Law Commons^™

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

The Emergency Next Time, Noa Ben-Asher

Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

Unmasking The Nineteenth Amendment Centennial Through The Pandemic Lenses Of Liberty, Loss, Masculinity, And Leadership [Comments], Jamie Abrams

Articles in Law Reviews & Other Academic Journals

Celebrating the Centennial of the Nineteenth Amendment in this political, economic, and social moment was a tale of two extremes. On the one hand, the Centennial occurred contemporaneously with the election of Kamala Harris as the nation's first woman Vice President offering a tremendous celebratory bookend of political success. On the other hand, we celebrated the Centennial amid a global pandemic that has taken over 740,000 American lives2 and in a crescendo of searingly painful calls for racial justice. In reflecting on the Centennial in this political, social, and economic moment, this article unmasks the lenses of loss, liberty, masculinity, …

July 31, 2021: Give Trump The Presidential Medal Of Freedom, Bruce Ledewitz

Hallowed Secularism

Blog post, “Give Trump the Presidential Medal of Freedom“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 4, 2021: Better Than July 4, 2020, Bruce Ledewitz

Hallowed Secularism

Blog post, “Better Than July 4, 2020“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Incitement, Insurrection, Impeachment: Inside The Second Trump Impeachment, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

February 9, 2021: God And The Pandemic, Bruce Ledewitz

Hallowed Secularism

Blog post, “God and the Pandemic“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Covid-19, Courts, And The 'Realities Of Prison Administration.' Part Ii: The Realities Of Litigation, Chad Flanders

All Faculty Scholarship

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more …

How The U.S. Constitution Connects With Covid-19, Richard Henry Seamon

Articles

No abstract provided.

Law School News: Bright Anniversaries In Uncertain Times 10/06/2020, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

October 3, 2020: It Is Fitting That President Trump Contracted The Virus, Bruce Ledewitz

Hallowed Secularism

Blog post, “It Is Fitting that President Trump Contracted the Virus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Legal Landscape For Frontline Student Journalists, Jonathan Peters

Scholarly Works

They have exposed campus outbreaks and questioned reopening plans. They have documented social-distancing violations at fraternity and sorority houses. They have tracked and explained fast-breaking changes to instructional modes and commencement events. They have demanded transparency from school administrators. And through it all they have boldly told the story of the human experience.

Famously, at the University of North Carolina, the Daily Tar Heel published a biting editorial under the headline “UNC has a clusterfuck on its hands,” after virus clusters were identified in campus housing. And the day that Notre Dame announced it would move only temporarily …

Constitutional Literacy In Times Of Crisis, Maartje De Visser

Research Collection Yong Pung How School Of Law

At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O’Connor made a passionate plea for “all citizens to understand our Constitution and unique system of government, and participate actively in their communities.”441 The timing coincided with the halfway mark of Donald Trump’s term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question.442 At its foundation, the democratic legitimacy of a government arguably presupposes a working familiarity with the constitution qua social contract. …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

May 23, 2020: Every Once In A While…, Bruce Ledewitz

Hallowed Secularism

Blog post, “Every Once in a while...“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Law School News: Distinguished Service Professor: Deborah Gonzalez 05-20-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

May 11, 2020: Why Can’T We Be Reasonable? Because There Is No Such Thing As Reason, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Can’t We Be Reasonable? Because There Is No Such Thing As Reason“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 10, 2020: Panic About The Future, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Panic About the Future“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 5, 2020: The National Day Of Prayer For The Coronavirus, Bruce Ledewitz

Hallowed Secularism

Blog post, “The National Day of Prayer for the Coronavirus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 25, 2020: The Disenchantment Of The Virus, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Disenchantment of the Virus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Petitioners' Reply Memorandum In Support Of Their Emergency Petetion For A Writ Of Habeas Corpus, Joseph Mead, David J. Carey, Freda J. Levenson, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman

Law Faculty Briefs and Court Documents

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According …

Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief - Class Action, Joseph Mead, David J. Carey, Mark A. Vander Laan, Freda Levenson, David Singleton

Law Faculty Briefs and Court Documents

As a tragic combination of infectious and deadly, COVID-19 poses a once-in-a-lifetime threat on a worldwide scale. Every state and territory in the United States has now been impacted, with nearly half a million cases and over 20,000 deaths reported to the Centers for Disease Control and Prevention (CDC). Even under ordinary conditions, each person who contracts this illness can be expected to infect between 2 and 3 others.

Cramped, overcrowded prisons amplify this threat. With thousands of people literally stacked on top of each other and unable to move around without rubbing shoulders, such environments are fundamentally incompatible with …

April 8, 2020: What Is The Meaning Of The Virus, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Meaning of the Virus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 29, 2020: Thinking Of The Virus And The Earth In A Different Way, Bruce Ledewitz

Hallowed Secularism

Blog post, “Thinking of the Virus and the Earth in a Different Way“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos

Law & Economics Working Papers

Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the …