Administrative Law / Regulatory & Policy Responses / Governance

This general section includes responses by both legislatures and governments (so is not strictly or exclusively administrative law), and includes literature on federalism, parliamentary procedure, rule of law and judicial review of administrative action. This section also includes literature on restriction of movement – including transborder movement, quarantine and lockdown regulations, and compliance with restrictive measures.

Abdullah, Walid Jumblatt and Soojin Kim, ‘Singapore’s Responses to the COVID-19 Outbreak: A Critical Assessment’ (2020) 50(6–7) The American Review of Public Administration 770–776
Abstract: This article reviews how Singapore has responded to the COVID-19 pandemic, from late-January to early May, 2020, through the three-phase approach to ‘learning’: in-between learning, trial-and-error learning, and contingency learning. Given its unique political system dominated by the People’s Action Party (PAP) and bureaucratic culture, the Singapore government has progressively implemented numerous control measures including strict travel bans, contact tracing, ‘Circuit Breaker,’ compulsory mask-wearing, and social distancing policies, along with financial relief to businesses and workers, in a very top-down fashion. Although the health and treatment issues of foreign migrant workers in dormitories continue to be the subject of ongoing debate among many scholars, it should be noted that the mortality rate in Singapore still remains very low compared to that of many other countries. Singapore’s case points to an important lesson that learning-driven coordinated strategic approaches matter for effective crisis management in the long term.

Abulude, Francis Olawale and Ifeoluwa Ayodeji Abulude, ‘Impact of the COVID-19 Pandemic: Lesson from Nigeria’ (SSRN Scholarly Paper ID 3629598, 17 June 2020)
Abstract: COVID-19 is the deadly virus that has nearly locked down the entire universe. It has claimed several millions of lives worldwide. Presently, there is no known cure for the virus. Africa is one of the continents affected and Nigeria is one of the countries affected. The aim of the review is to report the lessons learn through out the pandemic period. To achieve the aim, journals, internet papers, and news reports were used for the write-up. The pandemic have influences on education, economy, religious, sporting, social, banking activities, and others. The federal, state governments, military, NGO, individuals, and religious bodies provided and donated palliatives to cushion the effects of the pandemic on the populace. To curb the spread of the disease, measures were put in place for the people to adhere strictly with. There were violators and adequate penalty were meted by constituted mobile courts on them. The locked down is relaxed a little bit to watch how effective is the efforts of the government to stop or reduce the pandemic.

Addicott, Jeffrey, ‘COVID-19 Pandemic: Policy and Legal Issues’ (2020) (March-April) The Officer Review 7-9
Abstract: Most Americans are unfamiliar with governmental powers during a pandemic, which makes it useful to examine applicable legalities, powers and authorities. Importantly, that power can mandate quarantine, isolation, vaccination, decontamination, destruction of infected property, eviction, closing businesses, social distancing, sheltering in place, specimen testing, and mandating health information disclosure and health care responses.

Adeel, Abdul Basit et al, ‘COVID-19 Policy Response and the Rise of the Sub-National Governments’ (2020) 46(4) Canadian Public Policy 565–584
Abstract: We examine the roles of sub-national and national governments in Canada and the United States vis-à-vis the protective public health response in the onset phase of the global coronavirus disease 2019 (COVID-19) pandemic. This period was characterized in both countries by incomplete information as well as by uncertainty regarding which level of government should be responsible for which policies. The crisis represents an opportunity to study how national and sub-national governments respond to such policy challenges. In this article, we present a unique dataset that catalogues the policy responses of US states and Canadian provinces as well as those of the respective federal governments: the Protective Policy Index (PPI). We then compare the United States and Canada along several dimensions, including the absolute values of sub-national levels of the index relative to the total protections enjoyed by citizens, the relationship between early threat (as measured by the mortality rate near the start of the public health crisis) and the evolution of the PPI, and finally the institutional and legislative origins of the protective health policies. We find that the sub-national contribution to policy is more important for both the United States and Canada than are their national-level policies, and it is unrelated in scope to our early threat measure. We also show that the institutional origin of the policies as evidenced by the COVID-19 response differs greatly between the two countries and has implications for the evolution of federalism in each.

Adetunji, Abdulrahman, ‘Halting The Upsurge Of Future Pandemics: The Role Of Nigerian Government’ (SSRN Scholarly Paper ID 3679190, 22 August 2020)
Abstract: Humanity has faced countless threats throughout its existence. Epidemics, pandemics, natural disasters, wars, etc. All these threats have two features in common – None was truly global in its direct impacts, and despite the devastating effects these threats had, humanity always survived and thrived afterwards. Today, COVID-19 has changed the narrative. This paper examines the factors that led to the quick spread of the virus and proffer ways through which the government can prevent such occurrences in the future.

Administrative Law Review (2021) 73(1): Special Issue
Note: the Introduction to this special issue, by Coglianese and Mahboubi, is available on open access on SSRN but the other articles, listed below, are not on open access.
* Coglianese, Cary and Neysun A Mahboubi, ‘Administrative Law in a Time of Crisis: Comparing National Responses to COVID-19’ 1
Abstract: Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as well as the World Health Organization. Although the pandemic and its consequences remain ongoing problems, this issue seeks to elucidate the regulatory challenges that countries have faced in common, and to compare approaches and distill lessons that might be transferrable across jurisdictions. From the essays in this special issue emerge at least four key lessons. First, it is clear that a global pandemic demands effective national and local governance. Second, regulations must be adaptable and responsive in the face of fast-moving public health threats. Third, emergency executive powers must be limited and subject to oversight and sunsetting. Finally, as much as administrative law can affect countries’ ability to craft effective responses to public health emergencies, responsible public leadership undoubtedly matters most of all. These four lessons can help guide efforts by lawmakers and policy advisors to prepare more nimble and effective regulatory approaches to respond to viral outbreaks and other public health threats. Even when the current global pandemic eventually recedes, the Administrative Law Review’s special issue on national responses to the COVID-19 crisis can provide a basis for reflection and renewed momentum toward strengthening international public health institutions and regulatory cooperation around the world.
  • DeLisle, Jacques and Shen Kui, ‘China's Response to COVID-19’ p19
  • Nicola, Fernanda and Gino Scaccia, ‘The Italian Model to Fight COVID-19: Regional Cooperation, Regulatory Inflation, and the Cost of One-Size Fits All Lockdown Measures’ p53
  • Parker, Richard W, ‘Why America's Response to the COVID-19 Pandemic Failed: Lessons from New Zealand's Success’ p77
  • Quinot, Geo, ‘Justification, Integration, and Expertise: South Africa's Regulatory Response to COVID-19’ p105
  • Contesse, Jorge, ‘Exceptional Regulations for an Exceptional Moment: The Law and Politics of COVID-19 in Chile’ p121
  • Saurer, Johannes, ‘‘Patterns of Cooperative Administrative Federalism in the German Response to COVID-19’ p139
  • Jansen, Oswald, ‘Administrative Law Rules and Principles in Decisionmaking of the World Health Organization during the COVID-19 Pandemic’ p165
  • Mearns, Lauren, ‘State Bankruptcy, COVID-19, and the United States Trustee Program: The Executive Branch's Role in the Oversight of a State's Financial Restructuring’ p195
  • Trabucco, Caroline M, ‘It's a Vital Sign: How Post-Covidien Interagency Collaboration Can Prevent Future Medical Device Shortages’ p223

Ahdar, Rex, ‘Reflecting Upon the Costs of Lockdown’ in Augusto Zimmermann and Joshua Forrester (eds), Fundamental Rights in the Age of COVID-19 (Connorcourt Publishing, 2020)
Abstract: This paper endeavours to show that the indirect, downstream and long-term costs of a mandated lockdown in response to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) producing coronavirus disease 2019 (COVID-19) are too often ignored. The New Zealand Government did not much talk about them at the time it implemented a strict lockdown based upon its elimination strategy. Yet rational public policy requires these costs need to be taken into account and weighed against the benefits of the strict lockdown approach that New Zealand adopted. Furthermore, the costs and benefits of a milder mitigation strategy (of the kind Sweden adopted) also need to be estimated and compared to the strict lockdown approach. I argue the mitigation strategy was and is a preferable one once the indirect and long-term costs and benefits are taken into account.

Ahmad, Nisar Mohammad, ‘Balancing Economic Growth and Preservation of Human Rights During Movement Control Order: The Malaysian Experience in Overcoming the Impacts of Covid-19 Pandemic’ (2020) 3(1) INSLA E-Proceedings 589–595
Abstract: The spread of Covid-19 pandemic across the globe has triggered many countries to implement lockdown to break the chain of infection. Malaysia, like many other countries in the world, has implemented movement control order (MCO) in various stages starting on 18th March 2020 to overcome the pandemic. During this MCO period, almost every day-to-day activity has been restricted. Employees were forced to work from home, schools and universities were closed and most business activities have also been shut down. The MCO was implemented as a reflection to the government’s role to preserve public health and the right to life of its citizen. Nevertheless, the implementation of MCO has also affected the growth of Malaysian economy. This paper aims at exploring the efforts by Malaysian authorities in balancing the country’s economic growth and preserving the public health and human rights of its citizen. For this purpose, qualitative method has been used in which various primary and secondary sources have been examined. This will explore the actions taken by the government in overcoming Covid-19 pandemic as well as to overcome the economic downturn due to this pandemic. The preliminary finding from this paper indicates that, the Government of Malaysia has played its role and discharged its duty to respect, protect, and fulfil human rights of its people while addressing the Covid-19 impact. The government has used its discretion to restrict certain rights to maintain public health. At the same time, a number of stimulus packages targeted to certain affected groups have also been introduced to help reduce the burden of economic impact due to this pandemic as well as to sustain the economic growth of the country.

Aksoy, Cevat Giray, Barry Eichengreen and Orkun Saka, ‘The Political Scar of Epidemics’ ( National Bureau of Economic Research, NBER Working Paper No w27401,1 June 2020)
Abstract: What will be political legacy of the Coronavirus pandemic? We find that epidemic exposure in an individual’s ‘impressionable years’ (ages 18 to 25) has a persistent negative effect on confidence in political institutions and leaders. We find similar negative effects on confidence in public health systems, suggesting that the loss of confidence in political leadership and institutions is associated with healthcare-related policies at the time of the epidemic. In line with this argument, our results are mostly driven by individuals who experienced epidemics under weak governments with less capacity to act against the epidemic, disappointing their citizens. We provide evidence of this mechanism by showing that weak governments took longer to introduce policy interventions in response to the COVID-19 outbreak. These results imply that the Coronavirus may leave behind a long-lasting political scar on the current young generation (‘Generation Z’).

Alemanno, Alberto, ‘Taming COVID-19 by Regulation: An Opportunity for Self-Reflection (Editorial)’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 187-194
Extract from Introduction: COVID-19 represents not only one of the greatest natural and economic disasters in human history, but also a rich case study of governments’ emergency responses. As such, it is a test bed for virtually all disciplines – be they natural sciences, social sciences or humanities. This is all the more true for risk research and regulatory theories in a world increasingly shaped by transboundary, uncertain manufactured and natural risks.

Alemanno, Alberto, ‘The European Response to COVID-19: From Regulatory Emulation to Regulatory Coordination?’ 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 307-316
Introduction: Due to its borderless nature, COVID-19 has been a matter of common European interest since its very first detection on the continent. Yet this pandemic outbreak has largely been handled as an essentially national matter. Member States adopted their own different, uncoordinated and at times competing national responses according to their distinctive risk analysis frameworks, with little regard1 for the scientific and management advice provided by the European Union (EU), notably its dedicated legal framework for action on cross-border health threats.2 To justify such an outcome as the inevitable consequence of the EU’s limited competence in public health is a well-rehearsed yet largely inaccurate argument3 that calls for closer scrutiny.
This article makes a first attempt at unpacking how such fragmented, uncoordinated but ultimately converging national responses to COVID-19 came into being under the EU legal order. To do so, it systematises the European response into separate stages. Phase 1 – the emergency – has been characterised by the adoption of national emergency risk management measures that, albeit country specific, were inspired by a common objective of pandemic suppression (ie to reduce disease transmission and thereby diminish pressure on health services) under the by now well-known “flatten the curve” imperative. Phase 2 – the lifting – is about the attempt at relaxing some of the national risk responses in a coordinated fashion to avoid creating negative spill-overs or distortions – be they sanitary and/or financial – across the EU. Lastly, this article strives to define, and possibly predict, the regulatory policy framework that might be governing the next phases of the European risk management response to this pandemic as they will emerge from a widely undefined yet inescapable dialectic between the EU and its Member States.

Allman, Kate, ‘Police State or Safety Net?: How NSW Entered a Strange “New Normal”’ (2020) 66 LSJ: Law Society of NSW Journal 30–35
Abstract: Never before have Australians seen laws that limit freedom and civil liberties to the extent the new COVID-19 social distancing measures do. The restrictions have successfully helped ‘flatten the curve’ of new COVID-19 infections in NSW but, in doing so, may set a sinister precedent for the rule of law.

Almeida, Luís Felipe Rasmuss de, ‘The Coronavirus (Covid-19) Legislation Involving Matters of Private Law in Brazil (Translation with Commentary)’ (2021) 8(26) Revista de Direito Civil Contemporâneo 351–362
Abstract: The present work comprises the English translation of Coronavirus Act in Brazil, a piece of legislation passed in Brazil to regulate matters involving Private Law during this time of pandemic (Act n. 14,010 of 2020 - the ‘Emergency and Temporary Legal Framework for relationships involving Private Law during the period of Covid-19 pandemic’), which established a relevant and transitory set of rules concerning periods of limitations, adverse possession, termination of contracts, adjustment of contract terms by Brazilian courts, as well as rules regarding Family Law, Inheritance Law, Competition Law and changes on the effective date for administrative sanctions established under Brazilian General Data Privacy Act. For convenience of foreign readers, this translation also includes (i) introductory notes on the legislative process involving Bill n. 1,179 of 2020 (later enacted as Act 14,010 of 2020) and (ii) explanatory footnotes on various aspects of Brazilian legislation.

Alon, Titan et al, ‘How Should Policy Responses to the COVID-19 Pandemic Differ in the Developing World?’ (National Bureau of Economic Research, NBER Working Paper No w27273, 1 May 2020)
Abstract: The COVID-19 pandemic has already led to dramatic policy responses in most advanced economies, and in particular sustained lockdowns matched with sizable transfers to much of the workforce. This paper provides a preliminary quantitative analysis of how aggregate policy responses should differ in developing countries. To do so we build an incomplete-markets macroeconomic model with epidemiological dynamics that features several of the main economic and demographic distinctions between advanced and developing economies relevant for the pandemic. We focus in particular on differences in population structure, fiscal capacity, healthcare capacity, the prevalence of ‘hand-to-mouth’ households, and the size of the informal sector. The model predicts that blanket lockdowns are generally less effective in developing countries at reducing the welfare costs of the pandemic, saving fewer lives per unit of lost GDP. Age-specific lockdown policies, on the other hand, may be even more potent in developing countries, saving more lives per unit of lost output than in advanced economies.

Altman, Morris, ‘Smart Thinking, Lockdown and Covid-19: Implications for Public Policy’ (2020) 4(S-COVID-19 Special Issue) Journal of Behavioral Economics for Policy 23–33
Abstract: The response to Covid-19 has been overwhelmingly to lockdown much the world’s economies in order to minimize death rates as well as the immediate negative effects of Covid-19. I argue that such policy is too often de-contextualized as it ignores policy externalities, assumes death rate calculations are appropriately accurate and, as well, assumes focusing on direct Covid-19 effects to maximize human welfare is appropriate. As a result of this approach, current policy can be misdirected, with highly negative effects on human welfare. Moreover, such policies can inadvertently result in not minimizing death rates (incorporating externalities) at all, especially in the long run. Such misdirected and sub-optimal policy is a product of policy makers using inappropriate mental models which are lacking in a number of key areas: the failure to take a more comprehensive macro perspective to address the virus; using bad heuristics or decision-making tools; relatedly not recognizing the differential effects of the virus; and adopting herding strategy (follow-the-leader) when developing policy. Improving the decision-making environment, inclusive of providing more comprehensive governance and improving mental models, could have lockdowns throughout the world thus yielding much higher levels of human welfare.

Alunaru, Christian and Lucian Bojin, ‘Coronavirus and the Law in Romania’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: Romanian authorities reacted to the COVID-19 pandemic with various legal instruments, applying in numerous fields of law. Some measures were implemented in order to control the spread of the disease and to ensure the maximum capacity of the healthcare service providers to deal with the situation. Other measures addressed (and tried to mitigate) the economic consequences of the pandemic and of the measures from the first category. Both types of measures involved certain serious limitations on the exercise of certain fundamental rights, which would not have been compliant with the constitutional provisions governing Romania in normal times. Because of this, the state of emergency was declared (and was in force for 60 days) in order to allow authorities to adopt the proposed measures. These measures applied in various fields, among which: healthcare, public order, public administration, labour and social security, performance of agreements, dispute resolution, education.

Amat, Francesc et al, ‘Pandemics Meet Democracy: Experimental Evidence from the COVID-19 Crisis in Spain’ (preprint, SocArXiv, 5 April 2020)
Abstract: The COVID-19 outbreak poses an unprecedented challenge for contemporary democracies. Despite the global scale of the problem, the response has been mainly national, and global coordination has been so far extremely weak. All over the world governments are making use of exceptional powers to enforce lockdowns, often sacrificing civil liberties and profoundly altering the pre-existing power balance, which nurtures fears of an authoritarian turn. Relief packages to mitigate the economic consequences of the lockdowns are being discussed, and there is little doubt that the forthcoming recession will have important distributive consequences. In this paper we study citizens’ responses to these democratic dilemmas. We present results from a set of survey experiments run in Spain from March 20 to March 28, together with longitudinal evidence from a panel survey fielded right before and after the virus outbreak. Our findings reveal a strong preference for a national as opposed to a European/international response. The national bias is much stronger for the COVID-19 crisis than for other global problems, such as climate change or international terrorism. We also find widespread demand for strong leadership, willingness to give up individual freedom, and a sharp increase in support for technocratic governance. As such, we document the initial switch in mass public preferences towards technocratic and authoritarian government caused by the pandemic. We discuss to what extent this crisis may contribute to a shift towards a new, self-enforcing political equilibrium.

Anderson, Evan, ‘Is Law Working? A Brief Look at the Legal Epidemiology of COVID-19’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 20–27
Abstract: Legal intervention has featured prominently in the response to the COVID-19 pandemic. In most places in the world, the legal response has consisted of some combination of traditional disease control measures (individualized testing, contact-tracing, distancing), population-based physical distancing (including school and business closures, stay-at-home orders, gathering bans and masking rules), travel strictures (including travel bans, border closures and quarantines), and economic support measures (which are beyond the scope of this Chapter). Researchers have tried to guide that response in real-time by measuring rapidly changing legal interventions and assessing their current and future effects. In a moment when law can have huge beneficial and deleterious effects, this legal epidemiology can fairly be regarded as a crucial element of the overall COVID-19 response. This Chapter tries to identify important take-aways from this evolving evidence base. The epidemiologic record shows that the U.S. is failing to control the virus, but little else is as clear. Understanding how much better or worse things would be with different legal interventions is complicated given that the effects of rules are dependent on settings (e.g., density), timing (e.g., in relation to population transmission rates), and social context (e.g., social norms and political conditions). It is difficult for researchers to untangle the effects of specific legal requirements, let alone to identify some ideal set of least restrictive elements. Nevertheless, previous experience, prevailing theory, and some direct evidence suggest that some early and aggressive distancing interventions have important benefits. Questions of costs, disparities and side effects remain largely unanswered.

Andrias, Kate and Benjamin I Sachs, ‘Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality’ (2021) 130(3) Yale Law Journal 546–635
Abstract: This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic.

Anson-Holland, James, ‘Locked down but Not Detained’ [2020] New Zealand Law Journal 166
Abstract: It may not be news to anyone that New Zealand has been in the midst of a global pandemic due to a novel coronavirus disease, COVID-19. In response to this pandemic, the New Zealand Government severely restricted travel and required members of the public to self-isolate at home except as permitted for essential personal movement.

Aoki, Naomi, ‘Stay-at-Home Request or Order? A Study of the Regulation of Individual Behavior during a Pandemic Crisis in Japan’ (2021) International Journal of Public Administration (advance article, published 13 April 2021)
Abstract: This study examines whether a stay-at-home order with penalties would be an effective measure for regulating public behavior during a pandemic lockdown, through an online experiment conducted in Japan. Amidst the COVID-19 pandemic of 2020, authorities around the world have taken measures to limit civil liberties by means of stay-at-home orders, with penalties for infractions. In contrast, Japan has avoided legal sanctions and sought voluntary cooperation from the public. This self-restraint request might work to deter public activity in Japan, whose society is known for conformity and social order. Nevertheless, the study found that penalties do make a difference in the intention to stay home, especially in places with high infection rates, such as Tokyo. This piece of evidence could contribute to a broader discourse on what sort of measures to take to encourage public cooperation or compliance and how to balance civil liberties and national health.

Aperio Bella, Flaminia, Cristiana Lauri and Giorgio Capra, ‘The Role Of COVID-19 Soft Law Measures In Italy: Much Ado About Nothing?’ (2021) 12(1) European Journal of Risk Regulation 93-110
Abstract: This article reflects on the role played by non-binding legal instruments in Italy when it faced the challenge of the SARS-CoV-2 virus in the early months of 2020. In order to verify whether the use of such instruments restricted fundamental and human rights beyond constitutional and legal limits, the article first gives an overview of hard law measures adopted in Italy in the fight against the coronavirus. The article will then focus on soft law measures, the use of which became significant only in Phase II of Italy’s response to COVID-19. Non-binding legal instruments have provided the public with instructions on how to gradually return to normal life. The article contains two case studies; the first one on soft law measures adopted within the freedom of private economic enterprise; and the second on measures adopted in relation to the freedom of worship. The Italian soft law deployed during the COVID-19 epidemic must be regarded as borne out of coordination between the State and the Regions and as the result of a dialogue (even though informal) with the relevant stakeholders concerned. Despite some criticism levelled against the use of soft law measures, their role in restricting constitutionally granted rights was marginal, because only hard law measures adopted at the State and local levels limited personal rights and freedoms in order to contain the pandemic.

Aritonang, Dinoroy Marganda, ‘Legal Liability of Public Financial Administration in the Pandemic Era’ (2021) 564 Advances in Social Science, Education and Humanities Research 94–99
Jurisdiction: Indonesia
Abstract: The conditions of the Covid-19 pandemic have prompted some major changes in various sectors, especially in this regard to the dimensions of financial governance. Basically, the state of emergency has several times causing massive factors to change the pattern and manner of government administration such as the threat of economic crises and other emergencies. Emergency conditions usually encourage changes that are not incremental but tend to be comprehensive, especially in the dimensions of government’s financial administration. This change forces the government to immediately adapt to sudden conditions through the formations of various legal instruments and policies affecting how the government’s finance is run compared to normal conditions. The problem is that the formation of emergency policies often brings a variety of criticisms and concerns about the accountability and legal liability of public finance administration as experienced in Indonesia. Act No. 2/2020 and Perpu No. 1/2020 is a legal basis for the government to manage the public finances during this crisis. Several articles in the policy deviate from the principles of rule of law and government accountability, because they seem to avoid legal accountability and give impunity for the management of public finances during a pandemic. Basically, from the perspectives of administrative and criminal law, the exclusion norms in the policy cannot be applied normatively, because it would contradict the principles of law and good governance. Therefore, the model of the norms of exemption and impunity as such, legally is not a barrier to holding the government accountable because of the violation against the use of public finance.

Arndt, Kathryn, ‘Closest to the People: Local Government Democracy and Decision-Making in Disaster’ (Melbourne School of Government, University of Melbourne, Governing During Crises Policy Brief No 6, 15 September 2020)
Key Points: This Policy Brief makes the following central points: (a) Even before the COVID-19 pandemic hit, the 2020 Victorian local government elections were already set to break new ground. With the entry into force of the Local Government Act 2020 and Gender Equality Act 2020, significant reforms to the local government sector were expected to be implemented alongside the election of over 600 councillors across Victoria. (b) The pandemic has added to the complexity of implementing these reforms and highlighted the democratic complexities of holding free and fair elections in an environment where the campaign activities of a majority of candidates are limited. (c) These challenges have both demonstrated the resilience and adaptability of local government and laid bare the need for greater resourcing for local government to effectively implement the reforms envisaged by new legislation.

Aschenbrenner, Peter, J, ‘United States of America: Response to COVID-19 Pandemic’ [2020] (October) Public Law 803–805
Abstract: Reflects on the extensive emergency powers available to US state governors to combat the coronavirus pandemic, and the range of factors that have hampered their effective implementation, including fragmented local leadership, cultural resistance to official recommendations and the structure of the healthcare system. Discusses the high number of deaths within the jurisdiction.

Ayala Corao, Carlos, ‘Challenges That the Covid-19 Pandemic Poses to the Rule of Law, Democracy, and Human Rights
Abstract: This article analyses the challenges that the pandemic caused by Covid-19 has presented for the rule of law, democracy, and human rights.

Azmi, Tun Zaki, ‘Legal Response, Rule of Law and Judicial Developments in Times of COVID-19 Pandemic: Malaysian Experience’ (2020) 3(1) INSLA E-Proceedings 7–17
Abstract: The unprecedented COVID-19 pandemic continues to take a severe economic toll and inflict considerable human suffering. Despite significant efforts coordinated at the international level by various organisations, the swift impact of the crisis has asymmetrically affected the global and local populations through continuous disruptions to daily life. Consequently, a number of COVID-19 related restrictions and security measures are introduced by governmental bodies to mitigate the short and long-term fallout ofthe pandemic. Accompanied by legal developments to enable and implement them, these authorities play an essential role in maintaining order and control to limit the impact of the outbreak. However, where governments respond with an expanded role and the compelling presence of law enforcement, the struggle to uphold the rule of law will be more apparent than ever. This speech explains whether these measures can be materialised without infringing our existing rights and rule of law within the global and the Malaysian context and canvasses the developmentson the front of the judiciary to cater to the ‘new norms’ and order.

Baccini, Leonardo and Abel Brodeur, ‘Explaining Governors’ Response to the Covid-19 Pandemic in the United States’ (SSRN Scholarly Paper No ID 3579229, Social Science Research Network, 20 April 2020) < https://papers.ssrn.com/abstract=3579229 >
Abstract: What is the response of US governors to the COVID-19 pandemic? In this research note, we explore the determinants of implementing stay-at-home orders, focusing on governors’ characteristics. In our most conservative estimate, being a Democratic governor increases the probability of implementing a stay-at-home order by more than 50 percent. Moreover, we find that the probability of implementing a statewide stay-at-home order is about 40 percent more likely for governors without a term limit than governors with a term limit. We also find that Democratic governors and governors without a term limit are significantly faster to adopt statewide orders than Republican governors and governors with a term limit. There is evidence of politics as usual in these unusual times.

Backer, Larry Catá, ‘The Metamorphosis of COVID-19: State, Society, Law, Analytics’ (2020) 15(2) Emancipating the Mind: Bulletin of the Coalition for Peace & Ethics: Special Issue on Coronavirus and International Affairs 261-352
Abstract: Almost from the start of global awareness of the COVID-19 pandemic there has been a general sense that it would be a transforming event. For some those transformations would be temporary, for others far more profound and long lasting. This essay examines the idea of transformation. And the emergence of its trajectories at the start of the pandemic. Focusing on the first half of 2020, the essay considers this idea of metamorphosis in four critical aspects of global and collective societal organization. That idea of metamorphosis is not based on the notion that COVID-19 has transformed the societal order into something else—rather the thesis of this essay is that COVID-19 has stripped away pre-pandemic pretensions and has made it possible for societal order to transform into itself—its more accurate representation of itself. Section 2 first considers COVID-19 as the virus of societal acceleration. That is of the way that COVID-19 accelerates trajectories already present and latent in collective bodies (and as well in the bodies of individuals within their own family collectives). Section 3 then considers the transformation of origin stories. The transformation of the story of the origins of COVID-19 align with the transformations of the relations between China and the US and between China and the international community. And these are not without consequence. Origins point to culpability, and the culpable might be held accountable. Section 4 then examines the moral transformation accelerated by pandemic. The focus here is on sacrifice—the sacrifice of the aged by the healthy, the sacrifice of the poor by those with greater means, and the sacrifice of women’s autonomy. Section 5 then considers the transformation of law. The science of law has been overcome by that of the science of data, of psychology, and of prediction. And with that transformation, an even greater transformation of the autonomy of the individual before the state. Where individuals were once assumed to be autonomous actors capable of adhering and culpable for lapses in conforming behavior to commands, now they are understood as the aggregation of the sum of their actions, actions which can be predicted and nudged through rewards and punishment. Entities, in turn, build policy by incarnating the aggregated mass of human behaviors within a community. Law is transformed into simulation even as the individual is transfigured as the incarnation of the sum of the data she generates. The essay ends with a brief consideration in Section 6, Metamorphoses, of the consequences of these transformations. It suggests the contours of the character of societal organizations that COVID-19 has revealed.

Bailey, Diggory, ‘Judicial Anticipation of Legislation’ [2020] Statute Law Review Article hmaa014 (advance article, published 5 August 2020)
Abstract: This note considers Re: A Company (Injunction to Restrain Presentation of Petition) [2020] EWHC 1406 (Ch) and Travelodge Ltd v. Prime Aesthetics Ltd [2020] EWHC 1217 (Ch) in the context of earlier case law and looks at the circumstances in which the courts have shown a willingness to have regard to the likelihood of future legislation. Note: the litigation concerns a press release by the Secretary of State for Business, Energy and Industrial Strategy on 23 April 2020 which announced certain proposals designed to mitigate the effects of the Covid-19 pandemic on businesses and the economy. The legislation in question is the Corporate Insolvency and Governance Bill (‘the Bill’) was introduced into the House of Commons on 20 May 2020.

Baker, James, ‘Leadership in a Time of Pandemic: Act Well the Given Part’ (2020) 11(1) Journal of National Security Law & Policy 1–25
Abstract: The COVID-19 pandemic has presented unique questions and challenges, including what kind of leaders are necessary in this current crisis. The Hon. James E. Baker’s article highlights the need for leaders during the pandemic and the principles that can apply to the both the legal and policy responses to this current public health crisis. In doing so he distinguishes the leadership necessary during a pandemic as opposed to other national security crises; focuses on three leadership tasks: Prepare, Act, and Lead and what those tasks mean during a pandemic; and identifies role models and their importance in modeling and encouraging qualities necessary for effective leadership during a pandemic. As the pandemic endures, Baker writes about the qualities necessary to support sustained efforts to bring the end of the pandemic.

Bakir, Caner, ‘The Turkish State’s Responses to Existential COVID-19 Crisis’ (2020) 39(3) Policy and Society 424–441
Abstract: This article focuses on how the Turkish state has been responding to limit the public health effects of COVID-19 pandemic to date. It aims to explain and understand the introduction, implementation and effect of health policy instrument mixes. It argues that although ‘presidentialisation’ of executive, and ‘presidential bureaucracy’ under presidential system of government are critical to introduce policies and implement their instrument mixes without delay or being vetoed or watered down which would otherwise occur in the parliamentary system of government, these features of impositional and exclusive policy style pose risks of policy design and implementation failures when the policy problems are poorly diagnosed, their policy solutions are wrong and/or complementary policy instrument mixes implemented ineffectively. However, a temporal, albeit temporary divergence from a dominant administrative tradition and policy style is most likely when a policy issue is esoteric (i.e. technical, scientific and expert-led) and framed as an existential crisis under high uncertainty that require scientific, expert-led, inclusive, early, quick and decisive responses to pressing policy problems.

Baldini, Vicenzo, ‘Health Emergency Management. A Legal Analysis of the Italian Experience’ (2020) 2(2) Humanities and Rights Global Network Journal 117–146
Abstract: The state of emergency that is being experienced has generated a sort of dynamic disorder of complex systematic re-elaboration within the framework of the legal system of the state. We appreciate a permanent tension between the rule of law and the discipline of emergency which manages to find a problematic landing point in the prefiguration of the existence of an emergency legal system, based on a different Grundnorm and parallel to the one that sustains the whole establishment of the legal system of the sources of the state legal order.

Bamidele, Olusola, ‘SARS-COV- 2 Pandemic: Evaluating Early Disease Response in Wuhan City, China’ (SSRN Scholarly Paper ID 3614147, 28 May 2020)
Abstract: The ongoing coronavirus disease 2019 (COVID-19) is caused by Severe Acute Respiratory Syndrome coronavirus virus 2 (SARS-COV-2). This virus probably originated from the seafood market in Wuhan City, China, in early December 2019. As of 10 May 2020, it has dispersed rapidly to roughly 200 countries, killing over 280, 000 out of over 4 million infected people worldwide. This article examines an early disease intervention from the onset of COVID-19 on 8 December 2019 to 23 January 2020 in China. Out of other reasons, this study argues that China apparently delayed intervention to COVID-19, and this might have enhanced its diffusion out of Wuhan city. By deploying data from WHO – China COVID-19 report and relevant articles, the study discovered that the inability of Wuhan authority to stop nearly half of its population emigrating for New Year Celebration apparently played a role in the dispersal of the new virus outside Wuhan City. Other studies had focused on the origin, clinical presentation and probable treatment of the new coronavirus. However, this study illuminates the significance of an early response and intervention in the control of epidemics. A focus on Wuhan, China affords us a rare privilege of gauging how first epidemic control could mitigate a full-blown pandemic.

Bandelow, Nils C, Patrick Hassenteufel and Johanna Hornung, ‘Patterns of Democracy Matter in the COVID-19 Crisis’ (2021) 3(1) International Review of Public Policy 121–136
Abstract: COVID-19 poses a new challenge to governmental decision-making. With a great level of uncertainty regarding the roots, distribution, prevention, and effects of the pandemic, and with scientific insights and recommendations changing on a daily basis, politicians face the difficult task of reacting quickly but justifiably to the developments. Neo-institutional perspectives of policy research can contribute to the understanding of similarities and differences in strategies to deal with the pandemic by focusing on the interrelationship of institutions and the policy process. A comparison of France and Germany highlights the effects of different patterns of democracy. In what way does the national institutional setting, particularly federalism and centralization, contribute to decision-making? How are political decisions instrumentalized in public debates? The findings indicate that the different patterns of democracy in France (unitary majoritarian system) and Germany (federal consensus system) provide distinctive challenges and make it difficult to transfer successful policies from one country to another.

Banerjee, Bratati, ‘COVID-19 Containment: Legal Framework for Regulatory Approach’ (2020) 8(2) Journal of Comprehensive Health 66–73
Jurisdiction: India
Abstract: Legal instruments and frameworks authorize the Government to exercise its powers for enforcing regulations to contain the situation at the time of any health emergency. During the present pandemic of COVID-19 the International Health Regulations 2005 is being implemented globally, in addition to individual country legislations. Several countries have also framed new Acts, Rules and Regulations or amended the existing ones, to fight the battle. With the onset of the pandemic, India has invoked its two existing laws, the Epidemic Diseases Act 1897 and the Disaster Management Act 2005. While the former lays down the public health measures required to be implemented, the latter gives the authorities the power to do so. Using both the laws together is an innovative and comprehensive way to deal with the situation. However, the century old Epidemic Diseases Act is outdated and does not address the situation in the present context. Hence, there is urgent need of revising the Act. Also, instead of multiple Acts, there can be one single Act for integrated, holistic and comprehensive actions for combating the disease. To address situation-specific issues and consequences, a special Act can also be designed and adopted by India, as has been done by many other countries.

Baniamin, Hasan Muhammad, Mizanur Rahman and Mohammad Tareq Hasan, ‘The COVID-19 Pandemic: Why Are Some Countries Coping More Successfully than Others?’ (2020) 42(3) Asia Pacific Journal of Public Administration 154-169
Abstract: Countries have experienced varied success in controlling the COVID-19 pandemic. To understand these variations, the study used netnography on news media and websites, and social media. Factors identified as critical to success in managing the pandemic fall into two categories: state-centric and socio-demographic. State-centric factors such as policy learning and implementation structure, and technological and administrative readiness have influenced success. Contextual factors such as a country’s demographic profile (e.g., age), family structure (multigenerational family), and cultural attributes (e.g., kissing and hugging to greet) also shape the effectiveness of policies for controlling the pandemic.

Barbieri, Paolo and Beatrice Bonini, ‘Populism and Political (Mis-)Belief Effect on Individual Adherence to Lockdown during the COVID-19 Pandemic in Italy’ (SSRN Scholarly Paper ID 3640324, 1 July 2020)
Abstract: To mitigate the spread of the novel coronavirus (COVID-19), social distancing and lockdown have been used in the past months. Using region-level geolocation data from Italy, we document that political belief can potentially limit the effectiveness of government distancing orders. Residents in regions leaning towards extreme right-wing party show a lower reduction in mobility. We also find that this is true for regions with high protest votes. On the contrary there was a sharper reduction in mobility in regions were there is a higher political support for the current political legislation. These results are robust to controlling for other factors including time, geography, local COVID-19 cases and deaths, family characteristics, and healthcare hospital beds. Our research shows that bipartisan support as well as national responsibility are essential in order to efficiently implement social distancing. We also suggest that partisan politics and discontent with the political class, as measured by protest voting, might eventually affect human health and the economy.

Bar-Siman-Tov, Ittai, ‘Covid-19 Meets Politics: The Novel Coronavirus as a Novel Challenge for Legislatures’ (2020) 8(1–2) The Theory and Practice of Legislation 11–48
Abstract: Much attention has been given to the challenge posed by the COVID-19 pandemic to people’s health, to public health systems and to the global economy. Insufficient attention has been given to the challenge posed by the 2019 novel coronavirus to legislatures, the vital organ of democracy. This article develops a comprehensive conceptual analysis of the multiple ways in which the pandemic challenges legislatures and their operation, drawing on illustrative examples from various countries around the world. It argues that COVID-19 poses a unique and complex challenge for legislatures; resulting from the characteristics of this pandemic and the ways they interact with the fundamental institutional features of legislatures; the typical demographic traits of legislators; the psychological biases that can prejudice legislatures’ ability to evaluate the risk; and the effects of emergencies on legislatures. The article then delves into an in-depth case study analysis of how the pandemic particularly challenges parliaments in countries in which COVID-19 meets a political crisis. By understanding the complex challenges posed by COVID-19 on parliaments, we can help ensure that parliaments, and perhaps ultimately democracy itself, would not become casualties of covid-19.

Bar-Siman-Tov, Ittai, ‘Parliamentary Activity and Legislative Oversight during the Coronavirus Pandemic - A Comparative Overview’ (Bar Ilan University Faculty of Law Research Paper No 20-06, March 2020)
Abstract: The novel Coronavirus disease 2019 (COVID-19) is extremely contagious and currently incurable. Hence, much of the efforts to contain the pandemic have focused on social distancing, prohibiting gatherings and even curfews. The Coronavirus poses a new dual challenge for legislatures. First, the Coronavirus, and the measures taken to contain its spread, make it difficult and even dangerous for parliaments to operate, given that legislatures are by their very nature large multi-member bodies whose operation requires assembling a large group of people together to deliberate and vote. Second, the Coronavirus pandemic creates a sense of emergency that empowers the executive branch and emboldens it to assert greater authority at the expenses of the legislature. Despite these challenges, the continued operation of legislatures throughout the Coronavirus crisis, and particularly the maintenance of legislative oversight of the executive, has never been more vital. Legislatures have a crucial role in checking the executive and ensuring that countries will not lose their constitutional and democratic values in the process of managing the Coronavirus crisis.This report begins by explicating the novel dual challenge the Coronavirus pandemic poses for legislatures. It than focuses on elaborating on the unique challenge currently faced by the Israeli Parliament. It explains how the unique combination between the Coronavirus pandemic and the complex political situation in Israel, has made the issue of parliamentary operation during the Coronavirus pandemic particularly acute and urgent. Against this background, this report examines whether and how parliaments in other democracies are operating during this crucial period of the evolving Coronavirus pandemic. Drawing on a combination of two main types of sources – a network of expert academics and a network of parliamentary research centers – it presents a novel and timely comparative overview about current parliamentary activity during the Coronavirus pandemic. The report covers 26 democratic parliaments from Europe, North America, Asia, Israel and Australia. It finds that most parliaments continue to operate during the Coronavirus crisis (including in countries in which the pandemic is quite substantial and in countries where legislators themselves were among those diagnosed with the Coronavirus). It also finds that even though some parliaments continue with business as usual, many parliaments are beginning to modify their operation, and generally show an ability to adapt to meet the Coronavirus challenge.

Barut, Arkadiusz, ‘Departure from the Rule of Law as Consolidation of Biopower: Example of Polish Legislation Justified by Fighting the COVID-19 Pandemic’ (2021) 28(3) Archiwum Filozofii Prawa i Filozofii Społecznej 5–21
Abstract: Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice. I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases. The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Bedford, Becket, ‘Covid-19, Brexit and Borders…what Does It Mean for the UK?’ [2020] Lawyer (Online Edition) 1
Abstract: The article offers information on the challenges faced by the Great Britain’s citizens. It discusses the impact of the coronavirus outbreak, along with information on the free to test new arrivals for Covid-19 at the airport in the Great Britain. It mentions the challenges faced by the citizens in the Great Britain in Europe due to the Brexit, along with mentions on the European law.

Ben-Asher, Noa, ‘The Emergency Next Time’ (2022) 18 Stanford Journal of Civil Rights and Civil Liberties (forthcoming)
Abstract: This Article offers a new conceptual framework to understand the connection between law and violence in national emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence ‘Emergency-Affirming Violence.’ But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, ‘Emergency-Denying Violence,’ has come to stark light in the crisis of the COVID-19 pandemic. The Article offers a new taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes that there are two types of Emergency Violence: Emergency-Affirming Violence and Emergency-Denying Violence. Emergency-Affirming Violence occurs when the government (1) declares and emphasizes the magnitude of an emergency; (2) calls for robust deference to experts; and (3) aggressively pursues emergency measures. Emergency-Denying Violence, by contrast, occurs when the government (1) denies or minimizes the existence of an emergency; (2) ignores or undermines experts; and (3) declines to take significant emergency measures. The Article demonstrates how the three branches of government can engage in both types of Emergency Violence. Analyzing the legal responses to the two national crises of 9/11 and COVID-19 side-by-side, the Article underscores the vulnerable individuals and communities against whom Emergency Violence is unleashed via both Emergency-Affirming and Emergency-Denying Violence. The Article proposes a principle of Emergency Non-Violence to guide public response to the next emergency.

