TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Friday, February 26, 2021
Wednesday, February 24, 2021
Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill
OTHERWISE: Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill: Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill The 2020 election revealed rot in this country’s institutions. Do...
Tuesday, February 23, 2021
Monday, February 22, 2021
The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic by Wendy E. Parmet :: SSRN
The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic by Wendy E. Parmet :: SSRN
The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic
51 Pages Posted: 1 Feb 2021
Date Written: January 29, 2021
Abstract
What powers do states have to protect the public from a public health emergency? For most of the last 100 years, the protracted and robust debate about that question has been largely hypothetical. Although courts had occasion to assess the scope of state public health powers in cases concerning HIV, measles, vaping, and Ebola, to offer just a few examples, until COVID-19, no court in the past century had to determine the full reach of state public health emergency powers during a widespread and highly lethal pandemic. Nor had any court been asked to reconcile contemporary understandings of constitutional rights with the states’ need to protect its residents from such a pandemic.
In the spring of 2020, numerous state and local courts, including the U.S. Supreme Court, were presented with just those challenges. As cases of COVID-19 spiked in many American communities, governors and local officials across the country used their emergency powers to impose a range of social distancing orders (SDOs), shuttering businesses, restricting religious services, requiring the wearing of masks, and banning nonessential medical services, all in an effort to “flatten the curve.” Although the vast majority of the public supported these measures, at least initially, numerous litigants went to court seeking to enjoin SDOs. They did so against the backdrop of an increasingly polarized reaction to the pandemic, with President Trump, who had promoted social distancing in March, tweeting in April for the liberation of states as armed protesters shut down the Michigan legislature. Meanwhile, false and misleading information about COVID-19 and potential policy responses spread wildly across social media, some of it amplified by the President himself.
Protests, polarization, and misinformation: these formed the environment in which state and federal courts confronted the initial wave of constitutional challenges to COVID-19 SDOs. In deciding those claims, and in the absence of significant contemporary precedent, most courts looked to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. A complex and multifaceted decision, Jacobson has been cited frequently in the 115 years since it was decided. But never before had it been used so prominently to decide the constitutionality of broad state SDOs in the midst of a pandemic. And never before had it been relied upon to such an extent in such a lethal, partisan, and heated moment.
How did the courts respond to the initial wave of litigation? This Article offers some preliminary observations by examining court opinions published in Westlaw reviewing abortion, free speech, and free exercise claims that cited to Jacobson between March 21 and May 29, 2020, when the Supreme Court handed down its first COVID-19 opinions. This examination shows that although lower courts offered different interpretations of Jacobson, all accepted the importance of the state’s interest in protecting the public’s health. Moreover, no court questioned the seriousness of the pandemic; nor did any adopt the misleading information about the pandemic that was widely available on social media.
Nevertheless, at least until May 29, when Chief Justice Roberts and Justice Kavanaugh issued concurring and dissenting opinions respectively accompanying the Supreme Court’s refusal to block the application of California’s social distancing order to religious services, the lower courts diverged over how to reconcile the deference that Jacobson accords to public health authorities with the protection of fundamental constitutional rights. Further, while factual distinctions regarding state-specific SDOs likely help explain some of the different outcomes, the shifting nature of the claims and the evolving politics around SDOs may also have played a role, raising critical questions as to how courts may respond should states impose new SDOs either in response to a “second wave” of COVID-19 or a future pandemic.
Keywords: COVID-19, public health, Jacobson,
Parmet, Wendy E., The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic (January 29, 2021). San Diego Law Review, Forthcoming, Northeastern University School of Law Research Paper No. 399-2021, Available at SSRN: https://ssrn.com/abstract=3777244
Sunday, February 21, 2021
OTHERWISE: John Rawls at 100, "A Theory of Justice" at 50
OTHERWISE: Legal Theory Blog: John Rawls at 100, "A Theory of Justice" at 50: John Rawls - the most influential legal philosopher of the past century - is paid just tribute by UVA legal philosopher Lawrence Solum. .
Saturday, February 20, 2021
Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post
Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post: As I read Senator Kaine's essay I was surprised to learn that he - a former defender in capital cases (and veteran of the Jesuit Volunteer Corps) - had, while Governor, allowed executions to go forward despite his personal opposition. Why?
