We will briefly talk about papers.

Readings

COVID-19 and Military Law

This raises interesting questions about how the military can enforce COVID regs internally and whether the military should be used domestically for COVID enforcement.

Guantánamo Bay Navy Base Raises Health Alert and Closes Facilities

This happened after the article was published.

LSU student groups want to start holding events again. Could mandatory coronavirus tests help?

We are going talk about this and the larger issue where LSU should go with COVID regs. The Florida game – which was going to have a full stadium – was postponed because of COVID cases on the Florida team. Check the NYTimes for the latest on COVID cases – the is fall wave starting? Do you trust the Louisiana numbers?

‘Out of Control’: When Schools Opened in a Virus Hot Spot

As the Coronavirus Surges, a New Culprit Emerges: Pandemic Fatigue

Paper day! No class meeting. I will do individual meetings. See the email.

New York Time story and video

Bush 2005 Plan

Bush 2006 Implementation Plan

CDC Plan 2017

Will Pfizer’s Vaccine Be Ready in October? Here’s Why That’s Unlikely. 

One of the key issues is how much power the president has to enforce these plans. This is a podcast by Professor William Banks, an expert on national security law, on emergency powers, including the military. This was recorded at the end of March 2020, when it was clear that COVID was a national emergency:

Emergency Powers and COVID-19 with William Banks

We will also discuss any developments on the President’s illness and its implications for pandemic control.

At this point, I don’t want to load you with legal readings because I want you to be working on your papers. Be prepared to give us an update on what you have found that is important to understand what is happening with the pandemic.

Let’s look at this as background for our more general discussion of legal issues as they develop during the pandemic.

How bad will winter get?

https://www.theatlantic.com/health/archive/2020/09/how-bad-will-winter-get/616503/

What do look for with the vaccine trials

https://www.nature.com/articles/d41586-020-02706-6

More on the vaccine certification process

https://www.propublica.org/article/a-real-vaccine-before-the-election-itd-take-a-miracle

South Korea

https://www.wsj.com/articles/lessons-from-south-korea-on-how-to-manage-covid-11601044329?mod=djemalertNEWS

Florida’s Governor Lifts All COVID-19 Restrictions On Businesses Statewide

https://www.npr.org/sections/coronavirus-live-updates/2020/09/25/916969969/floridas-governor-lifts-all-covid-19-restrictions-on-businesses-statewide

We are going to discuss our papers again, then review this case:

Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020)

Start at p. 21. I have added bookmarks and highlighted key passages. While the beginning of the case talks about 1st Amendment right to freedom of religion, the court does not really use it because its analysis of the religious restrictions was based on there not being a rational reason for allowing some business and political gatherings and church services. Note the court’s concern with the failure to apply restrictions to protests and to big commercial gatherings.  The most interesting parts are later in the case where the judge finds that the stay at home and business closing orders were unconstitutional under due process considerations and the 14th Amendment. This includes relying on Lochner, which has attracted criticism as it is generally regarded as having been overruled.

You should listen to the discussion of the case on the National Security Podcast. It is discussed by Prof Vladeck, whose article is misconstrued by the judge. This link goes to the start of the discussion, which lasts about 10 minutes:

https://pca.st/episode/6766b2f3-4d9c-458c-aa15-3ab409c2321d?t=2129

Guide to writing your paper

Single spaced, with a blank line between paragraphs. About 7,500 words, including footnotes. 12 point type, Times New Roman or similar readable font. This is about 15-16 pages. You can take more words if you need them, but do not be much shorter.

The form is a bar journal article or a memo, as opposed to a law review. The two key differences from a law review are that you should use footnotes for citations, not more text for the article; and I want you to edit for clarity and concise writing. Law reviews tend to long and turgid as the authors try to spread their idea over as many pages as possible, with as many tangential footnotes as possible. We are shooting for something clear and concise that someone might enjoy reading.

You should start with a clear statement of the problem you are addressing in the paper. You should have a short table of contents for your paper that corresponds to the headings in your paper, which means that you should use headings to make it easy to navigate the paper. Use footnotes and Bluebook for legal citations, otherwise, make sure the citations are adequate to find your reference materials. Include jump pages as necessary and hyperlinks to online materials.

Readings

Carryover the materials from last class. Additional materials will be posted.

PREP Act Materials

CRS Report – The PREP Act and COVID-19: Limiting Liability for Medical Countermeasures

This is a good, concise review. Read this and be prepared to discuss the implications of PREP Act immunity and the public expectations if there are vaccine injuries.

PREP Act WWW site

ADVISORY OPINION ON THE PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT AND THE MARCH 10, 2020 DECLARATION UNDER THE ACT APRIL 17, 2020, AS MODIFIED ON MAY 19, 2020.

HHS Legal memo on the PREP Act.

Part 1

We are going to have a round table discussion of your paper topics. Be prepared to talk for 3-5 minutes about your topic and what you have found. We will then ask questions and brainstorm as a group for a few minutes. If you are early in thinking about the topic, we can use this time to work on ideas.

Part 2

We are going to talk about the legal and ethical issues in vaccine allocation and the issues raised by CDC’s announcement that the states should get ready for vaccine in November.

Essential listening and reading.

Podcast discussing vaccine availability and the Ethical Framework for Global Vaccine Allocation

Ezekiel J. Emanuel et al., An ethical framework for global vaccine allocation, Science (2020), https://science.sciencemag.org/content/early/2020/09/02/science.abe2803.

