How COVID-19 Could Change the Law
Faculty Members Discuss the Potential for Lasting Effects on Institutions and Society
The COVID-19 pandemic has tested, informed, and may even be changing the legal landscape. It has raised questions about how to best meet the needs of vulnerable populations and has underscored how different regulations can both help and hinder people and businesses. It has highlighted the need for clarity around competing issues—such as free speech and public health—as well as narratives around justice and welfare. It is spurring debates about government power, criminal justice reform, global trade, environmental regulation, immigration, and more.
These are some of the issues Law School faculty discussed late last spring when we asked how COVID-19 might change the law. We wanted to know what the pandemic had revealed about legal systems and structure, both in America and abroad, and whether the virus had changed their views on particular areas of the law, or of the law’s scope and limitations.
Their responses varied, but one thing was clear: the consequences of the virus will be extensive, unpredictable, and extraordinarily powerful.
Sharon Fairley, Professor from Practice
One tremendously important and helpful outcome of the nation’s response to the coronavirus pandemic, one that will have lasting implications, is the swift and significant reduction in city and county jail populations. Overincarceration is and has been a pressing issue in criminal justice reform for years, if not decades. According to the ACLU, the United States accounts for 21 percent of the world’s incarcerated population, yet only 4 percent of the world’s total population. Criminal justice reform advocates have waged a largely uphill battle trying to convince judges, prosecutors, and law enforcement officials that too many individuals are being locked up while awaiting trial on criminal charges.
Enter COVID-19. Finally, public officials had a real, personal incentive to reduce jail populations as quickly and as deeply as possible. Overcrowding and lack of access to hygiene made jails, and thus the entire justice system, a deadly breeding ground, putting the entire criminal justice system at risk. What’s more, research and modeling made clear that there was a direct connection between the health of incarcerated persons and the collective health of communities. Correctional staff members risked infecting friends and family. Recent arrestees infected during a brief jail stay could infect countless others upon their release.
Since the pandemic really hit hard in March, officials have reduced populations in many city and county jail facilities by percentages as high as 30 and 40 percent. And these reductions have generally been achieved by adopting policies that enable the release of individuals that otherwise would have been held pending trial—policies such as releasing individuals who are pregnant or have health conditions and significantly lowering or doing away with bond payments. Notably, although some major cities have seen an increase in violent crime during this pandemic, such increase does not appear attributable to the reduced incarceration of pretrial detainees. Thus, after the pandemic is over, it will be very difficult for public officials to justify returning to the previous practices that led to higher rates of incarceration. The actions taken to reduce the jail population during the pandemic were just the right thing to do under any circumstances.
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law
An interesting question posed recently concerns protests by those who object to the lockdowns imposed by mayors and governors across the nation. To what extent does the First Amendment give one a right to engage in protest activities that pose health risks both to the protesters and, ultimately, to others? Although there are many reasons to restrict public protests, including concerns about noise in certain locations, blocking traffic, etc., the COVID-19–related protests posed challenging questions about whether the First Amendment gives individuals a right to violate policies requiring masks, social distancing, and the like. Suppose, for example, 500 protesters want to gather together in front of city hall and refuse to wear face masks or to stay six feet apart, in part because those actions are meant as forms of symbolic speech? Can the authorities constitutionally disband the protest and arrest the protesters who refuse to comply? To my knowledge, none of these issues have resulted in litigation, but there are interesting ways in which the intersection of public health concerns and First Amendment rights have now come into conflict.
Emily Underwood, Assistant Clinical Professor of Law, Bluhm-Helfand Director of the Innovation Clinic
The COVID-19 pandemic is an opportunity to evaluate how efficiently certain US regulators perform, and whether gains in efficiency would undermine such regulators’ intended purposes. The Food and Drug Administration (FDA), for example, introduced the Coronavirus Treatment Acceleration Program (CTAP), which is intended to significantly accelerate the timeline for bringing to market new drugs to treat the virus. If CTAP is successful, then ostensibly the FDA can draw lessons from CTAP to identify ways that its usual approval processes and standards can be relaxed or expedited without sacrificing efficacy. This is unlikely to happen with the FDA or any other regulator, as such regulators typically have every incentive to be as risk averse as possible, and are resource constrained in a way that makes the CTAP measures impossible to implement on a permanent basis. If such regulators seize the opportunity, though, proper innovation would go a long way toward fostering innovation by small businesses and start-ups that may not otherwise have adequate runway to make it to market, improving our quality of life and helping the economy recover.