Benítez, María Alejandra et al, ‘Responses to COVID-19 in Five Countries of Latin America’ (SSRN Scholarly Paper ID 3663292, 30 June 2020)
Abstract:
Background: COVID-19 reached Latin-American countries slightly later than European countries, around February/March, allowing some emergency preparedness response in countries characterized by low health system capacities and socioeconomic disparities.
Objective: This paper focuses on the first months of the pandemic in five Latin American countries: Brazil, Chile, Colombia, Ecuador and Peru. It analyses how the pre-pandemic context, and the government’s responses in terms of containment and mitigation and economic measures have affected the COVID-19 health outcomes. Methods: Extensive qualitative document analysis was conducted focused on publicly-available epidemiological data and federal and state/regional policy documents since the beginning of the pandemic.
Results: The countries were quick to implement stringent COVID-19 measures and incrementally scaled up their health systems capacity, although tracing and tracking have been poor. All five countries have experienced a large number of cases and deaths due to COVID-19. The analysis on the excess deaths also shows that the impact in deaths is far higher than the official numbers reported to date for some countries.
Conclusion: Despite the introduction of stringent measures of containment and mitigation, and the scale up of health system capacities, pre-pandemic conditions that characterize these countries (high informal employment, and social inequalities) have undermined the effectiveness of the countries’ responses to the pandemic. The economic support measures put in place were found to be too timid for some countries and introduced too late in most of them. Additionally, the lack of a comprehensive strategy for testing and tracking has also contributed to the failure to contain the spread of the virus.

Berger, Loic et al, ‘Uncertainty and Decision-Making During a Crisis: How to Make Policy Decisions in the COVID-19 Context?’ (University of Chicago, Becker Friedman Institute for Economics Working Paper, No 2020-95, July 2020)
Abstract: Policymaking during a pandemic can be extremely challenging. As COVID-19 is a new disease and its global impacts are unprecedented, decisions need to be made in a highly uncertain, complex and rapidly changing environment. In such a context, in which human lives and the economy are at stake, we argue that using ideas and constructs from modern decision theory, even informally, will make policymaking more a responsible and transparent process.

Berman, Ayelet and Fong Han Tan, ‘When Crisis Meets Preparation and Discipline: Singapore’s Successful Response to Covid-19’ (2021) 20(3) Washington University Global Studies Law Review 627–660
Abstract: The article reports that after the World Health Organization announced that COVID-19 was a Public Health Emergency of International Concern, Singapore contained the spread of COVID-19 within its borders. Topics include examines that Singapore government, guided by science and public health, has taken an assertive and firm approach, applying the rules of the pandemic playbook.

Berman, Emily, ‘The Roles of the State and Federal Governments in a Pandemic’ (2020) 11(1) Journal of National Security Law & Policy 61–82 replacement
Abstract: As a public health matter, the primary responsibility for pandemic response lies with the states. At the same time, multiple laws, policies, and the numerous pandemic-response plans that the federal government has developed make plain that a successful fight against an outbreak of the scale and severity of COVID-19 requires a national response, with significant responsibilities necessarily falling on the federal government. And indeed, numerous authorities relevant to pandemic response—some specific to public health, others more general emergency tools—rest with federal officials. By many accounts, however, the federal government has not been too heavy-handed— as President Trump’s statements cited above may suggest—but rather the opposite. State leaders have consistently pleaded for more active federal leadership—more policy guidance, more material resources, more national coordination. It thus appears that President Trump has been quick to claim power rhetorically—sometimes powers beyond those that he actually possesses—but often reluctant to exercise it. This paper will explore the ways in which existing law and policy envision distinct pandemic-response roles for the state and federal governments, and distinct powers to fulfill those roles. It will then turn to the United States’ coronavirus response and argue that the federal government failed to bring the full range of its powers to bear—and indeed, that it continues to do so—in ways that have undermined the states’ ability to mount an effective response.

Beylin, Ilya, ‘The Ignominious Life of the Paycheck Protection Program’ (SSRN Scholarly Paper ID 3661005, 6 July 2020)
Abstract: The COVID-19 pandemic gravely endangers the health of millions of Americans. Private and public safety measures adopted to reduce infection, however, are also a source of existential risk. As U.S. infection rates increased in early March, 2020, unemployment and business dislocation surged. The bipartisan Coronavirus Aid, Relief, and Economic Security Act (CARES Act) represents the first and largest federal attempt to manage economic fallout from the pandemic. The Paycheck Protection Program (PPP) is a lynchpin of the CARES Act. The PPP seeks to mitigate unemployment and closures in several vulnerable sectors of the economy including among tens of millions of small businesses, not-for-profits, and self-employed individuals. The PPP has disbursed over $500 billion to these sectors, providing a lifeline to millions of employees. Nevertheless, media, lawmakers and economists have criticized the PPP for inefficiently or inequitably distributing funds. This Article is the first work of legal scholarship that explains and examines the PPP. As a case study, this Article also provides insight into the design of economic interventions and their limitations as well as how the lawmaking process generates a narrative allocating responsibility for social trauma.

Bhandari, Vrinda and Faiza Rahman, ‘Constitutionalism During a Crisis: The Case of Aarogya Setu’ in Uma Kapila (ed), Coronavirus Pandemic: Lessons and Policy Responses (Academic Foundation, 2020) [pre-published version of chapter]
Abstract: Aarogya Setu is a contact tracing app launched by the Indian government on April 2, 2020, as a tool to combat the COVID-19 crisis. Issues concerning the privacy and security concerns with the app have been discussed extensively. In this short piece, we focus on the issue of lack of legislative foundations and certain practical governance oriented considerations related to the roll out of the app. We begin by considering the principles of evaluating executive action during a crisis and whether extraordinary times truly call for extraordinary measures. We then explore the importance of a clear and specific law and why the Disaster Management Act or Section 144, CrPC fail to provide an adequate legal foundation for the app. We then consider the importance of law and process of legislation and provide certain recommendations on addressing the procedural irregularities and governance related issues that were related to the roll out of the app.

Blum, John D and Jordan Paradise, ‘Public Health Preparedness & Response: An Exercise in Administrative Law’ (2019) 20(2) DePaul Journal of Health Care Law Article 1
Jurisdiction: USA
Note: this article was written just prior to the Covid-19 pandemic, but we include it because of its almost spooky prescience.
Abstract: Responses to epidemics, pandemics, and other biological disasters require multiple coordinated initiatives that combine sophisticated planning, sound emergency management, effective stockpiles, solid geographic information systems, well-developed laboratory surveillance and response, and effective management capabilities. Critical to the noted elements of planning and response is the existence of a legal structure, which underpins the operations of necessary programs. While the law may not be the first public health tool considered in a disaster, it is fundamental to the effective functioning of multiple actors and must be harmonized across jurisdictional lines. This article explores the role of law in pandemics and other biological catastrophes, highlighting broad developments in public health law that have been sparked by recent events. The piece will consider general responses and trends in health disaster management in the context of administrative law with a particular focus on agency responses. Background discussion will also offer a broad overview of the evolution of federal and state laws, highlighting core areas where parallel legal frameworks have developed. The second half of this essay will paint a more detailed portrait of administrative law responses to public health disasters focusing on the Food and Drug Administration (‘FDA’), exploring medical countermeasures pursued by this agency to enhance preparedness and response. Key FDA legislation and recent guidance, as well as emergency use authorization (‘EUA’) policies, will be analyzed, as a case study of how a pivotal agency has been shaped through law to deal with public health crises.

Blum, Stephanie Cooper, ‘Federalism: Fault or Feature: An Analysis of Whether the United States Should Implement a Federal Pandemic Statute’ (2020) 60(1) Washburn Law Journal 1–61
Abstract: As COVID-19 plagues the world, countries grapple with a range of measures - such as quarantines, isolation, stay-at-home orders and masks - to limit its spread. In the United States, under the Tenth Amendment to the U.S. Constitution, states have taken the lead in implementing a variety of public health safety measures to address this contagious and deadly virus. In many instances, citizens have claimed a violation of their individual rights and raised numerous legal challenges. But given that the virus knows no borders, a pivotal question is what role the federal government should play in creating a more uniform response that respects individual rights. This Article addresses the legal and policy questions of enacting a federal pandemic statute. It provides guidance to public health experts and lawmakers should they decide that a national and more coordinated response would be helpful as the United States confronts COVID-19 and other pandemics.

Bol, Damien et al, ‘The Effect of COVID-19 Lockdowns on Political Support: Some Good News for Democracy? (2020) European Journal of Political Research (advance article, published 19 May 2020)
Abstract: Major crises can act as critical junctures or reinforce the political status quo, depending on how citizens view the performance of central institutions. We use an interrupted time series to study the political effect of the enforcement of a strict confinement policy in response to the COVID-19 pandemic. Specifically, we take advantage of a unique representative web-based survey that was fielded in March and April 2020 in Western Europe to compare the political support of those who took the survey right before and right after the start of the lockdown in their country. We find that lockdowns have increased vote intentions for the party of the Prime Minister/President, trust in government, and satisfaction with democracy. Furthermore, we find that, while rallying individuals around current leaders and institutions, they have had no effect on traditional left-right attitudes.

Borovitskaja, Aleksandra, ‘COVID-19: Into the Inferno' ERNO’ (2020) 12(3) Amsterdam Law Forum 9–14
Introduction: It took quite some time, considering our 24-hour news cycle, before the effects of the COVID-19 coronavirus strain became well-known. During the past few months, the numerous measures to stop the spreading of COVID-19 taken by governments have brought on an additional layer of insecurity to many aspects of our lives and futures. As of August 2020, many months after it was officially identified, many aspects related to the virus still remain unknown and uncertain. How soon will we be able to get a vaccine? What will happen to the (global) economy in the aftermath of the virus? There has been a great deal of commentary on there being a possible positive momentum for change now that societies globally have been put to a halt.2 Others, in their turn, have commented on how eager everyone is to get back to ‘normal’ - the normal of belief in conspiracies, the normal of massive wealth disparities, the normal of environmental exploitation.3 Several academic works by Zygmunt Bauman, Ulrich Beck, and Bruno Latour may shed some light on these questions and positions. These authors have made some remarkably apt observations in works that preceded the corona crisis, that can be applied to what is happening in the world at the present time. These authors have in common that they argue for a change of our ways, particularly: the way humanity is currently exploiting the planet and individuals on a large scale, is having disastrous effects on that planet and on humanity as a whole. The only author still alive from these three to see the crisis play out, Latour, has commented on Twitter that the global shutdown is a prime moment to refocus the political discussion on the effects of climate change. In this essay these authors’ theories will be examined and critically assessed in light of the corona crisis, while answering the question which of these theories can be applied most effectively.

Boruah, Jayanta and Sarthak Aryan, ‘COVID-19 Pandemic: Justice Demands for Increasing Deterrence in India’ (SSRN Scholarly Paper ID 3787361, Social Science Research Network, 17 February 2021)
Abstract: COVID-19 has brought entire humanity to its knees but still, people are fighting with full dedication to restrict the spread of such a deadly virus. In India too, similar situations have appeared where the states have taken several spontaneous steps to ensure better safety of its citizens, yet a few are seen to be committing atrocities like intentionally trying to spread this virus, or obstructing the measures meant for preventing such spread thereby causing a threat to the lives of the entire citizen. Therefore, it becomes essential to have strict laws for creating deterrence in the minds of such offenders and also to provide justice to those who are sincerely performing their duties. Thus, this article will attempt to analyze the existing legal provisions to know whether there is a need of bringing a new law or not?

Boschetti, Barbara and Maria Daniela Poli, ‘A Comparative Study on Soft Law: Lessons from the COVID-19 Pandemic’ [2021] Cambridge Yearbook of European Legal Studies 1–34
Abstract: This article aims to map how soft law tools have complemented and supported the overall regulatory strategies implemented by European countries to counter the Covid-19 crisis (the soft law atlas), to shed light on some key topics of general interest for legal theory and practice: how soft law tools interact and complement one another including on different levels (the soft law web), how soft law tools interact and complement the sources of pandemic law (the interplay between soft and hard law), and the positive and negative impacts on governance and policy-making of soft law tools during the pandemic and beyond (soft law bright and dark sides).

Bosek, Leszek, ‘Anti-Epidemic Emergency Regimes under Polish Law in Comparative, Historical and Jurisprudential Perspective’ (2021) 28(2) European Journal of Health Law 113–141
Abstract: The SARS-CoV-2 crisis of 2020 triggered a number of unprecedented reactions of European states, in particular in the form of either constitutional emergency measures or statutory anti-epidemic emergency measures. Poland chose to deal with the crisis by delegating powers to the executive by ordinary legislative means and declared a nationwide state of epidemic emergency on 13 March 2020 and a week later a state of epidemic on the basis of the Act of 5 December 2008 on preventing and combating infections and infectious diseases. For a century, Poland has been dealing with epidemics by delegating powers to the executive by ordinary legislative means. Anti-epidemic emergency measures were developed under the relevant acts of 1919, 1935, 1963, 2001, 2008 and now form an autonomous normative model authorised directly by Article 68 (4) of the Constitution of the Republic of Poland of 2 April 1997. The Constitution of 2 April 1997 authorises also extraordinary measures in situations of particular danger, ‘if ordinary constitutional measures are inadequate’. This article analyses anti-epidemic emergency regimes under Polish law in a comparative, historical and jurisprudential perspective.

Bosek, Leszek, ‘The Normative Structure of the State of Epidemic under Polish Law’ (2021) 14(2) Medicine, Law & Society 209–228
Abstract: This article analyses normative structure of a key anti-epidemic emergency measure under Polish law – a State of Epidemic. It is defined as a legal situation introduced in a given area in connection with an epidemic in order to undertake anti-epidemic and preventive measures specified in the Act of 5 December 2008 on preventing and combating infections and infectious diseases to minimize the effects of the epidemic. The Act and this complex measure is authorised by Article 68(4) of the Constitution of the Republic of Poland of 2 April 1997. It requires public authorities to “combat epidemic illnesses and prevents the negative health consequences of degradation of the environment”. The purpose of this article is also to explain why Poland reacted to the SARS-CoV-2 crisis declaring the nationwide State of Epidemic on 20 March 2020 and not by other extraordinary measures.

Bouckaert, Geert et al, ‘European Coronationalism? A Hot Spot Governing a Pandemic Crisis’ (2020) 80(5) Public Administration Review 765-773
Abstract: The COVID‐19 crisis has shown that European countries remain poorly prepared for dealing and coping with health crises and for responding in a coordinated way to a severe influenza pandemic. Within the European Union, the response to the COVID‐19 pandemic has a striking diversity in its approach. By focusing on Belgium, France, Germany, and Italy—countries that represent different models of administrative systems in Europe—the analysis shows that major similarities and convergences have become apparent from a cross‐country perspective. Moreover, coping with the crisis has been first and foremost an issue of the national states, whereas the European voice has been weak. Hence, the countries’ immediate responses appear to be corona‐nationalistic, which we label “coronationalism.” This essay shows the extent to which the four countries adopted different crisis management strategies and which factors explain this variance, with a special focus on their institutional settings and administrative systems.

Boughey, Janina, ‘Executive Power in Emergencies: Where Is the Accountability?’ (2020) 45(3) Alternative Law Journal 168–174
Abstract: Australia’s system of law and government contains a range of mechanisms through which the executive branch is held to account for its actions. However, in emergencies, these accountability mechanisms are often significantly eroded in a range of ways. This article examines how the forms and types of powers that Australian governments have relied on to respond to the COVID-19 pandemic have avoided many of the political, legal and administrative accountability mechanisms that ordinarily apply to government decision-making. It looks at whether these accountability limits are justified and asks whether we ought to be concerned.

Brahams, Diana, ‘Spring in London with Covid-19: A Personal View’ (2020) 88(2) Medico-Legal Journal 57–64
Abstract: This is a personal view from London as the Covid-19 pandemic continues to spread here and the situation changes from day to day. As such it can only be a snapshot caught in time; it is not a diary of events. The Coronavirus Act 2020 gives Government enormous powers and was passed by Parliament in one day of debate immediately before it closed early for the Easter break. In March, the government imposed a ‘lockdown: the closure of all’ but ‘essential’ businesses and people other than essential workers must work from home but are allowed out for exercise and food shopping but must maintain 2 m apart, the ‘social distancing rule’. The aim is to suppress the spread of the virus, reduce the death toll and ‘protect the National Health Service (NHS)’ which needed time to empty wards and expand its intensive care unit (ICU) capability to deal with an expected influx of thousands of very sick patients. I discuss whether this strategy is working, how and why it has rapidly been altered to respond to criticism. Why was the Government so slow to seek the help of private laboratories to assist with testing? Why was the personal protective equipment (PPE) guidance altered only after criticism? I look at the impact of the lockdown on the UK economy, the changes to practice of medicine and speeding of scientific research. Cooperating with the lockdown has its price; is it harming the health and mental health of children, people living in households with potentially abusive partners or parents and those who are disabled or financially desperate? Is the cure worse than the disease? The Economy is being devastated by the lockdown and each day of lockdown it is worse. Is litigation being seeded even now by the pandemic? Notwithstanding unprecedented Government financial help many businesses are on the edge of collapse, people will lose their jobs and pensioners income. The winners include pharmacies, supermarkets, online food retailers, Amazon, online apps, providers of video games, services, streaming and scientific research laboratories, manufacturers of testing kits, ventilators, hand sanitisers, coffins, undertakers, etc. The British public is cooperating with lockdown but are we less productive at home? Parents with babies and children often child minders, school, grandparents or paid help which is not now available. Will current reliance on video-conferencing and video calls permanently change the way we work and will we need smaller city offices? Will we travel less? Will medical and legal practice and civil and criminal trials be generally carried out remotely? Will social distancing with self-isolation and job losses and business failures fuel depression? Is Covid-19 comparable to past epidemics like the Plague and Spanish flu?

Bratspies, Rebecca M, ‘This Great Catastrophe: Bungling Pandemics from 1918 to Today’ (2021) 30 Michigan State University College of Law International Law Review (forthcoming)
Abstract: In examining how badly the United States bungled its COVID-19 pandemic response, it is worth going back to the commemorations of the 100th anniversary of the 1918 flu pandemic. Author after author cautioned that the next pandemic would overwhelm the United States health system and that the demand for hospital beds, treatments, and medical staff would quickly outstrip supply. These prescient predictions from just two years ago. Why, when the risks were so obvious and so clearly understood, were they ignored? In answering that question there is blame enough to go around. The American public increasingly refused vaccines for communicable diseases, resisted spending for health research, and elected anti-science candidates. Those elected officials in turn failed to take obvious steps to ward off an entirely foreseeable disaster. Some of these developments are new(ish), relating to the specifics of the current political climate. Yet what is most striking is how readily official responses fell into virtually the same patterns that stymied effective pandemic response in 1918, and how structural racism predicted which communities would be hardest hit and least served by government responses. Instead of learning from the mistakes of the 1918 pandemic we have largely repeated them. This paper traces some of the threads of complacency, hubris, isolationism, and distrust that got in the way both times, and draws some broader lessons we must learn about American political culture before the pandemic next time.

Brennan, Jason, Chris Surprenant and Eric Winsberg, ‘How Government Leaders Violated Their Epistemic Duties During the SARS-CoV-2 Crisis’ (SSRN Scholarly Paper ID 3605981, 20 May 2020)
Abstract: In spring 2020, in response to the COVID-19 crisis, world leaders imposed severe restrictions on citizens’ civil, political, and economic liberties. These restrictions went beyond less controversial and less demanding social distancing measures seen in past epidemics. Many states and countries imposed universal lockdowns. In this paper, we argue that these restrictions have not been accompanied by the epistemic practices morally required for their adoption or continuation. While in theory, lockdowns can be justified, governments did not meet and have not yet met their justificatory burdens.

Bretthauer, Michael et al, ‘Evidence and Precaution for Legal Health Interventions: Learning From the COVID-19 Pandemic’ (2021) Annals of Internal Medicine (advance article)
Abstract: During the COVID-19 pandemic, far-reaching restrictions on normal life were implemented by laws and regulations to prevent disease transmission and protect people and society. In the absence of evidence for the most appropriate legal mitigation measures, decision makers often cited principles of precaution as the basis for implementing restrictive laws and regulations and unprecedented measures such as lockdowns, curfews, and school closings. To avert harm in crises, many people consider precaution as a morally correct concept for action. Many regard authorities who act with precaution as alert and responsive, fulfilling obligations to take care of people in times of uncertainty. Critics have castigated political leaders who failed to act with caution, particularly when disastrous consequences apparently followed from failure to take strong preventive measures. Soon after the start of the pandemic, investigators initiated a surge of clinical trials for drugs and vaccines, which have been enormously valuable and contributed to evidence-based improvements in clinical care and disease prevention. However, for public health, such mitigation measures as the 3- and 6-foot distancing rules, strategies for school openings, or quarantine duration remain untested in clinical trials. Their comparative benefit–harm ratio is still guided by the precautionary principle rather than by empirical evidence.

Brock, Cathy et al, ‘The Impact of COVID-19 on the Future of Governance in Canada’ (Queen’s University, School of Policy Studies, Covid-19 Governance Working Group, White Paper, August 2020)
Abstract: In this paper, the authors explore the implications of COVID-19 on different aspects of governance across Canada, with a particular focus on the federal government, the operations of parliament, and the cabinet. The ability of the public service to create new pathways to governance is investigated. The important role of provinces and cities are also covered through case studies, and the implications for future laws are described.

Brown, Jennifer, ‘Coronavirus: Parliamentary Consent for the Lockdown in England’ (House of Commons Library, Insight, 4 May 2020)
Abstract: This insight explains why MPs are now considering a motion to approve the legislation that underpins the current lockdown in England.

Brown, Jennifer, Sarah Barber and Daniel Ferguson, ‘Coronavirus: The Lockdown Laws’ (House of Commons Library Briefing Paper No 8875, 6 January 2021)
Abstract: This Commons Library briefing paper describes the law enforcing the UK’s coronavirus lockdown. It discusses police enforcement of the lockdown and legal commentary of the lockdown rules.

de Bruijn, Anne Leonore et al, ‘Why Did Israelis Comply with COVID-19 Mitigation Measures During the Initial First Wave Lockdown?’ (SSRN Scholarly Paper ID 3681964, 27 August 2020)
Abstract: This paper investigates why Israeli citizens complied with measures taken to mitigate the spread of the COVID-19 virus in early April. At the time, Israel had relatively stringent mitigation measures that encouraged people to stay at home and keep a safe social distance. The data of 411 adult participants, gathered using survey research, showed that overall, compliance levels at that time were high. It finds that compliance depended on a combination of moral factors, such as people’s moral duty to obey the law and people’s tendency to obey the law generally. In addition, people who had friends over 75 years old were more likely to comply. Furthermore, people were more likely to comply if they were able to do so, and less likely to violate if they did not have the opportunity to do so. The study did not find that fear of punishment (deterrence) was significantly associated with compliance. Overall, these findings are in line with studies conducted the United States, the United Kingdom, and the Netherlands.

Brzechczyn, Krzysztof, ‘The Coronavirus in Liberal and Illiberal Democracices and the Future of Globalized World’ (2020) 4(2) Society Register 83–94
Abstract: The aim of this article is to compare the effectiveness of two political systems: liberal democracy and illiberal democracy in fighting the coronavirus pandemic. The analysis has been carried out on the basis of the theoretical assumptions and conceptualization of non-Marxian historical materialism. In the first part of my article, I present the concept of ‘regulative credit” which has been introduced in that theory. In standard socio-political conditions, the growth of power regulations is usually contested by citizens. However, in a situation of danger, when social order is undermined, citizens support the authorities’ extraordinary regulations. This social support, called regulative credit, lasts as long as the danger persists. In chapter two, I characterize shortly liberal and illiberal democracies. In liberal democracy, there is a balance between different branches of power, and citizens share a socio-political consciousness of the individualistic type. In illiberal democracy, the executive branch of power – although it has been democratically chosen – has an advantage over the two other kinds of power, and citizens share a socio-political consciousness of the collectivist type. Those differences result in diverse reactions of the authorities to a situation of threat. The political authorities of an illiberal democracy react faster in comparison with the political authorities in liberal democracies that react slower. Also, the attitude of citizens toward the introduced restrictions varied. Societies of illiberal democracies are more self-disciplined and more willing to accept restrictions from above. Whereas societies of liberal democracies are more individualistic and less willing to accept limitations. In the fourth part of my paper, I analyze briefly the influence of the pandemic on globalization processes and on the relations between the EU and the nation states in Europe. In the summary (chapter five), I predict that the mass use of modern technologies to control social life and strengthening of the sovereignty of nation states will be the two most important effects of the pandemic.

Buehler, Michael, ‘Indonesia in 2020: Pestilence and Incompetence’ (SSRN Scholarly Paper ID 3794557, 27 February 2021)
Abstract: The coronavirus dominated Indonesian politics in 2020. Rather than propelling Indonesia in new directions, however, the pandemic amplified existing political and societal dynamics.

Burris, Scott et al, ‘The Legal Response to COVID-19: Legal Pathways to a More Effective and Equitable Response’ (2021) 27(January/February) Journal of Public Health Management and Practice S72–S79
Abstract: COVID-19 is the new disease this country had been preparing to take on for decades.1 So far, the response has been a failure, with huge human and economic costs. While peer countries have managed to get the pandemic under a degree of control, the United States seems pathologically unable or unwilling to prevent rising cases and deaths. This is not a failure of resources: although decades of cutting health agency budgets is a big part of our problem,2 we remain a country rich in money and expertise. This is not a failure of individual courage; from health care workers through transport workers to people who produce and deliver food supplies, essential workers have shown up and done their jobs at significant personal risk. This has been, first and foremost, a failure of leadership and the development or implementation of an effective response.

Burris, Scott, Evan D Anderson and Alexander C Wagenaar, ‘The “Legal Epidemiology” of Pandemic Control’ (2021) 384(21) New England Journal of Medicine 1973–1975
Extract: Basic research in law has also been neglected. The rapid development of vaccines for SARS-CoV-2 was made possible by years of basic research on RNA vaccines and coronaviruses. In contrast, policymakers crafting complex, multifaceted legal interventions for Covid-19 — and researchers trying to predictively model their impact — had no stockpile of fundamental research into generic mechanisms of legal effects. Laws, like other social stimuli, work through observable social and psychological processes. Yet, notwithstanding classic instances in sociology, economics, and social psychology, there has been surprisingly little sustained research support for the systematic study of basic questions such as why people obey the law, how and to what extent penalties drive compliance, the impact of laws on norms, social modeling, and how peer attitudes shape understanding of legal rules. Lack of basic research produces both policy and scientific errors that could be substantially reduced by a better foundation of basic research on diverse mechanisms of legal effects.

Buthe, Tim, Luca Messerschmidt and Cindy Cheng, ‘Policy Responses to the Coronavirus in Germany’ (SSRN Scholarly Paper No ID 3614794, 8 May 2020)
Abstract: Faced with major crises, policymakers are at risk of various pathologies Even in the absence of such pathologies, governments, when faced with a major crisis such as the COVID-19 pandemic, have strong incentives to try to go it alone at the national level: Both policy implementation and political accountability still mostly take place at the national level. Federal political systems, such as Germany, face similar challenges at the sub-national level. At the same time, Louis Brandeis’ classic depiction of U.S. states as ‘laboratories of democracy’ reminds us that federalism offers opportunities for trying different policy responses and learning from the differing results, especially when federalism has ‘experimentalist’ characteristics to encourage feedback and learning. We provide a brief overview of the public and political discourse in Germany, as well as the German federal and state-level policy responses, during the first months of the pandemic and an early, tentative assessment of commonalities, divergence, pathologies, and learning – as well as broader implications for conflict and cooperation in Europe and beyond.

Cafaggi, Fabrizio and Paola Iamiceli, ‘Uncertainty, Administrative Decision Making and Judicial Review: The Courts’ Perspectives’ (SSRN Scholarly Paper ID 3916801, 3 August 2021)
Abstract: The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern crisis management. Although the analysis shows that differences exist across countries, depending on institutional varieties and political contexts, the experience of COVID-19 has shown that, even in times of emergency, courts can adapt, and provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, with different intensity across countries, to ensure that governments took the necessary measures to contrast the pandemic, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and along the multiple phases of the health crisis. Differences in the balancing have emerged compared to ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision making, and new balances between precaution and evidence-based approaches. The role of scientific evidence in political and administrative decision-making has been at the core of judicial review aimed at ensuring transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

Cakmakli, Cem et al, ‘The Role of Obedience and the Rule of Law during the Pandemic’ (Koç University-TUSIAD Economic Research Forum Working Papers No 2103, April 2021)
Abstract: In this paper, we investigate the determinants of policy efficacy during COVID-19. Exploiting the experience of 47 countries, we identify the role of obedience and the rule of law (henceforth RoL) in complementing lockdown measures. We observe that obedience significantly increases the effectiveness of stringency measures, even after we control for RoL in enforcing the lockdown measures.

Cameron, David, ‘The Relative Performance of Federal and Non-Federal Countries During the Pandemic’ (Forum of Federations, Occasional Paper Series No 50, 2021)
Abstract: How well have federations performed in comparison with non-federal countries? Is there any evidence to suggest that federations have handled the coronavirus crisis better or worse, or differently from unitary states? It is this matter that I propose to discuss in this chapter.

Canestrini, Nicola, ‘Covid-19 Italian Emergency Legislation and Infection of the Rule of Law’ (2020) 11(2) New Journal of European Criminal Law 116–122
Abstract: States of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties. The strengthening of executive power to the detriment of judicial authority and parliamentary oversight, absent effective domestic mechanisms of supervision of that executive power and the replacement of the judicial role with police operations represent a symptom of how prolonged emergencies lead to the eclipse of legal certainty and may cause the rapid and irreversible degradation of the rule of law.

Capano, Giliberto et al, ‘Mobilizing Policy (In)Capacity to Fight COVID-19: Understanding Variations in State Responses’ (2020) 39(3) Policy and Society 285–308
Abstract: The objective of this collection of essays is to gain insights into the different national-level state responses to COVID-19 around the world and the conditions that shaped them. The pandemic offers a natural experiment wherein the policy problem governments faced was the same but the responses they made were different, creating opportunities for comparison of both the kinds of policy tools being used and the factors that accounted for their choice. Accordingly, after surveying on-line databases of policy tools used in the pandemic and subjecting these to topic modelling to reveal the characteristics of a ‘standard’ national pandemic response, we discuss the similarities and differences found in specific responses. This is done with reference to the nature and level of policy capacity of respective governments, highlighting the critical roles played by (in)adequate preparation and lesson-drawing from past experiences with similar outbreaks or crises. Taken together the articles show how the national responses to the COVID-19 pandemic were shaped by the opportunity and capacity each government had to learn from previous pandemics and their capacity to operationalize and build political support for the standard portfolio of policy measures deployed to deal with the crisis. However, they also show how other factors such as the nature of national leadership, the organization of government and civil society, and blindspots towards the vulnerabilities of certain population segments also helped to shape policy responses to the pandemic.

Capano, Giliberto, ‘Policy Design and State Capacity in the COVID-19 Emergency in Italy: If You Are Not Prepared for the (Un)Expected, You Can Be Only What You Already Are’ (2020) 39(3) Policy and Society 326–344
Abstract: Italy was the first large epicentre of the COVID-19 pandemic in the Western world. Since the country has not had any serious experience with this kind of disease in recent decades, its response has been indicative of a first reaction to an (un)known and (un)expected event. At the same time, the Italian experience is an emblematic case of how a lack of specific preparedness measures drives a country to deal with this kind of crisis through a process in which the existing characteristics of the policy and political system, with all their pros and cons, prevail. This means that the existing country characteristics that affects policy design, state capacity, institutional arrangements and political games forge the process and content of the response. Based on this observation, this paper analyses the policy dynamics of the first four months of management of the COVID-19 outbreak in Italy, focusing on how the health and economic responses were designed and implemented.

Cappe, Mel, ‘Good Governance: Institutions, Processes, and People’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 163
Abstract: There are several determinants of success in managing a pandemic, but good governance is key. In this short chapter, I elaborate on why good governance matters in a pandemic. I underscore the key attributes of good governance, focusing on strong institutions, robust processes of decision-making, and the right people making those decisions. In this pandemic, Canadian institutions have displayed some of their weaknesses and inadequacies, but on the whole have performed relatively resiliently. Processes of decision-making have been adapted to improve performance, and the people in leadership jobs have largely risen to the challenges they faced. As to institutions, processes, and people, we have been relatively well served.

Cardilli, Riccardo, ‘Covid-19 and Law: the Legal Science of the XXI Century in the Age of the “Great Pandemic”’ (2020) 11(4) dA Derecho Animal : Forum of Animal Law Studies 64–70
Abstract: The real meaning of the words ‘epidemic’ and ‘pandemic’. The pandemic in history: the Antonine plague in the Roman Empire and the epidemic in Athens. The issue of the role of law in managing extraordinary events: the modern perspective and the Roman law perspective in comparison. Carl Schmitt’s theory of ‘Ausnahmezustand’ and the need to overcome this model. The importance of law and legal science in times of emergency.

Carey, Tim, ‘Comity, Coronavirus, and Interstate Travel Restrictions’ (2021) University of Chicago Legal Forum (forthcoming)
Abstract: States and localities responded to the outbreak of the COVID-19 pandemic with a variety of restrictions on interstate travel within the United States. These restrictions varied widely, ranging from self-quarantine requirements to targeted checks of entrants with out-of-state license plates; some localities even sought to ban all non-resident entry. In the inevitable lawsuits that followed, courts struggled to settle on a consistent standard of review, though many reviewed travel restrictions under the highly deferential standard given in Jacobson v. Massachusetts. Others examined restrictions under strict scrutiny, though under tests drawn from different areas of the right to travel jurisprudence. Following on the Supreme Court’s decision in its leading right to travel case, Saenz v. Roe, as well as some of the Court’s recent coronavirus-related cases, this Comment advances a novel argument: that the dichotomous approach taken by courts during this pandemic — applying either strict scrutiny or the Jacobson standard — is not always necessary. In some circumstances, a form of intermediate scrutiny can and should be applied in the context of interstate travel restrictions.

Carmichael, Victoria and Grégoire Webber, ‘The Rule of Law in a Pandemic’ 46(2) Queen’s Law Journal 317–325
Abstract: How does a pandemic inform our understanding of the Rule of Law? Part I explores how government orders issued in response to the pandemic may not have been legally in good shape. Part II explores the consequences of possible departures from the Rule of Law for legal subjects, who may fail to do their legal duty but not for lack of commitment to the law. Part III examines possible justifications for departures from the Rule of Law in an emergency, including how the changing nature of the best available evidence and the need for quick action in response to an emergency may begin to justify a state of affairs that is not legally in good shape. Part IV concludes with the thought that achieving a legal system that is legally in good shape may be contingent on a community’s affairs being in good shape.

Capua, Viviana Di, ‘Rule of Law and Pandemic: The Italian Strategy for Managing Covid-19 Epidemiological Emergency’ (2021) 11(2) The Lawyer Quarterly 217–251
Abstract: The contribution examines the most significant stages of the Italian strategy for managing the Covid-19 epidemiological emergency, through the analysis of the main legislative and administrative acts issued by the Government and by Regional and Local Authorities to face the crisis. The analysis aims to demonstrate that the powers of the competent Authorities have not been exercised in compliance with the principle of loyal collaboration, which inspires the relations between center and periphery. On a practical level, the ordinances issued by the Regional and Local Authorities have imposed more restrictive mitigation measures in their respective territories, overlapping the provisions of the Central Government and compromising the unitary strategy for managing the crisis.

Carrera, Sergio and Ngo Chun Luk, ‘Love Thy Neighbour? Coronavirus Politics and Their Impact on EU Freedoms and Rule of Law in the Schengen Area’ (CEPS Paper in Liberty and Security in Europe No 2020–04, April 2020)
Abstract: Restrictions on international and intra-EU traffic of persons have been at the heart of the political responses to the coronavirus pandemic. Border controls and suspensions of entry and exist have been presented as key policy priorities to prevent the spread of the virus in the EU. These measures pose however fundamental questions as to the raison d’être of the Union, and the foundations of the Single Market, the Schengen system and European citizenship. They are also profoundly intrusive regarding the fundamental rights of individuals and in many cases derogate domestic and EU rule of law checks and balances over executive decisions. This Paper examines the legality of cross-border mobility restrictions introduced in the name of COVID-19. It provides an in-depth typology and comprehensive assessment of measures including the reintroduction of internal border controls, restrictions of specific international traffic modes and intra-EU and international ‘travel bans’. Many of these have been adopted in combination with declarations of a ‘state of emergency’.

de Castro, Douglas and James Oliveira dos Santos, ‘Securitization of the Health and Economy in the COVID Times’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions)
Abstract: To deal with the COVID-19 pandemic, international and national public agents had to shift the debate and actions from the health and economic realms towards the security one, which reflects a more stringent reaction to ‘combat’ or ‘raging war against the virus and its effects in the economy’ (we have used the commas here to indicate the representative discursive practices of the authorities as reflected in the media). This discursive practice is called securitization, an ontological and epistemological change that labels a phenomenon originally from the public arena to the security/military realm, which the main implication is the relativization of human rights and other democratic mechanisms that are not accepted easily by Western societies without emergencies such as pandemics. Therefore, considering that the emergence and resurgence of diverse strains of the coronavirus have been known by health authorities for a long time, why have public health planning and actions at the international and national levels failed to contain the epidemic? Why securitize a topic that could already have been controlled in the scope of politics?

Cercel, Cosmin, ‘Law, Politics, and the Military: Towards a Theory of Authoritarian Adjudication’ (2021) 22(7) German Law Journal 1192–1208
Abstract: This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.

Chabibi, Busrol and Irfan Jamallullail, ‘Are Government Appeals on Physical Distancing During the Covid-19 Pandemic Effective? An Analysis from Law and Public Policy’ (2020) 1(4) Journal of Law and Legal Reform 549–562
Abstract: This research aims to analyze attitudes, subjective norms and government appeals towards physical distance intentions during the COVID-19 pandemic in Indonesia. The study was conducted in 7 provinces in Indonesia by taking a sample of 104 respondents selected by purposive sampling. Data collection is done by collecting Likert scale questionnaires to measure 14 indicators. Multiple linear regression analysis techniques are used to measure the effect of independent variables on the dependent variable with the help of SPSS 16. The results of this study find facts, subjective norms and government appeals to have a positive and significant effect on physical distance goals.

Chakraborty, Sweta, ‘How Risk Perceptions, Not Evidence, Have Driven Harmful Policies on COVID-19’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 236-239
Introduction: COVID-19 hits all of the cognitive triggers for how the lay public misjudges risk. Robust findings from the field of risk perception have identified unique characteristics of a risk that allow for greater attribution of frequency and probability than is likely to be aligned with the base-rate statistics of the risk. COVID-19 embodies these features. It is unfamiliar, invisible, dreaded, potentially endemic, involuntary, disproportionately impacts vulnerable populations such as the elderly and has the potential for widespread catastrophe. When risks with such characteristics emerge, it is imperative for there to be trust between those in governance and communication and the lay public in order to quell public fears. This is not the environment in which COVID-19 has emerged, potentially resulting in even greater perceptions of risk.

Chaturvedi, Dr Shakti et al, ‘Directive Government Policy and Process for the People Amidst COVID-19’ (SSRN Scholarly Paper ID 3755221, 25 December 2020)
Abstract: The present work offers reporting and investigations of the current issues about COVID-19, during the second quarter of 2020 in India concerning government responses, people, and policies. The authors have done an exhaustive content analysis of media reports, government briefings, social platforms, and presents some recommendations for more robust responses. Also, the authors have investigated critically the past learnings from the smaller scale epidemics like Ebola in West Africa to extract the lessons learned to combat the current pandemic. The present manuscript describes the impact of COVID-19 on the local, regional, national, and international communities. The authors also suggested ways to tackle misinfodemics. The paper also explains how the active COVID-19 response program affected democracy, civic liberties, and individual freedom across the globe. However, the suggestions given in the paper are concluded through the lens of previous pandemics and lessons learned in the last three months of the current pandemic. As each pandemic has its unique impact in terms of its transmission and its impact on social wellbeing, which is evolving every day, the conclusions can be considered as suggestive only as the pandemic will unfold itself in the future.

Chaudhary, Deepak, ‘Post COVID-19 Local Government Under the Federalism in Nepal (Local Government’s Experience from Nepal)’ (SSRN Scholarly Paper ID 3853462, 25 May 2021)
Abstract: This paper aims to assess the responses of local government to the COVID-19 and discusses the prospect of local government. The study is mainly based on existing literature. Besides, the chiefs (elected) of three numbers of local governments are interviewed to support the research. The local government’s initiations during COVID-19 include testing of PCR, managing quarantines, creating awareness, and the distribution of food and relief materials to poor, vulnerable, and wage laborers from their own resources, which are admirable. Despite limited resources and fewer experiences, the role of local government in containing COVID-19 should be considered outstanding. The coordination between multi-layers of governments, the inadequacy of legislation, and limited financial transferring/subsidies, and poor governance are noticed as the major issues. After COVID-19, some reforms for the capacity building of the local government are critical.

