Disaster Law

Planet Earth as Desert Island: “Lord of the Flies” or “Gilligan’s Island”?

Or in more technical terms, the Tragedy of the Commons? Or its inverse?

Lord of the Flies is a memorable novel about a group of English schoolboys who are marooned on a desert island.  They quickly descend into savagery and violence. The book can be seen as a parable of the philosopher Thomas Hobbes’s view that human life in a state of nature is short, nasty, and brutish. But …

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Constitutional Rights in a Pandemic

When does public health override individual rights?

Lockdowns and social distancing impinge on activities that are protected by the Constitution. That’s been true in many states of church services and in some states of abortion. When the cases have come before they courts, they have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law …

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No, It’s Not Over

The threat of COVID-19 continues to loom over us.

We’re all sick of being locked down, and the economic downturn has been brutal.  There’s a palpable sense that it’s time to put the coronavirus behind us and move on.  Unfortunately, the coronavirus does not agree. People now seem used to the idea of hundreds of new coronavirus deaths a day. Yet, even 500 deaths …

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Too Many Americans Think the Worst is Over

Alas, that light at the end of the tunnel is still very far away from us.

World War I lasted four years, with millions of deaths. At the start, however, many people thought the war would be quick and easy.  “Home by Christmas,” was what they said about their troops.  A frightening number of Americans now have similar illusions about the coronavirus pandemic. According to a CNN poll a released Tuesday, …

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Free to Be Negligent?

Proposed Tort Liability Protection for Businesses

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative/business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven’t begun to make a reasoned argument in support of a litigation shield. In this post, …

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Do Epidemic-Based Business Closures by Government Trigger an Unconstitutional “Taking”?

Longstanding U.S. Supreme Court Precedents Indicate the Answer is an Unequivocal “No”

Lately, an increasing number of public and private voices have been raised in opposition to business closures ordered by state and local governments in response to the COVID-19 epidemic.  In many such cases, that opposition has taken the form of lawsuits filed by business owners, claiming a violation of their constitutional rights.  Gun shops across …

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Coastal Beaches, Public Access & the Pandemic

Important Legal & Policy Considerations in Closing Beaches to Protect Public Health

As part of America’s steadily growing restiveness over state and local shelter-in-place directives, the issue of government-mandated public beach closures has recently emerged as a particularly contentious issue.  It’s especially prominent now, given that many coastal states are experiencing their first heat waves of 2020. Many Americans are increasingly weary of and angry over public …

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The World Leader Who is Far Worse Than Trump

Take everything Trump did wrong about the virus. Then square it. That’s Bolsonaro.

Yes, Trump made huge mistakes in the coronavirus outbreak. But no, he’s not the worst world leader in this respect. That prize currently goes to Brazil’s Jair Bolsonaro.  Like Trump, he’s a rightwing populist leader. He’s even been called “the Trump of the Tropics.” But he’s far more unmoored. When asked about Brazil’s record number …

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Conservatives versus Lockdowns

Conservatives versus Lockdowns

Spurred on by conservative groups, protesters are demanding that their states go back to business as usual.  This sentiment isn’t limited to the kinds of hotheads who insist on congregating in public during an epidemic, or even to  conservatives like Betsy DeVos who  help to fund these groups and promote their protests. It also includes …

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In Support of Public Health Federalism

Centers for Disease Control and Prevention

Reactionary State Responses to COVID-19 (and Other Threats to Public Health) Don’t Mean Federalism Is For Suckers

For decades, “states’ rights” has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation’s federal lands, and the national crises that necessitated the federal government …

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