Could he not have imposed a moratorium? Virginia Governors serve only one term. Was he looking forward to running for Senate? Is his acquiescence any different than the New Jersey trial judges and state Supreme Court Justices who acquiesced in the people's legislative will but rigorously reviewed every case? Employing what Justice John Wallace called "super due process" the New Jersey Supreme Court effectively blocked executions for twenty five years.
Thursday, February 18, 2021
OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement - Georgetown - forthcoming
Josh Chafetz's forthcoming Strategies of Judicial Aggrandizement is a rare treatment of the courts the way others are treated. We are accustomed to the charge that bureaucracies try to increase their power, that legislatures overreach, and that Presidents tend toward the imperial (thank you Arthur Schlesinger, Jr.). But rarely does "judicial aggrandizement" get any attention.
OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement - Georgetown - forthcoming:
Supreme Court shadow docket: Congress scrutinizes it and considers reform.
OTHERWISE: Supreme Court shadow docket: Congress scrutinizes it and considers reform.: We've gotten used to it: the late hours order granting or denying a stay of the Trump rush to execute before the libs take back the White Ho...
OTHERWISE: Supreme Court is still sitting on Trump's tax returns, and justices aren't saying why - CNNPolitics
The norm in criminal investigations is that federal courts keep hands off state prosecutors absent compelling evidence of bad faith. Last year in the Trump tax return cases Trump "lost" at each step up to the Supreme Court which also refused to block the Grand Jury subpoena by the Manhattan District Attorney. So Trump tried a last ditch `1983' civil rights action to block the subpoena. The case was quickly dismissed in the District Court, soon affirmed by the Second Circuit. But that court gave Trump time to file an expedited petition to the Supreme Court which generally acts quickly. The Manhattan District Attorney - Cyrus Vance, Jr. - agreed not to enforce while the Supreme Court application was pending. No good deed goes unpunished. Instead of the usual prompt denial of such a claim the high court has sat on the matter, raising unanswerable questions about why the now former President is not being treated like any other citizen as John Roberts majority opinion said he is. - GWC
OTHERWISE: Supreme Court is still sitting on Trump's tax returns, and justices aren't saying why - CNNPolitics: By Joan Biskupic
Wednesday, February 17, 2021
Facebook’s ‘Supreme Court’ Faces Its First Major Test - The New York Times
Opinion | Facebook’s ‘Supreme Court’ Faces Its First Major Test - The New York Times
Facebook’s new Oversight Board is considering whether the company was justified in indefinitely suspending Donald Trump from its platform. The question is important, but it would be a mistake for the board to answer it right now, or on Facebook’s terms. To do so would effectively absolve the company of responsibility for its part in creating the circumstances that made Mr. Trump’s speech — both online and offline — so dangerous.
Facebook announced plans for its board in 2018 in response to concerns from civil society organizations and regulators about the company’s influence over public discourse online. Sometimes described as Facebook’s Supreme Court, the board comprises an impressive group of civic leaders, free speech experts and scholars from around the world. But Facebook narrowly limited the board’s jurisdiction, having it focus almost exclusively on questions relating to the removal of specific pieces of content.
Content moderation decisions can be consequential, of course. But Facebook shapes public discourse more profoundly through its decisions about the design of its platform. Its ranking algorithms determine which content appears at the top of users’ news feeds. Its decisions about what types of content can be shared, and how, help determine which ideas gain traction. Its policies and tools relating to political advertising determine which kinds of users see which political ads, and whether those ads can be countered by ads offering different viewpoints and correcting misinformation.
TRACKING VIRAL MISINFORMATION
Every day, Times reporters chronicle and debunk false and misleading information that is going viral online.
This creates a problem for the board. It’s not just that the board’s jurisdiction is too narrow. Nor is it merely that the elaborate quasi-judicial structure that Facebook has established for review of its content-moderation decisions draws public attention away from the design decisions that matter more — though this is certainly the case.
Jameel Jaffer and
Mr. Jaffer is the executive director and Ms. Glenn Bass is the research director of the Knight First Amendment Institute at Columbia. The institute’s mission is to defend freedom of speech and the press in the digital age through litigation, research and education.
Facebook’s new Oversight Board is considering whether the company was justified in indefinitely suspending Donald Trump from its platform. The question is important, but it would be a mistake for the board to answer it right now, or on Facebook’s terms. To do so would effectively absolve the company of responsibility for its part in creating the circumstances that made Mr. Trump’s speech — both online and offline — so dangerous.