Cheibub, Jose Antonio, Ji Yeon Jean Hong and Adam Przeworski, ‘Rights and Deaths: Government Reactions to the Pandemic’ (SSRN Scholarly Paper ID 3645410, 7 July 2020)
Abstract: Democracies reacted slower than autocracies to the specter of the pandemic, and the most solidly democratic among them were particularly slow to react. We examine at which stages of the spread of the COVID governments introduced four measures that to varying degree abrogate liberal rights: school closings, bans on public meetings, compulsory lockdowns, and shutting work. We conclude that where rights are entrenched, encroaching on them is difficult. Yet we are struck that when the threat of death became sufficiently severe, many democracies resorted to the same measures as autocracies. Still, the reactions of democracies were highly heterogenous and we are unable to account for this heterogeneity.

Chen, Bruce, ‘The Victorian COVID-19 Response: Reflections on Loielo v Giles’ (2021) 32(1) Public Law Review 8-16
Abstract: This comment analyses the Victorian Supreme Court’s decision in Loielo v Giles [2020] VSC 722, in relation to judicial review of the decision to impose a curfew measure on Greater Melbourne in response to a ‘second wave’ of COVID-19 infections.

Cheng, Xiezhong, ‘Soft Law in the Prevention and Control of the COVID-19 Pandemic in China: Between Legality Concerns and Limited Participatory Possibilities’ (2021) 12(1) European Journal of Risk Regulation 7-25
Abstract: As a previously unknown virus, the spread of the coronavirus challenged not only medical science and public health systems, but also public governance in all countries. In order to tackle the COVID-19 crisis in China, public authorities at various levels have issued a large number of measures, which have no legally binding force, but produce practical effects. A closer look at selected COVID-19 measures in China shows that both the advantages and drawbacks of soft law are brought to the fore by the pandemic. This contribution, focusing on Chinese experiences with COVID-19 soft law, argues that the lack of legal bindingness and consequently of legal enforcement does not make soft law measures ineffective. On the contrary, these ‘defects’ ease the adoption of soft law and ensure its availability to both public authorities and citizens, hence increasing its effectiveness in combatting the pandemic. Yet problems remain in realising participatory possibilities and ensuring the respect for legality.

Cheng, Yuan (Daniel) et al, ‘Coproducing Responses to COVID-19 with Community-Based Organizations: Lessons from Zhejiang Province, China’ (2020) 80(5) Public Administration Review 866-873
Abstract: Zhejiang Province achieved one of the best records in containing the COVID-19 pandemic in China, what lessons can the world learn from it? What roles do community-based organizations play in its success story? Based on more than 100 interviews during and after the outbreak in Zhejiang, this article provides a roadmap of how community-based organizations were involved in the three distinct stages of Zhejiang’s responses to COVID-19. We recommend that public sector leaders strategically leverage the strengths of community-based organizations in multiple stages of COVID-19 responses; incentivize volunteers to participate in epidemic prevention and control; provide data infrastructure and digital tracking platforms; and build trust and long-term capacity of community-based organizations.

Chiplunkar, Gaurav and Sabyasachi Das, ‘Political Institutions and Policy Responses During a Crisis’ (SSRN Scholarly Paper No ID 3629397, 17 June 2020)
Abstract: Do countries with differing political institutions respond differently to a national crisis? The coronavirus pandemic, where almost all countries were hit by the same crisis in a short span of time, provides a rare opportunity to answer this question. For a sample of 125 countries, we use high frequency data on two measures of policy response- (i) containment policies, relating to closure of public spaces and restrictions on movement of people, and (ii) health policies, relating to public information campaigns, testing and contact tracing, to examine their policy response to the crisis. We show that: first, non-democracies have more stringent containment and health policies prior to their first COVID-19 case. However, after registering their first case, democracies either close this gap (in containment policies), or surpass non-democracies (in health policies) within a week. Second, policy responses do not differ by governance systems (presidential or parliamentary) in democracies. However, elected leaders who performed better in the last election or face their next election farther in the future are more aggressive in their policy response. Third, democracies with greater media freedom respond more slowly in containment policies, but are more aggressive in health policies. Lastly, more conducive political norms (such as trust in the elected government) systematically predict a more aggressive response in both containment and health policies. Our analysis therefore suggests that political institutions and the incentives of the political leaders embedded therein, significantly shape the policy response of governments to a national crisis.

CHNG, Wei Yao, Kenny, ‘Legal Constraint in Emergencies: Reflections on Carl Schmitt, the Covid-19 Pandemic and Singapore, Symposium on Covid-19 & Public Law’ (Singapore Management University, School Of Law Research Collection No 7–2020, 1 July 2020)
Abstract: The controversial legal theorist Carl Schmitt’s challenge to the possibility of meaningful legal constraint on executive power in emergencies could not be more relevant in a world struggling to deal with Covid-19. Scrambling against time, governments around the world have declared states of emergency and exercised a swathe of broad executive powers in an effort to manage this highly infectious disease. In times like these, if Schmitt is indeed right that emergencies cannot be governed by law, we are on the cusp of (or perhaps have already entered) a post-law world – where the business of government is characterised by discretion and power instead of law. This post will suggest that such a bleak conclusion is avoidable. Indeed, if one accepts a broader conception of what ‘legal constraint’ means, it is possible to answer Schmitt’s challenge and hold to a view that even broad discretionary powers exercised during times of emergency can be (and should be) constrained by law in a meaningful way.

Cho, Seo-Young et al, ‘South Korea’s Soft Power in the Era of the COVID-19 Pandemic: An Analysis of the Expert Survey in Europe’ (2020) 33(4) Seoul Journal of Economics 601-626
Abstract: Since the recent outbreak of the COVID-19, South Korea has demonstrated successful pandemic management that can be exemplary to other countries. This paper analyzes how South Korea’s responses to the COVID-19 pandemic has changed the perceptions of the country in Europe. Through a survey conducted with Korea experts in 16 European countries, this paper documents the positive recognition of South Korea’s pandemic management by the European public. Part of the positive appraisal can be attributed to South Korea’s extensive testing, high technology, and the culture of wearing a face mask, while the opinions were more mixed regarding its comprehensive tracking and tracing strategy due to privacy concerns. Furthermore, the findings of the survey show that Europeans’ overall perception of South Korea has improved together with its COVID-19 management. This evidence suggests that the country’s success in pandemic management can be an instrument of public diplomacy to enhance its soft power, for which the government of South Korea currently invests considerable efforts.

Chowdhury, Anis and Jomo Kwame Sundaram, ‘“Flattening the Curve” through COVID-19 Contagion Containment’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 513
Abstract: Limited, uneven, and possibly ‘inaccurate’ tests make it impossible to know the true scale of COVID-19 infections in the global South. Nevertheless, given the grossly inadequate health systems, further undermined by neoliberal reforms, catastrophic consequences for developing countries are feared. ‘Flattening the curve’ of new infections seeks to ensure national health systems can cope by rapidly augmenting needed capacities and capabilities. The many ‘known and unknown’ unknowns about the pandemic, and its implications, complicate the challenges posed by the complex and very varied socio-economic conditions in most developing countries. Neglecting prompt and adequate precautionary measures due to complacency for a variety of reasons, many governments have belatedly tried to check contagion by strictly imposing extended ‘stay-in-shelter’ ‘lockdowns.’ Success for these types of measures require full public involvement, through social mobilization, public understanding, and credible leadership, enhanced by transparency, information sharing, wide consultation, progressive relief measures, and accountability. However, by acting early to test, trace, isolate, and treat the infected, a few authorities have avoided nationwide lockdowns. Preventive measures, such as safe physical distancing, masking facial orifices, and selective targeted quarantines, enjoy greater public acceptance and voluntary compliance with minimal draconian measures.

Christensen, Tom and Per Lægreid, ‘Balancing Governance Capacity and Legitimacy: How the Norwegian Government Handled the COVID-19 Crisis as a High Performer’ (2020) 80(5) Public Administration Review 774-779
Abstract: This paper addresses how the Norwegian government has handled the corona pandemic. Compared to many other countries Norway performs well in handling the crises and this must be understood in the context of competent politicians, a high trust society with a reliable and professional bureaucracy, a strong state, a good economic situation, a big welfare state and low density of the population. The government managed to control the pandemic rather quickly by adopting a suppression strategy, followed by a control strategy, based on a collaborative and pragmatic decision-making style, successful communication with the public, a lot of resources and a high level of citizens’ trust in government. The alleged success of the Norwegian case is about the relationship between crisis management capacity and legitimacy. Crisis management is most successful when it is able to combine democratic legitimacy with government capacity. .

Ciacchi, Aurelia Colombi, ‘The Covid-19 Crisis: A Challenge for Numeric Comparative Law and Governance’ (2020) 7(2) European Journal of Comparative Law and Governance 109–115
Abstract: In the past weeks, scholars from different disciplines – including myself – have been comparing the publicly available data from different countries about the coronavirus pandemic (covid-19) on a daily basis. For a researcher in comparative law-and-governance, these data are very tempting. Would they allow to draw at least some very raw conclusions about the goodness or badness of some countries’ governance concerning the prevention of covid-19 deaths?.

Ciobanu, Rodica, ‘Rationality and Responsibility: Benchmarks to Re-Evaluate the Law in the Context of the Pandemic Crisis’ (2021) 21(2) Journal of Community Positive Practices 3–14
Abstract: Human and social vulnerability in the face of the pandemic once again raises the question of knowledge and of the two key dimensions of the individual (rationality and responsibility) framed in the various relationships they establish (with nature, with other individuals, with state institutions etc.). These become relationships of knowledge and awareness concerning the facts and laws of social-state organization. Being aware that the pandemic crisis left its mark on all areas of life, changing the nature of human relations, affecting the benchmarks of values, and requiring a review of the foundations of social organization, we believe it necessary to assess the current situation through a systemic approach aimed at identifying the benchmarks of the balance between individuality and sociality. Thanks to the assessment of the interdependencies between the individual and the social, the following objectives were addressed: to define the changes caused by the pandemic and analyze the social processes; to validate the decisions taken by the authorities from a logical, praxeological and axiological point of view; to emphasize the importance of norms and principles in the social organization; to determine the role of social actors in overcoming the crisis, and to assess how social relations have evolved under pandemic conditions. Therefore, the present article, applying an interdisciplinary methodology to the pandemic crisis, aims to evaluate, understand and raise awareness of the situation and its impact on the social and human situation, where solidarity, rationality, and human responsibility are being reassessed.

Ciuriak, Dan, ‘Who Knew What When: The International Transmission of Information on the COVID-19 Outbreak’ (SSRN Scholarly Paper ID 3677596, 19 August 2020)
Abstract: This note focuses on the question of the international transmission of information concerning the outbreak of the COVID-19 pandemic in Wuhan – who knew what when. In contrast to the dominant narrative, this review establishes, based on published information outside of mainland China, that the policy-relevant information as of 31 December 2019 concerning that outbreak had spread worldwide and was sufficient to frame the necessary preventative responses, which to this date remain essentially the same (namely the routine precautions advised for any airborne respiratory diseases). Further, notwithstanding the mix of good and poor responses to the pandemic in different jurisdictions, and regardless of the response in Wuhan, global transmission was a sealed deal because of the stealth nature of COVID-19. Moreover, the scale of the pandemic in individual countries is largely a function of choices made independently by governments and populations around the world based on the same and sufficient information.

Civitarese, Jamil, ‘Social Distancing under Epistemic Distress’ (SSRN Scholarly Paper ID 3570298, 7 April 2020)
Abstract: Under the social distancing label, there are policies steaming from governments and policies able to be implemented individually, but mostly they require acquiescence by citizens. In this paper, the social norm about complying with social distancing originates from knowledge diffusions based on social comparison and self-evaluation mechanisms. I use the empirical footprints of the contentious Brazilian health strategy in the COVID-19 outbreak to develop an evolutionary game theory model of governmental communication interacting with experts in an epistemic democracy. This model suggests a complementary effect from governmental actions and civil society preferences that may bias studies about the management of a pandemic crisis. Policy recommendations are towards institutional designs with tighter accountability links between experts and voters.

Cloud, Lindsay K et al, ‘A Chronological Overview of the Federal, State, and Local Response to COVID-19’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 10–19
Jurisdiction: USA
Abstract: Since the first case of COVID-19 was confirmed in the United States, federal, state, and local governments have taken varying degrees of legal action to prevent the spread of the virus and mitigate its impact on the public’s health and health care systems. Federal action has primarily consisted of national emergency declarations, travel bans, guidance on social distancing measures, and laws aimed at mitigating the economic impacts of COVID-19. Legal action at the state and local level has focused heavily on social distancing requirements and other emergency measures to reduce the spread of the virus, including stay-at-home orders, prohibitions on large gatherings, closures of non-essential businesses and schools, and the mandatory use of face masks. This Chapter provides an overview of these actions, chronicling the federal and state legal response from January to July 2020, and highlighting policy trends at the local level from March to July 2020.

Comșa, Ana, ‘The Role of the Institutions of the European Union in the Fight Against Coronavirus Pandemy’ [2021] 15(1) Fiat Iustitia 24–36
Abstract: In the context of the Coronavirus pandemic, the institutions of the European Union have monitored the whole situation, adopting a number of measures that apply throughout the Union. This included the adoption of relevant legislation and ongoing coordination with Member States to exchange information, assess needs and ensure a coherent response at EU level. According to the EU Treaties, Member States are responsible for adopting measures at national level to respond to the CoVID-19 pandemic, in particular as regards national health systems, the repatriation of citizens or restrictions on life. Showing solidarity, in parallel with managing the consequences of the crisis internally, Member States came to each other's aid by providing support where it was most needed. They provided services, specialized personnel and medical equipment. Collaboration, they managed to repatriate almost half a million Europeans who were stranded abroad by mid-April 2020. The collective action of the EU institutions has focused on responding to the immediate health crisis and its humanitarian needs, strengthening the health, water supply and sewerage systems of partner countries, increasing their research and preparedness capacities to cope with the pandemic, and mitigating the socio-economic impact.

Cooper, Luke and Guy Aitchison, ‘The Dangers Ahead: Covid-19, Authoritarianism and Democracy’ (LSE Conflict and Civil Society Research Unit, June 2020)
Abstract: The Coronavirus crisis has massively aggravated the existing systemic risks facing the international order. Prior to the crisis a powerful global tendency towards authoritarian governance already existed... The crisis created by the virus is genuinely universal and global. Solutions to it require international cooperation. Unfortunately, there are good reasons to believe that the existing trend towards authoritarian government will continue in the post-virus world. In a world already beset with a dangerous rise in nationalism the Coronavirus crisis risks adding fuel to the fire.

Cooper, Mark, ‘The Political Economy of Pandemic Policy, COVID-19 and Climate Change. Why Market Fundamentalism and the Trump Administration Fail to Protect Public Health and the Economy’ (SSRN Scholarly Paper No ID 3693861, 20 July 2020)
Abstract: This paper makes a simple point about the U.S. response to the COVID-19 pandemic and its implications for many spheres of life in the 21st century. • The U.S. had one of the worst policy responses in the world to the pandemic, certainly among the large, high-income democracies, including Asian (e.g. South Korea), European (e.g. Germany), and other nations (e.g. Australia). That response was driven by a view of political economy that rejects the idea that society can impose social responsibility on its members, even under the most dire of circumstances. This political economy rests on a belief that markets perform perfectly when government gets out of the way and the pursuit of individual interests is synonymous with the public good. Currently called market fundamentalism, it was known as laissez faire economics and social Darwinism for well over a century. The paper refers to the Trump administration and it supporters. Although the overwhelming majority of Trump administration supporters were Republicans, some were not. Indeed, a few were very vocal about it, like Larry Hogan, the Republican Governor of Maryland and the Chairman of the National Governors’ Association. Hogan’s critique outlined many of the key facts about the Trump administration response to the pandemic that will be documented and demonstrated in this paper. In typical fashion Hogan’s comments were dismissed by the Trump administration, but Hogan defended himself. He argued that the Trump administration was: 1) slow to act, 2) failed to take implement policies that could have saved many lives, 3) downplayed the importance of the virus, 4) pressed to reopen the economy too soon, 5) focused on “his reelection plans, 6) disregarded the science, 7) ignored the facts and data presented by its own experts, 8) made misleading statements about the state of testing, 9) competed with the states for medical equipment, 10) flip-flopped on who was responsible for the response, 11) incorrectly placed the blame on Obama, 12) attacked the South Koreans, who actually had a much better policy response. 13) Trump he said was his own worst enemy and 14) failed to understand that controlling the virus first was the key to reopening the economy. The report integrates over 140 detailed studies prepared in the past six months, embodying significant resources expended by four types of institutions. • Official documents of multinational and national public health and economic institutions, • academic publications and papers, • trade and issue specific press and association reports, and • detailed accounts from investigative journalism The paper integrates these longer studies is 115 shorter articles by 100 journalists representing 50 news organizations. The mid-July disputes between the Trump administration and Governor Hogan, and Dr. Andrew Fauci are used to anchor the analysis in the paper. Hogan may be the exception that proves the rule, but the evidence reviewed in this report shows he was right and Trump was wrong. I believe that the expression ‘the Trump Administration and its supporters’ is fair and accurate for both COVID-19 and climate change. As a result, it is clear that the U.S. policy was too slow, too weak and too short. Examining over 140 recent historical and contemporary case studies, results of epidemiological and econometric models, and investigative analyses, this paper shows that more effective public health policy would also have been good economic policy and had better political results because the public would have been reassured and the economy could have been opened sooner. Ultimately, the costs of this policy failure can only be described as catastrophic, imposing unnecessary harms in three areas. Public Health, at least • 120,000 deaths, • half a million hospitalizations, and • 2.5 million infections. Economic, likely to be • $7 trillion in lost output. • Trillions of dollars increased debt, and • Hundreds of millions of dollars of lost employment Political: • Continuing resistance by the vast majority of the public to engaging in the activities the administration seems to value most • A preference for local officials to set policy • A collapse of public confidence in the administration to deal with the problem, and • A dramatic reduction in support for and the electability of the administration and its supporters.The policy response to the COVID-19 pandemic highlights and magnifies a much broader weakness. This paper concludes with a brief analysis of a parallel the knee-jerk, market fundamentalist response – to climate change. The 19th century view of political economy cannot cope with the challenges of the contemporary global community of over seven billion individuals in 200 nations interconnected in the biosphere (pandemic,) the atmosphere (climate change) and the economic sphere (financial, trade and recessionary meltdowns, and technology diffusion). The analysis of the climate challenge and the other global spheres where policy must be made in the face of great uncertainty points to an approach that emphasizes precaution, science, information gathering, flexibility, and cooperative governance and that recognizes both the importance and limitations of policy making authorities at the international, national, state and local levels. These are the exact opposite of the approach taken in the U.S.

Corderio, Antonio Menezes and A Barreto Menezes Corderio, ‘The Impact of COVID-19 in the Portuguese Legal System’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The COVID-19 pandemic led, in Portugal, to the publication of 250 exceptional laws. A number of principles may be extracted from these: (1) efficiency; (2) preservation of the status quo; (3) crystallisation of risk; (4) socialised damages. These principles operate in conjunction with the fundamental values of the system, notably those of good faith (bona fides) and related institutes: culpa in contrahendo, abuse of rights, change of circumstances and complexity of obligations.

Cormacain, Ronan, ‘Keeping Covid-19 Emergency Legislation Socially Distant from Ordinary Legislation: Principles for the Structure of Emergency Legislation’ (2020) 8(3) The Theory and Practice of Legislation 245–265
Abstract: Domestic and international jurisprudence indicate the principles for law making in a public health emergency. These are that emergency laws should be limited, time-bounded and proportionate to the nature of the emergency. One way to give effect to these principles is to socially distance emergency legislation from ordinary legislation. This makes emergency laws separate and distinct from ordinary laws, and reduces the chances of them being used for periods and purposes beyond their initial remit. Specific structural techniques to do this are: to use sunset clauses, to use a single legislative vehicle for emergency laws, to use non-textual amendments, to avoid the standard mosaic approach to making new laws, to expressly state their temporary nature, to specifically limit their use to the emergency and to give them a title which indicates their emergency nature.

Cormacain, Ronan and Ittai Bar-Siman-Tov, ‘Global Legislative Responses to Coronavirus’ (2020) 8(3) The Theory and Practice of Legislation 239–243
Abstract: States around the world have struggled to come up with proper legislative responses to the 2019 novel coronavirus pandemic. This editorial introduces the special issue on ‘Global Legislative Responses to Coronavirus’ and offers an overview of its rich array of articles. It follows on from the previous special issue on legislatures in a time of COVID-19.

Cormacain, Ronan and Ittai Bar-Siman-Tov, ‘Legislatures in the Time of COVID-19’ (2020) 8(1–2) The Theory and Practice of Legislation 3–9
Abstract: Legislatures around the world have been challenged by the 2019 novel coronavirus pandemic. Questions have arisen about parliaments’ operation during the pandemic, their role in combating COVID-19, and their relationship with the executive and other state actors. This editorial introduces the special issue on ‘Legislatures in the Time of COVID-19’ and offers an overview of its rich array of articles.

Corradetti, Claudio and Oreste Pollicino, ‘The “War” Against Covid-19: State of Exception, State of Siege, or (Constitutional) Emergency Powers?: The Italian Case in Comparative Perspective’ (2021) 22(6) German Law Journal 1060–1071
Abstract: Is the Covid-19 pandemic changing the constitutional-power structures of our democracies? Is this centennial public health emergency irreversibly constraining our liberties? The paper examines recent state-measures of containment during the initial phase of spread of the Covid-19 crisis. It compares primarily the Italian scenario with the Chinese and the American one. It asks whether the measures adopted particularly in the Italian case (known as DPCMs) amount to a state of exception or to a use of emergency powers. Cognizant of the authoritarian risks in severed enjoyments of constitutional rights, the authors conclude that this is not what occurred in the case of solid democracies. At the level of governmental analysis, the ‘decree’ strategy of the Italian DPCMs allude to paternalistic forms of power-exercise that empty the self-determining prerogative of the parliament.

Couture-Ménard, Marie-Eve et al, ‘Answering in Emergency: The Law and Accountability in Canada’s Pandemic Response’ (2021) 72 University of New Brunswick Law Journal (forthcoming)
Abstract: To achieve and protect public health, collective action is essential, especially through government intervention. In combating the COVID-19 pandemic, societies across the globe have allowed governments to exercise extensive emergency powers, which has led to unprecedented measures and responses, including significant restrictions on citizens’ rights. These measures have often been taken swiftly, with little (and sometimes no) input from the electorate or from civil society. This paper describes the breadth of Canadian public authorities’ emergency powers to manage a pandemic, and provides an overview of emergency powers included in public health legislation. It then assesses avenues for accountability through law – specifically through private, criminal and constitutional law. It argues that accountability through private law litigation is the wrong avenue to pursue in the context of the COVID-19 pandemic and that criminal law safeguards and constitutional rights litigation only offer limited accountability. Finally, it presents an argument in favour of enhancing public accountability to parliaments and citizens through public health legislation.

Cowie, Graeme, ‘Coronavirus: Is It Possible to Extend the Brexit Transition Period?’ (House of Commons Library, Insight, 20 April 2020)
Abstract: The coronavirus has had an impact on negotiations between the UK Government and the EU. This Insight examines the legal and procedural hurdles to any extension of the post-Brexit transition period.

‘Croatia: Temporary Measures to Mitigate the Consequences of the COVID-19 Pandemic and Zagreb Earthquake in Civil, Insolvency and Criminal Procedure Law.’ [2020] Lawyer (Online Edition) 1
Abstract: The article informs on recommendations issued by Croatian Ministry of Justice as of 14 March 2020 to prevent the transmission of the novel coronavirus and control the pandemic. It mentions that measures advise temporary adjustments to legal requirements in civil, insolvency and criminal procedure law to avoid hardship that would otherwise arise as a result of the coronavirus crisis. It also mentions that employees are allowed to work from home, and hearings should be postponed.

Croucher, Rosalind, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) 28(3) Australian Journal of Administrative Law 137–148
Abstract: Responses to the COVID-19 pandemic have required very quick action. But those responses have also involved significant limitations on people’s rights and freedoms and implemented through executive power often with limited parliamentary involvement. One such exercise was a curfew in Victoria, which was challenged in Loielo v Giles. This article works through the decision in Loielo as a matter of legal analysis and concludes with a consideration of the democratic challenges of emergency decision-making. The decision is an instructive illustration of how human rights principles can inform decision-making and provide a framework of accountability.

Csatlós, Erzsébet, ‘Remarks on the Reasoning: The Morals of a Hungarian Expulsion Decision in Times of Pandemic’ (2021) 19(1) Central European Public Administration Review 181-197
pre-published version available on SSRN
Abstract: Several Iranian university students were expelled from Hungary to Iran due to their (allegedly) unlawful behaviour during their quarantine period at the outburst of the COVID-19 pandemic on grounds of being a threat to public policy and public security. The case reveals a worrisome practice in the reasoning of expulsion decisions, irrespective of the pandemic. By analysing a judgment on the review of an administrative decision on expulsion, the article explores the normative circumstances of the legal institutions appearing in the case. By comparing international, European Union, and Hungarian constitutional practice, the study reveals a controversial legal practice. It not only evaluates the case, but draws attention to the role, quality, and legal significance of reasoning of administrative acts which lately, with a quickly changing legislation, seems to be forgotten.

Curley, Cali and Peter Stanley Federman, ‘State Executive Orders: Nuance in Restrictions, Revealing Suspensions, and Decisions to Enforce’ (2020) 80(4) Public Administration Review 623–628
Abstract: In the absence of a large-scale federal response to the COVID-19 pandemic, state and local elected officials have enacted executive orders that include restrictions on public liberties as well as the suspension of rules and regulations. While these restrictive policy actions have received extensive media attention, the suspensions, including regulatory rollbacks, waivers, and extensions, are lesser known. This Viewpoint essay offers insight from a working database that captures the nuance and variation across restrictions, suspensions, and enforcement mechanisms being utilized at the state level.

Czuryk, Małgorzata, ‘Legal Status of the Local Government in the Time of COVID-19 Pandemic’ (2020) 1 Cybersecurity 83–92
Jurisdiction: Poland
Abstract: In the context of the COVID-19 pandemic, many public entities have been forced to reorganise their activities, on the one hand to preserve the continuity of public task performance and, on the other hand, to observe all restrictions to ensure health security. The same applies to the local government as the basic form of decentralisation of public administration which, in the time of the pandemic, has to seek new solutions to preserve the continuity of task performance and compliance with the required standards, as well as measures to survive in the new realities. The considerable changes in the functioning of the local government in the time of the pandemic caused by human SARS-CoV-2 infections involve the structure of public funds, including those of local governments, which are discussed in this paper.

Da Silva, Michael and Maxime St-Hilaire, ‘Towards a New Intergovernmental Agreement on Early Pandemic Management’ (2021) (COVID-19 Special Issue) National Journal of Constitutional Law (forthcoming)
Abstract: The Canadian response to COVID-19 produced several problems that are at least partially attributable to a lack of coordination between the federal and provincial governments. The federal government has not taken on a strong coordinating role. Many provinces have ‘gone their own way’ even where uniform standards are necessary to minimize public health threats. While some believe the federal government should use its existing powers to coordinate a response, the federal government alone cannot address all possible concerns and there are strong political incentives for federal government not to unilaterally take a stronger role in pandemic management. This article accordingly motivates an intergovernmental agreement on pandemic preparedness and early pandemic responsiveness (viz., early pandemic management). An intergovernmental agreement is a more promising tool for securing the coordination necessary for good pandemic management than unilateral federal action or the status quo. A detailed agreement that clearly sets out who will do what when a pandemic is imminent/when a pandemic begins will clarify expectations in early pandemic management and incentivize compliance therewith, helping to secure much-needed coordination. Developing it in non-pandemic conditions should also ensure a more rational approach to pandemic management that improves health outcomes and better fulfills Canada’s moral and international legal obligations.

Daly, Paul, ‘Governmental Power and COVID-19: The Limits of Judicial Review’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020)
Abstract: The goal of this Chapter is to explain why those hoping for a high level of judicial engagement with the forms of power being used to combat the cultural, economic, medical, social and other fallout from the current pandemic are likely to be disappointed. In Part I, I explain the different forms of power being used in Canada, at the federal and provincial levels, to respond to the pandemic: imperium (general norms with the force of law), dominium (government contracting and distribution of resources) and suasion (information provided to the citizenry). I go on in Part II to explain why judges are unlikely to enforce public law principles, such as reasonableness, procedural fairness and compliance with the Constitution of Canada, including the Charter of Rights and Freedoms, on the uses of these different forms of power. As to imperium, any judicial engagement is likely to be at the margins and as to dominium and suasion there is a long tradition of judges refusing to extend the judicial review jurisdiction to encompass contractual decisions and the provision of non-binding guidance. Those concerned about the difficulty of holding Canadian governments to account in these trying times would be better advised to look to improving the channels of political accountability than trying to navigate those of legal accountability

Daly, Stephen, ‘The Rule of (Soft) Law’ (2021) 32(1: Covid-19: Political Responses and Legal Consequences) King’s Law Journal 3–13
Pre-published version of article available on SSRN
Abstract: The COVID-19 pandemic has forced governments around the world to become innovative in how they carry out their functions. In particular, they need to respond speedily to developments as the scientific evidence evolves. Rules for regulating conduct accordingly need to constantly evolve. The ‘golden met-wand’ of law is not particularly well-tuned to assist in such regulation other than at a level of generality. It is unsurprising accordingly that governments have had to ‘supplement’ legal provisions with soft law. There is nothing novel about this, but it does raise important questions about the nature of domestic soft law, what role it should play and whether the UK government’s use of it during the period of the pandemic has been appropriate.

Daly, Tom, ‘Prioritising Parliament: Roadmaps to Reviving Australia’s Parliaments’ (Governing During Crises Policy Brief No 3, Melbourne School of Government, University of Melbourne, 1 August 2020)
Key Points: The Policy Brief makes the following central points: (a) The sidelining of parliaments across Australia has been a central ‘blind spot’ in the nation’s largely effective and well-coordinated pandemic response, which, despite the recent rise in COVID-19 cases and deaths, has kept numbers among the lowest in the Western world. (b) In meeting the challenge of keeping parliaments running, valuable lessons can be learned from overseas, especially from targeted measures taken in the UK, New Zealand, and Canada. The latter show that parliaments do not hinder an effective pandemic response. (c) There are no material obstacles to re-opening Australia’s parliaments, with a range of options available – especially ‘hybrid’ models mixing online and face-to-face means for conducting parliamentary business. The main sticking point appears to be political resistance based on a legitimate concern that something valuable would be lost if parliament does not meet in person, and possibly a sense that fuller sittings might slow the crisis response.

Daly, Tom, ‘Securing Democracy: Australia’s Pandemic Response in Global Context’ (Governing during crises No Policy Brief No 1, Melbourne School of Government, University of Melbourne, 3 June 2020)
Key Points: The Policy Brief makes the following central points: (a) The COVID-19 pandemic has had a dramatic impact on democracies worldwide. An unprecedented number of states are simultaneously under a state of emergency and have derogated from key human rights treaties. Over 50 states have postponed elections. (b) Government responses in democracies worldwide can be divided into 4 broad categories: effective rationalists; constrained rationalists; autocratic opportunists; and fantasists. (c) Australia’s response falls into the ‘effective rationalist’ camp. The state has effectively addressed the pandemic through fact-based policy, acted within the constraints of the law, placed clear limitations on emergency actions, and developed innovative responses to address the crisis; principally, the National Cabinet. (d) That said, there is a need for attention to 6 key issues: reviving parliaments; making the National Cabinet more transparent; ensuring adequate restrictions on surveillance measures; organising forthcoming elections; mitigating the pandemic’s hollowing out of independent media across Australia; and seizing the moment for democratic reform.

Davies, Gareth, ‘Does Evidence-Based EU Law Survive the Covid-19 Pandemic? Considering the Status in EU Law of Lockdown Measures Which Affect Free Movement’ (2020) 2 Frontiers in Human Dynamics Article 584486
Abstract: When Member States restrict free movement on public health grounds they must show that their measures have a sound scientific basis. However, during the pandemic Member States have imposed a wide variety of restrictions, at the border, and internally. While Member State governments have invariably had local scientific advice, the variety of their measures suggests that their actions have also been driven, to some extent, by public opinion, contrary to what EU law generally allows. This situation could be seen as a defeat for EU law as traditionally conceived, and the triumph of local preferences over scientific standards. Perhaps we learn that in a crisis, local desires for symbolic security and closure trump both law and science. Alternatively, it can be argued that the Court of Justice’s emphasis on exclusively objective justifications for measures is unrealistic and over-strict. The pandemic responses show that (i) science is often neither clear nor determinative, and (ii) policy is invariably a mix of science and values, even in apparently technical fields. In either case, the absence of legal challenges to Member State actions leaves free movement in an uncertain state. Have we entered a new phase, where national fears are a more legitimate justification for restricting movement, or will the pandemic be treated as so exceptional as to be beyond law, and thus not a precedent?

De Leo, Andreina, ‘The Italian Approach to the COVID-19 Crisis: A State of Exception Ruled by Technicians Commentary’ (2020) 12(3) Amsterdam Law Forum 3-8
Abstract: In mid-March, Paolo Flores d'Arcais, an Italian philosopher and journalist, wrote an article titled “Philosophy and coronavirus: the ramblings of Giorgio Agamben”, where he discussed about how philosophy (which translates from ancient Greek as ‘love for wisdom’) can and should guide our understanding of – and response to – the covid-19 crisis. According to him, however, the recourse to philosophic theories should indeed be aimed at spreading knowledge and wisdom, rather than what he calls “superstitions and / or theological ruminations”, “spiritual funambulism and/or anti-scientific exorcisms” and “the basking and rooting in mediocre delusions of narcissism.”1 In saying so, he was explicitly targeting Giorgio Agamben, who, at the beginning of the adoption of emergency measures in Italy, wrote an opinion peace named “the invention of a pandemic”, in which he basically accused the Italian government of using the covid-19 crisis as an excuse to institute a state of exception, unreasonably suspending the normal functioning of life and work conditions in the country.2 Three months later, Agamben’s target shifted to professors accepting the “new telematic dictatorship” by having online courses, who he compared (“they are the perfect equivalent”) to the university lectures who swore allegiance to the Fascist regime in 1931.3 Despite Agamben’s apparent underestimation of the pandemic,4 as well as his unfair dismissal of professionals trying their hardest to make the best out of a complicated situation, it is worthy to reflect on whether and to what extent his – as well as other’s – philosophic theories could come handy to make sense of the way in which the Italian government is dealing with the Covid-19 crisis. To this aim, this paper will first examine the legal framework governing the Italian response to the pandemic, it will then discuss the model of governmentality that such framework establishes, and it will finally reflect upon some exclusionary dynamics it produces.

De Miguel-Beriain, Iñigo and Elena Atienza-Macías, ‘What Can We Expect from the EU Legal Framework in a Pandemic Outbreak?’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 541–545
Extract from Introduction: The arrival of a new form of Coronavirus at the end of 2019 and its subsequent expansion to multiple countries has already caused severe consequences whose final extent we are unfortunately still far from seeing. In our geographical context, Italy has been particularly affected by this threat. In such circumstances, it is worth asking what the EU could do to help any of its Member States (MS) to cope with such a situation. This paper will try to answer it. To this end, we will focus on the most important legal instrument: the so-called, ‘Solidarity Clause’ and the most relevant political tool, the Integrated Political Crisis Response arrangements (IPCRs).

Deakin, Simon and Gaofeng Meng, ‘The Governance of Covid-19: Anthropogenic Risk, Evolutionary Learning, and the Future of the Social State’ (2020) 49(4) Industrial Law Journal 539–594
Abstract: We consider the implications of the Covid-19 crisis for the theory and practice of governance. We define ‘governance’ as the process through which, in the case of a given entity or polity, resources are allocated, decisions made and policies implemented, with a view to ensuring the effectiveness of its operations in the face of risks in its environment. Core to this, we argue, is the organisation of knowledge through public institutions, including the legal system. Covid-19 poses a particular type of ‘Anthropogenic’ risk, which arises when organised human activity triggers feedback effects from the natural environment. As such it requires the concerted mobilisation of knowledge and a directed response from governments and international agencies. In this context, neoliberal theories and practices, which emphasise the self-adjusting properties of systems of governance in response to external shocks, are going to be put to the test. In states’ varied responses to Covid-19 to date, it is already possible to observe some trends. One of them is the widespread mischaracterisation of the measures taken to address the epidemic at the point of its emergence in the Chinese city of Wuhan in January and February 2020. Public health measures of this kind, rather than constituting a ‘state of exception’ in which legality is set aside, are informed by practices which originated in the welfare or social states of industrialised countries, and which were successful in achieving a ‘mortality revolution’ in the course of the nineteenth and twentieth centuries. Relearning this history would seem to be essential for the future control of pandemics and other Anthropogenic risks.

Deere, Kelly, ‘Governing by Executive Order during the COVID-19 Pandemic: Preliminary Observations Concerning the Proper Balance between Executive Orders and More Formal Rule Making’ (2021) Missouri Law Review (forthcoming)
Abstract: As the United States enters 2021, almost all fifty states are still operating under a state of emergency due to COVID-19 more than nine months later. Governors using emergency powers provided to them under their respective emergency disaster statutes and state constitutions continue to govern their state by executive order. These executive orders have had significant impacts on citizens’ everyday lives including stay-at-home orders, limits on non-essential gatherings, non-essential business closures and moratoriums on evictions. And these emergency orders have been opposed at almost every turn from citizens gathering in public protest shouting ‘Liberate Michigan’ to constitutional legal challenges to these orders. Even with two promising vaccines receiving emergency authorization at the time of this article’s submission, it will be months or longer before life returns to normal. Therefore, it becomes incumbent to ask the question whether governors should continue to wield this emergency power or whether state legislatures and/or state agencies should take on more responsibility. In answer to this question, this article concludes that governors should use executive orders in some measure as long as COVID-19 is being transmitted in their communities but not for all areas. Since COVID-19 is a highly contagious disease and is difficult to contain, governors need to be able to quickly and nimbly issue orders to curb transmission as long as there is a reasonable check on their power to do so. However, state legislatures and/or state agencies should enact emergency statutes or regulations following the more formal rule making process in areas that do not require immediate action such as requiring facial coverings in public spaces. This article draws its conclusion by examining three key areas. First, most governors have a meaningful check on their emergency powers from both the judiciary and the state legislature. Second, governors and litigants can learn from prior cases to ensure executive orders do not single out a group or unnecessarily burden another. Third, since some states have had success in enacting emergency regulations, statutes or guidelines concerning COVID-19, more states should follow suit.

Delmas-Marty, Mireille, ‘Governing Globalisation through Law’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 195-201
Introduction: Governing globalisation through law implies building the rule of law without a world State, and therefore rethinking the tool that law, traditionally identified with the State, represents in the face of the interdependencies born of globalisation and the challenges they generate. Economic and financial crises, social crises, global terrorism; the humanitarian disaster of migrations, the climate crisis and, to top it all off, the coronavirus health crisis: it is time to take them seriously, as the cacophony of this poly-crisis amplifies. As if citizen indignation at security abuses, the anger of the yellow vests at social inequalities, the revolt of the younger generations and the calls of scientists regarding climate change had not been enough, it took a simple virus, smaller than a butterfly’s wing, to shake the world, to the point of finally shaking the certainties of our leaders.The great powers, or those merely thinking of themselves as such, proud of their new technologies and convinced of their political and/or economic power, are proving incapable of coordinating on a global scale. It is as if this tiny living being had come as a messenger to challenge our globalised humanity and reveal its fragility, offering it one last chance to realise its common destiny. In sum, a human commitment to better govern the galloping and unpredictable globalisation is needed.

Dergiades, Theologos et al, ‘Effectiveness of Government Policies in Response to the COVID-19 Outbreak’ (SSRN Scholarly Paper, ID 3602004, 15 May 2020)
Abstract: This paper assesses the quantitative impact of government interventions on deaths related to the COVID-19 outbreak.

Deslatte, Aaron, Megan E Hatch and Eric Stokan, ‘How Can Local Governments Address Pandemic Inequities?’ (2020) 80(5) Public Administration Review 827–831
Jurisdiction: USA
Abstract:COVID-19 is exposing a nexus between communities disproportionately suffering from underlying health conditions, policy-reinforced disparities, and susceptibility to the disease. As the virus spreads, policy responses will need to shift from focusing on surveillance and mitigation to recovery and prevention. Local governments, with their histories of mutual aid and familiarity with local communities, are capable of meeting these challenges. However, funding must flow in a flexible enough fashion for local governments to tailor their efforts to preserve vital services and rebuild local economies. The authors argue that the Community Development Block Grant and the Energy Efficiency and Conservation Block Grant programs are mechanisms for providing funds in a manner that is adaptable to local context while also focusing on increasing social equity. Administrators must emphasize the fourth pillar of public administration—social equity—in framing government responses to the pandemic.

Dey, Pritam and Julian Murphy, ‘Accountable Lawmaking: Delegated Legislation & Parliamentary Oversight during the Pandemic’ (University of Melbourne, Melbourne School of Government, Governing During Crises Policy Brief No 9, 1 February 2021)
Abstract: This Policy Brief makes the following key points:
(a) In responding to the COVID-19 pandemic, democratic states around the world have massively expanded executive powers. Much of this transfer of power has occurred through the delegation of legislative power from parliament to the executive.
(b) Delegated legislation has been a major means of public governance in Australia during the pandemic. It is a process of executive law-making whereby government ministers, departments, agencies or other officers, rather than parliament, are empowered to make regulations with the force of law.
(c) Governing by delegated legislation can raise concerns rooted in the rule of law and democratic legitimacy, which are heightened by the stringency of the measures they contain to suppress the virus and to address its economic and societal impacts. These concerns can be addressed by effective parliamentary oversight of such legislation.
(d) However, in Australia, some state and territory parliaments have exhibited a worrying lack of initiative in overseeing the extraordinary executive powers exercised through delegated legislation.
(e) There are a number of ways in which Australia could improve its parliamentary oversight of delegated legislation. Ensuring that executive-made laws are appropriately overseen by parliament will enhance democratic legitimacy and need not detract from the speed and efficiency with which such laws are made.

