explains how drugs and vaccines for COVID-19 can reach the market in the United States. As is always true, drug and vaccine manufacturers may seek U.S. Food and Drug Administration (FDA) approval of their products via traditional approval mechanisms and drug manufacturers may offer pre-approval access under the expanded access or right to try pathways. In a public health emergency like COVID-19, an additional mechanism is also available: the Emergency Use Authorization (EUA) pathway. This Chapter (1) assesses how FDA has used its EUA authorities for COVID-19 drugs thus far, (2) considers how FDA has balanced the need for robust evidence of safety and effectiveness for COVID-19 pharmaceuticals against the urgent need to speed patients’ access amid the clinical and political realities of the pandemic, and (3) highlights considerations specific to vaccines should FDA be faced with a request to issue an EUA for a COVID-19 vaccine. The Chapter concludes with recommendations for policymakers and regulators at the federal and state levels. The recommendations aim to improve public understanding of the regulatory process for COVID-19 drugs and vaccines, protect scientific decision making from undue political pressure, and ensure that manufacturers develop robust evidence of safety and effectiveness—and ultimately safe and effective COVID-19 countermeasures.
Zetzsche, Dirk A. et al, 'The COVID-19-Crisis and Company Law: Towards Virtual Shareholder Meetings' (University of Luxembourg Faculty of Law, Economics & Finance No WPS 2020-007, 15 January 2020) Abstract: Legislation responding to COVID-19 allows us to examine how, and to what effect, the corporate governance framework can be amended in times of crisis. Almost all leading industrialized nations have already enacted crisis legislation in the field of company law. Here, given the difficulties or indeed the impossibility of conducting in-person meetings currently, the overall trajectory of company law reforms has been to allow for digitalization.We note five fields in which legislators have been particularly active. First, the extension of filing periods for annual and quarterly reports to reflect the practical difficulties regarding the collection of numbers and the auditing of financial statements. Second, company law requires shareholders to take decisions in meetings – and these meetings were for the most part in-person gatherings. However, since the gathering of individuals in one location is now at odds with the measures being implemented to contain the virus, legislators have generally allowed for virtualonly meetings, online-only proxy voting and voting-by-mail, and granted relief to various formalities aimed at protecting shareholders (including fixed meeting and notice periods). Third, provisions requiring physical attendance of board members, including provisions on signing corporate documents, have been temporarily lifted for board matters. Fourth, parliaments have enacted changes to allow for more flexible and speedy capital measures, including the disbursement of dividends and the recapitalization of firms, having accepted that the crisis impairs a company’s equity. Fifth and finally, some countries have implemented temporary changes to insolvency law to delay companies’ petitioning for insolvency as a result of the liquidity shock prompted by the imposition of overnight lockdowns.This working paper seeks to (1) document the respective crisis legislation; (2) assist countries looking for solutions to respond rapidly and efficiently to the crisis; (3) exchange experiences of crisis measures; and (4) spur academic discussion on the extent to which the crisis legislation can function as a blueprint for general corporate governance reform. Countries considered in full or in part include Australia, Austria, Belgium, Canada, China, France, Germany, Hong Kong, India, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, South Korea, Spain, Switzerland, Thailand, the United Kingdom, and the United States. Readers are encouraged to highlight any inaccuracies on the part of the authors in their presentation of the respective laws, and to bring further crisis-related legislation not considered in this working draft to the attention of the authors. Moreover, readers are invited to indicate where there is room for improvement therein, and/or to signal the need for policy reform.
Zhang, Alex, 'Pandemics, Paid Sick Leaves, and Tax Institutions' (SSRN Scholarly Paper No ID 3729500, 20 January 2020) Abstract: The COVID-19 pandemic is currently ravaging the world, and the United States has been largely unsuccessful at containing the coronavirus. One long-standing policy failure stands out as having exacerbated the pandemic in our country: the lack of a national mandate of paid sick leaves, without which workers face financial and workplace-cultural pressures to attend work while sick, thus spreading the virus to their fellow employees and the public at large.This Article provides the blueprint for a national, subsidized mandate of paid sick leaves and two additional insights about our tax institutions as mechanisms of effectuating broader societal goals. It first justifies a paid-sick-leave mandate on the grounds of market failures (both cognitive biases and externalities) and workplace equality. It also argues for the need of subsidies in order to protect lower-income workers from unemployment risks imposed by a national mandate. Second, the Article critically assesses the current federal legislative approach utilized in the Families First Coronavirus Response Act (FFCRA). The Article then proposes designing a national employer mandate of paid sick leaves funded by general-revenue business tax credits and providing partial wage replacement.This Article’s discussion of paid sick leaves yields two insights about our tax institutions. First, it questions the role of payroll taxes, which are highly regressive, impose burdens almost exclusively on labor, and are normatively unjustified when the spending funded by payroll taxes benefits the broader non-wage-earning public. Second, the Article reveals the malleability of tax institutions with respect to funding, administrability, and costs. These comparative advantages of tax institutions make them perennially popular in times of crisis.
Zubair, Ayyan, 'Confrontation During COVID' (SSRN Scholarly Paper No ID 3702551, 30 January 2020) Abstract: The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. However, our legal system has utilized videoconferencing technology long before Zoom became a verb in the American lexicon. And in Maryland v. Craig, the United States Supreme Court established a two-step “necessity and reliability” test for video testimony offered by child survivors of sexual abuse against their alleged abuser. As we move towards an increasingly virtual world during the COVID-19 pandemic, courts, prosecutors, defense attorneys, and legal scholars are conflicted as to whether government witnesses in criminal trials should be permitted to testify by videoconference in our new socially-distant reality and beyond.In this Note, I enter this debate by offering two proposals. In the short term, I contend that judges should not extend Craig to permit accusatory witnesses to testify over videoconference during the pandemic. A Rule 15 deposition, I contend, is a more constitutionally-sound alternative to in-person testimony than is video testimony because it provides the defendant the opportunity to confront the witness in-person (albeit socially-distant). In the long term, I argue that the Court should remove its reliability and public policy analyses in Craig, which have been rendered impermissible by its later decision in Crawford v. Washington. Instead, the Court should adopt what I call “hierarchy of methods” approach, permitting video testimony only when securing in-court testimony or Rule 15 deposition of an essential witness is infeasible.
Zuckerman, Michael, 'When the Conditions are the Confinement: Eighth Amendment Habeas Claims During COVID-19' (2021) 1(90) University of Cincinnati Law Review 1-67 Abstract: The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these cases—each a potential stumbling block for courts and litigants—and discusses their implications for future litigation and doctrine. Specifically, the Article addresses the following: (A) the relationship between habeas corpus and classic “conditions of confinement” cases; (B) the nature of Eighth Amendment “deliberate indifference” in this context; (C) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (D) issues involving federalism and comity and how such concerns may motivate stricter enforcement of exhaustion requirements; (E) whether temporary release in the Eighth Amendment habeas context is better conceived of as preliminary or final relief; and (F) the fraught interplay between rights and remedies. The Article concludes by suggesting potential solutions for courts and legislatures.
Zurschmiede, Jake, 'Habeas Corpus and COVID-19: In the Midst of a Viral Pandemic, Can the "Great Writ" Provide Home Supervision to At-Risk Plaintiff Inmates?' (2022) 1(19) Indiana Health Law Review 249-274 Abstract: The guiding question of this Note centers on the willingness of courts to deem viral pandemic-related dangers as so materially deleterious to inmate health as to comprise the very legality of an inmate’s confinement.
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