Facebook announced plans for its board in 2018 in response to concerns from civil society organizations and regulators about the company’s influence over public discourse online. Sometimes described as Facebook’s Supreme Court, the board comprises an impressive group of civic leaders, free speech experts and scholars from around the world. But Facebook narrowly limited the board’s jurisdiction, having it focus almost exclusively on questions relating to the removal of specific pieces of content.
Content moderation decisions can be consequential, of course. But Facebook shapes public discourse more profoundly through its decisions about the design of its platform. Its ranking algorithms determine which content appears at the top of users’ news feeds. Its decisions about what types of content can be shared, and how, help determine which ideas gain traction. Its policies and tools relating to political advertising determine which kinds of users see which political ads, and whether those ads can be countered by ads offering different viewpoints and correcting misinformation.
TRACKING VIRAL MISINFORMATION
Every day, Times reporters chronicle and debunk false and misleading information that is going viral online.
This creates a problem for the board. It’s not just that the board’s jurisdiction is too narrow. Nor is it merely that the elaborate quasi-judicial structure that Facebook has established for review of its content-moderation decisions draws public attention away from the design decisions that matter more — though this is certainly the case.
The fundamental problem is that many of the content-moderation decisions the board has been charged with reviewing can’t actually be separated from the design decisions that Facebook has placed off limits. Content-moderation decisions are momentous, but they are as momentous as they are because of Facebook’s engineering decisions and other choices that determine which speech proliferates on the platform, how quickly it spreads, which users see it, and in what context they see it. The board has effectively been directed to take the architecture of Facebook’s platform as a given. It shouldn’t accept that framing, and neither should anyone else.
The Trump case starkly highlights the problem with the board’s jurisdiction. Mr. Trump’s statements on and off social media in the days leading up to the Capitol siege on Jan. 6 were certainly inflammatory and dangerous, but part of what made them so dangerous is that, for months before that day, many Facebook users had been exposed to staggering amounts of sensational misinformation about the election, shunted into echo chambers by Facebook’s algorithms, and insulated from counterarguments by Facebook’s architecture.
This is why it would be a mistake for the board to address the question that Facebook has asked it to answer, at least right now. Doing so would draw public attention away from the platform design decisions that warrant most scrutiny, and from the regulatory interventions that are needed to better align Facebook’s practices with the public interest. It would also let Facebook off the hook for business practices that cause significant harm to democracy.
The Trump case starkly highlights the problem with the board’s jurisdiction. Mr. Trump’s statements on and off social media in the days leading up to the Capitol siege on Jan. 6 were certainly inflammatory and dangerous, but part of what made them so dangerous is that, for months before that day, many Facebook users had been exposed to staggering amounts of sensational misinformation about the election, shunted into echo chambers by Facebook’s algorithms, and insulated from counterarguments by Facebook’s architecture.
This is why it would be a mistake for the board to address the question that Facebook has asked it to answer, at least right now. Doing so would draw public attention away from the platform design decisions that warrant most scrutiny, and from the regulatory interventions that are needed to better align Facebook’s practices with the public interest. It would also let Facebook off the hook for business practices that cause significant harm to democracy.
Tuesday, February 16, 2021
Friday, February 12, 2021
OTHERWISE: Re-reading the Capitol Police Chief's January 6 after action report to Nancy Pelosi
OTHERWISE: Re-reading the Capitol Police Chief's January 6 after action report to Nancy Pelosi: Capitol defended against BLM marchers Capitol police January 6 Former Capitol Chief of Police Steven Sund ten days ago reported to Speake...
Tuesday, February 9, 2021
Dorf on Law: Did the Supreme Court Inadvertently Exempt Movies and Other Secular Expressive Activities From COVID Restrictions?
OTHERWISE: Dorf on Law: Did the Supreme Court Inadvertently Exempt Movies and Other Secular Expressive Activities From COVID Restrictions?:
By Michael C. Dorf (Cornell Law School)
The disparate impact test disparaged for challenges to racial segregation in employment has achieved new life regarding religious freedom, argues Cornell law professor Michael Dorf. The Court has, he notes reserved heightened scrutiny (fatal in fact strict scrutiny) for state actions that "targeted religion for disfavored treatment". But now, he notes, the Court's emergent orders in the South Bay United Pentecostal Church v. Newsom, Governor of California and other such cases have moved toward s "disparate impact" standard. In such cases the State must prove a "compelling" interest that is served by "narrow" means.