Dey, Pritam and Julian R Murphy, ‘Pandemic Parliamentary Oversight of Delegated Legislation: Comparing the Performance of Westminster Systems’ [2021] ICL Journal: Vienna Journal on International Constitutional Law (advance article, published online 27 July 2021)
Abstract: The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the ‘legislative model’ of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, in different mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad-hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic.

Dieter, Heribert, ‘Germany in the COVID-19 Crisis: Poster Child or Just Lucky?’ (2020) 85 Journal of Australian Political Economy 101
Abstract: The SARS-CoV-2 virus has been hitting Germany as unexpectedly as other European countries. At the end of January 2020, some employees at Webasto, a supplier of automotive parts in Bavaria, were diagnosed with the novel coronavirus after they had been in direct contact with a Chinese visitor. But, for a few weeks, Germans thought that COVID-19 is an issue for Asian states and not for Germany. Today, Germany continues to be severely affected, but the situation is not nearly as dire as in Britain, Italy or Spain. Germany, with its enormous financial resources and a well-equipped medical sector, appears to be better placed than most other economies to weather the storm. In May 2020, a race to lift restrictions has started and by early June, the country may be back on track.

Dincer, Oguzhan C and Robert Gillanders, ‘Shelter in Place? Depends on the Place: Corruption and Social Distancing in American States’ (SSRN Scholarly Paper ID 3613186, 28 May 2020)
Abstract: This paper investigates the links between corruption and compliance with social distancing during COVID-19 pandemic in America. Both theory and empirical evidence point to a corrosive effect of corruption on trust/social capital which in turn determine people’s behavior towards compliance with public health policies. Using data from 50 states we find that people who live in more corrupt states are less likely to comply with so called shelter in place/stay at home orders.

Dinu, Cătălina Georgeta, ‘Some Shortcomings of the Legal Framework Applicable in the Covid-19 Context’ (Paper Presented at ConScienS Conference Proceedings, 17-18 January 2021) 81-85
Abstract: The article presents some aspects of the recent past of the pandemic with COVID-19, namely during 2020, either from a state of emergency or from a state of alert that was established in Romania. The exceptional situation still found around the world has led public authorities to take unprecedented action and to quickly develop a legal framework to implement these measures. The regulations adopted were not without ambiguities or ambiguities, which is why, in this study we set out to present some examples, namely: the situation of homeless people, rail passenger transport, restricting traffic exclusively in the metropolitan area, protection of chronic patients and not only. The aim of the research is to identify solutions to improve the legislation starting from concrete cases, but also to present the difficulties that the Romanian state authorities have faced and continue to face, in some cases and what solution has often been brought for balancing the relationship between rights and prohibitions, in the context of the need to protect public health by restricting individual rights and freedoms.

Divino, Sthefano Bruno Santos, ‘The Brazillian Government’s Actions against the COVID-19’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 761–763
Extract from Introduction: One of the main actions of the Brazilian Government to control, prevent and eradicate cases involving CoViD -19 (Coronavirus) was the drafting of Law 13.979/2020. The objective of the Law is to solve possible legal problems existing between the exercise of civil liberties (for example: freedom of movement and individual health) and public interest (collective health), for the maintenance of social order.

Djalante, Riyanti et al, ‘The ASEAN’s Responses to COVID-19: A Policy Sciences Analysis’ (SSRN Scholarly Paper ID 3595012, 1 May 2020)
Abstract: The World Health Organisation (WHO) announced the new coronavirus disease (COVID-19) it as a pandemic on March 11th, 2020. The pandemic has brought havoc globally as more than 190 countries and territories are affected as of 30 April 2030. The crisis suggests that no country can deal with the pandemic alone. International cooperation including regional cooperation is essential for any country to survive. We are particularly interested in Association of South East Asian Nation (ASEAN) cooperation and performance under COVID-19 because it has been one of the regions where regional cooperation on health security has been functioning based on lessons from SARS 2003 and H1N1 2009. The ‘One Vision, One Identity, One Community’ of ASEAN has merits under COVID-19 response but remains invisible. The method encompasses analysis of published materials issued by and accessible from the ASEAN website, complemented with analysis for media articles including social media, supported by published academic journal articles. All of the authors have expertise on ASEAN policies in the field of health, disasters, and regional policy and planning. Some authors have also worked from various international organisations working on issues related to the ASEAN region.This paper aims to document and analyse how ASEAN member states respond to COVID-19. It asks how to cooperate under the One-ASEAN-One Response framework. This paper also compares the 10 member states’ policy responses from January to April 2020. We utilise the framework of policy sciences to analyse the responses. We found that the early regional response was slow and lack of unity (January - February 2020). Extensive early measures taken by each member state are the key to the success to curb the spread of the virus. Although, during March and April 2020, ASEAN has reconvened and utilised its existing health regional mechanism to try to have a coherent response to the impacts. Strengthening future collaboration should be implemented by recognizing that there is a more coherent, multi sectoral, multi stakeholders and whole-of-ASEAN Community approach in ensuring ASEAN’s timely and effective response to the pandemic.

Dmitrikova, Ekaterina, ‘COVID-19 and Russian Law: Challenge and Response’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The COVID-19 epidemic has become a challenge to the Russian legal system, inspiring a number of changes in it. The greatest number of novelties is noticeable in administrative law, which has to adapt to the emergence of many new restrictions on citizens ’ rights related to ensuring that the population of the country complies with the sanitary and epidemiological regime prescribed by the authorities. Labor law has also undergone significant mutations, due to the mass transition of employees to remote mode of work. The changes also affected the right to social security, since the economic crisis triggered by the pandemic affected a large segment of the population, which required assistance from the state. The crisis situation in society and the economy has had the least impact on civil law, which is coping with new challenges using traditional legal regulation tools that have been tested for centuries. However, in the field of civil law, there also took place some particular innovations. In general, it can be noted that in the conditions of time constraints, the share of such forms of operational modernization of the current law has sharply increased, such as by-laws of the executive power and explanations of higher judicial instances aimed at interpreting the current legislation in relation to the new conditions.

Dobbs, Kirstie Lynn, ‘Falling Flat? The Impact of State Legitimacy, Capacity, and Political Trust on Flattening the Curve of COVID-19’ (SSRN Scholarly Paper ID 3637832, 30 June 2020)
Abstract: As countries across the world struggle to contain the COVID-19 pandemic, pundits often remark that countries with higher levels of regime legitimacy, state capacity, and political trust are more likely to curtail the spread of the virus. This article offers a first-cut glance analyzing whether these countries are indeed, more successful at containing the virus. By combining data from 10 different sources, I find that countries with higher levels of legitimacy and trust actually experienced greater increases in COVID-19 cases, albeit the strength of this relationship is moderate. State capacity had a stronger positive relationship with increases in COVID-19 cases, but GDP per capita largely drives this relationship. In sum, these results counter expectations regarding the role of certain political indicators on virus containment. Future research should refrain from the ‘blame game’ in terms of politics and should instead look at unique factors characterizing industrialized democracies that make a virus much harder to contain.

Dobbs, Mary, ‘National Governance of Public Health Responses in a Pandemic?’ (2020) 11(2) European Journal of Risk Regulation Special Issue -‘Taming COVID-19 by Regulation’ 240-248
Extract from Introduction: Although the World Health Organization (WHO) provides scientific expertise globally and some other examples of limited centralisation exist (eg the European Union (EU) provides for minimum quality standards regarding medical products or food), public health is primarily governed at a national level or regional level (within the nation state). Consequently, despite some overlap in mechanisms such as contact tracing and social distancing, responses have varied considerably in objectives, timing and degree – even within the EU or across the USA. This raises the fundamental question of whether national decision-making is effective or indeed appropriate in the context of the COVID-19 or similar future pandemics, or whether a supranational or international approach would be more appropriate. In order to address this question, the nature of COVID-19 and the policy responses are analysed through the lens of subsidiarity.

Dobson, Nicholas, ‘Law Stories: A Plague upon Us!’ (2020) 170(7903) New Law Journal 26
Abstract: Compares the restrictions imposed during the COVID-19 pandemic with those imposed in London during the Great Plague in 1665.

Domazet, Siniša, ‘Implementation of Legal Acts of the Republic Of Serbia in Order to Implement Protective Measures at the Level of Local Self-Governments in the Covid-19 Pandemic’ (Paper presented at the VII International Scientific Expert Conference ‘Security and Crisis Management – Theory and Practice’, 30 September-1 October 2021, Belgrade, Serbia (2021)
Abstract: The pandemic of the infectious disease caused by the COVID-19 virus conditioned the intervention of the competent state bodies of the Republic of Serbia, in the form of innovating the existing, ie adopting new legal regulations. This has proven to be particularly important for local self-governments throughout the country. The paper analyzes the extent to which the legal acts of the Republic of Serbia and provincial authorities in connection with the epidemic of infectious diseases have been applied at the level of local governments in AP Vojvodina.

Douwen, Keri van, ‘Timeline of a Crisis: Creator of Change?’ (2020) 12(3) Amsterdam Law Forum 15–19
Introduction: At the time of writing, six months have passed since the first known case of COVID-19 was identified. The coronavirus has since spread to every corner of the globe. Citizens have been asked to stay inside, to work from home, to wear masks, to maintain distance from loved ones; to suspend ‘normal’ life until further notice. In this short essay, I demonstrate how the coronavirus crisis, and the human attitude towards it, have developed from one stage to the next. In so doing, I am able to show how crises may be driving forces of change, while simultaneously arguing that change is never guaranteed. To construct my argument, I rely on the works of Giorgio Agamben, Ulrich Beck, Michel Foucault, Bonnie Honig, and Bruno Latour.

Drinóczi, Tímea and Agnieszka Bień-Kacała, ‘COVID-19 in Hungary and Poland: Extraordinary Situation and Illiberal Constitutionalism’ (2020) 8(1–2) The Theory and Practice of Legislation 171–192
Abstract: Hungary and Poland have started their illiberal remodelling in 2010 and 2015 respectively. Both governments routinely apply the illiberal version of the Rule of Law (illiberal legality), which involves that every situation has the potential to be exploited for political gain. Both states opportunistically apply their constitutions and selectively invoke favourable constitutional provisions. And yet, this paper claims that the Hungarian Fundamental Law and the Polish Constitution are equipped with adequate emergency measures to provide for a proper framework for emergency legislation. In illiberal emergency constitutionalism, Hungary uses and abuses its Fundamental Law, while Poland is disregarding its binding 1997 Constitution and, at the same time, creates its new invisible illiberal constitution. This paper explores how it is done during the current human pandemic crisis by focusing on, first, the emergency regimes the constitutions provide for and their (non-)application. Second, it compares the operation of the parliaments as the Sejm chaotically passes crisis management related omnibus legislation and amendments on the presidential election during the extra-constitutional ‘state of epidemic’. The Hungarian Parliament operates under the ‘danger of crisis’. Yet, it still delivers regular legislative activities, as the emergency ‘legislation’ is done through governmental decree as per the Coronavirus Act 2020, which is unconstitutional. These phenomena necessitate an in-depth inquiry about the nature, form, and content of the Hungarian and Polish emergency legislation and governmental decrees. It is concluded that, under normal circumstances, the Hungarian and Polish constitutional measures set for guiding the authorities in emergencies are adequate. In the current political and constitutional setting and COVID-19 crisis, the form and the content of some essential Hungarian and Polish emergency measures stay below standards. It is a further warning sign for the European community to take Hungarian and Poland illiberal constitutionalism seriously. Their pushing the envelope will not end by itself.

Du, Li and Meng Wang, ‘Chinese COVID-19 Epidemic Prevention and Control Measures: A Brief Review’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 741–746
Extract from Introduction: In this review, we will explore the Chinese administrative measures for preventing and controlling the CoViD -2019 epidemic. We will examine the epidemic prevention and control strategies at both the central and regional levels, and will focus on four perspectives: epidemic information disclosure; mobility and regional management; the medical system and medical service management; and resumption of work, production, and school. To examine the prevention measures at the regional level, we chose Wuhan City, Zhejiang Province, and Guangdong Province as examples.

Duić, Dunja and Veronika Sudar, ‘The Impact of Covid-19 on the Free Movement of Persons in the EU’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 30–56
Abstract: The impact of the COVID-19 outbreak is being endured throughout the world, and the European Union (EU) is no exception. The rapid spreading of the virus effected, among other things, restriction on the freedom of movement. The EU member states introduced national response measures to contain the pandemic and protect public health. While broadly similar, the measures differ with regard to strictness and the manner of introduction, reflecting the political legitimacy of the respective country. With the ‘Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak’ – its first COVID-19-related Communication – the European Commission (EC) attempted to curb differing practices of the EU member states and ensure a coordinated approach. Ultimately, this action was aimed at upholding of fundamental rights as guaranteed to EU citizens, one such being the freedom of movement. Thus, from the very start of the pandemic, the coordinated actions of EU institutions sought to contain the spread of COVID-19 infections with the support and cooperation of EU member states. This is confirmed by the most recent Council of the EU (Council) recommendation on a coordinated approach to restrictions to freedom of movement within the EU of October 2020. While they did prevent the spread of infection and save countless lives, the movement restriction measures and the resulting uncertainty have greatly affected the people, the society, and the economy, thereby demonstrating that they cannot remain in force for an extended period. This paper examines the measures introduced by EU member states and analyses the legal basis for introducing therewith limitations on human rights and market freedoms. To what extent are the EU and member states authorized to introduce restrictions on the freedom of movement in the interest of public health? Have the EU and member states breached their obligations regarding market freedoms and fundamental rights under the Treaty? And most importantly: have they endangered the fundamental rights of the citizens of the EU?

Dyevre, Arthur and Timothy Yu-Cheong Yeung, ‘Partisanship and Compliance with Government Measures: Evidence from Belgium During the Covid-19 Pandemic’ (SSRN Scholarly Paper, ID 3587957, 13 July 2020)
Abstract: We investigate how partisanship affects the authority of the executive branch by looking at the relationship between electoral support for the governing coalition and COVID-19 deaths across Belgian municipal districts. Applying spatial autoregressive modelling, we find that higher support for the party in the minority governing is associated with lower growth in coronavirus infections, although the cross-municipality divergence becomes less pronounced over time. These results persist after controlling for median income, population, population density, time and region fixed effects. After ruling out alternative explanation, such as a far-right effect, we suggest that public health measures, even in the context of a pandemic, may command less authority, at least initially, among opposition voters.

Edge, Peter W, ‘The Manx Emergency of 2020: Dealing with a Global Pandemic as a Small Island Democracy’ [2021] (2) Public Law 232–241
Abstract: In 2020 the Isle of Man responded to the coronavirus pandemic with the declaration of a state of emergency under the Emergency Powers Act 1936 (EPA), and exceptional governance of the Isle of Man under a regime of Emergency Powers Regulations (EPR). This brief note describes the legal structure underpinning the emergency, outlines the extensive body of EPRs, and argues that the distinctive Manx response is best understood as the consequence of the Isle of Man’s status as a small island democracy dependent upon the UK Crown.

Edge, Peter W, ‘A National Emergency or a Public Health Crisis? Reflecting on the 2020 and 2021 Manx Responses to the Global Pandemic’ (2021) 3(1) Amicus Curiae, Series 2, 56-75
Abstract: The Isle of Man, a self-governing Crown Dependency, developed its own response to the global pandemic, including strict border controls and periods of lockdown. In 2020, this was given legal effect through the declaration of a formal State of Emergency, while, in 2021, similar measures were implemented under public health legislation without a State of Emergency. Framing the 2021 lockdowns as a public health crisis led to a more tightly focused response than the 2020 framing as a national emergency. Within this narrower range, however, the structure of the public health legislation as implemented provided less democratic accountability than the emergency powers legislation and reduced the emphasis given to the rules as laws, leading to a decrease in formality in relation to both creation and publication of these legal rules, and exacerbating a blurring between law and advice. These disadvantages were not, however, intrinsic to the public health legislation itself, and if corrected the public health response is to be preferred.

Edgeler, Graeme and Andrew Geddis, ‘The Power(Lessness) of New Zealand’s House of Representatives to Summons the Crown’s Legal Advice’ (SSRN Scholarly Paper No ID 3619623, 5 June 2020)
Abstract: The extent of the New Zealand’s House of Representatives’ (‘the House’s’) general power to summons persons and documents recently came into question. A parliamentary committee, established to scrutinise the government’s response to the COVID-19 epidemic, required that various officials provide it with the Crown’s legal advice regarding the very extensive restrictions placed upon New Zealand society. When the Attorney-General objected on the basis that the documents sought were protected by legal professional privilege, the Speaker of the House determined that the House has no power to demand their production. Although this decision was based on precedent, it differs from the position in the United Kingdom’s House of Commons (‘the Commons’) from whence the House derives its privileges. It also is questionable whether it is a desirable outcome in terms of New Zealand’s constitution.

Eliantonio, Mariolina and Oana Ștefan, ‘The Elusive Legitimacy of EU Soft Law: An Analysis into Consultation and Participation in the Process of Adopting COVID-19 Soft Law in the EU’ (2021) 12(1) European Journal of Risk Regulation 159-175
Abstract: This article takes issue with the legitimacy of EU soft law instruments issued to deal with the COVID-19 crisis. Up to August 2020, we identified a total of 197 such instruments, and analysed the procedures for their adoption. We found little evidence of Parliamentary involvement or stakeholder consultation, with COVID-19 soft law replicating decision-making patterns which have been constantly criticised in the literature as illegitimate and opaque. Giving due consideration to the exceptional nature of these measures, the article suggests some quick fixes which might increase, ex post factum, the legitimacy of these instruments.

European Partnership for Democracy, ‘Imagined Continuities: Political Scenarios after the COVID-19 Pandemic’ (September 2020)
Extract from Introduction: This paper sketches out the medium-term consequences of the pandemic for democratic governance around the world based on a comprehensive overview of current trends and evidence. While much has been written about the short-term implications of the COVID-19 fallout for politics, there is surprisingly little published analysis with a longer time horizon beyond papers focused on economics. Much of the analysis has also focused on the policy response, with less attention paid to the more practical implications for supporters of democracy. The paper is written through contributions from organisations on the frontline of supporting democracy around the world and therefore reflects on the practical steps that could be taken to innovate and safeguard democracy in the coming years.

Evans, Kylie and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45(3) Alternative Law Journal 175-179
Abstract: This article considers how the response to COVID-19 in Australia may be examined and challenged by the Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2019 (Qld) (collectively, the Australian HRAs). It also considers the unique model of rights protection provided at the Commonwealth level under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (2011 Act). The authors argue the Australian HRAs and the 2011 Act have the potential to play a key role in scrutinising some laws implementing the COVID-19 measures, and action taken under those laws.

Ewing, KD, ‘COVID-19: Government by Decree’ (2020) 31(1) King’s Law Journal 1–24
Jurisdiction: UK
Extract from Introduction: The executive style now in vogue involves the introduction of new forms of ‘law’ making, and has far-reaching consequences for personal liberty and police powers. As I write, Parliament is in recess at the most critical point in the nation’s history since the early 1940s, and effective parliamentary scrutiny is almost totally absent…. at the time of writing—15 April 2020—we see only a chronic failure on the part of our sovereign Parliament to discharge its basic constitutional duties. The government has taken unprecedented powers by regulation without parliamentary approval, laying the regulations before Parliament on the day after Parliament rose…. In this article, I wish to make good these concerns in what is inevitably a preliminary look at this issue. The first part deals with financial powers and what I have referred to elsewhere as ‘government by Treasury’, though this should now be ‘government by Treasury Direction’. The second part deals with the restrictions on personal liberty and potentially political freedom…. a public health emergency should not be the occasion for a suspension of constitutional government.

Fabbrini, Federico, ‘The Future of the EU after Brexit, and COVID-19’ (SSRN Scholarly Paper ID 3604111, 30 April 2020)
Abstract: The paper examines the prospects of European integration after Brexit. It discusses a number of old and new crises faced by the European Union (EU) – including most recently the COVID-19 pandemic – and highlights how these have profoundly shaken the unity of the member states. In particular, the paper claims that three visions of integration are increasingly competing with each other – a first that sees the EU as a polity, a second that sees the EU as a market, and a third which instead uses the EU as a vehicle to entrench authoritarian governance at home. Given these unresolved tensions, it is unsurprising the EU governance system has been unable to effectively tackle subsequent crises, and as such efforts to rethink the EU constitutional architecture – including through a Conference on the Future of Europe – are to be welcome. However, many challenges still surround this defining moment, and therefore the question whether the EU will integrate further, or rather disintegrate, still remains open.

Falletti, Elena, ‘Is Form Substance? Some Considerations on the Management of the COVID-19 Emergency in Italy’ (SSRN Scholarly Paper ID 3554515, 15 March 2020)
Abstract: In this short contribution we recall and analyze the administrative and legislative actions enacted in Italy to contain the spread of COVID-19, up to the country’s lockdown, under the light of the constitutional guarantees.

Farca, Laura Alexandra and Dacian Dragos, ‘Resilience in Times Of Pandemic: Is the Public Procurement Legal Framework Fit for Purpose?’ (2020) 16(SI) Transylvanian Review of Administrative Sciences 60–79
Abstract: This article aims to analyze whether the legislation enacted in the field of public procurement in Romania, based on the 2014 EU Directives, is effective in fostering resilience of the public institutions and indirectly of communities, and to provide a fit-for-purpose mechanism for dealing with the pandemic generated by the new type of coronavirus, Sars-CoV-2. The article discusses the necessity of new rules meant to promote swiftly purchases during the state of emergency.Undoubtedly, the pandemic generated crisis has raised some serious challenges to which public procurement regulations is in principle properly equipped to deal with: urgent need for supplies, works and services, but also unemployment or protection of other disadvantaged categories of people. We argue that resorting to specific tools (negotiated procedures, framework-agreements, centralized procurement, sustainable and social procurement, reserved contracts) when carrying out swift interventions generated by the pandemic would have been more suitable during this health crisis or even for preventing the effects of this pandemic. Instead, the attention of the legislator has been concentrated only on (unnecessarily) exempting the swift purchases of medical equipment from the rule of law.

Fauvarque-Cosson, Benedicte, ‘How Did French Administrative Judges Handle COVID-19?’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: During the COVID-19 crisis, governments resorted to exceptional measures and restricted the fundamental rights of citizens in seeking to get control over the spread of the epidemic. Consequently, the citizens were in great demand for control over the administrative measures that were adopted during the Health State of Emergency. In France, the existence of an administrative judiciary allows fast and efficient access to the judge (which is almost free) and ensures judicial control on public freedoms. French administrative courts, particularly the Conseil d’État, played a crucial role during this period. This was made possible thanks to efficient judicial practices which existed before the COVID-19 crisis, notably the accelerated procedure of ‘référés’.

Feikert-Ahalt, Clare, ‘Restrictions on Movement Due to the Coronavirus Pandemic across England - Part I’, In Custodia Legis: Law Librarians of Congress (7 May 2020)
Abstract: This is the first part of a summary of the United Kingdom’s lockdown regulations ordered by the UK government to restrict movement and increase social distancing to reduce the effects of the 2020 COVID-19 pandemic.

Feikert-Ahalt, Clare, ‘Restrictions on Movement Due to the Coronavirus Pandemic across England - Part II’, In Custodia Legis: Law Librarians of Congress (8 May 2020)

Fenwick, Mark, Joseph A McCahery and Erik PM Vermeulen, ‘Will the World Ever Be the Same after COVID-19? Two Lessons from the First Global Crisis of a Digital Age’ (SSRN Scholarly Paper ID 3660078, 24 July 2020)
Abstract: Coronavirus is the first global crisis of a digital age and the divergence in policy responses reflects the challenge of navigating an unprecedented global situation under conditions of enormous uncertainty. We ask what lessons can be learned from this experience and identify two, both of which push against mainstream interpretations of recent events. First, and contrary to the view that the crisis exposed social media and Big Tech as a source of dangerous misinformation that needs to be regulated more strictly, the paper argues that the less mediated spaces of the Internet – social media and Twitter, in particular – played an essential role in triggering a more effective policy response based around social distancing, lockdown, and containment. Second, and contrary to the view that things will go back to normal once the worst of the crisis has passed, the paper argues that, as a direct result of lockdown, the status quo has been shifted across multiple sectors of the economy. Three examples of this shift are introduced, notably the forced experimentation with digital technologies in education and health, the increased use of remote work in many companies, and a reduction in environmentally harmful behavior and a decrease in pollution levels. The long-term effects of this ‘reset’ are impossible to predict, but a quick return to the ‘old normal’ seems unlikely.The paper concludes with the suggestion that this reset has created a unique historical opportunity for the reappraisal of regulatory approaches across multiple domains and exposed the need for regulatory models better aligned to a less mediated, more decentralized world. COVID-19 is a global tragedy, but – given that it has happened – it should be used as a learning experience to re-imagine a better, more socially, and environmentally responsible future.

Fernandes, Haniel, ‘Would the Lockdown Really Be Necessary for the Control of COVID-19 in Brazil?’ (SSRN Scholarly Paper ID 3578627, 17 April 2020)
Abstract: The lockdown quarantine applied in Brazil to contain the advances of the new coronavirus pandemic equivalent to European countries without first observing their demographic, socioeconomic and cultural differences, seems to involve political issues, in addition to controlling problems public health. Therefore, it is necessary to explain a critical idea about the type of prior conduct taken by Brazil to control this pandemic through a descriptive approach that links published policies adopted with the structure of the local health system and the country’s socio-economic and demographic characteristics, in addition to response to contagion. Thus, examining some facts intrinsic to the pandemic process that is installed in the world today.

Ferri, Delia, ‘The Role of EU State Aid Law as a “Risk Management Tool” in the COVID-19 Crisis’ 12(1) European Journal of Risk Regulation 176-195
Abstract: This article discusses the role of EU State aid law in the COVID-19 crisis. It contends that different Treaty derogations have played unique roles in addressing the core determinants of the economic risk linked to the pandemic - i.e. the ‘exposure’ to lockdown measures and the ‘vulnerability’ of certain sectors to them - and in increasing the resilience of national economies. Moreover, this article discusses the extent to which EU State aid law has also been used to manage and mitigate health risks, by allowing Member States to enhance the preparedness and capacity of their healthcare sector (broadly conceived) to respond to the pandemic. On the whole, this article maintains that State aid control has been used by the European Commission as an important ‘risk management tool’, and highlights the role of the Commission as the crisis-management authority.

Fierlbeck, Katherine and Lorian Hardcastle, ‘Have the Post-SARS Reforms Prepared Us for COVID-19? Mapping the Institutional Landscape’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 91
Abstract: Effective pandemic management requires a clear and straightforward structure of communication and accountability. Yet the political realities of Canadian federalism preclude this. The fundamental theme of pandemic management in Canada is thus the tension between the need to make clear, coherent, and timely decisions, on the one hand, and the need to involve an exceptionally large array of political actors across different levels of government, on the other. The sudden outbreak of SARS in 2003 exposed several problems in coordinating the public health system. This led to a major restructuring of public health institutions in Canada. The 2009 H1N1 pandemic tested these reforms and identified new issues underlying the coordination of governmental actors. This chapter presents the legal and institutional context within which COVID-19 has emerged, and identifies both lessons learned from the past and the challenges that remain.

Findlay, Mark, ‘Ethics, Rule of Law and Pandemic Responses’ (SMU Centre for AI & Data Governance, Research Paper, 27 July 2020)
Abstract: The argument recounts a growing dissatisfaction with ethics and principled design as either the single or primary self-regulatory regime ensuring responsible data use and trustworthy AI. From this foundation it proposes rule of law compliance as a parallel and supportive normative and operational direction to address the deficiencies likely in any over-reliance on ethics regulation. In expressions of resistance to COVID responses there is scant community confidence in assertions that ethical reflections answer the deeply felt and differentially identified reservations regarding surveillance and data usage in pandemic responses. It is concluded that without the essence of democratic participation, in the form of citizen connection with emergency policymaking, and potential actionability through legal remedies if rights and liberties are compromised (both features of ‘thick rule of law’), then the regulatory legitimacy crisis facing principled regulatory regimes remains.

Findlay, Mark and Willow Wong, ‘Trust and Regulation: An Analysis of Emotion’ (Singapore Management University, SMU Centre for AI & Data Governance Research Paper No 05/2021, 1 June 2021)
Abstract: In the contemporary regulatory discourse, much energy is directed to ensuring and governing trustworthy technology, or exploring how trust in recipient communities makes technological advances more palatable. This paper works well beyond these approaches to trust. Commencing with Cotterrell’s vision of community as relationships of trust, we argue to locate AI within communities, thereby positioning technology as an active participant in the initiation and maintenance of these social bonds of mutual trust. To achieve this transformation, the analysis focuses on AI ethics as geared towards trust building in the creation and deployment of AI-assisted technologies. By understanding the indicative role of emotions in influencing ethical decision-making and stimulating shared trust, AI ethics formulation and associated decision-making process across the AI ecosystem are re-grounded back into recipient communities. The presence of trust can be seen as an emergent quality reflecting healthy social bonding, more than a context for or outcome of ethical compliance. In this analysis, trust is a regulatory force pre-determining and directing the communal relationships between humans and machines.

Finizio, Anna, ‘The Politics of Pandemics’ (2020) 42(3) Bulletin (Law Society of South Australia) 24–25
Abstract: In the constantly evolving chaos, it is likely that this article will be out of date within days of it being published due to the frequent changes to laws and restrictions in response to the coronavirus (COVID-19) pandemic.

Finnane, Mark, ‘Governing in a Pandemic: Law and Government in Australia, 1919’ (2021) Australian Historical Studies (advance article, published 18 May 2021)
Abstract: The 1918–19 pneumonic influenza pandemic reached into mainland Australia in January 1919 and spread through the country over the next nine months. As a major public health emergency the pandemic proved to be a significant test of Australian governance. This article explores this history through attention to the imperial framing of Australian international and regional responses, the mechanisms of federal-state relations, the constitutional framework for management of domestic health and public order, and the legal disposition of rights and responsibilities as they arose in the events of 1919. The experience of 1919 highlighted institutional strengths of the Australian state by this period, in constitutional and governmental arrangements, and in capabilities of domestic management of health and public order.

Fitsilis, Fotios and Athanasia Pliakogianni, ‘The Hellenic Parliament’s Response to the COVID-19 Pandemic: A Balancing Act between Necessity and Realism’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 19–27
Abstract: Because of their particular nature, representative institutions around the globe are usually well equipped, both legally and capacity-wise, to adequately respond to political crises; this is what political evolution has taught them. Responses to political crises have been developed and take the form of formal or informal rules of procedure that lie at the disposal of the Speaker or other parliamentary functionaries. On the contrary, battling a health crisis does not immediately belong to the issues a parliament under normal circumstances deals with. Hence, the scattered responses by the world’s parliaments, as pointed out by recent studies, come as no surprise. This article showcases the Hellenic Parliament, which constitutes a classic example of a legislature combating the pandemic situation through a gradual and multidimensional response. Its relevant actions are displayed and analysed vis à vis the average global response. As the pandemic seems far from being over, the article attempts a series of future projections on how to deal with it in the long run.

Flaga-Gieruszynska, Kinga, ‘Consequences of COVID-19 Pandemic on the Example of Quarantine and Isolation in the Polish Legal System’ (2020) 23(Special Issue 2) European Research Studies Journal 388–399
Abstract:
Purpose: The COVID-19 pandemic caused the need to apply specific legal structures relating to the separation of healthy and sick persons in order to prevent the spread of the virus, which has an extremely strong impact on Polish society, as well as on other European societies, which shows that these regulations are worth analysing.
Design/Methodology/Approach: The publication uses research methods characteristic of the social sciences, including the dogmatic method focusing on the analysis of the legal text and the analytical method relating to the results of analyses and scientific research.
Findings: The Polish legislator is looking for the right balance between the effective use of the separation of persons who have been exposed to the SARS-CoV-2 virus in order to counteract the spread of the virus and the severe social and economic consequences relating primarily to the mental health problems of persons in separation. In this case, social problems emerge, including family problems (including, in extreme cases, the intensification of domestic violence), as well as problems affecting entrepreneurs who are struggling with lower labour productivity in those industries where remote work has so far been unheard of (e.g. public services) and paralysis of the work system due to sickness of employees and sanitary restrictions.
Practical Implications: The analysis showed that frequent changes to the rules of quarantine and isolation, as well as the introduction of non-legal terms such as ‘self-isolation’, result in confusion and feelings of insecurity for both employees and employers. The ineffective health monitoring system of the persons in separation also causes a significant social problem related to the prolonged isolation of persons who qualify for return to normal activity in the community.
Originality/Value: The study presents an original approach to the problem of quarantine and isolation, not only in terms of legislative changes introduced during the pandemic and their consequences for Polish society, but indicates also problems of a universal nature, occurring in all separated persons, regardless of the legal system that regulates the principles of this isolation.

Flinders, Matthew, ‘Democracy and the Politics of Coronavirus: Trust, Blame and Understanding’ (2020) Parliamentary Affairs (advance article, published 23 June 2020)
Abstract: This article explores the relationship between crises and democracy through a focus on the unfolding coronavirus pandemic. Its central argument is that to interpret the current pandemic purely in terms of its epidemiology and public health implications risks overlooking its potentially more significant socio-political consequences. This is because the challenges posed by the coronavirus crisis have themselves become overlaid or layered-upon a pre-existing set of concerns regarding the performance, efficiency and capacity of democratic political structures. The aim of this article is to try and understand and warn against what might be termed a rather odd form of cross-contamination whereby the cynicism, negativity and frustration concerning politicians, political processes and political institutions that existed before the coronavirus outbreak is allowed to direct, define and automatically devalue how democratic structures are subsequently judged in terms of how they responded to the challenge. As such, this article focuses on the link between the Coronavirus crisis and the democratic crisis; or, more precisely, the risk that the Coronavirus crisis may mutate into and fuel a broader crisis of democracy.

Flood, Colleen M and Bryan Thomas, ‘The Federal Emergencies Act: A Hollow Promise in the Face of COVID-19?’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy, and Ethics of COVID-19 (University of Ottawa Press, 2020) 105
Abstract: Throughout March and April 2020, as the COVID-19 pandemic unfolded in Canada, Prime Minister Trudeau was repeatedly asked in his daily news conferences whether or not he would invoke the Emergencies Act. His response was that health care is a provincial matter, and the federal government would play a support role to the provinces. Rightly, the Act can only be triggered when a province has not been able to respond appropriately to a public health emergency, jeopardizing not only the health of people within a province but also other Canadians. However, there are other significant limitations within the Act such that even when a matter has risen to a level requiring a federal response, the Act may prevent the federal government from intervening or at least leave its powers unclear. We test three case-scenarios in the context of COVID-19 where arguably provincial steps have been insufficient, thus triggering the need for a national response. In so doing, we demonstrate the limitations of the Emergencies Act and suggest, post-COVID-19, there must be a discussion on whether the Act is fit for purpose.

Florendo, Carlos Enrico, ‘Disease Risk Management in the Philippines: An Institutional Solution’ (SSRN Scholarly Paper ID 3869590, 18 June 2021)
Abstract: The Philippines has recorded over 1.3 million COVID-19 cases, with around 59 000 being actives cases and over 23 000 casualties as of June 17, 2021. With only a little over 1 percent of the population being fully vaccinated and daily recorded cases trending upwards, the government’s pandemic response is continuing to prove lacking. This short research note evaluates the COVID-19 response of the Philippine national government, enumerating key weaknesses in the policy-making process. Based on the weaknesses identified, the research note recommends an institutional solution, specifically the creation of a permanent organization mandated to manage public health crises brought about by infectious diseases, to guarantee a sustained, consistent, and competent disease risk management for the current COVID-19 pandemic and other future threats.

Florey, Katherine, ‘COVID-19 and Domestic Travel Restrictions’ (2020) 96(1) Notre Dame Law Review Reflection Article 1
Abstract: The strict controls that many jurisdictions, including most U.S. states, established to contain the COVID-19 pandemic have proven difficult to sustain over time, and most places are moving to lift them. Internationally, many plans to ease lockdowns have retained some form of travel restrictions, including the ‘green zone’ plans adopted by France and Spain, which limit travel between regions with widespread community transmission of COVID-19 and those without it. By contrast, most U.S. states lifting shelter-in-place orders have opted to remove limits on movement as well. This Essay argues that this situation is unwise: it tends to create travel patterns that increase the spread of COVID-19 while at the same time hindering contact tracing and information gathering. While broad quarantines have a complicated and far from perfect record in the United States, more targeted measures are likely within states’ constitutional powers to impose, might be more palatable to the public, and could play a significant role in helping to contain the spread of COVID-19.

Flynn, Alexandra et al, ‘Municipal Power and Democratic Legitimacy in the Time of COVID-19’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy, and Ethics of COVID-19 (University of Ottawa Press, 2020) 91
Abstract: As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local ‘main street’ businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the Constitution, they are considered to be nothing more than ‘creatures of the province.’ However, courts have decided in many cases that local decisions are often considered governmental and given deference. This chapter focuses on the tensions in this contradictory role when it comes to municipal responses to COVID-19, particularly when those responses take the form of closure of public spaces, increased policing by by-law officers, and fines. I conclude that municipalities serve an important role in pandemic responses, alongside provincial and federal governments. Provincial law should be amended to capture the important role of municipalities in Canadian federalism, especially in the area of municipal finance.

Fombad, Charles Manga and Lukman Adebisi Abdulrauf, ‘Comparative Overview of the Constitutional Framework for Controlling the Exercise of Emergency Powers in Africa’ (2020) 20(2) African Human Rights Law Journal 376–411
Abstract: The need to act swiftly in times of emergency gives governments a reason to exercise emergency powers. This is a legally valid and accepted practice in modern democracies. Post-independence African constitutions contained provisions that sought to regulate states of emergency, placing the emphasis on who could make such declarations and what measures could be taken, but paid scant attention to the safeguards that were needed to ensure that the enormous powers that governments were allowed to accrue and exercise in dealing with emergencies were not abused. As a result, these broad powers were regularly used to abuse fundamental human rights and suppress opponents of the government. In the post-1990 wave of constitutional reforms in Africa, some attempts were made to introduce safeguards against the misuse of emergency powers. This article undertakes a comparative assessment of the extent to which these reforms have reduced the risk that the exercise of emergency powers poses to human rights and progress towards constitutionalism and respect for the rule of law, especially in times of global pandemics such as COVID-19. Indeed, the COVID-19 pandemic has exposed the weaknesses of the constitutional reforms designed to check against the abuse of emergency powers. In most African countries, governments in dealing with the virus decided to act within the legislative framework, which subjects them to few checks rather than rely on the constitutional frameworks which in most cases provide for more elaborate checks. It is clear from the experiences of the past few months that most African constitutions never anticipated an emergency of such magnitude. The article concludes by arguing that one of the major lessons of the COVID-19 pandemic is that there is a need to review the constitutional and regulatory framework for the exercise of emergency powers to better prepare for future pandemics.

Foohey, Pamela, Dalié Jiménez and Christopher K Odinet, ‘CARES Act Gimmicks: How Not To Give People Money During a Pandemic And What To Do Instead’ (2020) University of Illinois Law Review Online 81-95
Introduction: The coronavirus pandemic upturned Americans’ lives. The profound financial effects caused by even a few weeks of the coronavirus’ upheaval spurred Congress to pass the CARES Act, which purported to provide economic relief to individuals and businesses. For individuals, the CARES Act includes five provisions that were effectively designed to provide people money. Chief among those provisions are a direct payment in the form of a tax rebate and enhanced employment benefits. Ultimately, this financial support will prove to be shockingly minimal. The direct payments represent a fraction of the average American households’ monthly budget. The unemployment benefits, while providing people with more money over several months, require that people be laid off and similarly are unlikely to reach people quickly enough to be effective. These corner pieces of the CARES Act are best understood as gimmicks. Through them, the federal government told people that it would take care of them in ways that were immediately salient to them as the coronavirus crisis began. It also became quickly apparent to at least some lawmakers that Congress would need to pass at least one additional stimulus package. Indeed, Congress may have several more opportunities to craft legislation that actually will help American families survive the pandemic. This legislation must provide people with true funding to stay current with their minimum necessary expenses as these expenses are incurred. In this Essay, we discuss the gimmicks of the CARES Act’s individual provisions and what Congress should do for people in future bills to address this pandemic. If done right, helping individuals will cost the government more than $2 trillion next time, and the time after that, and possibly the time after that. And, if done right, it will be worth every penny.

Fortin, Marie-France, ‘Liability of the Crown in Times of Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy, and Ethics of COVID-19 (University of Ottawa Press, 2020) 223
Abstract: While both federal and provincial governments are accountable before the courts for violations of individuals’ rights and freedoms constitutionally protected in the Canadian Charter of Rights and Freedoms, their civil liability in tort for damages is a different matter. This chapter addresses the issue of the suitability of these actions in light of the immunity from suit that the federal and provincial governments (‘the Crown’) enjoy. In the first section of this chapter, the state of the law and recent developments in relation to the Crown’s liability in Canada are discussed. The meaning and consequences of the Supreme Court of Canada’s most recent decisions in relation to the Crown’s liability in the context of the COVID-19 pandemic—including for the acts of its departments, servants, agents, corporations, and independent contractors—are discussed in the second section.

Fracalossi de Moraes, Rodrigo, ‘Determinants of Physical Distancing during the COVID-19 Epidemic in Brazil: Effects from Mandatory Rules, Numbers of Cases and Duration of Rules’ (SSRN Scholarly Paper ID 3632386, 21 June 2020)
Abstract: During the COVID-19 pandemic, physical distancing is being promoted to reduce the disease transmission and pressure on health systems. Yet, what determines physical distancing? Through a panel data analysis, this article identifies some of its determinants. Using a specifically built index that measures the strictness of physical distancing rules in the 27 Brazilian states, this paper isolates the effect of mandatory physical distancing rules from other potential determinants of physical distancing. The article concludes that physical distancing is influenced by at least three variables: the strictness of mandatory physical distancing rules, the number of confirmed cases of COVID-19, and the duration of rules. Evidence also indicates that the effect of physical distancing measures is relatively stronger than that of the number of cases – physical distancing is determined proportionally more by mandatory policies than people’s awareness about the severity of the epidemic. These results have at least two policy implications. First, governments should adopt mandatory measures in order to increase physical distancing – rather than expect people to adopt them on their own. Second, the timing of adopting them is important, since people are unlikely to comply with them for long periods of time.

