Steven D. Schwinn, a professor of law at the University of Illinois Chicago John Marshall Law School argues that the Supreme Court’s order last week effectively striking down the COVID-19 eviction moratorium issued by the Centers for Disease Control reflects the Court’s highly partisan approach to executive authority. Professor Schwinn points out that only partisanship can explain why Court upheld the Trump administration’s travel ban in Trump v. Hawaii and struck down the Biden administration’s eviction moratorium.
Elena J. Voss, associate general counsel at The Metropolitan Museum of Art, and NYU Law professor Samuel Estreicher, dissect an opinion by the Office of Legal Counsel that squarely answers in the negative the question whether the Emergency Use Authorization status of COVID-19 vaccines precludes public or private entities from mandating those vaccines. Ms. Voss and Professor Estreicher point out that while the OLC opinion is neither binding nor authoritative, it is well-reasoned and indicative of the Biden administration’s view on this topic and can provide some assurance to employers who wish to implement a vaccine mandate.
Illinois Law dean Vikram David Amar describes some of the advantages of the in-person setting for law schools (as compared to remote instruction) as an explanation for why he is looking forward to the start of the fall semester being in person. Dean Amar expresses home that, thanks to the vaccines that the overwhelming majority of faculty and students have chosen to receive, law schools around the country will have a very positive, if not quite normal, intellectual and cultural experience.
University of Pennsylvania professor Marci A. Hamilton calls on local, state, and federal officials to require COVID-19 vaccination in order to effectively address the acute health crisis the virus’s variants imminently pose. Professor Hamilton argues that we should treat those who refuse to get vaccinated, without sound medical reasons for doing so, the same way we treat drunk drivers: civilly and criminally liable.
NYU law professor Samuel Estreicher and Elena J. Voss, associate general counsel for the Metropolitan Museum of Art, provide a roadmap of how employers can ready their workplaces for post-pandemic life. Professor Estreicher and Ms. Voss describe the importance of employers determining their workplace vision, communicating that vision to employees, defining what a “flexible” workplace means, setting clear policies with definitive maximums and minimums.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.
Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.
In light of recent news that Pfizer and Moderna have apparently created safe and effective vaccines against COVID-19, Cornell law professor Michael C. Dorf considers whether the government can mandate vaccination for people who lack a valid medical reason not to get vaccinated. Dorf briefly addresses issues of federalism and religious objections to vaccination and then addresses the question whether mandatory vaccination might be inconsistent with a right to abortion.
UF Levin College of Law professor and economist Neil H. Buchanan explains why President Trump’s inept handling of the COVID-19 pandemic should disqualify him from even running for reelection, let alone returning to office. Buchanan argues that it is shocking that we cannot predict the outcome of the 2020 election in light of Trump’s failure to address the biggest health crisis in a century and his consistent efforts to undermine the public response every step of the way.
Cornell law professor Joseph Margulies debunks the notion that the poor are poor because they are lazy, while the rich are rich because they are industrious. Margulies distinguishes the stock market, in which 84 percent of all stocks owned by Americans are held by the wealthiest ten percent of American households, from the general economy and point out that for the poorest half of Americans—roughly 160 million people—the stock market is meaningless.
SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.
Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—argues that the biggest threats to herd immunity against COVID-19 are federal and state religious liberty statutes and religious/philosophical exemptions. Hamilton describes how the federal Religious Freedom Restoration Act (RFRA) and its state-law equivalents came to be in the United States, and she calls upon legislators at all levels to amend RFRA so that once we have developed an effective and safe vaccine, we might as a country develop herd immunity and prevent more unnecessary deaths.
UF Levin College of Law professor and economist Neil H. Buchanan points out some of the ways in which congressional Republicans misunderstand economics to justify withholding unemployment payments from Americans during the COVID-19 pandemic. Buchanan argues that economic theory soundly demonstrates that given the opportunity, people will make choices that worsen the toll of the pandemic.
University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.
NYU law professor Samuel Estreicher and rising 2L Christopher Ioannou discuss how New York workers’ compensation law might apply to workers infected with COVID-19. Estreicher and Ioannou argue that despite some shortcomings of the workers’ compensation system, we should not take for granted its ability to allow workers to quickly receive medical attention and some amount of lost wages.
NYU law professor Samuel Estreicher and rising 2L Elisabeth H. Campbell argues that a liability shield for companies who follow federal administrative guidance in reopening workplaces during COVID-19 will not lead to significantly less litigation, nor will it help ensure workplaces are safe. Estreicher and Campbell explain why the liability shields being proposed would not preclude protracted litigation.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—discusses the crisis the COVID-19 pandemic is having on America’s jails and prisons. Sarat argues that early release is a good start, but it cannot be the only solution, because all people, in and out of prisons, deserve to be treated with dignity.
University of Pennsylvania professor Marci A. Hamilton argues that the President does not have the power to order states to open houses of worship during the COVID-19 pandemic. Hamilton discusses the limitations on federal power with respect to states and religious entities and praises the wise members of the clergy who are resisting opening before it is safe.
In this second of a series of columns about the COVID-19 protests, Cornell law professor Joseph Margulies argues, with some caveats, that workers have the moral authority to reopen their businesses in order to sustain themselves. Margulies notes that while he is not advising anyone to disobey the law (and while he personally supports the lockdown orders), business owners facing the impossible decision whether to follow the law or sustain themselves and their families are morally justified in defying the stay-at-home orders.
In this second of a two-part series of columns, UF Levin College of Law professor Neil H. Buchanan explains why Senate Majority Leader Mitch McConnell is incorrect in claiming that the reason Democratic-led states are in trouble is that they are providing excessively generous pensions to retirees who worked for state and local governments. Buchanan then examines a workaround, first described by Professor Darien Shanske of the University of California at Davis, that would allow the Federal Reserve to give assistance to states and cities without interference from Republicans in the Senate or the White House.