Cornell law professor Michael C. Dorf asks whether we can trust that Justice Neil Gorsuch—who was the sole Justice not to wear a mask during oral arguments last week—was unbiased in considering two challenges to the Biden administration’s vaccine mandates. Professor Dorf argues that Justice Gorsuch’s refusal to wear a mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it—both of which possibilities undercut public confidence in the basis for his votes in the vaccine cases.
UF Levin College of Law professor and economist Neil H. Buchanan considers where, if anywhere, Americans looking to emigrate from a dying democracy might land. After pointing out that guns are the largest threat to safety in the United States and that practically anywhere else would be safer, Professor Buchanan considers whether the UK is a viable choice, given that the ugliness that has emerged in the United States is being mirrored there to a concerning degree.
Illinois Law dean Vikram David Amar and professor Jason Mazzone explain why a recent ruling by the U.S. Court of Appeals for the Fifth Circuit egregiously misunderstands the Commerce Clause issues presented in several lawsuits challenging the federal Occupational Safety and Health Administration (OSHA)’s authority to mandate vaccine and testing requirements for large employers. Dean Amar and Professor Mazzone focus on three ways in which the Fifth Circuit gets it wrong and expresses hope that the Sixth Circuit, which is where the lawsuits have been consolidated, does better.
NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.
UF Levin College of Law professor Neil H. Buchanan considers whether the current COVID-19 pandemic changes the way we think about the ongoing crises of climate catastrophe and the escalating threats to the rule of law. Perhaps counterintuitively, Professor Buchanan concludes that neither this pandemic nor even the threat of future pandemics changes how we should think about our obligations to future generations because nothing about it requires our focus to the exclusion of those two existing threats.
Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.
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.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on a recent decision by a federal district judge in San Diego striking down California’s statewide ban on assault weapons. Professor Sarat observes that regardless of the outcome of the appeals in this case, the country will remain deeply divided about things like COVID-19 restrictions and gun ownership while our political leaders and the judges they appoint continue to repeat the underlying antipathies animating these divisions.
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.
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.