At our Fourth Mini-Conference on Coronavirus and Law, Professor Alan Z. Rozenshtein gave an excellent talk titled “Disease Surveillance and the Fourth Amendment.” Here are the slides from his talk. His key points are that we are going to need disease surveillance, that currently the Fourth Amendment allows almost anything along these lines, and that we therefore will need additional safeguards. Professor Rozenshtein argues these safeguard should be found within the Fourth Amendment itself.
Professor Rozenshtein has been blogging about coronavirus and Fourth Amendment issues at Lawfare blog. His “Disease Surveillance and the Fourth Amendment” post provides a nuanced explanation of the doctrine in this area, and his “Government Surveillance in an Age of Pandemics” post provides useful historical and global context.
In an opinion piece in The Hill, Penn State Dickinson law professor Martin Skladany argues that governors ought to be threatening to use their general police powers to compel manufacturers in their states to begin manufacturing personal protective equipment (PPE).
“In the absence of a quick and robust federal response,” Skladany writes, “governors need to seize an additional weapon in this fight. Even if they do not compel in-state manufacturers, just the threat of doing so could help them negotiate with companies or push the Trump administration to do more.”
The news is filled with examples of companies jumping in to help with the the fight against the pandemic by repurposing their assets and human resources. Among the many examples are a Chicago pizzeria using its oven to make face masks and a Brooklyn whiskey distillery making hand sanitzer. But to the extent businesses with relevant assets and expertise aren’t helping, Skladany’s plan is worth serious consideration.
Skladany acknowledges, of course, that states vary with regard to governors’ powers. And Skladany acknolwedges that any governors taking action along these lines would probably provoke lawsuits challenging the constitutionality of such moves. But he’s nuanced about this. The mere rattling of the saber may be sufficient to help push businesses in a state into doing more to help.
Indeed, this gets into an important thing that non-lawyers often don’t grasp about the law: Uncertainty in what the law allows doesn’t mean the law in this regard is bad or useless. To the contrary, uncertainty is often a powerful encouragement for opposing parties to meet in the middle. That often—although not always—creates good-for-society solutions where everyone gets at least part of what they want.
by Eric E. Johnson
I co-authored a short paper about the law and the coronavirus pandemic with Dr. Theodore C. Bailey, who is chief of infectious disease at Greater Baltimore Medical Center. It is forthcoming in the Stanford Law Review Online. The pre-print is available now on SSRN.
Here is the abstract:
“The course of a pandemic is dictated not just by biology, but also by law. And crucially, unlike biology, law can be readily adapted in response to a pandemic. Unfortunately, the current law does not take account of the compressed timeframe and rapidly changing social needs that distinguish pandemic times from normal times. We thus suggest three urgent, early lessons for law in the pandemic context: First, free information flows save lives, an observation which has ramifications for freedom of speech and press, copyright law, and patent law. Identifying particular hazards that patent law poses to the free flow of scientific research findings, we suggest a government-funded reward system as an adjunct to the patent system to incentivize pandemic-relevant research and its rapid publication. Second, politically accountable decisionmakers may not act optimally to save lives. We suggest a refashioned, politically insulated U.S. Public Health Service imbued with administrative independence in the vein of the Federal Reserve Board. Third, pre-crisis regulatory structures are not proving nimble enough in the midst of the pandemic. We suggest legislation that directs the FDA to be creative in designing case-by-case approval procedures for vaccines and other treatments to allow them to get to market much faster. To accelerate approvals while retaining scientific rigor, we suggest allowing well-informed, consenting human testing subjects to take on more uncertain risk than the FDA currently tolerates. In sum, we argue for a more general, systematic, and critical perspective on law in the special context of a pandemic.”
by Eric E. Johnson