Francetic, Igor, ‘Bad Law or Implementation Flaws? Lessons from the Implementation of the New Law on Epidemics during the Response to the First Wave of COVID-19 in Switzerland’ (2021) Health Policy (Advance article, published 15 August 2021)
Abstract: After the 2009-2010 H1N1 pandemic, Switzerland overhauled its 1970 law on epidemics. The reform aimed at improving early detection, surveillance, and preparedness for future outbreaks of infectious diseases. Notably, the law introduced stronger coordination between Federal and Cantonal authorities, better management tools and international cooperation. The new law entered into force in 2016 after a long legislative process. During the process, the law survived a referendum fuelled by concerns about vaccine safety and pharmaceutical industry interference. The law was first applied during the COVID-19 pandemic in early 2020. The epicentre of the outbreak in Europe was in Lombardy, a large Italian region adjacent to Switzerland and with strong economic ties with its southern region of Ticino. The first months of pandemic response highlighted two major weaknesses. Firstly, the mechanisms introduced by the new law did not ease the tension between Cantonal autonomy and central coordination of the pandemic response. Central and Cantonal authorities will need to put in place new rules and arrangements to avoid dangerous delayed responses to foreseeable problems related to the spread of infectious diseases. Secondly, relevant stakeholders excluded from the policymaking process (trade unions, firms, large industries) should be involved to allow the introduction of harsh restrictions when needed, both internally and in relation to cross-border workers.

Frankenberg, Günter et al, ‘The End of Globalization?: Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy’ (TLI Think! Paper No 22/2020, 7 December 2020)
Abstract: This special issue arises from a Focus Seminar on ‘‘The End of Globalization? - Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy” held at the Transnational Law Institute of King’s College London in 2019. Inspired by the discussions at the Focus Seminar, it brings together three eminent legal scholars, Günter Frankenberg, Jiří Přibáň and William Partlett, to address the complex challenges to democracy, the rule of law and human rights we are currently facing. An introduction by Benedikt Reinke opens the special issue.

Freckelton, Ian, Government Inquiries, Investigations and Reports During the COVID-19 Pandemic’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Frediani, Emiliano, ‘The Administrative Precautionary Approach at the Time of Covid-19: The Law of Uncertain Science and the Italian Answer to Emergency’ (2021) 17(3) Utrecht Law Review 6–17
Abstract: The health emergency linked to Covid-19 brought to the fore the problem of the usefulness and correct application of the precautionary principle. In the paper proposed for the call, the topic will be analyzed starting from the foundations of the precautionary principle, to see consequently how it must be ‘handled’ in practice when the Administration (in the Italian fight against the pandemic, the Government, but also the Regions) is called to decide in contexts of health crisis. Particular attention will be paid, just from the beginning, to the relationship between science and Public Administration, in order to demonstrate how the precautionary approach represents a ‘rule of action’ for the public decision-maker when there is no full scientific certainty. In this perspective, the analysis will be developed starting from the definition of a general context: that one represented by the so-called ‘irreducible uncertainty.’ This premise will be the starting point to define a law of uncertain science,’ which ‘follows’ the facts and is characterized for its flexibility. The problem will then be reported to the administrative decisions, called in emergency times to be ‘adaptive’ and reviewable. The reflection on precaution ‘in action’ will have the Italian case as an observation ‘laboratory.’ In this perspective, the investigation will be conducted by looking at the ‘answer’ of the Italian legal system to the emergency related to Covid-19. This will lead to see if the precautionary approach has been taken seriously by the Italian Administration and, subsequently, what characters have taken the measures to fight against the spread of the Coronavirus outbreak. In conclusion, it will be necessary to understand whether the ‘postulates’ of precaution ‘in the books’ have been translated into an adequate precaution ‘in action.’ In other terms, the attention will be focused on two different aspects: the first related to the ‘time’ of the action; the second to the content of the measures taken to fight against the spread of the virus. This will allow us to understand if the Italian Government acted promptly (in compliance with the precautionary approach) and what was the decision-making process that brought to these measures.

Friedery, Réka, ‘Free Movement of Persons versus COVID-19: National Restrictions and EU Law’ (MTA Law Working Paper No 2020/38, 2020)
Abstract: Albeit, in recent years, the EU has faced several health issues such as the pandemic influenza (H1N1), or E. Coli outbreak in Germany, this time the domino effect of Covid-191 , a worldwide epidemic with serious effects on societies and economics of everyday life, has resulted in never-before-seen protection measures across the world. Its challenges forced countries to take steps with negative outcomes to liberties as free movement. Nevertheless, free movement of persons between Member States and the limitations have multiple layers which need to be analysed separately.

Friedman, Barry and Robin Tholin, ‘Policing the Pandemic’ (NYU School of Law, Public Law Research Paper No (forthcoming), 25 June 2021)
Abstract: Although there were those who foretold the risks of a pandemic, it is fair to say most of the world was caught unprepared. All of the sudden there was a scramble—for protective clothing, for tests, for antivirals and a vaccine. Even under the best of circumstances, the measures necessary to combat a worldwide rapid-spreading disease of this sort would have been challenging. Caught flat-footed, it has been a disaster. As the world searched for ways to combat the spread of COVID-19, a puzzle presented itself. The key to counter-spreading is surveillance and enforcement: the traditional tools of the state. But entrusting the state with the vast surveillance and enforcement authority necessary to control the pandemic gives rise to threats of its own. Perhaps a more effective and less threatening alternative was to leave enforcement in private hands, and particularly to rely on emerging technology, to help stop the spread. Although it was not always stated explicitly, watching what happened in the United States, the private option seemed preferred in many states. Stateless solutions to the pandemic, we argue here, were and are a pipe dream. Emerging technology has its value, to be sure. And committed private parties can accomplish much. But in dealing with a public health emergency, government is essential to solve coordination problems, to monitor what is happening, and to enforce with the lawful machinery of the state what needs enforcement. Still, we agree: government surveillance and enforcement does pose a threat. For that reason, the how of government action is as important as the what. To ensure the tools to fight the pandemic are used wisely—and effectively—government power should be granted by democratic means, preferably legislative ones. And it must be constrained properly. Part I briefly sets the stage—we all know too well, unfortunately, the circumstances that have brought us here. Part II identifies the competing costs and benefits of public and private approaches. Part III explains the necessity of state power, but also stresses what the state must commit to doing, and do, to gain the trust of the public, be effective in fighting the virus, and ensure the lawfulness of state action.

Gable, Lance, ‘Mass Movement, Business and Property Control Measures’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 34–39
Abstract: Government powers support the use of physical distancing measures as a strategy to mitigate the spread of COVID-19. This Chapter examines the efforts of governments to limit mass movement and large gatherings, close businesses and schools, and restrict non-essential personal, recreational, and commercial activities. Government legal authority to impose these restrictions to stop the transmission of an infectious disease such as COVID-19 is quite broad, and these measures are essential tools to reduce the community spread of COVID-19. However, government orders that restrict movement or activity must consider the effects on constitutional rights; the economic, social, and health impacts that restrictions impose; and the potential for inequitable burdens on marginalized communities if supportive policies are not implemented along with restrictions. Movement and activity restrictions in the form of stay-at-home orders, gathering size limitations, and business and school closures have been instituted widely during the initial COVID-19 response, primarily by state governments, although local governments have also imposed these measures. Often politically controversial, numerous legal challenges have been brought against government orders restricting movement, imposing gathering limits, and closing businesses. The government has prevailed in most of these legal challenges, and this deference to government-imposed restrictions demonstrates an appropriate balancing of public health and other considerations under circumstances of scientific uncertainty. However, government officials must take affirmative steps to set up systems that render widespread restrictions on movement and activity less necessary to contain COVID-19 and to ensure that when restrictions and closures are in place that supportive policies mitigate disparate burdens on marginalized communities.

Gajdosova, Martina, ‘Legal and Paralegal Measures as the Response to an Extraordinary Situation’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The contribution deals with normativity and norm-creation as the most important response in the development of the law to an extraordinary situation caused by coronavirus, with regard to the development in the Slovak Republic. The contribution describes the turbulence of normativity in the development of soft-normativity of the executive (recommendations), measures of the executive of a normative nature (prohibitions, obligations) and responses of the parliament (ad hoc COVID-19- acts). The contribution also deals with operational normativity manifested in all forms of self-government and internal management (internal normative acts).

Galbiati, Roberto et al, ‘How Laws Affect the Perception of Norms: Empirical Evidence from the Lockdown’ (SSRN Scholarly Paper ID 3684710, 1 September 2020)
Abstract: Laws not only affect behavior due to changes in material payoffs, but they may also change the perception individuals have of societal norms, either by shifting them directly or by providing information on these norms. Using detailed daily survey data and exploiting the introduction of lockdown measures in the UK in the context of the COVID-19 health crisis, we provide causal evidence that the law drastically changed the perception of the norms regarding social distancing behaviors. We show this effect of laws on perceived norms is mostly driven by an informational channel.

Gamkrelidze, Tamar, ‘COVID-19 in Georgia: State Emergency as Political Non-Law and Its Impact on Pluralism’ (2021) Democracy and Security (advance article)
Abstract: The article scrutinizes COVID-19-related state of emergency which tested and hence exposed vulnerability of certain values of liberal democracy where it has been fragile. It opened a window of opportunity for governments to operate in a political non-law realm through introduction of state emergency measures. Georgia was no exception, its political space has been particularly affected by the COVID-19-related state of emergency. Hence the research is interested in why the state emergency was damaging for democracy in Georgia? The article argues that by introduction of state of emergency the Georgian Dream government ushered Georgia—a hybrid democracy with rather limited history of power-sharing and weak democratic institutions—in a ‘state of exception,’ in a sense put forward by Carl Schmitt. This political act further flattened political diversity through limiting the space for political pluralism.

Gao, Jian et al, ‘Quantifying Policy Responses to a Global Emergency: Insights from the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3634820, 2020)
Abstract: Public policy must confront emergencies that evolve in real time and in uncertain directions, yet little is known about the nature of policy response. Here we take the coronavirus pandemic as a global and extraordinarily consequential case, and study the global policy response by analyzing a novel dataset recording policy documents published by government agencies, think tanks, and intergovernmental organizations (IGOs) across 114 countries (37,725 policy documents from January 2nd through May 26th 2020). Our analyses reveal four primary findings. (1) Global policy attention to COVID-19 follows a remarkably similar trajectory as the total confirmed cases of COVID-19, yet with evolving policy focus from public health to broader social issues. (2) The COVID-19 policy frontier disproportionately draws on the latest, peer-reviewed, and high-impact scientific insights. Moreover, policy documents that cite science appear especially impactful within the policy domain. (3) The global policy frontier is primarily interconnected through IGOs, such as the World Health Organization, which produce policy documents that are central to the COVID-19 policy network and draw especially strongly on scientific literature. Removing IGOs’ contributions fundamentally alters the global policy landscape, with the policy citation network among government agencies increasingly fragmented into many isolated clusters. (4) Countries exhibit highly heterogeneous policy attention to COVID-19. Most strikingly, a country’s early policy attention to COVID-19 shows a surprising degree of predictability for the country’s subsequent deaths. Overall, these results uncover fundamental patterns of policy interactions and, given the consequential nature of emergent threats and the paucity of quantitative approaches to understand them, open up novel dimensions for assessing and effectively coordinating global and local responses to COVID-19 and beyond.

Garbarino, Carlo, ‘Social, Moral and Legal Rules, Biopolitics and the Covid-19 Crisis’ (2021) Global Jurist (advance article, published online 27 September 2021)
Abstract: The article relies on the social and legal perspective not only to better understand how norms are created and change through interactions among agents, but also to shed light on how norms are internalized in social practice. The article is organized as follows. Initially the article explores the basic assumption that deontic operators acquire their meaning via social conventions generating ‘personal rules’ having a ‘mental content’ which belongs to a wider ‘normative mind’, a mind that obviously encompasses all sorts of choices. The article then describes the different types of personal rules, distinguishing social, moral, and legal rules across the normative mind, focusing on social rules within institutions, conceived as sets of rules in equilibrium. The core of this study puts to the test the taxonomy of personal (social, moral, and legal) rules within the normative mind by exploring a situation of ‘dense normativity’ addressed by a 2021 Lancet paper concerning findings about ‘tight–loose cultures’ during the Covid-19 crisis, and, for the sake of explanation, focuses on one of the main normative constraints that epitomizes the challenge of the Covid-19 crisis to ‘tight–loose’ cultures: the ‘wear-mask rule’. These observations can be extended to other normative constraints of that crisis, but in essence they parse the interplay between the different types of personal rules, which not only are social, but also moral and legal, drawing conclusions that complement the findings of the Lancet paper with some critical observations. The article critically concludes with remarks about the co-existence of different normative systems of personal rules in a context of biopolitics and suggests that individual morality appears to be the core of normativity to address collective threats such as those caused by the Covid-19 crisis.

Gartner, David, ‘Pandemic Preemption: Limits on Local Control Over Public Health’ (2021) 13(2) Northeastern University Law Review 733–766
Abstract: As COVID-19 silently spread across the globe, the earliest effective responses in the United States were driven by localities. However, as the pandemic progressed, many of the most impacted cities were barred from taking comprehensive action in response to the pandemic. The broader trend of state preemption of local public health interventions accelerated as a result of COVID-19 and left many localities effectively defenseless against an invisible enemy.

Gasmi, Gordana and Momir Grahovac, ‘European Response To Covid 19 Pandemic: Legal Framework And Lessons For The Future’ (2021) 15(1) Fiat Iustitia 86–98
Abstract: The study analyzes legal and strategic constraints of the European Union (EU) response during Covid-19 pandemic. First lesson to be learnt is the legal limitation of the EU’s competence in the field of public health protection that causes relative inefficient reaction of the EU institutions during pandemic. Second lesson lies in inadequate application of the solidarity clause at the beginning of the Covid-19 pandemic, exactly at the time of marking the 70th anniversary of Schuman’s declaration. On the one hand, there is a lack of powers at the EU level, given its coordinating competence. On the other hand, there was a noticeable lack of solidarity among the EU Member States, solidarity which is legally established in the provisions of the Lisbon EU Treaty. There is a battle between the role of the state with its sovereignty and the concept of europeanization of pandemic supression, which proved to be prevalently unsuccessful. Some Member States, especially Romania and Hungary as well, performed an efficient approach to immunisation of their population, separate from the EU institutions. Successful example of Serbia, European candidate country, in mass vaccination of its inhabitants points to the fact that the state is primarily responsible in the field of public health. However, the advantage of the EU in the fight against pandemic is in the weakness of national approach to pandemic prevention, bearing in mind its global character. Hence the need to reform the EU legal framework and strengthen the political will of the EU members for deeper cohesion and coordination of public health protection measures. This would strengthen the EU’s role in international co-operation in preventing and controlling possible future pandemic threats and in contributing to the European and global health security.

Geddis, Andrew and Alex Latu, ‘Unlawful Commands, Bills of Rights, and the Common Law’ (SSRN Scholarly Paper ID 3711775, 14 October 2020)
Abstract: In Borrowdale v Director General of Health [2020] NZHC 2090, a full bench of the High Court issued a declaration that a series of governmental commands issued during the first 9 days of New Zealand’s ‘lockdown’ response to COVID 19 were ‘not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.’ This declaration formally records the Court’s conclusion that for more than a week New Zealanders’ statutorily guaranteed rights and freedoms were limited without legal basis. In this comment we explain both why this was so, and why the Court was right to recognise that fact by way of a declaration. We also examine the Court’s finding that these limits did not constitute a suspension of either laws or their execution in terms of the Bill of Rights Act 1688. Finally, we suggest that the High Court missed an opportunity to clearly elucidate the constitutional limits on the executive’s power to promulgate apparently coercive directives in the absence of any legal authority. The impending appeal of the High Court’s judgment to the Court of Appeal perhaps provides an opportunity to revisit that last matter.

Geiringer, Claudia, ‘The “COVID-19 Public Health Response Act 2020’ [2020] (June) New Zealand Law Journal 159
Abstract: It is not hard to grasp why the Covid-19 Public Health Response Act 2020 was greeted with such a wave of sound and fury. The unseemly haste with which the Act was shepherded through the House (all stages under urgency) gave human rights groups, and others, little opportunity to come to grips with the thrust of the legislation.

Geiringer, Claudia and Andrew Geddis, ‘Judicial Deference and Emergency Power: A Perspective on Borrowdale V Director-General’ (SSRN Scholarly Paper No ID 3693450, Social Science Research Network, 15 September 2020)
Abstract: In Borrowdale v Director-General, New Zealand’s High Court made a declaration that, for its first nine days, New Zealand’s COVID lockdown was not lawfully authorised. The High Court dismissed two other, and more widely framed, causes of action. In this brief commentary, we suggest two things. The first is that, despite the finding of illegality, the overall result in Borrowdale was predicated on a high degree of deference to executive power. The second is that this is regrettable. It constitutes a dangerous precedent available to future governments regardless of the merits of the underlying measures.

Gill, Peter, ‘Of Intelligence Oversight and the Challenge of Surveillance Corporatism’ (2020) 35(7) Intelligence and National Security 970–989
Abstract: This article examines the experience of oversight during the last fifty years in order to inform current debates in both the older and newer democracies. First, there is a discussion of certain key concepts: intelligence governance including control, authorisation and oversight; second, the difficulties facing oversight, specifically, how these can be alleviated by a structure involving both parliamentary and specialist bodies and, third, the challenges presented by the structures of surveillance corporatism and its reliance on bulk collection. It is concluded that this new intelligence architecture requires a form of decentred regulation of and by state and corporate actors.

Gillis, Matilda, ‘Ventilators, Missiles, Doctors, Troops ... the Justification of Legislative Responses to COVID-19 through Military Metaphors’ (2020) 14(2) Law & Humanities 135–159
Abstract: This article examines the legislative measures imposed by governments as a response to the COVID-19 pandemic and scrutinizes, in particular, governments’ extensive use of military metaphors to justify those measures. It argues that while the use of military metaphors can usefully and desirably function to mobilize widespread acceptance and compliance with the relevant legislative measures and to motivate action, the use of metaphors in this way should nonetheless be viewed with caution. Metaphors of war and associated images are emotionally powerful and can function in a way that makes it difficult to question governmental responses and responsibility.

Ginsburg, Tom and Mila Versteeg, ‘Binding the Unbound Executive: Checks and Balances in Times of Pandemic’ (SSRN Scholarly Paper ID 3608974, 9 June 2020)
Abstract: Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. This creates a risk of over-reach, erosion of civil liberties, and even democratic backsliding in some cases. This Article interrogates these propositions using evidence from how various countries have responded to the global COVID-19 pandemic. It presents data from an original and global survey to evaluate the nature of emergency powers during the pandemic. The survey captures, for each country, the legal basis for the pandemic response as well as the extent to which there has been judicial or legislative oversight, and whether the executive’s pandemic response has encountered pushback from subnational units. This Article finds that, contrary to conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives. Courts have played four different roles: (1) they have insisted on procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing public health concerns; (3) they have in some cases demanded that government take affirmative steps to combat the virus and its effects; and (4) they have supervised decisions about postponing elections. Legislatures have likewise played an active role in providing oversight and, in some cases, in producing new legislation that is specific to the current crisis. Subnational governments, too, have pushed back against central authorities, producing valuable institutional dialogues on the appropriate response. This Article considers the implications of these findings for theories of emergency governance, arguing that the executive does not occupy as central a role as commonly believed, especially in crises in which information is highly decentralized. It further defends the role of institutional checks and balances during emergencies, arguing that they are likely to produce more legitimate and reasoned responses than the executive acting alone.

Gogarty, Brendan and Gabrielle J Appleby, ‘The Role of the Tasmanian Subordinate Legislation Committee During the Covid-19 Emergency’ (2020) 45(3) Alternative Law Journal 188–194
Abstract: On 17 March 2020, Tasmania entered a ‘state of emergency’ in response to COVID-19. Parliament stands adjourned, and the executive is regulating the crisis through delegated regulations that significantly limit civil rights and freedoms. Despite assurances Tasmania’s Subordinate Legislation Committee would scrutinise executive power throughout the crisis, its role has been limited, due to an overly prescriptive (we argue incorrect) reading of Tasmania’s scrutiny framework, which has not been properly reformed in several decades. This is a salient lesson about why constitutional laws require regular reviewed and modernisation, to ensure Parliaments remain supreme even (especially) during crises and emergencies.

Goitein, Elizabeth, ‘Emergency Powers, Real and Imagined: How President Trump Used and Failed to Use Presidential Authority in the COVID-19 Crisis’ (2020) 11(1) Journal of National Security Law & Policy 27–60
Abstract: Can a president abuse emergency powers by not using them? Elizabeth Goiten explains that President Trump has utilized aggressive rhetoric and claimed the powers of the president during an emergency are absolute. Yet he has been restrained to a fault when deploying emergency powers to address the COVID-19 national health crisis. His approach to emergency powers in regards to immigration and domestic quarantines reveals a tug-of-war between the inclination to assert sweeping power and the desire to avoid responsibility for the public health and economic consequences of the pandemic. At every stage, our national response to COVID-19 has been hampered by a lack of available testing, testing equipment, personal protective equipment, ventilators, and other medical supplies; problems which President Trump could have attacked using legitimate legal authorities. While the use of emergency powers is discretionary by nature, President Trump may have illuminated a new abuse, the politically-motivated failure to deploy emergency powers in a genuine crisis.

Goldstein, Neal D and Joanna S Suder, ‘Application of State Law in the Public Health Emergency Response to COVID-19: An Example from Delaware in the United States’ (2020) Journal of Public Health Policy (advance article, published 28 September 2020)
Abstract: The unprecedented COVID-19 pandemic of 2019–2020 generated an equally unprecedented response from government institutions to control contagion. These legal responses included shelter in place orders, closure of non-essential businesses, limiting public gatherings, and mandatory mask wearing, among others. The State of Delaware in the United States experienced an outbreak later than most states but a particularly intense one that required a rapid and effective public health response. We describe the ways that Delaware responded through the interplay of public health, law, and government action, contrasting the state to others. We discuss how evolution of this state’s public heath legal response to the pandemic can inform future disease outbreak policies.

Gostin, Lawrence O, I Glenn Cohen and Jeffrey P Koplan, ‘Universal Masking in the United States: The Role of Mandates, Health Education, and the CDC’ (2020) 324(9) Journal of the American Medical Association ( JAMA) 837–838
Abstract: The Centers for Disease Control and Prevention (CDC) recommends cloth face coverings in public settings to prevent spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19). Face coverings decrease the amount of infectious virus exhaled into the environment, reducing the risk an exposed person will become infected. Although many states and localities have ordered mask use, considerable variability and inconsistencies exist. Would a national mandate be an effective COVID-19 prevention strategy, and would it be lawful? Given the patchwork of state pandemic responses, should the CDC have enhanced funding and powers to forge a nationally coordinated response to COVID-19 and to future health emergencies?

Gostin, Lawrence O, James G Hodge and Lindsay F Wiley, ‘Presidential Powers and Response to COVID-19’ (2020) 323(16) Journal of the American Medical Association (JAMA) 1547–1548
Abstract: CDC modeling suggests that, without mitigation, SARS-CoV-2, the virus that causes novel coronavirus disease 2019 (COVID-19), could infect more than 60 percent of the United States population. President Trump has declared a national emergency coupled with 49 governors declaring state emergencies (Figure 1), unprecedented actions. Social distancing aims to flatten the epidemic curve to moderate demand on the health system. Consequently, whether through voluntary action or state mandates, individuals are increasingly sheltering at home, schools and universities are closing, businesses are altering operations, and mass gatherings are being cancelled. Some countries have resorted to more aggressive measures, including a cordon sanitaire (a guarded area where individuals may not enter or leave) or large-scale quarantines. What powers do the President and governors possess in the United States? How should we balance individual rights and public health at a critical point in safeguarding the nation’s health?

Gostin, Lawrence O and Lindsay F Wiley, ‘Government Public Health Powers in the COVID-19 Pandemic: Stay-at Home Orders, Business Closures, and Travel Restrictions’ (SSRN Scholarly Paper ID 3578817, 2 April 2020)
Jurisdiction: USA
Abstract: The president and all 50 governors have declared health emergencies to combat the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes coronavirus disease 2019 (COVID-19). While researchers race for vaccines, officials are implementing physical distancing, including orders to stay at home, restrict travel, and close non-essential businesses. To limit cross-border spread, a few states have issued mandatory quarantines for interstate travelers. Models suggest physical distancing would have to persist for 3 months to mitigate peak impacts on health systems and could continue on an intermittent basis for 12-18 months. What legal powers do governments have? What is the role of the courts? How can we balance public health with personal and economic rights?

Goudge, Amy, ‘Balancing Legality and Legitimacy in Canada’s COVID-19 Response’ (2020) 41 National Journal of Constitutional Law 153–183 [pre-published version on SSRN]
Abstract: The COVID-19 pandemic has delivered an impossible balancing act for democracies. As a public health crisis that demands exceptional measures to contain, the pandemic has forced democratic governments to reconcile competing obligations to legality, political legitimacy, and emergency response. In Canada, we have seen provincial governments impose emergency orders that severely curtail civil liberties. Meanwhile, the federal government has assumed enormous spending powers for crisis relief. While these measures may be necessary to mitigate the pandemic’s worst effects, they also threaten the country’s fundamental commitments to democracy, constitutionalism, and the Rule of Law. This paper analyzes how political and legal controls have operated to ensure that emergency measures strike an appropriate balance between legal rights, democratic norms, and crisis response. While a conclusive assessment of Canada’s COVID-19 response would be premature, I find an emerging picture of a measured approach that is responsive to political and legal controls – not only preserving legality and legitimacy, but sustaining the public trust that is essential to resolving a crisis like COVID-19.

Gowd, Kiran Kumar, Donthagani Veerababu and Veeraiahgari Revanth Reddy, ‘COVID-19 and the Legislative Response in India: The Need for a Comprehensive Health Care Law’ (2021) Journal of Public Affairs Advance article No e2669, published 21 March 2021
Abstract: The outbreak of the SARS CoV2 virus, commonly referred to as the COVID-19 pandemic, has impacted the social, economic, political, and cultural lives of citizens around the world. The sudden outbreak of the pandemic has exposed the legal preparedness, or lack thereof, of governments to reduce and contain its drastic impact. Strong legislative measures play a crucial role in any epidemic or pandemic situation. In this situation, the Indian Government has requested all state governments to invoke the Epidemic Disease Act (EDA) of 1897 to address the COVID-19 emergency. The Central Government has also used the powers provided in the Disaster Management Act (DMA) of 2005. As the country is facing its first major health emergency since independence, the existing legislative measures to deal with a COVID-19 like situation are lacking and require certain amendments to address such situations in the future. This paper aims to present the current constitutional and legislative response to health emergencies in India and attempts to identify gray areas in the statutory provisions. Based on the analysis, this paper suggests several recommendations for amending current legislation and suggests the promulgation of comprehensive public health law. This paper is largely based on primary sources such as the EDA and the DMA, regulations, guidelines, rules issued by the public authorities and court cases related to health and health emergencies along with secondary resources such as newspaper articles and published papers.

Greenberg, Daniel, CB, ‘COVID-19 and the Rule of Law: Editorial’ [2021] Statute Law Review Article hmab024 (advance article, published 14 October 2021)
Abstract: The need to pass emergency legislation invariably and inevitably places special strains on the rule of law. In particular, difficult balances need to be struck between protecting public health and safety and limiting the intrusive effects of legislation so as to protect Convention human rights and other common law fundamental rights. Apart from substantive law, the processes of emergency legislation necessarily create their own challenges, particularly in relation to giving people due notice of changes in the law while acting fast enough to react to developing events, as well as combining the necessary flexibility with an appropriate hierarchy of primary legislation, subordinate legislation, and quasi-legislation.

Griglio, Elena, ‘Parliamentary Oversight under the Covid-19 Emergency: Striving against Executive Dominance’ (2020) 8(1–2) The Theory and Practice of Legislation 49–70
Abstract: The Covid-19 emergency has profoundly challenged the interactions between the legislative and the executive branches of government: while executives have assumed a predominant role in law-making, parliaments are being increasingly marginalised. In the circumstances, many factors make parliamentary oversight of the executive a strategic function for the democratic legitimacy of policy-making. Evaluating the role of parliaments in this domain is the main purpose of this article. It traces and assesses oversight initiatives started by parliaments in Europe in order to evaluate: what types of interaction they are developing with the executives; whether the oversight procedures have been changed, either in a temporary or permanent way; and what sort of influence the oversight function has had on the final outcome of decision-making. The comparative analysis demonstrates that parliaments have followed a realistic and incremental approach to ensure continuity of executive oversight, prioritising the mechanisms that they deemed to be strategic and also feasible in terms of logistical arrangements. Drawing on the lessons learned from this experience, it is questioned whether some of the new oversight (digital) practices should be made permanent. It is argued that prospectively an appropriate and full use of oversight prerogatives will be the marker of parliaments’ ability to create opportunity out of the crisis.

Grogan, Joelle and Nyasha Weinberg, ‘Principles to Uphold the Rule of Law and Good Governance in Public Health Emergencies’ (RECONNECT Policy Brief, 18 August 2020)
Abstract: Extract from Introduction: This paper presents eight principles of rule of law and good governance to guide action during a public health emergency. The principles are based on the analysis published in the ‘“COVID19 and States of Emergency”’ Symposium, a global study of states of emergency and the use of the emergency powers in response to the COVID-19 crisis. The Symposium published reports on 74 countries by over 100 scholars worldwide, and so provided analysis of legal measures which impacted nearly 80% of global population. While this paper does not consider health policy choices made by states, it instead highlights the good practices which appear to have correlated with positive outcomes, including lower infection rates, lower mortality rates, and the earlier lifting of restrictions.2 Building on these principles, this paper provides recommendations based on evidence of emerging best practice worldwide which are likely to result in higher levels of public trust and compliance with legal measures and policy decisions taken under an emergency. We also highlight concerning practices which may only serve to undermine efforts as well as the rule of law and good governance.

Grugorovych, Chystokletov Leontii et al, ‘Conditions for the Protection of Human Rights While Covid-19, Legal Principles and Administrative Barriers in Ukraine’ (2021) 9(2) Information Technology in Industry 867–875
Abstract: The article describes both the administrative and legal principles of human rights protection in the context of the spread of coronavirus, which is used in Ukraine and all over the world on the basis of theoretical and practical methods. In this regard, the question of the efficiency of the measures to lessen the spread of the virus, made in connection with the new tasks of the state authorities and, first of all, health authorities, without violating the basic rights of the people becomes relevant. It is proved that the legal analysis of the ratification of international and domestic regulations indicates extraordinary opinions on the issue of ensuring human rights in an emergency relative to the struggle with the infection. Basing on international and national practice, attention is grabbed to the administrative and legal principles of ensuring medical confidentiality during the pandemic. It is shown that the disclosure of medical secrets is allowed in cases of suspicion of the patient intending to commit a crime or on the basis of a decision of a court. Current work provides guidelines directed at enhancing the measures for protecting peoples’ rights in the situation of suppressing the spread of COVID-19.

Gruszczynski, Lukasz, ‘Tackling the COVID-19 Pandemic Through Governmental Regulations: The Experience of Poland’ (2021) 7(1) Journal of Health Inequalities 12–14
Abstract: The article presents a summary of the research results of the project on the development of the COVID-19 pandemic in Poland in its initial phase (March-June 2020). It argues that the design and timing of regulatory responses, as well as the adherence of the population to the relevant rules, had a critical impact on the progression and public health consequences of the pandemic. On that basis, the article concludes that well-designed public health measures, which are implemented early as a part of the proactive strategy that anticipates and reacts quickly to changing circumstances can effectively decrease number of COVID-19 infections and related deaths, provided that adherence of a relevant population is high.

Guetat, Meriem and Meriem Agrebi, ‘From Democratic Exception to State of Exception: Covid-19 in the Context of Tunisia’s State of Law’ (2021) Middle East Law and Governance (advance article, published 26 October 2021)
Abstract: Through an analysis of the early legal and institutional response to Covid-19 in Tunisia, this article demonstrates that the narrative of Tunisia’s democratic exceptionalism following the 2011 revolution is not translated into a liberal legal practice but is instead upheld by an authoritarian rationale that serves the role of a formal channel that legitimizes power discourse. Specifically, this article focuses on what the state of exception, which was declared during the ongoing state of emergency, reveals about the various uses of law in Tunisia. It argues that the state of emergency has become the norm to the Tunisian way of governance post-2011, allowing for the survival of past authoritarian practices where the legal apparatus is used and deployed as a tool of policing and control.

Guild, Elspeth, ‘Covid-19 Using Border Controls to Fight a Pandemic? Reflections From the European Union’ (2020) 2 Frontiers in Human Dynamics Article 606299
Abstract: When Covid-19 was acknowledged to have arrived in Europe in February-March 2020, politicians and public health authorities scrabbled to find appropriate and effective responses to the challenges. The EU obligation contained in Article 9 Treaty on the Functioning of the European Union (TFEU) requiring the EU (including the Member States to achieve a common protection on human health, however, seems to have been missing from the responses. Instead, borders and their control became a site of substantial political debate across Europe as a possible venue for effective measures to limit the spread of the pandemic. While the most invasive Covid-19 measures have been within EU states, lockdown, closure of businesses etc, the cross-border aspects (limitations on cross border movement) have been important. In the European Union this had important consequences for EU law on border controls, in particular free movement of persons and the absence of controls among Schengen states. While EU law distinguishes between Schengen borders where no control takes place on persons, non-Schengen EU borders, where controls take place but are limited to identity checks and border controls with third countries and external borders with third countries (non EFTA or Swiss) the responses of many Member States and the EU institutions abandoned many aspects of these distinctions. Indeed, the difference between border controls between states (inside Schengen, the EU, EFTA or outside) and internal restrictions on movement became increasingly blurred. Two approaches – public health and public policy – were applied simultaneously and not always in ways which were mutually coherent, or in any way consistent with the Article 9 TFEU commitment. While the public health approach to movement of persons is based on ensuring identification of those in need of treatment or possibly carrying the disease, providing treatment as quickly as possible or quarantine, the public policy approach is based on refusing entry to persons who are a risk irrespective of what that may mean in terms of propagating the pandemic in neighbouring states or states of origin.

Gulland, Jackie, ‘Households, Bubbles and Hugging Grandparents: Caring and Lockdown Rules during COVID-19’ (2020) 28(3) Feminist Legal Studies 329–339
Abstract: Efforts to combat the COVID-19 crisis brought mountains of legislation and guidance to coerce or encourage people to stay at home and reduce the spread of the virus. During peak lockdown in the United Kingdom (UK) regulations defined when people could or could not leave their homes. Meanwhile guidance on social distancing advised people to stay within ‘households’. This paper explores the legislation under lockdowns in the UK from March to October 2020 and the implications for women’s gendered caring roles. The regulations and guidance assumed that households were separate units and ignored the interdependencies which exist between households and between individuals and wider society. The continuing focus in the lockdown regulations has been on households as autonomous, safe, adequate and secure. This overlooks the interdependency of human life, gendered aspects of caring and the inequalities of housing and living conditions, highlighted by feminist scholarship.

Győry, Csaba and Nyasha Weinberg, ‘Emergency Powers in a Hybrid Regime: The Case of Hungary’ (2020) 8(3) The Theory and Practice of Legislation 329–353
Abstract: How should we understand the Hungarian government’s activities since the beginning of the Covid-19 crisis? This article reviews Hungary’s emergency law, and the decrees passed under the emergency authorisation to date, as well as the ending of the state of emergency and the subsequently introduced new statutory emergency regime to ask how Hungary’s actions in recent months should be understood. As the paper demonstrates, bringing in insights from political theory to inform constitutional law approaches to legislative practice can help shed some light on the enigma of Hungary’s apparent legislative ‘restraint’.

Haddow, Kim et al, ‘Preemption, Public Health, and Equity in the Time of COVID-19’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 71–76
Jurisdiction: USA
Abstract: Preemption is a legal doctrine that allows a higher level of government to limit or eliminate the power of a lower level of government to regulate a specific issue. As governments seek to address the myriad health, social, and economic consequences of COVID-19, an effective response requires coordination between state and local governments. Unfortunately, for many localities, the misuse of state preemption over the last decade has increased state and local government friction and weakened or abolished local governments’ ability to adopt the health- and equity-promoting policies necessary to respond to and recover from this crisis. The broad misuse of preemption has left localities without the legal authority and policy tools needed to respond to the pandemic. Existing state preemption of paid sick leave, municipal broadband, and equitable housing policies, for example, forced local governments to start from behind. Moreover, many state executive orders issued in response to COVID-19 outlawed local efforts to enact stronger policies to protect the health and wellbeing of communities. And, preemption in the time of COVID-19 has exacerbated the health and economic inequities affecting people of color, lowwage workers, and women. Conflict between state and local governments has cost lives, delayed effective responses, and created confusion that continues to undermine public health efforts. The new coronavirus pandemic has made it clear that the overwhelming majority of state preemption occurring today harms public health efforts and worsens health inequities. The crisis also has underscored the need to reform and rebalance the relationship between states and local governments.

Hafiz, Hiba et al, ‘Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis’ (Boston College Law School Legal Studies Research Paper No 527, March 2020)
Abstract: The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance and a social safety net to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire. This Working Paper — which will be continually updated to reflect current developments — will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the ‘Families First Coronavirus Responses Act’) passed by the house on March 14, 2020, subject to subsequent Technical Corrections of March 16, 2020, and then passed by the Senate without amendment and signed by the President on March 18, 2020. Next, it analyzes the provisions of H.R. 748 (the ‘Coronavirus Aid, Relief, and Economic Security Act’ or the ‘CARES’ Act) enacted into law on March 27, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.

Hajrizi, Zenel, ‘Treatment of Covid 19 from the Legal Point of View in Kosovo’ [2020] UBT International Conference, 30-31 October 2020, Pristine, Kosovo)
Abstract: The Covid 19 pandemic challenged human society indiscriminately. Dealing with health workers with the virus was the arena of gladiators, while vertical and horizontal organization of institutions was needed. The primary burden was on government action based on the advice of the Ministry of Health and the National Institute of Public Health.The discrepancy of institutional attitudes fractured the political spectrum regarding the actions of citizens for working hours, and the problem was transferred to the Constitutional Court for interpretation.Parliamentary debates on the anti-covid law took time, while the overthrow of the government seemed to facilitate the circulation measures until the voting of the anti-covid law, which took more than five months from the presentation of the first cases of the citizens of the country with Covid19. With the voting and application of the anticovid law, the local level also took over the competence for coordination of actions until the opening of the possibilities for conducting tests in private laboratories. Kosovo health protocols require the preservation of public health, while the application of the law transforms the current situation of citizens.

Harder, Mette Marie and Christoffer Harder, ‘COVID-19 Response Strategies: Differences Between Strategies of Male and Female Heads of Governments?’ (SSRN Scholarly Paper No ID 3679608, 15 July 2020)
Abstract: According to news media all over the world, the COVID-19 virus is showcasing gendered leadership transparently to everyone: Male leaders exemplified by Donald Trump and Boris Johnson represent a laid-back, macho-‘we are not afraid’ attitude and failed to act, whereas female leaders such as Jacinda Ardern applied extensive government measures. Or did they? This study examines whether nations with female heads of government have applied more extensive measures to combat the COVID-19 virus than countries led by men. Using the Oxford COVID-19 Government Response Tracker data set, we find no indications that female leaders apply more extensive shutdown measures or health responses over time. However, OECD countries led by women did enact their respective maximum shutdown measures significantly more quickly than OECD countries led by men.

Harrington, John, ‘Indicators, Security and Sovereignty during COVID-19 in the Global South’ (2021) 17(2) International Journal of Law in Context 249–260
Abstract: The spread of COVID-19 has seen a contest over health governance and sovereignty in Global South states, with a focus on two radically distinct modes: (1) indicators and metrics and (2) securitisation. Indicators have been a vehicle for the government of states through the external imposition and internal self-application of standards and benchmarks. Securitisation refers to the calling-into-being of emergencies in the face of existential threats to the nation. This paper contextualises both historically with reference to the trajectory of Global South states in the decades after decolonisation, which saw the rise and decline of Third-World solidarity and its replacement by neoliberalism and global governance mechanisms in health, as in other sectors. The interaction between these modes and their relative prominence during COVID-19 is studied through a brief case-study of developments in Kenya during the early months of the pandemic. The paper closes with suggestions for further research and a reflection on parallel trends within Global North states.

Hartini, Rahayu and Yusufa Ibnu Sina Setiawan, ‘The Role of Legal Sociology in Terms of Covid-19: Large-Scale Social Restrictions (PSBB) in Indonesia’ (2021) 15(1) Indian Journal of Forensic Medicine & Toxicology 1425–1431
Abstract: The study of legal sociology is a study that has legal phenomena, but uses social science and sociology theory. The role of Legal sociology is so tight when juxtaposed with a problem that is emerging, namely the global pandemic Coronavirus Disease (Covid)-19. The juridical normative research with a method of approach to the law, conceptual and comparative. Legal materials that have been collected are analyzed by content analysis. Some affected countries that successfully handled the COVID-19 pandemic, including: South Korea, New Zealand, Singapore. Italy and United States containment strategy for handling Covid-19 are contradictory from those countries above. PSBB has been applied in Indonesia and other countries. The PSBB must be accompanied by other programs so that the government can successfully handle COVID-19.. PSBB does not guarantee that the community will obey the regulation. The most effective action with all the consequences is regional quarantine or lockdown accompanied by other supporting programs from the government.

