Prof. Alan Z. Rozenshtein on the Fourth Amendment and Covid

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.

“Thinking About the Legal Dimension of the Pandemic”

On Friday, April 10, 2020, I presented at the First Mini-Conference on Coronavirus and Law—held over Zoom.

My talk was “Thinking About the Legal Dimension of the Pandemic,” and it leaned heavily on a forthcoming law review article I co-authored with Ted Bailey. I intended the talk as an introduction to the mini-conferences. In it, tried to make three points.

My first point was that the pandemic is not just a function of biology, it is also a function of law. How transmissible and fatal COVID-19 is depends on various legal inputs (mandated public health measures, regulatory approvals of treatments, etc.). My second point was that many professionals involved in this fight (clinicians, research scientists, etc.) seem to take the law as a given, something that can’t be changed. My third point follows from the first two—since the pandemic is in part a function of law, and since those on the frontlines in the healthcare field are not used to thinking that the law can be used, redirected, or changed, then there is the opportunity to make progress against the coronavirus pandemic by thinking of the law not as a fixed constraint but as a lever we can adjust. To sum it up: Changing the law can fight the pandemic.