Sunday, February 7, 2021
Elena Kagan - dissenting in South Bay United Pentecostal Church v. Newsom (02/05/2021)
A pandemic Executive Order by the California Governor compelled California churches to meet outdoors. A San Diego congregation protested. The Supreme Court (6-3) blocked the order, tentatively leaving a 25% occupancy limit in place.
Protesting the majority's decision to substitute its own judgment for that of the public health experts informing the Governor, Elena Kagan's conclusion invites discussion of life tenure and the unreviewable power of nine to override expert opinion on control of infectious disease if the court elects to treat it decision as grounded in the Constitution. - GWC
South Bay United Pentecostal Church v. Newsom (02/05/2021)All this from unelected actors, “not accountable to the people.” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring). I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.
South Bay Pentecostal: Amy Coney Barrett’s surprisingly revealing first opinion - Ian Millhiser - Vox
OTHERWISE: Amy Coney Barrett’s surprisingly revealing first opinion - Ian Millhiser - Vox
By Ian Millhiser
The Supreme Court handed down an unusually messy order Friday night, in a case brought by a church claiming that it should be exempted from several rules California put in place to prevent the spread of Covid-19. The justices split four ways in the case, South Bay United Pentecostal Church v. Newsom, with members of the Court’s Republican majority divided into three different camps.
Interestingly, Justice Amy Coney Barrett wrote her first signed opinion since joining the Supreme Court, and her opinion takes a position that is slightly to the left of her most conservative colleagues. Though Barrett’s opinion is still quite conservative, it suggests that there may be some daylight between her views and those of her most reactionary colleagues.
Thursday, February 4, 2021
After Hundreds of Meatpacking Workers Died From COVID-19, Congress Wants Answers — ProPublica
After Hundreds of Meatpacking Workers Died From COVID-19, Congress Wants Answers — ProPublica
A key congressional panel launched an investigation this week into the wave of COVID-19 infections that killed hundreds of workers at meatpacking plants nationwide last year and highlighted longstanding hazards in the industry.
Since the start of the pandemic, the meat industry has struggled to contain the virus in its facilities, and plants in Iowa, South Dakota and Kansas have endured some of the biggest workplace outbreaks in the country.
The meat companies’ employees, many of them immigrants and refugees, slice pig bellies or cut up chicken carcasses in close quarters. Many of them don’t speak English and aren’t granted paid sick leave. To date, more than 50,000 meatpacking workers have been infected and at least 250 have died, according to a ProPublica tally.
The congressional investigation, opened by the House Select Subcommittee on the Coronavirus Crisis, will examine the role of JBS, Smithfield Foods and Tyson Foods, three of the nation’s largest meat companies, which, the subcommittee said, had “refused to take basic precautions to protect their workers” and had “shown a callous disregard for workers’ health.”
The subcommittee is chaired by Rep. James E. Clyburn of South Carolina, the No. 3 Democrat in the House.
In response to the subcommittee's announcement, officials for JBS and Tyson said that the companies had spent hundreds of millions of dollars to implement coronavirus protections and to temporarily increase pay and benefits, and they looked forward to discussing their pandemic safety efforts with the panel. Smithfield said in a statement that it had also taken “extraordinary measures” to protect employees from the virus, spending more than $700 million on workplace modifications, testing and equipment.
Wednesday, February 3, 2021
Supreme Court Cancels Arguments on Border Wall, Asylum Policy
Supreme Court Cancels Arguments on Border Wall, Asylum Policy
The U.S. Supreme Court canceled scheduled arguments over asylum rules and the Mexican border wall after the Biden administration said it is moving to change the Trump administration policies at the center of the disputes.
The court was scheduled to hear arguments Feb. 22 on former President
The other case, which had been set for argument March 1, concerns a policy that has forced almost 70,000 asylum-seekers to stay in Mexico while their applications are being processed. Under Biden, the Department of Homeland Security has stopped adding new people into the so-called Migrant Protection Protocols program, though the administration hasn’t changed the status of previous asylum applicants or lifted pandemic-related restrictions at the border.
To contact the reporter on this story:
| The Republican Argument Against Trying Trump Is Dangerous - Bob Bauer The New York Times
The GOP majority's argument is that a successful effort to stop the coup d'etat deprives the Congress of the ability to bar the leaders of the failed coup from future office holding. As Justice Robert Jackson said in another context - the Constitution is not a suicide pact. - GWC
OTHERWISE: Opinion | The Republican Argument Against Trying Trump Is Dangerous - The New York Times: By Bob Bauer - former White House Counsel
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