Hartley, Kris and Darryl SL Jarvis, ‘Policymaking in a Low-Trust State: Legitimacy, State Capacity, and Responses to COVID-19 in Hong Kong’ (2020) 39(3) Policy and Society 403–423
Abstract: With indiscriminate geographic and socio-economic reach, COVID-19 has visited destruction of life and livelihoods on a largely unprepared world and can arguably be declared the new millennium’s most trying test of state capacity. Governments are facing an urgent mandate to mobilize quickly and comprehensively in response, drawing not only on public resources and coordination capabilities but also on the cooperation and buy-in of civil society. Political and institutional legitimacy are crucial determinants of effective crisis management, and low-trust states lacking such legitimacy suffer a profound disadvantage. Social and economic crises attending the COVID-19 pandemic thus invite scholarly reflection about public attitudes, social leadership, and the role of social and institutional memory in the context of systemic disruption. This article examines Hong Kong as a case where failure to respond effectively could have been expected due to low levels of public trust and political legitimacy, but where, in fact, crisis response was unexpectedly successful. The case exposes underdevelopment in scholarly assumptions about the connections among political legitimacy, societal capacity, and crisis response capabilities. As such, this calls for a more nuanced understanding of how social behaviours and norms are structured and reproduced amidst existential uncertainties and policy ambiguities caused by sudden and convergent crises, and how these can themselves generate resources that bolster societal capacity in the fight against pandemics.

Harvey, Darren, ‘Brexit and COVID-19’ (2021) 32(1): Covid-19: Political Responses and Legal Consequences King’s Law Journal 26-36
Pre-published version of article available on SSRN
Abstract: The COVID-19 pandemic and the United Kingdom’s (UK) withdrawal from the European Union (EU) constitute the two greatest challenges faced by the UK state in modern times. The former has resulted in ‘the largest peacetime shock to the global economy on record’, with UK Gross Domestic Product ‘set to fall by 11 per cent this year – the largest drop in annual output since the Great Frost of 1709.’1The latter involves the UK leaving both the EU customs union and the EU single market and attempting to replace these arrangements with a much less ambitious free-trade agreement, thus constituting ‘the single gravest act of economic segregation in modern history.’Either of these challenges on their own would have undoubtedly caused widespread disruption to the legal and political order of any European nation state. One of the great misfortunes of our time, it seems, is that they both happen to have come along at the same time. The impact of COVID-19 and Brexit within the domestic legal order of the UK is neatly illustrated by AG v OG, a case concerned with the cross-applications for financial remedies by a divorced couple who had previously co-owned and operated a ducting business. The respondent in the case argued that when it came to calculating the value of the company, ‘a discount of 10% should be applied to reflect the effects of the economic downturn caused by the COVID -19 pandemic and the likely future disruption to be experienced on account of Brexit, particularly where there appears to be an appreciable risk that this country will not conclude a trade agreement with the European Union by 31 December 2020.’ This was because a significant portion of the company’s business was with customers based in the EU and, for the time being, that business was conducted on a tariff-free basis. The risk at the time of the UK and EU failing to reach an agreement in the ongoing negotiations (leading to a ‘no deal’ Brexit) was thus liable to have adverse consequences for the business. Similarly, it was argued that the COVID-19 pandemic had had a considerable impact upon the company, which had not only experienced a significant decrease in demand for the time being, but was likely to be negatively affected in the future by a predicted recession. In giving judgment in the case, Mostny J recognised that this was ‘an issue novel to this court but one which will likely become a recurring feature in cases like this.’ Ultimately, in accepting that the combination of Brexit and COVID-19 were likely to have a significant impact upon the value of the business at the centre of the dispute, Mostyn J agreed to the application of a ‘discount for COVID/Brexit on trading element at 10%.’ For the High Court, the uncertainty caused by the prospect of a no deal Brexit and the devastation caused by the COVID-19 pandemic were so closely intertwined that it was appropriate to consider their impact together when calculating the value of a company. Against this background, this short paper examines the disruption that the COVID-19 pandemic has caused to the Brexit process. Section II deals with the negotiations between the UK and the EU regarding the terms and conditions of what became the UK-EU Trade and Cooperation Agreement (TCA). I refer to this as the external dimension to the Brexit process. As we shall see, the effort that both sides have expended in responding to the pandemic placed immense pressure on the time and resources available for negotiating and concluding the new TCA, affecting the time available to scrutinise its contents before its entering into force on 1st January 2021. Section III then turns to examine the internal dimension of Brexit, drawing attention to the effects that the pandemic has had upon the abilities of the UK parliament and executive to prepare the domestic UK legal order for life after Brexit. Section IV is a conclusion.

Hasan, Hasan Falah, ‘Legal and Health Response to COVID-19 in the Arab Countries’ (2021) 14 Risk Management and Healthcare Policy 1141-1154
Abstract:
Background: Arab countries account for almost 6% of the global population, yet they make up only 5% of the total cases and less than 3% of the global death toll attributed to COVID-19. COVID-19 has put the health systems in the various Arab Countries and their ability to deliver healthcare services under tremendous strain. The capacity and stability of any health system is important in any type of response to the pandemic, in order to ensure an effective and efficient delivery of care to the public through COVID-19 and beyond. The objective of this study is to identify the various response of health systems in Arab Countries to COVID-19, and highlight the legal and health challenges faced during the pandemic. The study identified both gaps and good practices that may be utilized in order to guide the efforts in response to COVID-19 and the recovery efforts once the pandemic is over.
Methods: To determine why the response of some health systems in Arab Countries responses are more effective than others, a three-step framework is adopted which includes, detection, containment, and treatment stages. In order to identify which countries are excelling at detection, containment, and treatment stages, several indicators were selected for each stage. To be able to understand the legal and health challenges of response to the COVID-19 pandemic, an analysis of the health systems, the resources in terms of quality and access, health workforce, and finance was conducted. Secondary data published by the Global Burden of Disease Study, and the Global Change Data Lab of the University of Oxford was used to study identified gaps and good practices to guide the responses to COVID-19 and recovery efforts once the pandemic is over.
Results: The epidemiologic record demonstrates that that certain Arab countries are managing to control the pandemic, through a combination of mitigation strategies, suppression strategy and elimination strategy. There are several barriers and challenges in Arab health systems which have been amplified due to COVID-19 and if ignored may pose a further significant challenge in the future. Health systems in Arab countries are not sufficiently equipped to handle all healthcare needs related to COVID-19, in particular issues relating to administration, equity, finances, the supply side of healthcare, and usage of information technology.
Conclusion: In Arab counties, the standard response to COVID-19 was enforced by new health laws, which consist of a combination of the traditional disease control measures (testing, contact-tracing, social distancing), population-based physical distancing (including stay-at-home orders, school and business closures, and social gathering bans), travel limits (including travel bans, and border closures), and economic support measures. Acceptable healthcare quality and access, sufficient health workforce, and sufficient funds are the most imperative needs in the health system in Arab counties to provide a sustainable response to the COVID-19 pandemic.

Hasmath, Reza et al, ‘Performance Legitimacy and COVID-19: What Are Citizens’ Expectations for Crisis Management in an Authoritarian State?’ (SSRN Scholarly Paper ID 3615101, 31 May 2020)
Abstract: Chinese citizens are increasingly concluding that the state alone cannot manage national disasters and emergencies. Leveraging two waves of a nation-wide survey of urban residents, conducted in 2018 and 2020, we find statistical support amongst Chinese citizens for civil society organizations to become more involved in a national crisis such as during COVID-19. The theoretical and practical implications for authoritarian regimes are discussed. Primarily, we suggest that while authoritarian regimes can use crises to gain and retain performance legitimacy, their normal methods of controlling information can thwart these gains. Civil society organizations can assist with this dilemma.

He, Alex Jingwei, Yuda Shi and Hongdou Liu, ‘Crisis Governance, Chinese Style: Distinctive Features of China’s Response to the Covid-19 Pandemic’ (2020) 3(3) Policy Design and Practice 242-258
Abstract: Since the outbreak of the novel coronavirus (Covid-19) epidemic in Wuhan, China has remained under the international spotlight. Despite hostile sentiments toward the country that are still prevalent in many parts of the world, it is clear that China has managed to contain this unprecedented public health crisis reasonably swiftly since the lockdown of Wuhan. What accounts for this ‘success’? What are the experience and lessons that can be learnt by the international community and policy practitioners? This study seeks to reveal China’s highly distinctive style of crisis governance behind its pandemic containment outcome since February 2020. We analyze how the Chinese government was able to mobilize the entire state machinery and all possible resources in this battle. Focus is given to the distinctive features at institutional, strategic, and operational levels, illustrating the country’s style of crisis governance while also drawing necessary caveats.

Hemel, Daniel J, ‘Four Futures for U.S. Pandemic Policy’ (2021) University of Chicago Legal Forum (forthcoming)
Abstract: The COVID-19 pandemic is probably not the last time that a new and deadly infectious disease will sweep the planet. What can the United States do to improve its changes of averting large-scale loss of life the next time? This essay—prepared for The University of Chicago Legal Forum’s symposium issue on ‘Law for the Next Pandemic’—envisions four ‘futures’ for the United States’ pandemic response and considers the advantages and drawbacks of each. One approach, the Mass Surveillance strategy, relies on widespread population monitoring, rigorous contact tracing, and enforced isolation of the infected. That strategy has enabled several East and Southeast Asian countries to keep case counts low without instituting long lockdowns. In the United States, the Mass Surveillance approach would face surmountable constitutional hurdles but potentially insurmountable cultural obstacles. A second option, the Fortress strategy, combines lockdowns to stop community transmission with border closures to prevent reintroduction of the infection. Australia and New Zealand illustrate the Fortress approach’s lifesaving potential, but their examples will be difficult to replicate in a country with a much larger population and long land borders. A third approach, the Internationalist strategy, emphasizes global cooperation with the goal of preventing animal-to-human transmission and containing any outbreak quickly. That approach is appealing—and worth pursuing—but it faces the high probability that it won’t work. A fourth approach, the Early Vaccination strategy, would truncate the clinical trial process and boost vaccine production capacity so that a large portion of the U.S. population could be vaccinated within several months of an outbreak. This, too, is worth a try, but even a rapidly developed vaccine is unlikely to protect us from a pandemic’s first wave. Ultimately, the essay recommends that the United States follow an all-of-the-above approach—preparing to pursue the Mass Surveillance, Fortress, Internationalist, and Early Vaccination strategies—without being overly optimistic about the prospect that any single one of these strategies will succeed.

Hickman, Tom, ‘Abracadabra Law-Making and Accountability to Parliament for the Coronavirus Regulations’ (SSRN Scholarly Paper ID 3732097, 17 November 2020)
Jurisdiction: UK
Abstract: Since 26 March 2020 the day-to-day life of every person in the country has been regulated and restricted to an exceptionally high degree by criminal laws made by regulations that have intruded deeply into the heart of individual liberty, regulating the purposes for which people can leave their homes, their ability to socialise and meet family members and their ability to work. The regulations have been made under the Public Health (Control of Disease) Act 1984. Disquiet about the development of a modern form of government by proclamation gradually built-up in Parliament over the summer of 2020. This paper examines this issue. It identifies the two functions of Parliament in relation to delegated legislation as (a) accountability and (b) transparency. It concludes that in the period 26 March 2020 to 12 October 2020 Parliament was unable to perform these functions adequately. Regulations were produced at the last minute, shortly before they came into effect, and parliamentary scrutiny and debate of the measures, if it occurred at all, was belated, restricted and stale. It is suggested that far from being merely a product of an exceptional period, the experience highlights structural weaknesses in the regime for scrutiny of delegated legislation which need to be urgently addressed.

Hicks, Elizabeth, ‘Private Actors and Crisis: Scrutinising the National COVID-19 Commission Advisory Board’ (Melbourne School of Government, University of Melbourne, Governing during crises No Policy Brief No 4, 5 August 2020)
Key Points: The Policy Brief makes the following central points:
(a) Times of crisis pose risks of executive expansion. When monitoring those risks, observers must consider the broader arrangements that shape how that executive power is wielded. This includes the relationship between private parties, private industry and the executive.
(b) The National Covid-19 Commission Advisory Board (NCC) advises the government on Australia’s longer-term economic recovery. It comprises commissioners and members of working groups from the private sector, who are personally selected and appointed by the Prime Minister’s office. On 27 July 2020, the Prime Minister announced that the NCC would work ‘within’ government, forming part of Cabinet deliberative processes.
(c) Several features of the NCC are of concern, including: a lack of any legislative underpinning and clear, independent appointment process typically expected of publicly-funded bodies; opaque operations; little legal clarity whether it can form ‘part of’ cabinet and rely on cabinet confidentiality; and the absence of a duty to publicly disclose conflicts of interest.

Hicks, Elizabeth, ‘A Right to Come Home? Repatriation Rights & Policy in Australia’ (University of Melbourne, Melbourne School of Government, Governing During Crises Policy Brief No 11, 15 April 2021)
This Policy Brief makes the following key points:
(a) Australian citizens stranded abroad have brought a complaint against Australia before the United Nations Human Rights Committee. Although this avenue of recourse faces obstacles, it has raised questions about current Australian policy on border closures and repatriation.
(b) A key part of Australia’s successful response to the COVID-19 pandemic has been its closure of international borders. The burden of that success has largely fallen on those affected by restrictions on international travel: citizens and residents stranded abroad; including citizens and residents whose compassionate or other circumstances have not been approved for an exemption by the Department of Home Affairs.
(c) Australia’s quarantine program is largely administered by the states. Caps on the number of arrivals have been consistently lower than demand and notoriously volatile, reduced in response to repeated system failures in hotel quarantine programs.
(d) In the absence of an express bill of rights, Australia largely relies on political mechanisms to hold the government to account, including with regard to the proportionality of COVID-19 related international border restrictions. Political mechanisms have failed to prioritise the right of citizens to return ahead of other political and economic concerns relevant to government business. Repatriation policy has also operated in a vacuum of political accountability: border closures have been the government’s most popular restriction.

Hidayatullah, Hidayatullah and Nasrullah Nasrullah, ‘Enforcement of Health Law: The Large Scale Social Limitation In Indonesia Viewed of The Theory Of Al-Maqashid Asy-Syar’iyyah’ (2020) 20(1) Syariah: Jurnal Hukum dan Pemikiran 43–58
Abstract: Starting from the outbreak of the Corona Virus pandemic (Covid-19) in the early 2020s including in Indonesia, humanity was shaken with a variety of panic. To cope with the Covid-19 pandemic outbreak, the Government of Indonesia established a public health emergency status and adopted a Large Scale Social Restrictions (LSSL) policy. However, this health law enforcement issues a new polemic for the society, for Indonesian Muslims who cannot worship in congregation in mosques or other places of worship. The purpose of this study is to analyze the LSSL Policy that implemented by the government from the perspective of al-Maqashid asy-Syar’iyyah. This research is a legal research with literature study method and normative juridical research. Thus, the legal material related to the LSSL policy imposed by the Government of Indonesia. Based on the results of the study showed that there are some differences and their consequences, but the theory of al-Maqashid asy-Syar’iyyah LSSL policy is one of the best choices in the framework of overcoming the Covid-19 pandemic outbreak in Indonesia

Ho, Lawrence Ka-Ki, Chi-Shun Fong and Trevor TW Wan, ‘High Level of (Passive) Compliance in a Low-Trust Society: Hong Kong Citizens’ Response Towards the COVID-19 Lockdown’ (2020) Policing: A Journal of Policy and Practice Article paaa090 (advance article, published 25 December 2020)
Extract: Through revisiting theories of compliance, we aim to unpack the blackbox of the high compliance level in Hong Kong despite widespread reports of erosion of police legitimacy.

Hodge, James G and Jennifer L Piatt, ‘COVID’S Counterpunch: State Legislative Assaults on Public Health Emergency Powers’ [2021] BYU Journal of Public Law (forthcoming)
Abstract: Amid the most impactful health crisis in over a century, COVID’s “counterpunch” entails aggressive efforts by numerous state legislatures to diminish state and local public health emergency powers. It is an incredulous movement facially supported by a need to appropriately balance economic interests and rights with communal health objectives. At its political core, however, is a “power grab” by legislatures to free their constituents from extensive emergency powers (e.g., social distancing, assembly limits, and business closures). Never mind the fact that these interventions, when used effectively and constitutionally, save lives and reduce morbidity. Public health agents and activists are understandably concerned about diminutions of their express and discretionary emergency powers. Yet affirmative and strategic uses of existing legal remedies examined in this brief commentary may blunt the impact of these legislative proposals.

Hodge, James G, ‘National Legal Paradigms for Public Health Emergency Responses’ (2021) 71(1) American University Law Review (forthcoming)
Abstract: The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government—federal or state—should actually ‘call the shots’ to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet, real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a ‘repeat performance’ of U.S. COVID-19 response efforts to forthcoming major health threats. Avoiding it entails substantial changes. Expansive interpretations and executions of core federal emergency powers illuminate new paradigms for Twenty-first century public health crisis planning, preparedness, and response where states remain key players, but the feds are primary play-callers.

Hodge, James G, ‘Nationalizing Public Health Emergency Legal Responses’ (2021) 49(2) Journal of Law, Medicine & Ethics (forthcoming)
Abstract: The fight for public health primacy in U.S. emergency preparedness and response to COVID-19 centers on which level of government—federal or state—should ‘call the shots’ to quell national emergencies? Competing and conflicting priorities have contributed to a year-long federalism firestorm. As the melee subsides, a more dominant federal role is a predictable, long-term consequence in the battle plan for the next major public health threat.

Hodge, James G, ‘Federal vs. State Powers in Rush to Reopen Amid the Coronavirus Pandemic’ (2020) Just Security (27 April 2020)
Abstract: Despite millions of active infections and tens of thousands of COVID-19 deaths, multiple state governors, led by Georgia Governor Brian Kemp, are actively reopening businesses and withdrawing stay-home orders. President Trump should be elated. The White House has aggressively pushed state efforts to reboot the economy. Yet, the president publicly criticized Kemp for proceeding ‘too soon’ in a rush to reopen. Underlying the political theatrics, the novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills. What powers could the president use to influence state actions whether to impose or lift mitigation measures? What zone of decisions are designated for the states alone?

Hodge, James G and Leila Barraza, ‘Legal Pitfalls In Response to 2019 Novel CoronavirusSlate - Future Tense (online 24 January 2020)
Abstract: Since its emergence from Wuhan, China in late 2019, novel coronavirus, 2019-nCoV, is spreading rapidly, escalating domestic and international concerns, and leading to calls for emergency declarations. By now one might think that we are globally prepared for these type of threats given the successful control of prior coronaviruses like SARS and MERS since 2002. Yet, as Paules, Marston, and Fauci observe in their JAMA Viewpoint on January 23, 2020, ‘[t]he emergence of yet another outbreak of human disease caused by a [coronavirus] . . . underscores the perpetual challenge of emerging infectious diseases and the importance of sustained preparedness.’ This commentary explores some of these contemporary challenges.

Hodge, James G, Jennifer L Piatt and Leila Barraza, ‘Legal Interventions to Counter COVID-19 Denialism’ (2021) Journal of Law, Medicine & Ethics (forthcoming)
Abstract: A series of denialist state laws thwart efficacious public health emergency response efforts despite escalating impacts of the spread of the Delta variant during the COVID-19 pandemic. However, public and private actors are fighting back to obstruct or reverse anti-public health maneuvers through legal challenges focused on (1) constitutional structural- and rights-based challenges; (2) use of conditional spending requirements; (3) federal preemption; (4) disability and other anti-discrimination laws; (5) waivers or routine uses of public health powers; and (6) civil liability claims.

Hong, Yuzhe and Kaiju Chen, ‘The Co-Effect of Law and Morality: On the Legitimacy of China’s Quarantine Measures Against COVID-19’ (2021) 1(2) Communication across Borders: Translation & Interpreting 1–8
Abstract: Over the past few decades, the world has seen the dispute between the modern rule of law and traditional rule of morality, and the conflict of these two models of social governance sharpens during COVID-19. The rule of both morality and law in China, which has been criticized by the western world, was proved to be efficient during the campaign against COVID-19. China’s quarantine measures constitute an important part of China’s anti-pandemic combat. At present, such countries like the USA, the UK, and France, which have failed to respond adequately to the pandemic, are trying to condemn China by doubting the legitimacy of China’s quarantine measures to transfer the domestic public sight and cover up their failure. This paper first presents the legal basis of China’s quarantine measures in established laws. It is found that quarantine measures in China have a valid basis in the Chinese legal system. Employing the theory of Five Regulations of Using Public Power, the author then analyses the legitimacy of the operation of China’s quarantine measures. Based on Confucian theories of sacrificial structure and governance, the author finally reviews and evaluates both the practice and the effect of the rule by morality in China’s public administration.

Hooper, Michael, ‘Fighting A Pandemic According to Law: Examining the Legality of Key Elements of China’s Early Covid-19 Response in Wuhan’ (2021) 48(2) University of Western Australia Law Review 330–351
Abstract: Scholars remain divided over the meaning of rule of law in China. In this context, the Chinese state’s response to COVID-19 provides insight into the role of law in emergencies in China. This article describes the debates surrounding China’s rule of law claims; some of the most well-known pandemic control measures taken in Wuhan during the earlyoutbreak, including the case of Li Wenliang and the Wuhan lockdown; and the legal basis for those measures.

Horák, Filip, ‘Legal Regulation of Emergency Governance in the Context of the Covid-19 Pandemic. Decision to Declare the State of Emergency’ [2021] (6) Pravnik / Lawyer 483–484
Abstract: The article analyses the declaration the State of Emergency according to the Constitutional Act on the Security of the Czech Republic in the context of the current Covid-19 pandemic. The decision to declare the State of Emergency is characterized as a normative, constitutive act of the government without direct and immediate effect on the legal sphere of persons, which can be classified in the hierarchy of legal norms as law. Thus, the paper rejects the conclusion that such an act could be an administrative act or a non-legal (purely political) act. The article further analyses the possible defects of this act and divides them into three groups depending on their intensity and consequences. The most intense defects should make the act void. Defects that are less intense, but as a result of which the essentials of a democratic state governed by the rule of law are affected, should lead to the reviewability and possible revocability of the act by the Constitutional Court. Finally, defects of the lowest intensity should be covered by the so-called Fehlerkalkül theory, and therefore unreviewable. In conclusion, the article also deals with the control of the declaration of the State of Emergency by the Chamber of Deputies and the judicial review of this act. Regarding control by the Chamber of Deputies, a space is devoted particularly to the issue of the possibility of the State of Emergency ‘re-declaration’ contrary to the will of the Chamber of Deputies. Concerning judicial review, the article excludes review by administrative courts and only allows for limited review by the Constitutional Court.

Hoxhaj, Andi and Fabian Zhilla, ‘The Impact of Covid-19 Measures on the Rule of Law in the Western Balkans and the Increase of Authoritarianism’ (2021) European Journal of Comparative Law and Governance (advance article, published 24 August 2021)
Abstract: This article offers a comparative analysis of the covid-19 legal measures and model of governance adopted in the Western Balkans countries (Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo) and its impact on the state of the rule of law, and ability of parliament and civil society to scrutinise government decisions. The article assesses the governments’ approaches to introducing and enforcing covid-19 legal measures, and shows examples of how covid-19 has exposed more openly the weaknesses in the existing system of checks and balances in the Western Balkans. The article offers new insights into how covid-19 presented a new opportunity for leaders in the Western Balkans to implement further their authoritarian model of governance in undermining the rule of law. This article offers suggestions on how the EU could respond, through its accession conditionality instruments and civil society, to redirect this trend towards more state capture.

Hsu, Shi-Ling, ‘Anti-Science Politics’ (SSRN Scholarly Paper ID 3686222, 3 September 2020)
Abstract: Political attacks against scientists and scientific research are nothing new, though the Trump Administration appears to have increased both the breadth and the depth of such attacks. What is new, it seems, are attacks on science that are not in service of protecting any regulated industry that can provide political benefits. Under the Trump Administration, the attacks on science are more systemic, and aimed more at reducing scientific capacity in the federal government, rather than mere one-off policy interventions. The essay suggests that the Trump Administration, more than previous administrations, has sought to use science as part of a political culture war, reviving a populist suspicion of intellectuals that has a long and cyclical history in American culture. This current episode of anti-intellectualism, while targeting the social sciences as past episodes have, has also uniquely targeted the biological and physical sciences, the difference being that findings in these fields are more firmly grounded in empirical fact than in the social sciences. The Trump Administration’s attacks on science, writ larger, are non-epistemic in nature, seeking to build an ideology of hostility to science. This strategy builds upon a decades-long and continuing misinformation campaign to discredit climate scientists, but goes further, seeking to portray scientists as part of the ‘deep state’ that is conspiring to victimize Americans. To be sure, federal funding for most research unrelated to industry regulation remains robust, even higher in some programs. But a manufactured suspicion of ‘regulatory science’ (relating to industry regulation) has begun to bleed ominously over into policy arenas completely outside of regulation. The Trump Administration’s policy meanderings to deal with the covid-19 crisis are emblematic of a growing and systemic subjugation of science to political objectives, ones that can be bizarrely unscientific. A number of cultural, political, and economic factors contribute to this latest resurgence of anti-intellectualism, one with a unique animus towards the hard sciences. A restoration of endangered and broken societal norms governing the advancement of science will require vigorous enforcement of federal administrative laws, but will also require the development of government policies that address the cultural, political, and economic roots of this latest crisis of science.

Huang, Irving Yi-Feng, ‘Fighting COVID-19 through Government Initiatives and Collaborative Governance: The Taiwan Experience’ (2020) 80(4) Public Administration Review 665–670
Abstract: Taiwan is situated less than 200 kilometers from the first COVID-19 outbreak state, China, and it has millions of international visitors yearly. Taiwan’s collective efforts to block and eliminate the invisible enemy (COVID-19) from the island have resulted in relatively low infection and death numbers and have been hailed as a successful anomaly amid the global pandemic. This review provides some background on the systems and organizations that helped Taiwan streamline a task force (command center) in a timely manner to launch related initiatives, mobilize the public, and engage private resources to implement strategies and policies that were further enhanced by collaborative behaviors and volunteers. Even subject to threatening conditions such as cruise ship stopover and numerous foreign immigrant workers, there were no outbreaks of community infection in Taiwan similar to those in Singapore, Japan, and other countries. Taiwan’s successful measures offer a good example for future comparative studies.

Huang, Peter H, ‘Put More Women in Charge and Other Leadership Lessons from COVID-19’ (2020) 15(2) FIU Law Review 353–421
Abstract: COVID-19 teaches us lessons about leadership, the most important of which is to put more women in charge. This Article provides an interdisciplinary analysis of these lessons, which come at the very high price of many forever disrupted and lost human lives. COVID-19 is a global tragedy. COVID-19 can also be a cruel, relentless and unforgiving teacher of valuable lessons about leadership. During COVID-19, leaders had to quickly mobilize many resources and convince many people to change their established behaviors and familiar routines. Leaders had to rely on effective and persuasive communication to achieve buy-in and voluntary compliance by a diverse public. This is because enforcement of non-compliance is effectively infeasible. This Article introduces the phrase, thoughtful leadership, to describe such leadership and leadership communications. In response to COVID-19, some leaders have been compassionate, courageous, data-based, decisive, and kind. These leaders’ communications with the media and the public were calm, caring, clear, empathetic, honest, science-driven, and transparent. This Article analyzes what leaders who were more successful during COVID-19 did and said. During COVID-19, women were many of the most admired and more successful leaders. These female leaders of cities, states and nations were exemplary. There were also some exemplary male leaders. This Article considers explanations and theories about why so many women leaders were among the most successful during COVID-19. This Article profiles in some detail three exemplars of leadership: New Zealand prime minister Jacinda Ardern, Secretary to the Governor of New York Melissa DeRosa, and New York state governor Andrew Cuomo. Finally, thoughtful leadership is applicable to parenting and teaching.

Huberfeld, Nicole, Sarah H Gordon and David K Jones, ‘Federalism Complicates the Response to the COVID-19 Health and Economic Crisis: What Can Be Done?’ (2020) 45(6) Journal of Health Politics, Policy and Law 951–965
Abstract: Federalism has complicated the US response to the novel coronavirus. States’ actions to address the pandemic have varied widely, and federal and state officials have provided conflicting messages. This fragmented approach has surely cost time and lives. Federalism will shape the long-term health and economic impacts of COVID-19, including plans for the future, for at least two reasons: First, federalism exacerbates inequities, as some states have a history of underinvesting in social programs, especially in certain communities. Second, many of the states with the deepest needs are poorly equipped to respond to emergencies due to low taxes and distrust of government, leading to inadequate infrastructure. These dynamics are not new, but they have been laid bare by this crisis. What can policy makers do to address the inequities in health and economic outcomes that federalism intensifies? The first section of this article offers a case study of the Mississippi Delta to illustrate the role of federalism in perpetuating the connection between place, health, and economics. The second section examines challenges that safety net programs will face when moving beyond the acute phase of COVID-19. The final section explores near-, middle-, and long-term policy options to mitigate federalism’s harmful side effects.

Husni, Mahdi Syahbandir, Muhammad Ya’kub Aiyub Kadir and Teuku Ahmad Dadek, ‘Legal Constraints on the Enforcement of Covid-19 Health Protocol in Indonesia’ (2021) 21(1) Medico Legal Update 1601-1611
Abstract: The positive number of Covid-19 in Indonesia continues to increase and there are no signs of decreasing. This increase was triggered by the implementation of the new normal, long holidays and uncontrolled crowds. And none of this is accompanied by enforcement of health protocol laws (wearing masks, washing hands, maintaining distance and not crowding). This paper examines the legal constraints of enforcing health protocols with normative legal method through library research. The results of his research show firstly, the absence of positive laws that can be used as the basis for law enforcement of health protocols, causing bias in its implementation and health protocols regulated by the Minister of Health Regulation which is not part of the source of positive Indonesian law. Second, the recently issued legal regulations to regulate the enforcement of health protocols are not in accordance with the legal hierarchy prevailing in the Indonesian legal system. Third, specifically for crowd management, the police did not use their authority in accordance with the Criminal Code because it was not prepared to control the Covid-19 crowd, causing multiple interpretations and becoming polemic in the political realm. This study suggests that the Government of Indonesia enact a Government Regulation in Lieu of a Law on Health Protocol Enforcement and provide additional authority to regional heads (governors and regents/mayors) in determining disaster emergencies to also issue regional head regulations in lieu of regional regulations and so that district governments/city and province to propose regent/mayor and governor regulations to become regional regulations that get parliamentary approval.

Ip, Eric C, ‘Hong Kong: The Unprecedented Promulgation of Public Health Emergency Regulations against the COVID-19 Outbreak’ [2020] Public Law 580–582
Abstract: Examines the public health emergency regulations passed by Hong Kong in response to the coronavirus pandemic under the Prevention and Control of Disease Ordinance s.8. Details the scope of the powers, their key features, such as a compulsory quarantine period for new arrivals, and the context in which they were made. Reviews the constitutional principles available to prevent such measures from violating the rule of law, including proportionality.

István, Hoffman and Balázs István, ‘Administrative Law in the Time of Corona (Virus): Resilience and Trust-Building’ (2021) 6(1) Public Governance, Administration and Finances Law Review 35–50
Abstract: The Hungarian administrative law has been significantly impacted by the Covid-19 pandemic. Several rules – which were introduced during the state of danger based on the epidemic situation – have been incorporated into the Hungarian legal system. The administrative procedural law has been influenced by the epidemic transformation. However, the rules on e-administration have not been reformed significantly (due to the digitalisation reforms of the last years), but the rules on administrative licenses and permissions have been amended. The priority of the general code on administrative procedure has been weakened: new, simplified procedure and regime have been introduced. The local self-governance has been impacted by the reforms. The transformation has had two, opposite trends. On the one hand, the Hungarian administrative system became more centralised during the last year: municipal revenues and task performance have been partly centralised. The Hungarian municipal system has been concentrated, as well. The role of the second-tier government, the counties (megye), has been strengthened by the establishment of the special economic (investment) zones. On the other hand, the municipalities could be interpreted as a ‘trash can’ of the Hungarian public administration: they received new, mainly unpopular competences on the restrictions related to the pandemic. Although these changes have been related to the current epidemic situation, it seems, that the ‘legislative background’ of the pandemic offered an opportunity to the central government to pass significant reforms. From 2021 a new phenomenon can be observed: the state of danger has remained, but the majority of the restrictions have been terminated by the Government of Hungary. Therefore, the justification of the state of danger during the summer of 2021 became controversial in Hungarian public discourse.

Jacobson, Peter D, Denise Chrysler and Jessica Bresler, ‘Executive Decision Making for COVID-19: Public Health Science through a Political Lens’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 34–39
Abstract: Executive decision making is the crux of using law to achieve public health objectives. But public health codes and emergency declaration laws are not self-executing. In this chapter, we examine how elected officials and public health officers have used their legal authority to address the COVID-19 pandemic. We begin with an overview of an executive decision-making tool for public health officials. Then we describe the general legal background in which these decisions have been made. Next, we apply the decision-making tool to how governors in eight states have determined whether to issue stay-at-home orders and when to relax these restrictions. In this section, we focus on the criteria governors used to re-open the state’s economy and additional restrictions, such as mask wearing, as a condition of reopening. We examined the states’ political party control, the use of public health science, and equity considerations. We conclude that the COVID-19 response represents federalism at work, with considerable variation across the sample states, and that the public health science is filtered through a very thick political lens. In short, governors making political decisions drove the process, not public health officials relying on the best available science. We conclude with recommendations for future action.

Jain, Abhishek, ‘Analysis of Legal Measures Of COVID-19 in India’ (2021) 3(2) International Journal of Advanced Research on Law and Governance 23–31
Abstract: The following is a brief analysis of the topic under the following heads:- Introduction, Function of Epidemic Disease Act, The Power of State during Pandemic, rules regarding right to privacy, The Need for a Legal Framework for Epidemic Preparedness and Response and Conclusion. Many people across the globe lost their lives during the lockdown. Many activities like transportation, sports, recreational, and others were motionless during the lockdown. The burden of the State increases to provide basic needs to the people without violating their rights. Several legal frameworks assisted the administration to safeguard the people. Moreover, the lockdown violates the rights of people. The violated rights were education, life, privacy and health, etc.

Jamshidi, Maryam, ‘The Federal Government Probably Can’t Order Statewide Quarantines’ (2020) University of Chicago Law Review Online (20 April 2020)
Abstract: On Saturday, March 28, 2020, President Donald Trump floated the possibility of issuing a ‘quarantine’ order for the states of New York, New Jersey, and Connecticut because of their numerous COVID-19 cases. Later that day, Trump backtracked and declared that a quarantine order would ‘not be necessary.’ While quarantines can differ in type and scope, they generally involve restricting the movement of those exposed or potentially exposed to an infectious disease during its period of communicability.As for Trump’s quarantine order, it is unclear what it would have required: whether it would have affected all three states in their entirety or just partially, mandated that all people in those states stay at home, prohibited all travel into and out of those states, or some combination of these. What is certain, however, is that under current federal law, the president does not have authority to issue a quarantine order that is effectively statewide, including prohibiting all or nearly all travel within a state or into and out of the state. It is also unlikely that Congress could give the president new authority to do so under its Commerce Clause power, which is the basis for the current federal law on quarantine. As COVID-19 continues to radically change daily life in the United States, it is vital to understand the limits on federal authority over mandatory, statewide quarantines—not only to avoid pitched legal battles between the government, quarantined individuals, and the states, but also to deal with current and future pandemics. Involuntary quarantines are often ineffective at resolving such health crises. Expanding federal power in this area is, as such, unlikely to be an effective health measure, both currently and going forward.

Jimenez, Luis Arroyo and Mariolina Eliantonio, ‘Masks, Gloves, Exports Licences and Composite Procedures: Implementing Regulation 2020/402 and the Limelight of Accountability’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 382-389
Abstract: The European Union (EU) response to the health emergency we are currently confronting has led to very different measures. Here, we will focus on one of them: Commission Implementing Regulation 2020/402, which imposes restrictions on exports of personal protective equipment with effect from 15 March 2020, for a period of six weeks, ending on 26 April 2020. ... This contribution proceeds as follows. First, we place the administrative procedure sketched by Implementing Regulation 2020/402 in the context of the doctrinal discussion on the types of composite procedures. Subsequently, we present the judicial review concerns that can be raised with respect to this particular type of composite procedure, exploring some possible ways to address them in this particular case in view of how the Court of Justice has dealt in the past with somewhat similar cooperation arrangements. We then reach a conclusion on how to fill the gaps in the judicial control of the composite procedure for export authorisation, advancing two possible analogies with the case law of the Court of Justice.

Johnson, Graeme and Sascha Kouvelis, ‘COVID-19 and the Legislative Drafters’ (2020) 94(5) Australian Law Journal 319–322
Abstract: The Australian Constitutions and the rule of law require that much by way of regulatory action is taken either directly through statute or indirectly by means of delegated legislation. There are of course many soft laws underneath this fabric such as guidelines, notices, instruments and orders being necessary to implement and execute these laws. The onset of the COVID-19 pandemic has required the legislatures to act with haste. In turn this has necessitated the various offices of the legislative drafters (many of course who are women) to apply their skills under more than the usual daily pressure they face. The persons who perform these tasks go largely unheralded. Quietly and efficiently they create what becomes law in addition to much that may never become law.

Johnson, Raine, ‘A Comparison of Indonesia and Malaysia’s COVID-19 Public Health Policy Response’ (Binghamton University, Working Papers Series No 9, 1 January 2021)
Abstract: In an effort to understand why two Southeast Asian countries with similar freedom scores, religious demographics, and cultures took a different approach to the novel coronavirus, this paper identifies and analyzes Indonesia and Malaysia’s public health policies from March to May of 2020. There was a stark difference between the two government’s attitudes toward a nation-wide lockdown. Whereas Indonesia refused to implement national stay-at-home measures despite legislators and citizens’ call to do so, its counterpart adopted comprehensive, nationally mandated lockdown policies. This paper argues that Indonesia’s political elites’ denial of the pandemic threat and incumbents’ economic and religious anxieties as well as the nation’s federal institutional design dictated its lackluster policy response. Comparatively, after the resolution of Malaysia’s political turmoil, the new incumbent was enabled by the country’s federal institutional design to create effective policies that prioritized health and safety over the short-term political concerns.

Johnson, Walter G and Gary E Marchant, ‘Legislating in the Time of a Pandemic: Window of Opportunity or Invitation for Recklessness?’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa042
Abstract: The COVID-19 epidemic has been exacerbated by failures in diagnostic testing for the virus in the United States. In response to these problems, two bills have been introduced in Congress to not only reform emergency use of diagnostic tests, but to fundamentally reform diagnostics regulation in non-emergencies. There has been a long-standing recognition that current U.S. regulation of diagnostics is outdated and problematic, and the history of public health legislation is that emergencies and crises have been the primary motivating factor to break Congressional inertia and to implement new legislation. Thus, the COVID-19 may create a useful ‘window of opportunity’ to pass much-needed legislative reform of diagnostic regulation in both emergency and non-emergency contexts. At the same time, rushing radical legislative changes, especially if they have not been subject to careful stakeholder engagement and Congressional deliberation in advance, is precarious and could result in reckless and disruptive changes. We review and apply the historical lessons of legislating in response to a crisis and conclude the one but not both of the pending legislative proposals may satisfy the criteria for an appropriate opportunistic change for diagnostics regulation.

Jones, Nicky, ‘Law and the International Community: Looking Into the (Post-COVID-19) Future’ (Proceedings of the 3rd International Conference on Indonesian Legal Studies, ICILS 2020, 1 July 2020, Semarang, Indonesia) 2021
Jurisdiction: Australia
Abstract: This article aims to discuss the global legal challenges in the post-COVID 19. One of the most visible challenges is the human rights challenge created by the COVID-19 restrictions has been the focus of serious debate in Australia. In the state of Queensland, legislation enacted on 18 March 2020 empowers the Chief Health Officer ('CHO’) and other emergency officers to implement social distancing measures, including arranging mass gatherings, isolating or quarantining people suspected or known to have been exposed to COVID -19. These restrictions affect movement and gatherings across communities in contexts such as schools, higher education, hospital, court proceedings, family gatherings, sporting and community events, public entertainment, tourism, travel and vacations. There are many reasons why governments limit the human rights of its citizens. The challenge for society and government is to ensure that any restrictions on human rights are reasonable and justifiable.

