Disability and Health in the Age of Triage

July 1, 2020

In the thick of the COVID-19 pandemic, demand for vital resources has surpassed supply. Already, COVID-19 tests, protective gear, ICU beds, ventilators, experimental interventions, and healthcare personnel are scarce, and experts are anticipating limited access to any therapeutics or vaccines developed for COVID-19 in the near future.  As some experts have put it, “rationing is…

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Constitutional Criminal Procedure Post-COVID

May 19, 2020

The current epicenters of COVID-19 in the United States are our jails and prisons, which has come as no surprise to public health experts and criminal law scholars who have predicted this entirely  predictable tragedy for months now.  Until recently, Cook County Jail, in Chicago, had the largest number of cases in a single location….

Cyber Civil Rights in the Time of COVID-19

May 14, 2020

The fight for civil rights in the United States has historically focused on equal access to physical spaces: schools, workplaces, lunch counters, hotels, voting booths. This emphasis is understandable, because these were the places where people learned, worked, socialized, and voted. Civil rights activists made clear that people who are excluded from, or exploited in,…


States of Emergencies: Part II

April 20, 2020

Introduction In our earlier post, we described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have…


States of Emergencies: Part I

April 17, 2020

 Introduction The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by…


Professional Regulation and Federalism in the Coronavirus Crisis: Let’s Remove Access Barriers

April 15, 2020

COVID-19 in the United States is a national health and economic crisis, and it requires an all-hands-on-deck-approach.  Our system of federalism of which we are rightly proud is poorly suited to these comprehensive national efforts.  The vexing situation of states competing against one another to collect suitable PPE equipment puts this into sharp relief.  So,…

Inequality During a Pandemic, Part II: Rationing Life-Saving Gear and Care

April 13, 2020

The shortage of ventilators and personal protective equipment (PPE) in parts of the country has raised the most acute equality concerns regarding the treatment of people who are gravely ill. Some jurisdictions have more protective and life-saving equipment on hand than others do, but this pre-crisis distribution is a product of many factors beyond existing…

COVID-19 Reinforces the Argument for “Regular” Judicial Review—Not Suspension of Civil Liberties—In Times of Crisis

April 9, 2020

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended…


Inequality During a Pandemic, Part I: Shared Suffering and Self-Quarantine

As governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. “Essential” businesses or establishments are permitted to stay open and fight for economic survival, while “non-essential” ones are forced to close, perhaps forever….

Time is Running Out to Protect Americans’ Relief Payments from Debt Collectors

April 7, 2020

A critical piece of Congress’ coronavirus relief bill, the CARES Act, provides for direct payments to American households. Most individuals are scheduled to receive up to $1,200, married couples up to $2,400, plus an additional $500 per child. Right now, the U.S. Treasury is gearing up to start direct depositing funds into Americans’ bank accounts,…

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Licensing Lawyers in a Pandemic: Proving Competence

Epidemiologists project that, even with strict social distancing, about 81,670 people in the United States will die from COVID-19 infections before June 1. That’s just the first wave. Once states lift restrictions, infections almost certainly will rise again. Until a reliable vaccine or treatment is available, we face waves of social distancing and infection marked…

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When Immigration Detention Endangers the Community

April 1, 2020

One week ago, immigrants’ rights groups filed an emergency motion seeking the release of noncitizens nationwide who are detained and vulnerable to the disease. Lawyers in the Justice Department’s Office of Immigration Litigation responded by complaining that they did not receive seven days’ notice of the motion and asking that a hearing be set no…