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May 13, 2020 by Daniel Farber

Free to Be Negligent?

Originally published on Legal Planet. Reprinted with permission.

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and 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, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.

Tort lawyers may be reluctant to take on such claims except in the unusual cases where there was no other significant exposure to the virus. In addition, the plaintiff will have to show that the business failed to take reasonable precautions, which won't be easy in many cases. Even if they prove all that, the damage award …

May 7, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal …

April 17, 2020 by Daniel Farber
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During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety.

We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science:

  • Congress needs to greatly strengthen laws protecting whistleblowers, which currently are much weaker than most people realize.
  • Congress also needs to codify into law the existing rules protecting scientific integrity within administrative agencies. Currently there are merely internal regulations that agencies can ignore.
  • Either …

April 2, 2020 by Daniel Farber
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The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings.

Statutory limits

As I discussed in a previous post, the president's power to deal with an epidemic is mostly derived from statutes. The available statutory powers include deploying federal resources and funding to support the states; controlling the movement of infected individuals across state lines and the U.S. border; and dealing with infections within the government's workforce. [Addendum: The way this was originally stated, it was a bit too narrow. The feds can also quarantine those who are likely to infect people who will cross state lines.]

States have broader powers. Governors, and often mayors, have the power to impose quarantines, close down …

March 30, 2020 by Daniel Farber
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It's a truism among disaster experts that people who were disadvantaged before a disaster are also the most vulnerable during the disaster. There are aspects of the coronavirus pandemic that fit this mold. Here are some of the disparities we can expect to see.

Rural v. Urban

Much of our economic growth and job opportunity is in cities, which is why young people continually leave the countryside. Life expectancies also tend to be lower in rural areas. Although it's hard to be sure, people in those areas may also be disadvantaged in terms of the coronavirus. The virus is likely to spread more slowly in rural areas because the web of interpersonal interactions is less dense and because rural areas are further from the airports that initially spread the disease. That's a definite advantage. But when the epidemic does …

March 26, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.

The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."

The Clean …

March 18, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base.

It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.

The Stafford Act (major disasters and national emergencies). Trump has specifically invoked the emergency provisions of the Stafford Act. The Stafford Act, which is mostly administered by FEMA, covers federal responses for two categories of events: major disasters and …

Feb. 18, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current global warming may impact society.

Weather changes in the Little Ice Age were less unidirectional and less globally uniform than current climate change. Different places hit their lowest temperatures at different times, and there were often large gyrations in temperatures from year to year. One cause was that sun's radiation decreased for unknown reasons – there were decades with no sunspots at all. There were also …

Jan. 13, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.

Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.

These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited …

Jan. 10, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.

That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 13, 2020

Free to Be Negligent?

May 7, 2020

The Coronavirus and the Commerce Clause

April 17, 2020

We Need an Environmental Dr. Fauci

April 2, 2020

Federalism and the Pandemic

March 30, 2020

Inequality and the Coronavirus

March 26, 2020

The Flight from Evidence-Based Regulation

March 18, 2020

Presidential Power in a Pandemic