Joyce, Paul, Fabienne Maron and Purshottama Sivanarain Reddy (eds), Good Public Governance in a Global Pandemic (The International Institute of Administrative Sciences, 2020) OPEN ACCESS BOOK
Contents:
 
Part I
  • Geert Bouckaert, ‘What the Coronavirus and the Sustainable Development Goals (SDGs) have in common: An Administrative Science Perspective’ 27John-Mary Kauzya, ‘Reflections on the COVID-19 Pandemic and its Impact on the Implementation of the 2030 Agenda for Sustainable Development and SDGs’ 35
  • ‘Citizen’s Trust in Public Administration in Times of Crisis – Evidence from the COVID-19 Pandemic - Administrative Behavior in Times of Crisis’ Rahel M Schomaker, Moritz Kappler and Michael W Bauer 45
Part II: Eyewitness Reports
  • Rebecca Cross, ‘Australia - The COVID-19 Pandemic - Australian Capital Territory’ - Interview conducted by John Halligan 59
  • Guoqing Hao, ‘Challenges, Practices and Reflections - Local Public Management Agencies in the Prevention and Control of COVID-19 Epidemic’ 63
  • Branko Kolarić, ‘Croatia - The Croatian Experience in Fighting the COVID-19 Pandemic’ 67
  • Amitava Basu, ‘India - COVID 19 Pandemic: Early Lessons for Public Governance in India - Policy and Implementation Challenges & Operational Modalities’ 71
  • Emil Boc, ‘Romania - The City of Cluj Napoca Facing the COVID-19 Pandemic’ 75
  • Zwelini Mkhize, ‘South Africa - The COVID-19 Pandemic in South Africa: Early Lessons for Public Governance’ 79
  • Youngmee Jee, ‘South Korea - Making Sense of South Korea’s Response to COVID-19’ 85
  • Beatriz Morán Márquez, ‘Spain: How to Activate Agenda 2030 in Times of Pandemic?’ 89
  • Luis Herrera, ‘Spain: Telework as a Public Innovation Strategy’ 93
  • Esperanza Zambrano Gómez, ‘Spain: Responses to COVID-19 Pandemic: Early Lessons for Public Governance Transparency and Good Governance’ 97
  • Asma Sehiri Laabidi, ‘Tunisia’s success in shielding the Elderly from the ravaging Epidemic of Corona Virus’ 101
  • Savas Zafer Sahin, ‘Turkey’s COVID-19 Pandemic Response from a Practitioners Perspective’ 105
Part III: National Reports
 
Africa
  • Bacha Kebede Debela, ‘The COVID-19 Pandemic and the Ethiopian Public Administration: Responses and Challenges’ 113Ukertor Gabriel Moti and Jeremiah Tersur Vambe, ‘National Experiences and Responses of Nigeria in Dealing with the COVID-19 Pandemic’ 125
  • Zwelini Mkhize and Purshottama Sivanarain Reddy, ‘The South African Response and Experience in Dealing with COVID-19’ 135
  • Rose Bakenegura Namara, Lazarus Nabaho, Gerald Kagambirwe Karyeija, James L. Nkata and Rajab Lukwago, ‘Uganda’s National Response to the COVID-19 Pandemic: Measures and Implications for Public Governance’ 147
Asia
  • Manchuan Wang’ Responses of the Central Government of China to COVID-19 Pandemic: Major Decisions and Lessons’ 161
  • Amitava Basu, ‘India - COVID 19 Pandemic: Early Lessons for Public Governance’ 171
  • Reza Fathurrahman, Krisna Puji Rahmayanti and Eko Prasojo, ‘Towards an Integrated Policy, Strong Governance, and High Citizen Awareness on Disaster Response: Case Study of COVID-19 Control Measures in Indonesia’ 181
  • Hideaki Shiroyama, ‘Japan’s Response to the COVID-19’ 195
  • Celia Lee, ‘Responses of Singapore to COVID-19 Pandemic: The Whole-of Government Approach’ 205
  • Tobin Im, ‘COVID-19 National Report on South Korea - Competitive Bureaucratic Leadership Taking Lessons from Prior Experiences’ 221
Oceania
 
* John Halligan, ‘Australia’s Response to the COVID-19 Pandemic’ 233
 
Europe
  • Ivan Koprić, ‘The COVID-19 Pandemic: Croatian Government Response’ 247
  • David Špaček, ‘COVID-19 – National Government Approach in the Czech Republic’ 259
  • Katju Holkeri and Johanna Nurmi, ‘Finland - The National Government Experience Facing the COVID-19 Pandemic’ 269
  • Céline Du Boys, Christophe Alaux, Jean-Michel Eymeri-Douzans and Khaled Saboune, ‘France and COVID-19: a Centralized and Bureaucratic Crisis Management vs Reactive Local Institutions’ 289
  • Sabine Kuhlmann, ‘Between Unity and Variety: Germany’s Responses to the COVID-19 Pandemic’ 291
  • György Hajnal and Éva Kovács, ‘Governance and Policy Responses to the COVID-19 Pandemic in Hungary: Early Experiences and Lessons’ 305
  • Amelia Compagni, Alberto Ricci and Francesco Longo, ‘Italy: Experiences of Multi-level Governance with the COVID-19 Crisis’ 317
  • Jaroslav Dvorak, ‘Lithuanian COVID-19 Lessons for Public Governance’ 329
  • Tom Christensen and Per Lægreid, ‘The Norwegian Government Response to the COVID-19 Pandemic’ 339
  • Marcin Matczak, ‘When Politics Mixes with Fighting the Virus: Response to the COVID-19 Pandemic in Poland’ 349
  • Calin Hintea, Tudor Ticlau and Bogdana Neamtu, ‘The Romanian National Government Experiences in Dealing with the COVID-19 Crisis’ 359
  • Juraj Nemec,‘Slovak Strategies to combat COVID-19 Pandemic’ 377
  • Fátima Minguez Llorente, ‘Managing an Unexpected Crisis: Context, Actions, Stakeholders and Some Thoughts on the Response against the Sanitary Crisis in Spain’ 385
  • Mete Yildiz and Savas Zafer Sahin, ‘Turkey’s COVID-19 Pandemic Response from a Public Administration Perspective’ 395
  • Paul Joyce and Philip Whiteman, ‘The United Kingdom Government’s Response to COVID-19’ 405
North America
  • Tim A. Mau, ‘The Canadian Response to the COVID-19 Pandemic’ 417
  • William Shields, ‘The COVID-19 Pandemic: Early Lessons for Public Governance - The United States Experience’ 429
Latin America
  • Edgar Varela Barrios, Rubén Darío Echeverry R and Leidi Ruano Arcos, ‘Public Policy Actions in Colombia in Response to COVID-19 Pandemic’ [Translated by Eleonora Alzate Tijerino] 443
  • Freddy Mariñez Navarro and José Fernández Santillán, ‘National Experience of México on Coronavirus - COVID-19 Pandemic’ 453
  • Luis M. Solari, ‘Peru – The Role of the National Government in Combatting the COVID-19 Pandemic’ 465
Middle East / North Africa
  • Reham Rizk and Mohamed Alaa Abdel-Moneim, ‘Egypt and the Response to the COVID-19 Pandemic’ 479
  • Rachid Melliani, ‘Measures taken by the Kingdom of Morocco to deal with COVID-19’ 489
  • Ala’a Hammad and Nabeela Abu Engelah, ‘Role of Public Administration in the State of Palestine in facing the COVID-19 Pandemic’ 499
  • Sofiane Sahraoui and Walid Gani, ‘Coping with COVID-19 in Tunisia: Unfreezing the Mammoth!’ 509
Part IV: Comparative Studies and Perspectives
  • Rahel M. Schomaker and Michael W. Bauer, ‘Mild Hit, Flexible Response: How Local Administrations in Austria and Germany Confronted (First Wave) of the COVID-19 Pandemic’ 525
  • Denita Cepiku, Filippo Giordano and Marco Meneguzzo, ‘An Integrated Approach to the Fight for the COVID-19 Pandemic: Italy and Switzerland’ 535
  • Paul Corrigan, ‘Understanding the Context, Organizational Form, and Partnership Capabilities of the UK Public Governance Response to the COVID-19 Virus’ 547
Part V: Conclusions
* Paul Joyce, Fabienne Maron and Purshottama Sivanarain Reddy’ ‘Managing Global Pandemics: Public Governance Matters’ 567

Jull, Kenneth, ‘Coronavirus Emergency Response: Risk Assessment and Risk Management’ [2020] Toronto Law Journal 1–13

Kamensky, John, ‘A Framework for National Recovery From COVID-19’ Government Executive (27 March 2020)
Abstract: How can agencies effectively implement programs to address the COVID-19? Following the 2009 Recovery Act, the IBM Center sponsored a number of research reports to explore the government’s response to the economic downturn that began in 2007, known as the Great Recession. However, the accountability provisions under the law were entirely new and required new ways of working with both their local governments (who had to report through their states to the federal government) as well as with federal agencies.

Kang, Cindy and Hari Sutra Disemadi, ‘The COVID-19 Pandemic Outbreak Impact and Prevention From Legal Perspective: An Indonesian Experience’ (2021) 1(1) CoMBInES - Conference on Management, Business, Innovation, Education and Social Sciences 134-144
Abstract: The COVID-19 pandemic affected various aspects such as economy, health, environment, and others. The pandemic that occurred in Indonesia gave a huge responsibility to the government as stated in the fourth paragraph of the Preamble to the 1945 Constitution of the Republic of Indonesia. Everything that happens in handling this pandemic has a close relationship with the law, including human rights due to the large number of people who have died, regional quarantine, and the protection and guarantee of work safety for health workers who are at the frontline dealing with this pandemic. This research uses normative legal research methods

Karaseva, Asya, ‘The Legal Void and COVID‐19 Governance’ (2020) 28(2) Social Anthropology 294-295
Introduction: COVID‐19 as a matter of governance provides an opportunity for questioning taken‐for‐granted assumptions of ‘states of exception’ (Agamben 2005) in the political mechanics of emergency rule. In Russia, for example, a zone of anomie is currently being produced that operates not within existing emergency laws but as what I call a new ‘legal void’. Contemporary Russian law provides two versions of emergency regimes: ‘an emergency situation’ ( chrezvychainaia situatsiia , or ChS ) and ‘the state of emergency’ ( chrezvychainoe polozhenie , or ChP ). The first one has been used in disaster management since 1994. It is introduced at multiple administration levels for an indefinite time by decrees of the heads of corresponding administrations. The ChS regime has been applied in many situations, from a bridge in an unsafe condition to forest fires. The law on ChP was set to serve both political disorders and disasters, including epidemics. Unlike the ChS regime, it can be introduced only by the President and for a fixed term. It has never been implemented since its adoption in 2001. Both of the laws suspend some civil rights but also provide guarantees of compensation for harm to health, property damage and even for just living in the emergency zone. ChP law also details legal procedures such as detention and litigation under the state of emergency. However, to date, Russia’s authorities are not using either of these special legal regimes in their pandemic governance.

Kaur, Manpreet and Anushka Dwivedi, ‘Strengthening the Legal Policies to Tackle the Pandemic Crisis in India: The Need of the Hour’ (2021) 25 Supremo Amicus Journal (unpaginated)
Abstract: In the period of global pandemic, what were the major tools responsible to avoid mass instability across the globe? Health infrastructure, responsive government strategies, efficient food processing supplies and a set of Legal policies. A surviving health infrastructure, responsive government strategies and food processing supplies were all refurbished according to a set of legal policies created by the Government of respective nation-states and were proposed by another set of legal guidelines created by international organizations like World health organization [WHO]. The worst affected nation- states like the United States, India, and Brazil, managed to survive against the worst phases and hardships of the pandemic due to a set of legal policies framed and followed rigorously by the respective government. An early response to the global COVID- 19 outbreak were smoothly driven by a set of executed legal policies to control the level of pandemic. But did such set of legal policies only contribute to stability of the global pandemic, or does it contribute to the process of rehabilitation, post-availability of vaccines? Legal policies effectively and efficiently contributed to the stability and rehabilitating during the phase of COVID- 19 pandemic. A need of strong and responsive government was required at a global stage when the Global pandemic caused a sense of fear in March 2020, but it was not possible without a set of legal policies. This research article attempts to elucidate on the importance of a set of legal policies amidst the pandemic by expressing through a group of smaller case studies over the importance of legal policies in the pandemic.

Kavanagh, Matthew M and Renu Singh, ‘Democracy, Capacity, and Coercion in Pandemic Response: COVID 19 in Comparative Political Perspective’ 45(6) Journal of Health Politics, Policy and Law 997–1012
Abstract: article, published 28 May 2020) Abstract: The COVID-19 pandemic has challenged governments around the world. It has also challenged conventional wisdom and empirical understandings in the comparative politics and policy of health. Three major questions present themselves: First, some of the countries considered to be the most prepared—having the greatest capacity for outbreak response—have failed to respond effectively to the pandemic. How should our understanding of capacity shift in light of COVID-19, and how can we incorporate political capacity into thinking about pandemic preparedness? Second, several of the mechanisms through which democracy has been shown to be beneficial for health have not traveled well to explain the performance of governments in this pandemic. Is there an authoritarian advantage in disease response? Third, after decades in which coercive public health measures have increasingly been considered counterproductive, COVID-19 has inspired widespread embrace of rigid lockdowns, isolation, and quarantine enforced by police. Will these measures prove effective in the long run and reshape public health thinking? This article explores some of these questions with emerging examples, even amid the pandemic when it is too soon to draw conclusions.

Kavcar, Gülenay and Levent Lezgin Kılınç, ‘Government Announcements on (Covid-19) Coronavirus Epidemic’ [2020] Lawyer (Online Edition) 1
Abstract: The article offers information on the challenges faced by the coronavirus in the Turkey, along with the information on the safety measure taken by the Turkey President, Recep Tayyip Erdoğan. It mentions the declaration of the coronavirus outbreak as a global pandemic by the World Health Organization.

Keitner, Chimène, ‘Testimony of Chimène Keitner Before the Senate Judiciary Committee on “The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability”’ (SSRN Scholarly Paper No ID 3662634, 28 July 2020)
Abstract: On June 23, 2020, the Senate Judiciary Committee held a hearing Committee on ‘The Foreign Sovereign Immunities Act, Corona-virus, and Addressing China’s Culpability.’ This document contains the written testimony of Professor Chimène Keitner, as well as responses to 39 questions for the record posed by members of the committee. Professor Keitner’s opening statement emphasized three main points. First, the United States has more to lose than any other country by removing the shield of foreign sovereign immunity for a pandemic. Second, private litigation will not bring China to the negotiating table, and it will not produce answers or compensation for U.S. victims. Instead, Congress should focus on the inadequate federal response to COVID-19, and on restoring U.S. leadership in global public health. The questions for the record covered issues including the FSIA, other obstacles to obtaining damages from civil suits, the consequences of domestic suits against foreign states, alternative methods for pursuing accountability, U.S. exposure to litigation risk, discovery of U.S. government records in cases against China, regulating live wildlife markets and the international wildlife trade, and President Trump’s praise of China’s COVID-19 response.On July 20, Senator Martha McSally (R-AZ) and seven Republican cosponsors introduced a new bill entitled the ‘Civil Justice for Victims of COVID Act’ that combines features of previous bills introduced to amend the Foreign Sovereign Immunities Act (FSIA) ‘to strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel corona-virus in the United States.’ A business meeting to consider the bill, along with several judicial nominations, was scheduled for July 30.

Kelly, Richard et al, ‘Coronavirus: Changes to Practice and Procedure in the UK and Other Parliaments’ (House of Commons Library Briefing Paper No 8874, 19 May 2020)
Abstract: This Briefing Paper illustrates changes that have been made to procedures and practices in response to coronavirus in the House of Commons and a small selection of other parliaments.
Note: the other parliaments considered in this paper are Wales, Scotland, Jersey, Isle of Man, Denmark, France, Germany, Ireland, Sweden, Australia, Canada, New Zealand and Brazil.

Kemboi, Leo Kipkogei, ‘Public Choice Analysis of Kenya COVID-19 Response Policies’ (SSRN Scholarly Paper No ID 3750753, 17 December 2020)
Abstract: The biggest takeaway is that policymakers need to craft policies that are easier to implement but gives the desired results. Parliament, as the main oversight institutions, is supposed to query policies being fronted by the executive branch, but this has not been the case. Policies that require force to enforce are prone to rent-seeking and should not be considered.

Kempf, Hubert, ‘One Foe, so Many Fights: Making Sense of COVID-19 Policies’ (CESifo Working Paper No No 8325, 2020)

Keyes, John Mark, ‘Parliamentary Scrutiny of the Quality of Legislation in Canada’ (2021) 9(2) The Theory and Practice of Legislation 203–226
Abstract: This paper looks at how legislative quality is addressed in Canada by private (non-Executive) members of the two legislative chambers forming part of the federal Parliament (the Senate and the House of Commons). It considers legislative quality from three perspectives (1. Policy and Politics, 2. Legality, 3. Accessibility / Intelligibility) and reviews the resources and mechanisms parliamentarians have at their disposal to assess and improve the quality of legislation. The paper concludes that, while there is some potential for considerable parliamentary contribution to legislative quality, it is in fact relatively limited. This largely results from the dominant role the Executive plays in the development and enactment of legislation. The paper suggests the current pandemic crisis might provide an opportunity to re-evaluate this dominance and approaches to addressing legislative quality in Canada.

Khabriyeva, T, ‘Law Based Managing the Pandemic Crisis: World and Russian Experience’ (2021) 25(2) Journal of Russian Law 5–17
Abstract: The global pandemic crisis caused by the spread of the new coronavirus infection COVID19 has required states and the international community to mobilize efforts to overcome it. States seek to control the evolution of this crisis, to minimize its negative impact on various spheres of society, the economy, the social sphere, the daily life of citizens and its quality. To this end, all available opportunities and means, including law, are used. Due to the fact that supranational institutions have not been able to propose effective and universal measures or strategies to combat the pandemic and related crisis phenomena in a timely manner, states, relying on national law, had to establish their own crisis response and management systems. These systems are mostly local and relatively closed in nature, focused on internal problems, taking into account their scale, capabilities and resources of the national legal order. The article presents the results of a study of domestic and foreign practice of using the opportunities of law to counteract the pandemic. The author shows similarities in the legal component of the national systems for the management of pandemic crisis, the legal instruments used for this purpose, means and methods of maintaining balance between the fundamental rights and freedoms, on the one hand, and overcoming threats to life and health through the use of extraordinary measures on the other. Based on the criteria developed by the doctrine, an assessment of the state legal practice of managing the pandemic crisis is given, as well as proposals for the formation of a modern model of legal regulation in emergency situations are formulated.

Kilani, Ahmad, ‘Authoritarian Regimes’ Propensity to Manipulate Covid-19 Data: A Statistical Analysis Using Benford’s Law’ (2021) Commonwealth & Comparative Politics (advance article, published online 26 July 2021)
Abstract: There have been numerous claims that some countries do not reveal their reported cases of COVID-19 truthfully. Some studies suggest that autocratic countries tend to manipulate their reported figures. To test these claims, the article uses Benford’s law (BL) to detect anomalies in the reported numbers of COVID-19. Many studies have used BL to test the reliability of the data recorded by countries and conclude that the data follows BL in most cases. This study applies BL to a set of 34 countries using Pearson’s χ2, Kuiper and mean absolute deviation tests to analyse the daily reported cases; then, correlating the tests results with four freedom indices using ordinary least square. The aim of the article is to demonstrate how countries with low freedom scores are likely to manipulate their COVID-19 reporting, whereas countries with high freedom scores do not show a manipulation in their data. The study finds that all indices show strong correlation to the degree of data manipulation, and with the World Press Freedom index showing the strongest relationship.

Kilonzo, Kethi D, ‘Playing Tag with the Rule of Law: Balancing Fundamental Rights and Public Health in Kenya in the Shadow of COVID-19’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions)
Abstract: The first case of Covid-19 infection within Kenya’s borders was reported on 13th March 2019. The global pandemic has brought the Rule of Law in Kenya to a cross-roads as the government attempts to strike a delicate balance between the health and safety of the public, on the one hand, and their economic and social well-being, on the other. The choices have been tough, and the outcomes have been mixed. All of its policies and regulations have been met with mixed reactions as well as political and legal challenges. Covid-19 has led to many fundamental human rights and freedoms being temporarily stripped by governments and authorities across the globe. Kenya has been no exception. Since 13th March 2020, the fundamental rights to freedom of association, movement, access to justice, access to administrative action, property, assembly, demonstrations, grouping and picketing, have been suspended, impeded and or affected. In Kenya, such restrictions have a constitutional foundation in Kenya’s 2010 Constitution.

Kitajima, Shusaku, ‘An Analysis of Japanese Responses to COVID-19 from an Administrative Law Perspective’ (Asian Law Centre, Melbourne Law School, 8 October 2020)
Abstract: This article examines the legal basis for the restrictions on the daily lives of citizens and business activities in Japan in light of the spread of COVID-19 from the perspective of administrative law. Japanese citizens were restricted from going out and some businesses were asked to cease activities during the period under the declaration of a state of emergency from 7 May to 25 May 2020. The restrictions in Japan were based on the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response which was enacted in 2012 after Japan’s experience with the novel influenza (A/H1N1) pandemic in 2009. The article examines the mechanisms set out in the Act which are available to governments in Japan to implement pandemic responses. The article argues that the four main measures for restrictions known as requests and instructions are characterized by their non-obligatory or non-compulsive nature. The article argues that these characteristics reflect long-standing approaches in Japanese administrative jurisprudence that are embedded in the Act and thus Japan’s COVID-19 response measures.

Klimovsky, Daniel, Ivan Maly and Juraj Nemec, ‘Collaborative Governance Challenges of the COVID-19 Pandemics: Czech Republic and Slovakia’ (2021) 19(1) Central European Public Administration Review 85–106
Abstract: The goal of this article is to evaluate what the Czech and Slovak governments have done to protect their countries and try to assess why they have achieved different results for the first and second waves of the Covid- 19 pandemic. The basis for such evaluation is the concept of collaborative governance, while qualitative research methods are used to achieve this goal. Based on comprehensive case studies and following analysis, the article suggests that in countries with limited quality of collaborative governance and no experience in similar pandemics, short-term ‘ultramobilisation’ and positive results are indeed possible, but failures are non-avoidable in the long run. During the second wave of the pandemic, the weaknesses in governance resulted in massive governance failures. As a result, the governments’ responses delivered very limited results in terms of prevalence of Covid-19.

Knauer, Nancy J, ‘The Federal Response to the COVID-19 Pandemic: A Study in Maladministration’ (SSRN Scholarly Paper ID 3803884, 13 March 2021)
Abstract: When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018. Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of the prescribed protocols. Federal officials lost valuable time as they downplayed the risk posed by COVID-19 and repeatedly assured the American people that the virus would simply ‘go away.’ By March 2020, a frightening spike in cases in the Northeast made the pandemic impossible to ignore. President Trump and other administration officials shifted tactics and began to characterize COVID-19 as the quintessential ‘black swan’ – a threat that no one could have foreseen. President Trump repeatedly told the American people that ‘no one could have predicted something like this’ even though official federal policy suggested a very different story. Far from being a black swan, the COVID-19 pandemic was widely anticipated and, according to many epidemiologists, inevitable.This article argues that our botched federal response was not so much a failure of policy per se, but rather a failure of political will. The federal government had a robust pandemic policy in place; it simply chose not to follow it. This failure of political will illustrates the dangers that arise when public health measures are politicized and weaponized for partisan advantage and demands strong interventions to ensure federal accountability and transparency. The first section of this article outlines the evolution of our national pandemic plans within the broader context of disaster and response planning. The second section explains the pandemic staging framework that is used to organize and coordinate decision making within a pandemic. The third section charts the federal response during the crucial first three months of the public health crisis, specifically identifying instances where the federal government failed to follow its own clearly articulated pandemic policy. The final section outlines some lessons learned from the pandemic and proposes reforms to insulate public health measures from partisan wrangling and keep our federal government faithful to its foremost obligation, namely to promote the general welfare.

Knauff, Matthias, ‘Coronavirus and Soft Law in Germany: Business as Usual?’ (2021) 12(1) European Journal of Risk Regulation 45-58
Abstract: In combating the coronavirus pandemic in Germany, soft law has played an important, albeit not a central, role. Its use basically corresponds to that of under ‘normal circumstances’. In accordance with the German constitutional order, almost all substantial decisions are made in a legally binding form. However, these are often prepared through or supplemented by soft law. This article shows that soft law has played an important role in fighting the pandemic and its effects in Germany, although there cannot be any doubt that legally binding forms of regulation have prevailed. At the same time, the current pandemic has shed light on the advantages and effects of soft law in the context of the German legal order.

Knight, Dean R, ‘Accountability through Dialogue: New Zealand’s Experience during the COVID-19 Pandemic’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook on Law and the COVID-19 Pandemic (Routledge, 2022, forthcoming)
Abstract: New Zealand successfully pursued an elimination strategy during the COVID-19 pandemic, managing to stamp out community transmission of the virus through lockdowns, border control, contact tracing and other public health measures. This chapter evaluates the accountability of government during the height of the pandemic, while emergency settings applied and aggressive measures were deployed. The analysis adopts a relational or dialogical conception of accountability – focusing on explanation, interrogation, judgement and consequences – and looks across the political, constitutional and learning (continuous improvement) dimensions of accountability. Overall, concerns about an accountability deficit during the pandemic generally did not arise in New Zealand because the government continued to render account for its actions – the ability of various forums to scrutinise and judge the government’s actions was maintained and, in some cases, was enhanced.

Knight, Dean R, ‘Lockdown’s Legality and the Rule of Law’ (SSRN Scholarly Paper No ID 3666613, Social Science Research Network, 4 August 2020)
Abstract: This short note explains the context to, and the arguments made in, the judicial review proceedings challenging the legality of the lockdown in New Zealand (Borrowdale v Director-General of Health).

Knight, Dean R, ‘Government Expression and the COVID-19 Pandemic: Advising, Nudging, Urging, Commanding’ (2020) 31 Public Law Review 391
Abstract: Comment on Borrowdale v Director-General of Health [2020] NZHC 2090, especially the ruling that the government’s messages during the early days of COVID-19 lockdown urging people to stay at home were not prescribed by law and unlawful.

Knight, Dean R, ‘Stamping out COVID-19 in New Zealand: Legal Pragmatism and Democratic Legitimacy’ [2021] (2) Public Law 241–251 (pre-print version available on SSRN)
Abstract: New Zealand has so far proved pretty successful in stamping out COVID-19. ‘Go hard, go early’ was the Prime Minister’s mantra. An aggressive nationwide lockdown of seven weeks from late-March to mid-May 2020 broke the chain of community transmission-limiting diagnosed cases to just over 1,800 and deaths to only 25. Day-to-day life has since largely returned to normal, with restrictions lifting after community cases of the virus disappeared. The nationwide bubble is now protected by a heavily controlled border, where any cases are caught in state-managed quarantine on entry. A couple of small outbreaks in Auckland in mid-August were dampened down, combated by a short and sharp regional lockdown and temporary elevation of precautions elsewhere. Other occasional cases, attributed to border breaches, have been addressed by aggressive contact tracing and targeted isolation. New Zealand’s success so far in combating COVID-19 is no doubt attributable to a mix of factors: late onset of the virus, early and aggressive lockdown, favourable geographical settings, effective leadership, coherent communication and community cooperation-as well as a good sprinkling of luck.

Konnoth, Craig, ‘Narrowly Tailoring the COVID-19 Response’ (2020) 11 California Law Review Online 193–208
Abstract: The greatest impact of the novel coronavirus on most of our lives has not been physiological. Rather, the impact has come from state governments’ responses to the virus. In much of the country, stay-at-home measures have shut down our lives—including our ability to continue with our employment, study, religious practice, socializing, and access to arts and entertainment. Given the situation that states have found themselves in, I believe that their response to the COVID-19 threat has been appropriate—and the limited judicial authority that exists at the time of writing agrees.

Konnoth, Craig, ‘Privatized Preemption’ (2020) 45(3) Administrative & Regulatory Law News
Abstract: In the last few weeks, many in the nation have rediscovered the benefits of federalism, as numerous states got ahead of the federal government in responding to the newest strain of coronavirus. The COVID-19 response is not unique: in recent decades, it is certain states, rather than the federal government, that have been the primary champions of important programs ranging from public education, environmentalism, privacy rights, and consumer protection. In so doing, they have pushed against a range of institutions, ranging from financial institutions to student loan collectors. The federal government, by contrast, has sometimes pushed for deregulation at the federal level, though largely stayed out of the states’ way. There has, however, been a slow shift, as the federal government has tried to counteract state efforts. But rather than do so openly, and by preempting state law with regulation of its own, the federal government has taken a shrewder tack. More specifically, it has conscribed private corporations for the task, and has incented, assisted, and delegated to them the power to contravene and displace state laws. In such situations, the power of displacing state law is left to corporations.

Kooistra, Emmeke Barbara et al, ‘Mitigating COVID-19 in a Nationally Representative UK Sample: Personal Abilities and Obligation to Obey the Law Shape Compliance with Mitigation Measures’ (SSRN Scholarly Paper, ID 3598221, 2020)
Abstract: The COVID-19 pandemic has greatly influenced daily life all over the world. The present study assesses what factors influenced inhabitants of the United Kingdom to comply with lockdown and social distancing measures. It analyses data from an online survey, conducted on April 6-8, 2020, amongst a nationally representative sample of 555 participants who currently reside in the UK. The results show that compliance depended mostly on people’s capacity to comply with the rules, and the normative obligation they feel to obey the law. As such, compliance was not associated with deterrence or obedience out of fear, but rather with people’s practical abilities and intrinsic motivation to comply. The paper discusses policy implications for effective mitigation of the virus.

Kooistra, Emmeke Barbara and Benjamin van Rooij, ‘Pandemic Compliance: A Systematic Review of Influences on Social Distancing Behaviour during the First Wave of the COVID-19 Outbreak’ (SSRN Scholarly Paper No ID 3738047, 25 November 2020)
Abstract: During the first wave of the COVID-19 pandemic, mitigation measures compelling people to keep a safe social distance led to a massive, unprecedented behavioural change across the globe. The present study seeks to understand what variables made people comply with such mitigation measures. It systematically reviewed 45 studies with data about compliance behaviour during the first wave (found in searches from March 1st till June 30th 2020). The review shows that a combination of variables shaped compliance behaviour, including people’s fear of the virus, psychosocial factors (including impulsivity, negative emotions, self-efficacy, and social norms), institutional variables (including attitudes towards the mitigation measures, belief in conspiracy theories and knowledge of the virus), and situational variables (capacity to obey and opportunity to violate the rules). Notably, the reviewed studies did not find a significant association between law enforcement (perceived deterrence) and compliance here. The review assesses what these findings mean for behavioural theory and for policy makers seeking to mitigate pandemics like COVID-19. Also, it reflects on the limitations of the reviewed body of work and future directions for pandemic compliance research.

Korkea-aho, Emilia and Martin Scheinin, ‘“Could You, Would You, Should You?” Regulating Cross-Border Travel Through COVID-19 Soft Law in Finland’ (2021) 12(1) European Journal of Risk Regulation 26-44
Abstract: In the context of the Coronavirus pandemic that has swept the world, the Finnish Government, like many of its peers, has issued policy measures to combat the virus. A significant number of these measures have been implemented by legal acts, including measures taken under the Emergency Powers Act, or otherwise by decisions of ministries and regional and local authorities in their exercise of powers provided by the law. However, some parts of the governmental policy measures have been implemented through non-binding guidelines and recommendations. Using border travel recommendations as a case study, this Article critically evaluates governmental decision-making in relation to non-binding but restrictive measures. The Government’s inexperience with what may be thought of as soft law resulted in much confusion among the public and instigated a steep learning curve for the Government. Some of the problems can be explained as resulting from inadequate preparation and the need to act rapidly towards a legitimate aim, in particular in furtherance of the rights to life and health. That said, the debacle over the use of soft law to fight a pandemic in Finland revealed that there are fundamental misunderstandings about the processes and circumstances under which instruments conceived as soft law can be issued, as well as a lack of attention to their effects from a fundamental rights perspective.

Kosnik, Lea-Rachel D and Allen Bellas, ‘Drivers of COVID-19 Stay at Home Orders: Epidemiologic, Economic or Political Concerns?’ (SSRN Scholarly Paper ID 3638501, 2020)
Abstract: What factors affected whether or not a U.S. state governor issued a state-wide stay-at-home order in response to the COVID-19 pandemic of early 2020? Once issued, what factors affected the length of this stay-at-home order? Using duration analysis, we test a number of scientific, economic, and political factors for their impact on a state governor’s decision to ultimately issue, and then terminate, blanket stay-at-home orders across the 50 U.S. states. Results indicate that while scientific and economic variables had some impact on the length of the stay-at-home orders, political factors dominated both the initiation of, and ultimate duration of, stay-at-home orders across the United States.

Kouroutakis, Antonios E, ‘Abuse of Power and Self-Entrenchment as a State Response to the COVID-19 Outbreak: The Role of Parliaments, Courts and the People’ (SSRN Scholarly Paper ID 3862566, Social Science Research Network, 8 June 2021)
Abstract: The World Health Organization, on March 11th, declared the novel coronavirus outbreak a pandemic and while the pandemic is still spreading, and some counties are affected more than others, governments have had to respond, given that SARS-CoV2(Covid-19) poses a serious public health threat. In their responses, governments have adopted emergency measures balancing public health with a plethora of rights such as freedom of movement, right to assembly and freedom to religion. In liberal constitutional theory, the norm is that during emergencies power is concentrated in the hands of the executive. Interestingly due to the nature of the pandemic, in some countries, such as in Hungary, parliamentary sessions were suspended, in others such as in Greece and the UK they were either under function or gone virtually via online platforms respectively. This limited function of the legislative body has grave implications on the quality of modern democracy as parliamentary scrutiny is restricted, ministerial accountability is distorted and most importantly the voice of the opposition does not have an appropriate forum to be heard. On the top of that, a well established stance of deference prevails in the judiciary weakening judicial review as an extra mechanism of protection to monitor the political process. Such constitutional circumstances may give rise to abuse of executive power and application of policies for self-serving purposes and self-entrenchment. For instance, the government may allocate funding in a way to favor its reelection. The aim of this paper it to examine legitimate and illegitimate executive self-entrenchment in times of emergency and identify the role of different institutions, to monitor and scrutinize executive emergency actions.

Kouroutakis, Antonios E, ‘Legaltech in Public Administration: Prospects and Challenges’ (SSRN Scholarly Paper ID 3862557, 8 June 2021)
Abstract: The information revolution affects every aspect of our life, such as communication, banking, learning and teaching, entertainment, socializing, and even government and the administration. In some fields the potential of such revolution is already apparent, as new kinds of value is created - suffice it to mention the new forms of communication and marketing, the emergence of new business models in the financial industry, the so-called fintechs, and the spread of social networks. Likewise, information technology creates opportunities and disrupts even the legal industry, with the emergence of legaltech or lawtech. Despite such growing attention, in the field of public administration, the potential uses of new technologies have been for a long time only discussed in theory, and limited implementation has been recorded (in most of the cases, in an experimental or pilot phase). As Part 2 will show, such technologies in the best-case scenario were tested at an experimental level, and only in a few countries some small steps were taken to implement them. A rapid shift, nonetheless, took place with the imposed lockdowns due to the Covid-19 pandemic. Such pandemic will possibly leave its mark not only in history books and medicine textbooks, but also in the field of administration and public law, as it spurred the implementation of the technologies of the information revolution era.

Kowalski, Wawrzyniec, ‘Impact of COVID-19 Pandemic on the Legal Conditions of Safety and Security of Selected Countries’ (2020) 23(Special Issue 3) European Research Studies Journal 253–273
Abstract: Purpose: The aim of the article is to show a kind of reevaluation of international legal regulations on safety and security of contemporary countries. The essence of this process is a visible reversal of the perception of legal regulations contained in legal acts of the universally understood international law as effective. The author’s intention is to characterize various models of public safety management in the time of a pandemic. In particular, the author analyzes the effectiveness of the most controversial measures used by state authorities to limit the effects of the COVID-19 virus. Design/Methodology/Approach: The article refers to both selected solutions functioning in the national law systems of individual countries, as well as acts of international law. The analysis essentially uses the comparative and historical-legal methods. The text is based on the analysis of selected legal acts, positions of representatives of the doctrine, literature, and documents. Findings: The results showed that despite the continuous process of positivization of threats - both at the level of national and international law and the creation of more and more perfect catalogs of human rights, in the face of the coronavirus pandemic, the current belief in the durability of the developed value system in the field of protection of individual rights becomes seriously threatened. It was emphasized that the pandemic period was a specific test of the mechanisms of democracy. Attention was drawn to the high probability of changes in the content of the international agreements in force so far in the field of international human rights law. Moreover, it was indicated that once the current threat is contained, the necessary redefinition of the material legal and procedural conditions related to the application of disease reduction measures in pandemic states in national legal systems will occur. Practical Implications: The considerations in the article may be useful in designing national models of public safety management. Originality/Value: The article extends the available literature in the field of both international security law and legal security conditions of individual countries. The study offers an in-depth insight into activities - often controversial - undertaken by the authorities of selected countries under various models of public safety management and protection of citizens’ health.

Koźmiński, Krzysztof and Jan Rudnicki, ‘The COVID Crisis as a Sample Tube with Contemporary Legal Phenomena’ (2020) 1(2) Central European Journal of Comparative Law 105–121
Abstract: A superficial view of lawmakers’ reaction to the current pandemic crisis is that we are witnessing an aberration and a concentration of bad practices. This paper presents a partially opposite thesis that the response of legal systems to this situation is not surprising and an accumulation of several phenomena very characteristic of the contemporary evolution of law. The restriction of personal freedoms, often imposed by means far from the theoretical scope of sources of law described by demo-liberal constitutions, combined with the broad scope and curious details of the extraordinary regulations complete the general trend towards the juridisation of almost every aspect of human activities. Today, the law serves as the dominant tool of creating social and economic order, taking the fields once occupied by other (and now almost extinct) normative systems and at the same time, displacing them. Thus, the more law exists in the everyday circulation, the more demand it creates for further and even more casuistic legal regulation. In this reality, this is the only tool that can be applied in extraordinary circumstances. In addition, the applied legislative techniques are not new. The Polish act known commonly and semi-officially as the ‘anti-crisis shield’ is a typical ‘complex act’ aimed at dealing with a particular matter thoroughly through the use of all traditional methods of regulation: civilian, administrative, and penal mixed together in a single text of law. Thus, this regulation also constitutes a perfect (and perhaps the most striking) example of the phenomenon of decodification, especially in the field of private law, since it deals with particular contractual and tort issues as if there were no relevant regulations in the Civil Code, which should (at least theoretically) constitute the core of the private law system.

Krasniqi, Afrim, ‘Impact on Democracy of Emergency Measures Against Covid-19: The Case of Albania’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 28–38
Abstract: Whilst there is significant discussion globally on the thesis that the Coronavirus is emboldening autocrats the world over through vastly expanded emergency powers, extraordinary measures and reliance on enforcement rather than on expendable democratic subtleties, this paper focuses on the particular case of Albania to show that even though the level of illiberal thrust in this country is far from equalling that of authoritarian regimes, a host of key similarities are already there, and the substance behind those similarities is equally worrying. In Albania, the operationalisation of the pandemic has made room for the relentless advancement of the government’s political agenda, giving rise to serious doubts about the sincerity of the government-sponsored measures, their end effects and their compatibility with public interest and constitutional framework.

Krawiec, Jakub et al, ‘Tools for Public Health Policy: Nudges and Boosts as Active Support of the Law in Special Situations Such as the COVID-19 Pandemic’ (PsyArXiv Prepints, published 22 March 2021, 22 March 2021)
Abstract: In recent years, “nudging” has become a standard behavioral intervention at the individual level and for the design of social policies. Although nudges are effective, such interventions seem to be limited to a given space and time, and there is only scant evidence to support the contrary view. On the other hand, choice architects may utilize another type of intervention called “boosting,” which shows the promise of generalized and lasting behavioral change. The government can use these tools to shape public policy. Behavioral interventions such as policy-making tools have their boundaries, as does the law. We argue that nudging and boosting may serve as active aids in support of the legal system under certain circumstances. Nudging and boosting can also support the legal system especially in relation to emerging social issues or events that are unprecedented, such as the recent COVID-19 pandemic, where certain behavioral patterns are expected, but it would be hard or impossible to enforce them through the law alone.

Krusian, Anzhelika R et al, ‘The Institutional and Legal Justification of the Restriction of Freedom of Movement in Conditions of Counteraction the Spread of the Covid-19 Pandemic’ [2020] (42) Revista San Gregorio 257–266
Abstract: The study touches upon the issue of determining the current state of ensuring and restricting freedom of movement in Ukraine in the context of counteracting the spread of the COVID - 19 pandemic. Particular attention is paid to the substantive component and the expediency of certain restrictions on freedom of movement, namely: self-isolation and observation. The normative-legal bases of restriction of the constitutional right to freedom of movement are investigated and gaps of their substantiation are revealed.

Kuiper, Malouke Esra et al, ‘The Intelligent Lockdown: Compliance with COVID-19 Mitigation Measures in the Netherlands’ (SSRN Scholarly Paper No ID 3598215, 6 May 2020)
Abstract: In response to the COVID-19 pandemic, the Dutch government has introduced an ‘intelligent lockdown’ with stay at home and social distancing measures. The Dutch approach to mitigate the virus focuses less on repression and more on moral appeals and self-discipline. This study assessed how compliance with the measures have worked out in practice and what factors might affect whether Dutch people comply with the measures. We analyzed data from an online survey, conducted between April 7-14, among 568 participants. The overall results showed reported compliance was high. This suggests that the Dutch approach has to some extent worked as hoped in practice. Repression did not play a significant role in compliance, while intrinsic (moral and social) motivations did produce better compliance. Yet appeals on self-discipline did not work for everyone, and people with lower impulse control were more likely to violate the rules. In addition, compliance was lower for people who lacked the practical capacity to follow the measures and for those who have the opportunity to break the measures. Sustained compliance, therefore, relies on support to aid people to maintain social distancing and restrictions to reduce opportunities for unsafe gatherings. These findings suggest several important practical recommendations for combating the COVID-19 pandemic.

Labuschaigne, M, ‘Ethicolegal Issues Relating to the South African Government’s Response to COVID-19: Research’ (2020) 13(1) South African Journal of Bioethics and Law 23–28
Abstract: Africa, and sub-Saharan Africa in particular, is one of the last continents to have recorded COVID-19 cases, and is expected to be severely impacted by the virus. The lack of intensive care capacity and under-resourced public healthcare settings in many African countries, coupled with high levels of poverty and poor access to healthcare services, applies to some extent to South Africa (SA). The SA government’s swift and decisive response to address COVID-19 in March 2020, although praised by many, is increasingly being criticised for its disproportionate, contradictory and harsh consequences, not to mention a range of legal challenges that have followed since the introduction of lockdown measures in terms of the Disaster Management Act. This article examines some of the ethical and legal issues relating to the government’s approach to COVID-19.