Adam Chilton, Professor of Law, Walter Mander Research Scholar
The coronavirus pandemic is going to weaken the United States’ ability to attract the best international students and immigrants for years. The reason isn’t just America’s inability to contain the spread of the virus; the reason is the American government’s seizing on the crises to alter long-standing immigration rules. Between March and July 2020, the Trump administration announced nearly 50 changes to US immigration policy. Some of these were reasonable responses to the COVID-19 pandemic, like restricting international travel from countries particularly hard hit by the epidemic. But many of these changes were major restrictions on legal immigration that appear to do little to address the current public health or economic crises that our country faces. These include a near-total ban on potential immigrants seeking new green cards, halting the issue of temporary work visas, and attempting to restrict the rights of international students to stay in the United States if their universities move to online classes. Though some of these policies have already been dropped, and more may be in the near future, the fact that they were issued at all will impact immigration to the United States long after the coronavirus pandemic subsides. The reason is that immigration to a foreign country is a long-term, speculative investment. People make their choices about where to invest—for instance, deciding what schools to apply for or what jobs to pursue—under the belief that immigration rules will be stable for years. But when there are quick, radical changes to those rules, it scares off the best future migrants for years.
Elizabeth Kregor, Lecturer in Law, Director of the Institute for Justice Clinic on Entrepreneurship
At the IJ Clinic on Entrepreneurship, we are hopeful—and resolute—that states and cities will expand temporary relief from needless restrictions that burden low-income entrepreneurs. As states around the country have rushed to figure out how to deploy medical professionals to address the surge in patients, even if they did not have up-to-date licensures in that state for a specific practice, we hope our governments have seen the benefits of walking back occupational licensure. We have legislative proposals at the ready for Illinois: sunrise and sunset review so Illinois would evaluate new and old occupational licensing laws closely to make sure they are actually needed to prevent public harm, as well as universal recognition measures for Illinois to recognize out-of-state licenses. We are also pushing for all levels of government to ease restrictions on entrepreneurs or workers with criminal backgrounds, whether they are applying for a loan, a license, or a job.
Some of the businesses that have been forced to close, like salons, barber shops, and massage therapy providers, are heavily regulated at the state and city level. And they can least afford to return to the legal status quo. Many regulations are costly, like requirements that a braider attend hundreds of hours of schooling or that a barber shop needs a special zoning permit that can cost thousands of dollars. Many regulations needlessly limit the creativity that entrepreneurs need to survive this harsh pandemic, like prohibitions on services in customers’ homes or in mobile units. We need to strip away the rules that were put in place to preserve established businesses at the expense of newcomers, or we won’t have many established businesses left.
Last, we want to carry forward the lessons we have learned about the possibilities of working from home. All over the country, local governments restrict home-based businesses in myriad ways. As entrepreneurs try to fuel a new economy, many may want or need to work from home. We hope local governments remove restrictions on how much space can be used in the home, whether the business can store inventory there, and more. In particular, we hope that states will lift limitations on cottage food producers, who include farmers making jam from surplus produce and bakers making bread (and making ends meet) while staying home to care for family members. In Illinois, most cottage food producers can’t sell anywhere but farmers markets, and we hope the law changes so customers can buy foods made in their neighbors’ home kitchens online or on the front porch.
Randal C. Picker, James Parker Hall Distinguished Service Professor of Law
The COVID-19 crisis has highlighted the importance of supply chains and the location of production facilities. This is true for medical supplies like PPE and possible vaccines but also true for semiconductors and other key inputs. We are going to see more efforts by nations to ensure that they have domestic sources of production in key areas. We have already seen draft legislation of this sort for semiconductors, and the US government and other governments have been active in supporting and arranging for supplies for possible vaccines. And individual firms will take parallel steps to diversify their production facilities.
Sonja B. Starr, Professor of Law
Our criminal justice system has responded to the crisis of COVID-19 in prisons and jails grossly inadequately. The pandemic has placed in stark relief the indifference of American political leaders (and the constituents who elect them) toward the lives of people behind bars. People in prisons and jails are incredibly vulnerable to the spread of this disease, and the huge outbreaks we have seen in many facilities were accordingly entirely predictable and, indeed, widely predicted. This risk could have been substantially limited with minimal public safety risk by taking steps to reduce unnecessary incarceration, perhaps via transfers to home confinement. Such steps would in fact have protected the public on balance, because outbreaks in prison are a huge threat to surrounding communities. But governors, courts, and corrections authorities have taken only fairly minimal actions. Depressingly, I think the lesson is that Americans cannot be brought to care much at all about the lives of incarcerated people even when protecting them might help to save our own lives.
Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science
COVID-19 is going to accelerate the trend toward firmer borders in international relations, and the shift toward regionalism in trade and investment law, away from global institutions. This has already been developing, in part because the US has turned against the World Trade Organization. We have already seen a rise in “national security” exceptions to principles of free trade, and the virus provides a further set of rationales for sealing borders in the name of public health. The General Agreement on Tariffs and Trade has rules for such claims, but they aren’t going to be very effective without an adjudicative body. The borderless world predicted in the 1990s looks like a faded dream. At the same time, the pandemic shows that international cooperation is more important than ever. We should strengthen the World Health Organization systems for early monitoring and adjust incentives to report early, but I doubt that will happen without US leadership.
Robert Weinstock, Assistant Clinical Professor of Law
In the domestic environmental law space, COVID-19 has facilitated the weak enforcement posture and regulatory rollbacks of the current administration. In blanket and open-ended fashion, the US Environmental Protection Agency waived environmental monitoring requirements on polluters and declared it would forgo enforcement of important environmental and public health protections. At the same time, the administration has taken advantage of the nation’s focus on COVID-19 to maintain or even accelerate its efforts to roll back environmental rules, such as pollution limits on power plants and automobiles, and to narrow significantly the universe of waters protected by federal law. This deregulation and refusal to enforce environmental laws harms low-income and people-of-color communities most—much like COVID-19 itself—exacerbating the long-standing fundamental weakness of US environmental law when it comes to protecting vulnerable communities from complex and cumulative threats. And these public health and environmental inequities compound each other: being overburdened with industrial air pollution leaves a community with higher rates of asthma and other diseases, health maladies that make COVID-19 more deadly. These are trends we in the Abrams Environmental Law Clinic have followed closely and fought against, fights the current pandemic has made even more urgent.
Lisa Bernstein, Wilson-Dickinson Professor of Law
As a scholar of supply chain and relational contracts, I believe the COVID-19 crisis will provide the type of shock that will let researchers learn a great deal about contract governance, specifically the relative importance of the formal and relational aspects of these transactions. It will also reveal structural and contracting weaknesses in these relationships and, perhaps, point the way toward devising new contract governance and contract administration mechanisms. It is impossible to know what insights studying this shock will lead to, but from the perspective of supply chain researchers, it should lead to a much deeper understanding of what makes supply chain relationships work.
Amy Hermalik, Lecturer in Law, Associate Director of the Institute for Justice Clinic on Entrepreneurship
The pandemic has and will continue to highlight racial and socioeconomic inequities, disparities, and segregation. It is easy when looking at racial and socioeconomic inequities in our society to lose sight of how the law has helped to create and maintain those inequities, particularly when, in the present day, there is no “one” discriminatory law to blame for everything, but rather a panoply of problematic actions and failures to act.
For example, the story of why Black people in Chicago will be particularly hard hit by COVID-19 is one that goes back generations, implicates all areas of law, and is also a result of what a myriad of present-day laws do and do not do. Housing laws, banking laws, workplace protections (and lack thereof), school finance and districting laws, environmental protections (and lack thereof), health care laws, municipal laws and fines and fees (ticketing, towing, etc.), voting laws, criminal laws, and what we have not done toward reparations and addressing persistent wealth gaps—all contribute to the racial segregation and inequities that will make COVID-19 deadlier and more harmful for Black Chicagoans.
The point is not to feel powerless in the face of this pandemic, but to recognize, in its highlighting of persistent racial and socioeconomic inequities, a chance to also highlight the need for legal changes that will help make our society more just, more free, and more prosperous. Change can start today. Find a place to help and dig in. It is an all-hands-on-deck moment. “How the pandemic will change the law” depends very much on how we individually choose to behave—what we lobby for, what we work toward, what we vote for. You hold part of that answer.
In the transactional law context, I will be focused on (a) laws governing employer-worker relationships and (b) tax benefits and other government relief efforts, like the Paycheck Protection Program. With respect to laws governing employer-worker relationships, we should be particularly concerned about incentivizing employers to provide safe workplaces and how such rules should be shaped in light of the massive power imbalance between employees and employers. With tax benefits and other government relief efforts that will—no doubt—be ongoing, we should be concerned with transparency, equity, access, and accountability. We have already seen issues with government relief outcomes and rules not accurately mapping on to who were touted as the intended recipients and justification for the funding in the first place. In the Paycheck Protection Program, we saw problems in who got cash first (small businesses being bumped to “the back of the line” by banks), who was allowed to apply for cash (a broadly-worded initial restriction on who could apply based on involvement with the criminal justice system), and how the initial structuring of the program (which included a requirement that 75 percent of the money be spent on payroll in order to be eligible for forgiveness) limited its usefulness to small brick-and-mortar businesses.