These are parts of the National Academy of Sciences draft on its vaccine allocation plan. At least scan these to see who are targeted as priority recipients of vaccine.

NAS – A Framework for Equitable Allocation of COVID-19 Vaccine

NAS – Applying the Framework for Equitable Allocation of COVID-19 Vaccine

The Economics of the COVID Pandemic and the Governmental Response

Use these readings to get started on your original assignments. Follow up on links as necessary to better understand the topic. You can email any interesting links you find so that I can post them.

Unemployment Insurance and Housing

For the first part of the class, we are going to look at the CARES Act and that has been happening since it expired.

Short-Run+Economic+Effects+of+the+CARES+Act

CARES Act Measures Strengthening Unemployment Insurance Should Continue While Need Remains

The Rent Is Still Due: America’s Renters, COVID-19, and an Unprecedented Eviction Crisis

Extend CARES Act Eviction Moratorium, Combine With Rental Assistance to Promote Housing Stability

Executive Order on Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners

Trump Executive Order Doesn’t Extend Eviction Ban, Won’t Help the Millions Struggling to Pay Rent

Coverage of the current budget deal impasse: Is $1 Trillion Enough for a New Economic Relief Package?

Payroll Tax Moratorium

Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster

Business groups warn of ‘substantial tax liability’ from payroll tax deferral

The latest development – IRS says companies are responsible for deferred payroll taxes

Universities

For the second part of the class, we are going to talk about universities, including LSU.

New! The Long-Brewing Crisis in Higher Education | On the Media | WNYC Studios

You want to listen to this about the economics of higher ed.

A Global Perspective – Universities will never be the same after the coronavirus crisis

Colleges Get Billions in Coronavirus Relief, but Say Deal Falls Short of Needs

Mounting Peril for Public Higher Education During the Coronavirus Pandemic

COVID-19 will hit colleges when students arrive for fall semester. So why open at all? Money is a factor.

UA System COVID-19 Dashboard

LSU Dashboard

News

Court finds that government ordered COVID closing satisfies “direct physical injury” trigger for business interruption insurance.

Natural immunity issues (which expand to vaccinated versus non-vaccinated if we get a good vaccine)

The YOLOers vs. Distancers Feud Is Tearing Us Apart | WIRED

Issue Backgrounders to listen to.

Coronavirus Update With Ezekiel J. Emanuel, MD, PhD – YouTube

Good update on issues such as school opening. Dr. Emanuel is a leading health policy expert and an architect of the Affordable Care Plan.

The Covid Conspiracy Boom on Facebook

Terrific podcast on the crazy stuff on Facebook and how it undermines the efforts to control the pandemic. This is a must listen. I would like to discuss this in class.

Video – Taking Public Health for Granted: Development of the Modern Anti-Vax Movement (Richards)

PowerPoint – Taking Public Health for Granted: Development of the Modern Anti-Vax Movement

Readings

We are going to look at the US Supreme Court cases that relate to vaccinations. This sets the constitutional limit on mandatory vaccinations and school exclusions.  I will post a PowerPoint/Video review of vaccine issues before class.

A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020 – Working Draft

Read VII. The Vaccine Cases, starting p. 12.

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) – Study Guide

This is the main USSC vaccine case. The COVID pandemic courts are citing it more generally as the support for state pandemic control efforts. We are reading the full case because it has become so important. Be prepared to discuss the case.

Zucht v. King et al., 260 U.S. 174 (1922)

This is a short case rejecting a constitutional challenge to a city excluding unvaccinated students from school.

Prince v. Massachusetts, 321 U.S. 158 (1944)

This is the key case finding that child labor laws control over the religious beliefs of parents. It has clear dicta that religious views cannot be used to avoid vaccination.

Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020)

Brand new case expanding the ministerial exemption in the 1st Amendment. Scan through this case and figure out if it would change the Zucht or Prince as regards vaccines. What about PPE?

Resource documents

Vaccine information

National Childhood Vaccine Injury Compensation Program

The Vaccine Injury Table

ADA information

Official EEO Guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The ADA and Face Mask Policies

This is from a disability rights group, so it makes the strongest case for the disability claim. But it is fair and if you scroll down to the Direct Threat section, there is a discussion of this exception to the ADA.

Election information

Louisiana likely to have no coronavirus protocols for the election unless courts step in Elections

We are going to start with a look  back at the history of public health law and disease control in US. In addition to this reading, I will post narrated PowerPoint slides (and the same material as a video) before class so that you can review them before our class discussion. I would like to use as much class time for discussion as feasible, rather than using it to lecture on background materials.

A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020 – Working Draft

Read to VII. The Vaccine Cases, p. 12.

On Wednesday, after you complete this reading and we finish our class discussion, there will be a quiz available on Moodle. This is a simple true/false quiz. You must complete it by 23 August – the grade does not matter – to show the campus that you are participating in the course. This is used to verify eligibility for financial aid. If you do not complete this on time, you will lost financial aid.

Video – A Brief History of Public Health

Narrated Powerpoint – A Brief History of Public Health

Breaking news – Court rejects a challenge to the LA ban on bars during the pandemic.

The case

4 Aces Enterprises LLC, et al v. John Bel Edwards, et al, Docket No. 2:20-cv-02150, Order and Reasons (August 17, 2020)

Resource case: In re Abbott, 954 F.3d 772 (5th Cir. 2020)

The discussion (from Adlaw in the News for my adlaw class)

Video – The LA Bar Closing Case 18 Aug 2020

PowerPoint – The LA Bar Closing Case 18 Aug 2020