These disparities between what is claimed as the justification for a program and how it works in practice are extremely important. Holding the government to task for the actual content and impact of programs is important and will be an ongoing struggle. Ensuring safe workplaces and fair, impactful government relief programs will be a significant part of determining whether the economic fallout from COVID-19 will further entrench racial and socioeconomic disparities.
Lee Fennell, Max Pam Professor of Law
Efforts to address COVID-19 vividly demonstrate the challenges that indivisibilities and nonlinearities present for law and policy. Governments and institutions would face a vastly simpler task if all phenomena obeyed principles of proportionality, making it possible to dial back activity by a chosen increment and experience a precisely corresponding impact on health outcomes. Instead, threshold effects, critical mass dynamics, and high fixed costs produce a volatile concatenation of all-or-nothing decisions and sharp inflection points rather than a smooth continuum of alternatives. Human interactions, life plans, and business models often cannot be readily scaled up and down. People’s decisions are also tightly interdependent, so that choices made by relatively few can set off—or arrest—a cascade of further behavioral changes. As a result, adjustments in the regulatory environment can generate changes that are much larger or smaller than expected or intended. Law has always had to confront these kinds of issues, but the pandemic has brought them to the forefront by broadly disrupting the accustomed (and thus usually unnoticed) chunks into which the world is organized. What we learn in the course of grappling with these disruptions could help us anticipate and respond more effectively to similarly structured problems going forward.
Mark Templeton, Clinical Professor of Law, Director of the Abrams Environmental Law Clinic
COVID-19 has highlighted the ways in which low-income and many people-of-color consumers suffer from energy insecurity and instability. The work of the Abrams Clinic in and around Detroit, Michigan, has shown that the rates of energy reliability are lower in areas composed primarily of low-income and people-of-color residents. Having reliable access to energy is especially important during the pandemic, when individuals are working from home or needing to educate their children from home. People have also been getting laid off or have lost their jobs, and thus they may not have the income to afford their energy bills, leading to increased energy insecurity.
This crisis has revealed the immense need for energy assistance for low-income individuals and the need for an easier process for those individuals to qualify for this kind of assistance. It has also shown that state regulators need to remove barriers that keep these communities from having greater control over their own energy production and distribution, such as through community-based renewable energy projects and microgrids.
Martha C. Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics
The pandemic reminds us, or should, why Ernst Freund was right to urge the inclusion of normative philosophical analysis in the legal curriculum. Freund was thinking of other issues, especially issues of inequality and social unrest, when he recommended that the new Law School should offer philosophy alongside more traditional forms of legal study. His issues, of course, are still urgently with us. But the pandemic, too, makes us see clearly the need for clear normative arguments about justice and welfare, and for a philosophical understanding of emotions such as fear, anger, disgust, and hope. Without all this, how can we chart a sane course in unknown and perilous times?
Thomas J. Miles, Dean and Clifton R. Musser Professor of Law and Economics
The COVID-19 pandemic has brought much bad news, but I see several sources of encouragement for the future, one of which is a growing ability to withstand uncertainty—a quality particularly useful to lawyers. Each generation tends to compare itself to those who follow behind, sometimes to note their perceived deficiencies. The pandemic is likely to develop a strength in the generation of students now entering colleges and professional schools today: they are apt to be more comfortable than their forebears in making choices under uncertainty. Much attention has been given in recent weeks to whether students should defer their college or graduate school plans. This is an important and consequential decision. When faced with uncertainty, the best choice is often to wait. With time, options may improve and more information may arrive, reducing uncertainty. There is also a cost to waiting, and for students deferring their higher education, the pandemic has limited the attractiveness of gap years or alternative pursuits. In obtaining higher education, a student aspires to a professional career, the state of which would be delayed by education deferral. Admissions are likely to be even more competitive in the next two years, as a pileup of deferrals leaves fewer vacancies available for the rising cohorts of applicants. Recent generations have not had to face a choice of this sort, and having made the choice, today’s generation is likely to have greater confidence in confronting future uncertainties. For law students—who will someday be lawyers guiding clients through difficult choices, or government or business leaders navigating uncertainty as they make decisions—this may well become a strength they carry through their careers.