Láncos, Petra Lea and László Christián, ‘Domestic Soft Law Regulation During the COVID-Lockdown in Hungary: A Novel Regulatory Approach to a Unique Global Challenge’ (2021) 12(1) European Journal of Risk Regulation 77-92
Abstract: On 13 March 2020 the Hungarian Government announced the immediate closure of all schools throughout the country to prevent the spread of COVID-19. Several hundred thousand children were suddenly faced with learning from home and teachers scrambled to ensure the provision of ongoing education. Responding to the situation, the Hungarian Educational Authority hurried to assist schools and nursery schools by issuing recommendations on the use of digital tools in providing education, information and correspondence. During the COVID-19 pandemic and the special legal order consequently introduced by the Hungarian Government, Hungary has seen the emergence of such non-binding measures adopted by public entities, in particular, national administrative authorities, bodies and agencies. These forms of soft law have complemented governmental action taken in the fight against the pandemic, with the aim of providing guidance to ‘external addressees’, such as businesses, schools and bodies exercising a public service function. The protective measures adopted under the special legal order, including soft law norms, are deemed to be successful and largely followed by the addressees. Since soft law has hitherto been neglected by both Hungarian administrative governance and legal literature, the recent burgeoning of non-binding measures deserves scholarly attention. In this article, we set out to map the specific context of the emerging domestic soft law, the conditions for their adoption as well as their reception, relying on our case study conducted in respect of the recommendations of the National Educational Authority.

Lang, Iris Goldner, ‘EU COVID-19 Certificates: A Critical Analysis’ (2021) 12(2) European Journal of Risk Regulation 298–307
Abstract: On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates, which would facilitate European Union (EU) cross-border movement during the COVID-19 pandemic. The Regulation on the EU Digital COVID Certificate was adopted on 14 June 2021 and it will start to apply from 1 July 2021. This article examines the main declared goals of the new Regulation – the first being that Digital COVID Certificates facilitate safe cross-border movement, the second being that they preclude more restrictive national measures, the third being that they prevent discrimination and the fourth being that they coordinate Member States’ actions. In so doing, it highlights the main benefits and weaknesses of the Regulation, but it also goes beyond the Regulation by tackling broader questions of EU law that will be of relevance even once the pandemic is over. In this respect, the paper highlights the importance of science in assessing the proportionality of pandemic-related measures and of choosing the least restrictive and the most individualised options when restricting free movement due to public health reasons. It also identifies the effects EU certificates will have on Member States’ regulation of national COVID-19 certificates, notably those designed for other purposes than cross-border travel, and it shows that there is a thin line between the EU’s and national competences in this area.

Lang, Iris Goldner, ‘“Laws of Fear” in the EU: The Precautionary Principle and Public Health Restrictions to Free Movement of Persons in the Time of COVID-19’ (2021) European Journal of Risk Regulation (advance article, published 5 February 2021)
Abstract: COVID-19 has demonstrated the fragility of EU free movement rules when we are faced with an unknown virus of such magnitude and strength that it threatens our lives, health systems, economies and society. The aim of this text is to show the dynamics between the threat of COVID-19 and the rules imposed as a response to the pandemic, which have impacted the functioning of the EU internal market and the Schengen area. The text will concentrate on the application of the precautionary principle and public health restrictions, caused by COVID-19, to free movement of persons in the EU. The analysis will lead to three conclusions. First, it will be shown that the decisions to apply free movement restrictions and the logic followed in the EU COVID-19-related documents can be viewed as a triumph of the precautionary principle. Second, it will be argued that implementing the precautionary principle has a transformative effect on the application of the principle of proportionality in EU law. Finally, it will be shown that COVID-19 has emphasised and increased the difference between the conditions for the applicability of public health restrictions when compared to restrictions based on public policy and public security grounds.

Lat, Tanya and Michael Henry Yusingco, ‘Reimagining Governance: Reclaiming Solidarity and Subsidiarity in the Time of COVID-19’ (SSRN Scholarly Paper ID 3645935, 8 July 2020)
Abstract: The COVID-19 crisis is the most complex and challenging peacetime crisis that the world has ever faced in recent history. Over the course of 5 months, the novel coronavirus has infected more than 6.1 million people in 188 countries and caused the death of almost 400,000 people around the world. The pandemic has forced governments worldwide to declare national lockdowns, shutting down schools and workplaces, disrupting travel, and forcing billions of people around the world to retreat into their homes. When the Philippines emerged from lockdown on June 1, 2020, 18,638 people had tested positive for the novel coronavirus and 960 people had died from the disease. This pandemic is proving to be unlike anything that humanity has experienced before. The rapid spread of the virus coupled with its high reproduction rate and unusually long incubation period has caught governments off-guard as they scramble to adapt to the situation. The pandemic is turning out to be a large-scale social experiment in governance and crisis management, as countries are forced to confront the limitations of their current systems. Two dominant governance models have emerged on how to address the crisis. The first is China’s authoritarian, command-and-control model which uses centralized monitoring, police surveillance, and harsh punishment. The second model is a more democratic model used by South Korea, Taiwan, and Singapore which relies on extensive testing, honest reporting, and cooperation between government and the citizens. In battling this pandemic, the Philippines is currently caught in a tug-of-war between the national government’s authoritarian approach to the crisis, and local governments and private citizens push for involvement and participation to fill the gaps of national governance. This paper will analyze the dynamics between national government, local governments, and the private sector, and offer recommendations on how local autonomy and citizens’ participation can help support innovation and strengthen governance towards addressing the myriad issues brought about by the pandemic.

Lawson, David, ‘The Power to Quarantine.’ [2020] Lawyer (Online Edition) 1
Abstract: The article discusses law and practice of quarantine of individuals, of groups and of places, of the unwell and of the healthy including the outbreak of coronavirus, 2019-nCoV, that quarantine can take many forms from regions larger than the UK in lock down to individuals in intensive treatment via groups of people detained for precautionary monitoring; last category includes the recent evacuees to the UK from Wuhan signed a contract to remain at Arrowe Park Hospital in the Wirral for 2 weeks.

Lazarus, Dr Liora, ‘A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 11 Jurisdictions’ (University of Oxford, Faculty of Law, Bonavero Institute of Human Rights, Bonavero Report No 3/2020, 6 May 2020)
Abstract: Extract from Introduction: Our evaluation of Covid 19 measures also takes into account the positive obligations that States bear to protect life, access to health and health security, and the extent to which these obligations should be shaped by countervailing negative rights. A stereoscopic view of the human rights engaged in public health emergencies is thus crucial in assessing the rights conformity of particular measures. What is essential in this evaluation, are robust, transparent and expert mechanisms of accountability which are able to evaluate the scientific justifications of both rights limitations and the requirements of positive duties. This is not only a matter of proper constitutional practice, but also a requirement flowing from the effective protection of these rights…. The following report includes analyses of a cross section of jurisdictions from the global South and North. A crucial material divide between these jurisdictions lies in medical care capacity, the material impact of containment measures, and the capacity of States to mitigate the economic impact of containment measures on citizens. Each section of the report provides detailed examination of the lockdown measures and evaluates their constitutional and human rights implications. Despite these evident differences, there are clear trends and similarities across jurisdictions which this introduction will briefly highlight.

Le Roux, Matthieu, Olivier Bustin and Carolina Reis, ‘Gabon: Priority Measures’ [2020] (Summer) International Financial Law Review 69–72
Abstract: Gabon responded quickly to COVID-19, leveraging off its experience with ebola and cholera. This article reviews the results of the government’s actions and what the pandemic says about Gabon’s future economic development.

Lee, Darius, ‘Covid-19 in Singapore: “Responsive Communitarianism” and the Legislative Approach to the “Most Serious Crisis” Since Independence’ [2020] (September) Singapore Journal of Legal Studies 630–664
Abstract: The Singapore government has called the COVID-19 pandemic ‘the most serious crisis’ that Singapore has faced since Independence. However, Singapore did not issue a Proclamation of Emergency. Instead, it adopted a ‘legislative model’ of emergency powers, addressing COVID-19 through ordinary legislation, including and especially the new COVID-19 (Temporary Measures) Act 2020. Despite the sweeping nature of the powers thereunder, the government has exercised a calibrated approach in its measures, shaped by communitarian norms and high level of responsiveness towards the needs of members of the Singapore community, albeit not without its weaknesses. This article thus makes the case that Singapore’s response to COVID-19 has been characterised by two main features: a legislative emergency in law and ‘responsive communitarianism’ in practice. It argues that COVID-19 has seen the further concentration of executive power where the law is increasingly instrumentalised as a tool towards social and political priorities.

Lee, Sabinne, Changho Hwang and M Jae Moon, ‘Policy Learning and Crisis Policy-Making: Quadruple-Loop Learning and COVID-19 Responses in South Korea’ (2020) 39(3) Policy and Society 363–381
Abstract: This study aims to analyze how the Korean government has been effective in taming COVID-19 without forced interruptions (i.e. lockdowns) of citizens’ daily lives. Extending the theory of organizational learning, we propose the quadruple-loop learning model, through which we examine how a government can find solutions to a wicked policy problem like COVID-19. The quadruple-loop learning model is applied to explain how the Korean government could effectively tame COVID-19 in the initial stage through its agile as well as adaptive approach based on effective interactions of backstage (time, target, and context) and frontstage of policy processes mainly focusing on the initial stage until the highest alert level was announced. Based on the Korean case, this study also examines critical factors to effective learning organizations such as leadership, information and transparency, as well as citizen participation and governance.

Lee, Yong-Shik, ‘Managing COVID-19: Legal and Institutional Issues’ (SSRN Scholarly Paper ID 3724655, 3 November 2020)
Abstract: The spread of the recent pandemic, COVID-19 – which began in Wuhan, in December of 2019 – has created an unprecedented impact on public health in the United States and across the world. As of November 1, 2020, the United States reported over nine million infection cases and 230,000 deaths. Those cases represent twenty percent of the reported infection cases in the world whereas the population of the United States is less than four percent of the world population. The United States has not been successful in managing this pandemic and stopping its spread effectively even though it possesses the largest medical, financial, and administrative resources in the world. This article analyzes the legal and institutional causes of this failure and explores possible remedies in three areas: provision of public healthcare to combat the pandemic; the regulation of public conduct to prevent the spread of the pandemic; and public access to information. The article also calls for a new approach; it explains why a law and development approach is relevant and applies the General Theory of Law and Development to assess the proposed remedies. The article advocates law and institutions as a remedy to fill the gaps created by ineffective political leadership in the management of COVID-19.

Leow, Darren, ‘Bespoke Coronavirus Legislation and the Wrinkled Well-Fitted Shirt’ [2021] Singapore Comparative Law Review 57–65
Abstract: The sudden and unprecedented onset of the Coronavirus Disease 2019 (‘COVID-19’) pandemic has caused colossal disruptions to nearly everyone’s lives and sent ripples throughout the global economy. While the precise response that each country has taken to counter the pandemic differs, many countries have passed some form of legislation enabling the executive to use a suite of powers to curb the spread of the deadly virus, to varying degrees of success. Yet, have these measures conferred too much power on the executive and hindered accountability? Will the response to the current crisis set a precedent for similar issues in the future? These are issues that this essay seeks to explore, by focusing on the COVID-19 legislation used in Singapore and in the United Kingdom.

Li, Victor WT and Trevor TW Wan, ‘COVID-19 Control and Preventive Measures: A Medico-Legal Analysis’ (2021) 27 Hong Kong Medical Journal (advance article, published 11 June 2021)
Extract from Introduction: The coronavirus disease 2019 (COVID-19) pandemic has compelled governments around the world to deploy preventive and control measures of unprecedented stringency and scale. In Hong Kong, the Chief Executive-in-Council has invoked extensive powers under Section 8 of the Prevention and Control of Disease Ordinance (Cap 599) and adopted a series of subsidiary regulations in an attempt to control the spread of COVID-19. Such extensive power is subject to judicial scrutiny using a four-stage proportionality inquiry tailored for evaluating whether rights and freedomsderogating laws and measures are consistent with the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383). In the context of a public health emergency, it has to be shown that such laws and measures pursue legitimate aims that are required by the ‘exigencies of the public health situation’ and are rationally connected to them. They should also be no more than reasonably necessary to achieve these aims without imposing an unacceptably harsh burden upon the individual. Drawing upon the framework of the proportionality inquiry, we seek to explore the medical and constitutional justifications underlying three of such regulations: compulsory use of face masks, group gatherings ban, and compulsory testing for high-risk groups. Furthermore, we will comment on the potential mandatory use of the ‘LeaveHomeSafe’ application in public facilities for contact tracing purposes, as well as compulsory vaccination for healthcare workers.

Li, Weian, Yaowei Zhang and Qiankun Meng, ‘Urgent Problems and Countermeasures of Emergency Governance System under COVID-19 Outbreak’ 35(3) Bulletin of Chinese Academy of Sciences 235-239
Abstract: The outbreak of COVID-19 is a great test of the effectiveness of the modern governance system and ability. Faced with the epidemic, to straighten out the emergency governance system of government governance, social governance and corporate governance initiated by severe public health emergencies is the key to deal with the crisis. This study puts forward the top-level design principle, borrowing principle, classification governance principle, cost sharing principle, and disclosure principle to be followed in the smooth running of emergency governance system, points out the weaknesses of emergency governance system which should be strengthened, and proposes the corresponding suggestions and measures in the critical period of epidemic response, so as to improve the effectiveness of the governance system.

Lilienthal, Gary I, ‘Anti-Pandemic Legal Rules: Medicalization by the Established Contagion Principles of Fracastoro’ in Gary I Lilienthal (ed), Human Capital and Development: Economic Issues, Problems and Perspectives (Nova Science Publishers, 2021) 257–297
Link to book page on publisher’s website for details and pricing
Abstract: In 2020, Rajasthan acted against more than 1,300 people for violating anti-pandemic rules, relating to COVID-19, suggesting ‘medicalization’ of the government’s response. The objective of this research is to examine critically the genesis of this form of medical regulation. The question is whether the state response to pandemics is medicalized, and if so, how. Argument seeks to demonstrate that early regulatory and legislative responses had derived from fears of ‘otherness’, arising from alchemical medical metaphors, allowing states to confer administrative powers onto medical officials to contain the jurisdiction’s human capital and prevent its decay. Fracastoro’s alchemical formulae for opposing seedlets by antipathetic means were the bases for future legislation. The 542 CE Acts of Justinian established a system by which pandemics could be controlled. Fracastoro demonstrated to the Pope that his alchemical metaphor of contagion could move and herd a Papal conclave. The International Sanitary Conferences confirmed national rules into international medicalization of human capital, using Fracastoro’s principles, becoming the International Health Regulations 2005.

Lin, Ching-Fu, Chien-Huei Wu and Chuan-feng Wu, ‘Reimaging the Administrative State in Times of Global Health Crisis: An Anatomy of Taiwan’s Regulatory Actions in Response to the COVID-19 Pandemic’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 256-272
Extract from Introduction: The regulation and governance of communicable diseases in Taiwan are underpinned by the Communicable Disease Control Act (CDC Act). The law serves as a framework for government actions during public health emergencies, including inter alia setting up a disease control network by dividing the country into regions; establishing a centralised platform to command and coordinate agencies’ actions, share information and respond to inquiries; integrating personnel, facilities and resources in preparation for outbreaks; issuing voluntary and mandatory isolation orders; and implementing border restrictions. A closer look at the legislation as well as more recent developments suggests an explicit institutional design choice that upholds technocracy and delegates significant authority and broad discretion to health experts in the Executive Branch to steer the country in times of emergency, entrenching an administrative state8 in this young democracy.

Lindseth, Peter L, ‘Executives, Legislatures, and the Semantics of EU Public Law: A Pandemic-Inflected Perspective’ in Diane Fromage and Anna Herranz-Surrallés (eds), Executive-Legislative (Im)Balance in the European Union (Hart, 2021)
Abstract: This contribution will serve as the epilogue to a forthcoming volume on executive-legislative relations in the European Union (EU). It begins by noting that the EU’s response to the coronavirus pandemic, encouraging though it may be in some respects, has nonetheless reminded us of the constraints placed on a system of supranational governance that lacks a legislative fiscal capacity of its own. Although there is much excitement about the pandemic ‘recovery fund’ built on borrowing against the EU budget (and distributed, at least in part, through grants), the fund will still be ultimately backed by the fiscal capacities of the member states severally rather than by the EU’s own. Autonomous fiscal capacity, however, is arguably the core attribute of a genuinely ‘constitutional’ form of governance, and more specifically of a genuinely constitutional ‘legislature’. The EU’s persistent lack of a fiscal capacity of its own leads this epilogue to pose an admittedly radical question: Semantically speaking, is it right even to speak of the EU possessing ‘legislative’ power at all, at least in the most robust sense of the term, when it otherwise lacks autonomous fiscal capacity? This question might seem bizarre given key features of the EU’s institutional system, notably the existence of an elected assembly—the European Parliament (EP)—as well as that body’s participation in something called the ‘ordinary legislative procedure’ (OLP) in order to make rules of general and prospective application to govern European integration. According to the ‘as if’-constitutional framing that dominates most legal analysis of the EU today, the EP and OLP are so-labelled for a simple reason: they are the focal points of “legislative” power in the European system. And yet, might this labelling be misleading? Might both the EP and OLP merely serve to inject an electoral component into a regulatory system that is fundamentally executive-technocratic (ie administrative) in character? Might specifically “legislative” power in the EU—in the sense of the legitimate-compulsory mobilization of fiscal and human resources—still be concentrated entirely at the national level?With these questions in mind, this epilogue examines the many stimulating topics covered by the chapters in this volume: the application of Rodrik’s famous “political trilemma of the world economy” to the EU context; the role of the EP in counter-balancing the powers of the Commission, Council, and European Council; the expansion of national executive power as a consequence of integration—the so-called “deparliamentarisation” phenomenon—which operates to the obvious detriment of national parliaments (NPs); and finally the respective roles of the EP and NPs, as the case may be, in such areas as trade policy, the supranational regulation of national budgets, as well as several former 'second’ and ‘third pillar’ domains (security, defense, foreign policy, justice and home affairs). Based on this discussion, this epilogue concludes by reflecting on whether the last decade of upheaval in the EU—from the Eurozone crisis to the current pandemic emergency—has brought the EU to a ‘critical juncture’, in which some form of supranationalised fiscal capacity is now in the offing and which, if realised, might then allow the EU to transcend the current but misleading ‘as if’ constitutionalism that continues to characterise discussions of EU public law.

Loiacono, Luisa et al, ‘Pandemic Perception and Regulation Effectiveness: Evidence from the COVID-19’ (Società Italiana di Economia Pubblica, Working Paper No 770, June 2021)
Abstract: The spread of COVID-19 led countries around the world to adopt lockdown measures of varying stringency to restrict movement of people. However, the effectiveness of these measures on mobility has been markedly different. Employing a difference-in-differences design and a set of robustness checks, we analyse the effectiveness of movement restrictions across different countries. We disentangle the role of regulation (stringency measures) from the role of people’s perception about the spread of COVID-19. We proxy the COVID-19 perception by using Google Trends data on the term ‘Covid’. We find that lockdown measures have a higher impact on mobility the more people perceive the severity of COVID-19 pandemic. This finding is driven by countries with low level of trust in institutions.

Longo, Erik, ‘Time and Law in the Post-COVID-19 Era: The Usefulness of Experimental Law’ [2021] (September) Law and Method 1–21
Abstract: The COVID-19 pandemic swept the world in 2020 impelling us to reconsider the basic principles of constitutional law like the separation of power, the rule of law, human rights protection, etc. The two most pressing legal issues that have attracted the attention of legal scholars so far are, on the one hand, the different regulatory policies implemented by governments and, on the other, the balance among the branches of government in deciding matters of the emergency. The pandemic has determined a further and violent acceleration of the legislature’s temporal dimension and the acknowledgement that, to make legislation quicker, parliament must permanently displace its legislative power in favour of government. Measures adopted to tackle the outbreak and recover from the interruption of economic and industrial businesses powerfully confirm that today our societies are more dependent on the executives than on parliaments and, from a temporal perspective, that the language of the law is substantially the present instead of the future. Against this background, this article discusses how the prevalence of governments’ legislative power leads to the use of temporary and experimental legislation in a time, like the pandemic, when the issue of ‘surviving’ becomes dominant.

Lord, Phil, ‘COVID-19: Is the Cure “Worse Than the Problem Itself”?’ (2020) McGill Journal of Law and Health Online (21 April 2020)
Abstract: President Trump and other prominent Republicans have argued that the measures taken to slow the spread of COVID-19 will create economic consequences too serious to justify the number of lives saved. Are they right? We do the math.

Lord, Phil and Lydia Saad, ‘Outline of Government Programs Related to the COVID-19 Pandemic in Canada’ (SSRN Scholarly Paper ID 3567474, 8 April 2020)

Luchini, Stephane et al, ‘Urgently Needed for Policy Guidance: An Operational Tool for Monitoring the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3563688, 30 March 2020)
Abstract: The radical uncertainty around the current COVID19 pandemics requires that governments around the world should be able to track in real time not only how the virus spreads but, most importantly, what policies are effective in keeping the spread of the disease under check. To improve the quality of health decision-making, we argue that it is necessary to monitor and compare acceleration/deceleration of confirmed cases over health policy responses, across countries. To do so, we provide a simple mathematical tool to estimate the convexity/concavity of trends in epidemiological surveillance data. Had it been applied at the onset of the crisis, it would have offered more opportunities to measure the impact of the policies undertaken in different Asian countries, and to allow European and North-American governments to draw quicker lessons from these Asian experiences when making policy decisions. Our tool can be especially useful as the epidemic is currently extending to lower-income African and South American countries, some of which have weaker health systems.

Lundgren, Magnus et al, ‘Emergency Powers in Response to COVID-19: Policy Diffusion, Democracy, and Preparedness’ (Stockholm University Faculty of Law Research Paper No. 78)
Abstract: The paper relies upon legal as well as political science perspectives and methods. The first part of the paper frames pandemics within in the context of interna

Lunn, Jon and Philip Brien, ‘Coronavirus in Developing Countries: Mapping National Policy Responses’ (House of Commons Library, Insight 29 June 2020)
Abstract: This Insight maps the main trends in coronavirus policy to date among developing countries.

Lynch, Michelle, ‘Is the Rule of Law under Threat?’ (2020) 114(6) Gazette of the Law Society of Ireland 48
Abstract: Raises concerns that emergency legislation, enacted around the world in response to the COVID-19 pandemic to control the spread of the disease, could be used to break down the rule of law and place restrictions on democracy, and individual rights and freedoms.

MacDonnell, Vanessa, ‘Ensuring Executive and Legislative Accountability in a Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 163
Abstract: Holding the executive and the legislature to account is a perennial challenge in an emergency. Even by emergency standards, however, COVID-19 has presented serious accountability challenges. The current situation raises questions about how we ensure that the executive and Parliament are held accountable in a public health crisis like the one COVID-19 has precipitated. I explore some of these questions in this chapter. In doing so, I attempt a fair assessment of the challenges the executive and Parliament face in such a crisis, and suggest ways that nodes of accountability might be found both within and outside the political branches when they are not operating as usual.

Madueke, Onyedikachi, Allens Iheonu Ololo and Ejike Emmanuel, ‘Post COVID-19 Pandemic Nigeria: Implications for Good Governance’ (SSRN Scholarly Paper ID 3632039, 21 June 2020)
Abstract: Nigeria is going through a perilous time in history as the country is faced with a devastating effect brought about by the deadly spread of COVID-19 pendamic. The measures put in place to curtail the adverse shock of the deadly virus is nothing short of calamitous as they have exposed the Nigerian government inefficiences. A quantum number of Nigerians had died as a result of police/military brutality, hunger and starvation among other anomalies. The discourse, anchored on structural functional explanatory tool of analysis popularised by Spencer Herbert, Talcott Parsons, among others, stressed on the relationship between the various social institutions and the structures that made up the society. The society, acording to the proponents of the theory, is a system with interdependent parts which function together for the stability of the whole. Therefore, to bring about stability and good governance in Nigeria, the Nigerian leaders must strengthen the various institutions and the critical sectors of her economy such as: healthcare, security, education, tourism and hospitality, manufacturing and solid minerals. Nigeria must broaden her revenue base, create sufficient buffers and resilience against exogenous shocks. They should address infrastructural decay, institutional weaknesses and endemic corruption bedeviling her since independence.

Maerz, Seraphine F et al, ‘Worth the Sacrifice? Illiberal and Authoritarian Practices during Covid-19’ (SSRN Scholarly Paper ID 3701720, 1 September 2020)
Abstract: Excessive use of emergency powers and limitations of media freedoms have raised concerns that Covid-19 is infecting democracy itself. How do government responses to Covid-19 violate democratic standards? How do such violations relate to the countries’ success in limiting the Covid-19 death tolls? We propose a novel conceptualization of which government responses to Covid-19 qualify as a violation of democratic standards and measure such violations using a regularly updated dataset covering 143 countries from March 2020 onward. Our data track seven types of violations of democratic standards for emergency measures during the Covid-19 pandemic: discriminatory measures, derogation of non-derogable rights, abusive enforcement, no time limit on emergency measures, disproportionate limitations on the role of the legislature, official disinformation campaigns, and restrictions on media freedoms. In this article, we provide a comprehensive overview of the extent to which governments have violated democratic standards in their response to Covid-19. Using a regression analysis, we find no relationship between violations of democratic standards for emergency measures and Covid-19 death rates. Thus, violations of democratic standards during the Covid-19 pandemic cannot be justified by the achievement of better public health outcomes. Rather, such crisis driven violations need to be carefully observed as they could signal autocratization.

Magness, Phillip W and Peter C Earle, ‘The Origins and Political Persistence of COVID-19 Lockdowns’ (2021) 25(4) Independent Review 503–520
Abstract: Over the course of just two weeks in mid-March 2020, most of the world went into a state of general lockdown in response to the novel coronavirus disease 2019 (COVID-19). This rapid shift in public-health policy implemented a suite of countermeasures referred to as nonpharmaceutical interventions (NPIs), including wide-scale ‘nonessential’ business closures, event cancellations, school closures, numerical restrictions on gathering sizes, suspensions of international travel, and shelter-in-place orders—all intended to reduce or mitigate the transmission of the virus. Although initially presented as short-term emergency measures to ‘flatten the curve’ of demand for hospital capacity, many of these responses quickly morphed into persistent policies for the duration of the pandemic.

Makateng, David, ‘Implications of Social Adaptation in the Kingdom of Lesotho during 2019-NCoV Pandemic’ (2020) 2(3) Electronic Research Journal of Social Sciences and Humanities 165–183
Abstract: This paper expatiates on the outbreak of coronavirus (2019-nCoV) in a city named Wuhan in China using the Kingdom of Lesotho as a case study. It is the essence of this paper to break, analyze, and deduct the concept of coronavirus and to present its causes and how it can be thwarted from spreading. A research gap under investigation of this paper originates from an argument from two Lesotho students studying in the People’s Republic of China who were conversing about the readiness of Lesotho in the context of the 2019-nCoV pandemic. The nature of this paper argues on the implications and readiness of the social adaptations in the Kingdom of Lesotho in relation to the 2019-nCov pandemic. Results in this paper subscribe to the theoretical background of 2019 Novel Coronavirus, the framework of family coronavirus, an outbreak of 2019-nCoV in the Kingdom of Lesotho, the effects of lockdown and prevention over the spread of Coronavirus (2019-nCoV) in Lesotho. The method of approach conducting this paper is a qualitative meta-analysis. Data is collected from different sources and reliable journals, reliable websites, and interviews. This paper explores with a succinct summary of the outbreak of 2019-nCoV in Lesotho. The closure of schools and the impact of how small businesses moved most of the small businesses to bankruptcy are also discussed in this paper. Lesotho remained corona-free until May 2020 since 2020-nCoV emerge in Wuhan, China. This study concludes by putting forward the measures which the Kingdom of Lesotho should subscribe in relation to the fight coronavirus (2019-nCoV pandemic.

Malcai, Ofer and Michal Shur-Ofry, ‘Using Complexity to Calibrate Legal Response to COVID-19’ (SSRN Scholarly Paper ID 3763376, 10 January 2021)
Abstract: The global effort to fight the COVID-19 pandemic triggered the adoption of unusual legal measures that restrict individual freedoms and raise acute legal questions. Yet, the conventional legal tools available to analyze those questions—including legal notions such as proportionality, equality, or the requisite levels of evidence—implicitly presume stable equilibria, and fail to capture the nonlinear properties of the pandemic. Because the pandemic diffuses in a complex system, using complexity theory can help align the law with its dynamics and produce a more effective legal response. We demonstrate how insights from complexity concerning temporal and spatial diffusion patterns, or the structure of the social network, can provide counter-intuitive answers to a series of pandemic-related legal questions pertaining to limitations of movement, privacy, business and religious freedoms, or prioritizing access to vaccines. This analysis could further inform legal policies aspiring to handle additional phenomena that diffuse in accordance with the principles of complexity.

Mangiameli, Stelio, ‘Covid-19 and European Union: The Answer to the Health Crisis as a Way for Resuming the Process of European Integration’ (2020) 2(2) Humanities and Rights Global Network Journal 66–116
Abstract: The essay starts from a comparison in the European Union between the economic and financial crisis of 2009 and the health crisis of 2020, due to the Covid-19 pandemic. In particular, the scarce capacity of Member States and European institutions to carry out the recovery of the economic European condition and transformation of the European government system after the 2009 crisis, despite the indications of the Commission’s Blueprint (of 2012) and of the Report of the five presidents (of 2015). On the other hand, in the face of the health crisis, the reaction of the European institutions seemed more decisive with the creation of various instruments to combat the economic consequences of the Covid-19 pandemic. These include in particular the Recovery fund - Next Generation EU, linked to the 2021-2027 MFF. The reaction to the pandemic shows the possibilities of the European Union to create a community of States in solidarity and with its own identity also in the international scenario. However, it is by no means certain that this idea can prevail over the one that sees the European Union as simply a free trade organization between the Member States. The decisions that will be taken in the Conference on the future of Europe between 2021 and 2022 appear to be decided to define the evolution of the European Union.

Marchetti, Gloria, ‘The Management of the Coronavirus Emergency by the Italian Government and the Relationship between State and Regions’ (2021) 7(2) Athens Journal of Law 129–148
Abstract: The essay analyses how the health emergency due to the spread of Covid-19 was handled in Italy. It is aimed at examining: the regulatory framework relating to the management of the pandemic; the role of State and Regions in adopting measures to contain the virus; the coordination between State and Regions to deal with the health emergency. In particular, the aim of the essay is to verify whether the State, in managing the pandemic, has respected the constitutional principles that underpin the Italian regional system.

Mariner, Wendy K, ‘Shifting Standards of Judicial Review During the Coronavirus Pandemic in the United States’ (2021) 22(6) German Law Journal 1039–1059
Abstract: Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Marique, Yseult, ‘A “New Normal”: Legality in Times of Necessity: French Administrative Law under the Health Emergency’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues. (University of Essex, School of Law and Human Rights Centre,2020) 63–71
Abstract: States of emergency test the limits of constitutionalism and our commitment to the rule of law (Dyzenhaus 2012). They tell us something about the ultimate power in a society and the very nature of state powers. French constitutions have a long history of arising from crises, revolutions and overthrows. The current political regime was born in 1958 at the time of the Algerian war of independence. More recently, the French have lived under a sustained period of emergency regulations following the terrorist attacks in Paris in November 2015. Now that a state of health emergency has been declared and extended it is possible to reflect on how key principles relating to the rule of law, such as legality and judicial control, are being re-shaped. This helps us to reflect on how the state seeks to command compliance from its citizens and how a balance is struck between necessity and legality. Key stages can be identified: a first stage when (judicial) control is muted and a second stage when judges re-assert their role once the risks linked to the pandemic have been curbed. This differentiation both confirms the risk of normalising an executive state of emergency (at the time of the peak) and the possibility of a judicial state of emergency emerging (once the first wave is over) (Ginsburg and Versteeg 2020). This brings into question how the next steps in the health emergency can be made subject to robust scrutiny and accountability mechanisms as necessity evolves.

Martin, Greg, ‘Protest, Policing and Law during COVID-19: On the Legality of Mass Gatherings in a Health Crisis’ (2021) Alternative Law Journal (advance article, published online 25 June 2021)
Abstract: This article considers the legal status of protest rights in Australia during the COVID-19 public health crisis. It discusses jurisprudence of the New South Wales Supreme Court regarding the legality of mass gatherings for the purpose of protest during the COVID pandemic. Balancing protest rights with risks to community safety posed by possible coronavirus transmission at public assemblies, the Court has sometimes allowed and sometimes prohibited protests. The article critically examines the policing of protest during the pandemic and explores some of the implications of comparing emergency measures introduced during the COVID crisis with similar measures introduced in the wake of the 9/11 terror attacks.

Marzen, Chad G, ‘Principled Conservatism: The CARES Act and the Lone Voice’ (SSRN Scholarly Paper ID 3643959, 5 July 2020)
Abstract: The Coronavirus Aid, Relief and Economic Security (CARES) Act was the largest spending bill passed by Congress and enacted into law in American history. This Article concludes that despite all of the criticism he has endured, Congressman Massie’s lone voice calling for a vote for over $2 trillion in government spending will be remembered years from now as a beacon and clarion call for fiscal and principled conservatives. The Article also examines two prior historical instances which involved a lone voice in the United States House of Representatives: Congresswoman Jeannette Rankin’s lone vote against a declaration of war with Japan in 1941 and Congresswoman Barbara Lee’s lone vote against the war in Afghanistan in 2001. Both the lone votes of Congresswoman Ranking and Congresswoman Lee illustrate that taking a principled, highly unpopular stance at the risk to one’s political career in the United States House of Representatives can result in a positive, long-term legacy. This Article predicts Congressman Massie’s lone voice will be viewed in the same lens in the future.

Marzuki, Marzuki et al, ‘Legal Effectiveness in Handling Covid-19 in Batu Bara Regency North Sumatra Province’ (2021) 2(3) International Journal of Social, Policy and Law 47–53
Abstract: Covid-19 or “Severe Acute Respiratory Syndrome Corona Virus 2 (SARS-COV-2) become an epidemic for almost all countries in the world, including Indonesia. In Batu Bara Regency, based on the data obtained, there were also 259 confirmed cases, and 119 positive Covid-19 people, 2 cases died and 86 people recovered. Therefore, to overcome the Covid-19 case, Bara Bara Regent Regulation Number 58 of 2020 concerning the Implementation of Discipline and Law Enforcement of Health Protocols as Efforts to Prevent and Control Corona Virus Disease 2019 in Batu Bara Regency and various implementing regulations, so research is needed to review the effectiveness of the law in handling Covid-19 in Batu Bara Regency. This study uses normative and empirical legal research, with a statute approach, a case approach and a conceptual approach. Based on research data, the level of public knowledge of the regulations issued by Batu Bara Regency Government in tackling Covid-19 is very high, namely from 235 respondents there are 168 (71.49%) who know, while only 67 (28.51%) do not know). Even the respondent’s questionnaire data shows the public’s desire to give strict sanctions for health protocol violators, namely 200 (85.11%), while only 35 (14.89%) disagree. However, based on research data, respondents indicated that only 35 (14.9%) stated that an action had been taken, while 200 (85.1%) stated that there had been no significant action taken by the Batu Bara Regency Government against violations, which means the effectiveness of the Regent Regulation. Batu Bara Regency No. 58 of 2020 has not fully materialized. Therefore, it still needs strengthening to become a Regional Regulation, and it must be continuously provided with legal socialization to the public, especially those related to the response to Covid-19, so that it can create better legal awareness of the community.

Masterman, Clayton, ‘Stay-at-Home Orders and COVID-19 Fatalities’ (SSRN Scholarly Paper ID 3600905, 14 May 2020)
Abstract: The COVID-19 pandemic has prompted most state governments to order residents to stay at home. The goal of such orders is to mitigate infection rates to prevent health care system overload, thereby dramatically reducing the death toll of the pandemic. This article investigates the effectiveness of stay-at-home orders in decreasing COVID-19 infections and fatalities. Using a differences-in-differences approach, I estimate that stay-at-home orders between mid-March and May 9 prevented 1.7 million COVID-19 cases and 55,000 deaths in the United States. Orders that state governments issued were more effective than local government orders, suggesting that consistent policy approaches across geographic areas is key. The effects were concentrated in urban and higher wage counties. Based on the day of the week that infections are prevented, I also find some evidence that the cases stay-at-home orders prevent are largely those that would have occurred at work rather than from recreation.

Mathen, Carissima, ‘Resisting the Siren’s Call: Emergency Powers, Federalism and Public Policy’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 115
Abstract: Virtually everyone in Canada would describe the COVID-19 pandemic as an emergency. The federal government’s decisions—to close borders and order Canadians into quarantine—suggest that it shares this view. Yet it has neither declared an emergency nor triggered the federal Emergencies Act. The lack of such action has been criticized. At the same time, there has been less focus on the emergency powers available to Parliament under the ‘peace, order and good government’ clause in s. 91 of the Constitution Act 1867. In this chapter, I explore three demands that would require emergency branch legislation: regulating long-term care; providing relief to persons under residential and commercial tenancies; and instituting nation-wide testing. Examining the emergency branch’s benefits and drawbacks, I argue that emergency powers must be approached with continual caution, with due appreciation for the operational and political complexities inherent in a federal state. While a national, ‘top-down’ approach may be effective in some situations, in others it is preferable to encourage regional responses and inter-governmental cooperation.

Maurya, Nancy and Devendra Dwarg, ‘Legal and Environmental Implications of COVID‑19 Outbreak in India’ (2021) Journal of Global Infectious Diseases (advance article, published 29 January 2021)
Abstract: The present work is an attempt to look at the legal and environmental implications of coronavirus disease-2019 outbreak in India. It looks at both sides of this tragedy focusing specifically on the environmental and legal aspects in the Indian context. However, the article does not refrain from discussing examples of other countries or some global aspects if necessary.

Maxeiner, James R, ‘America’s Covid-19 Preexisting Vulnerability: A Government of Men, Not Laws’ (2020) 8(1–2) The Theory and Practice of Legislation 213–235
Abstract: The legislative response of the United States of America to the covid-19 pandemic is a calamity. Incompetent leaders have turned a natural disaster into a national catastrophe. The catastrophe unmasks a weak rule of law that is closer to a reign of men than it is to a government of laws. Lousy legal methods predating covid-19 allowed tragedy to happen. This article summarises the legislative-like responses to covid-19 and identifies systemic failures, i.e. covid-19 preexisting vulnerabilities.

Maysarah, Maysarah, ‘Hospital Responsibilities for the Use of Covid-19 Handling Funds Based on a State Administrative Law Perspective’ (2020) 1(2) International Journal Reglement & Society (IJRS) 44–52
Abstract: Hospitals as a device or component of health have responsibility for the funds for handling Corona Virus Disease (Covid-19) in Indonesia. During this pandemic, hospitals certainly play an important role for public health, especially those with Covid-19. The method used in this research is normative law research which combines the data obtained from library materials and then analyzed qualitatively. From the research results it is known that the Government is taking action quickly, precisely, and accurately in handling the Covid-19 pandemic. The government’s steps in handling the Covid-19 pandemic were carried out by combining the use of statutory authority, policy regulations, actions of government agencies and officials, and bureaucratic support as a policy implementing organ. In handling the Covid-19 pandemic, the President took a policy by establishing a Government Regulation in Lieu of Law (Perppu) Number 1 of 2020 concerning State Financial Policy and Financial System Stability for Handling the Corona Virus Disease (Covid-19) Pandemic and / or in the Context of Facing Dangerous Threats National Economy and / or Financial System Stability on March 31, 2020. That the responsibility of the hospital is to use the funds for handling Covid-19 to provide medical devices related to prevention or treatment of Covid-19 such as PPE, test kits, reagents, ventilators, hand sanitizers and others.

Mazey, Sonia and Jeremy Richardson, ‘Lesson-Drawing from New Zealand and Covid-19: The Need for Anticipatory Policy Making’ (2020) 91(3) The Political Quarterly 561–570
Abstract: The Covid-19 pandemic has seen most governments worldwide having to think on their feet rather than implementing detailed and well-rehearsed plans. This is notwithstanding the fact that a pandemic was bound to happen, sooner or later (and will happen again). The effectiveness of national responses has varied enormously. Globally, New Zealand has been perceived as setting the gold standard in ‘curve crushing’, and for a short period achieved Covid-free status. For this achievement, much credit is due to the New Zealand government, especially to Prime Minister, Jacinda Ardern. However, post-lockdown the New Zealand government has encountered a number of Covid policy implementation problems (many of which could have been anticipated). Nevertheless, Covid-19 might still turn out to have been a seismic shock to existing policy processes and policy frames (such as austerity). If so, there are grounds for hope that in the future, governments and voters might be less short-term in their outlook. Perhaps anticipatory, rather than reactive policy making, might become more fashionable?

Mazur-Kumrić, Nives and Ivan Zeko-Pivač, ‘Triggering Emergency Procedures: A Critical Overview of the EU’s and UN’s Response To The Covid-19 Pandemic And Beyond’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 89–119
Abstract: The large-scale COVID-19 pandemic is a severe public health emergency which poses distressing social and economic challenges to the international community as a whole. In order to provide immediate and effective support to affected welfare and healthcare systems as well as to build their lasting, inclusive and sustainable recovery, both the European Union and the United Nations have introduced a number of urgent measures aiming to help and protect citizens and economies. This paper looks into the specificities of urgent procedures launched and carried out by the two most influential international organisations with a view to rapidly respond to the unprecedented COVID-19 crisis. More specifically, it focuses on the involved institutions and steps of urgent procedures as well as on their most remarkable outcomes. In the case of the European Union, the emphasis is put primarily on two Coronavirus Response Investment Initiatives (CRIIs), adopted during the Croatian Presidency of the Council in one of the fastest legal procedures in the history of the European Union, and the Recovery Assistance for Cohesion and the Territories of Europe (REACT-EU) as an extension of the CRIIs’ crisis repair measures. The overarching United Nations’ response is assessed through an analysis of its urgent policy agenda developed on the premise that the COVID-19 pandemic is not only a health and socio-economic emergency but also a global humanitarian, security and human rights crisis. This particularly includes procedures foreseen by the Global Humanitarian Response Plan (GHRP) and the Strategic Preparedness and Response Plan (SPRP). In addition, the aim of the paper is to provide a critical overview of the subject by highlighting three pivotal elements. First, the paper sheds light on the financial aspects of the urgent fight against the COVID-19 pandemic, necessary for turning words into action. Notably, this refers to funds secured by the Multiannual Financial Frameworks 2014-2020 and 2021-2027, and the Next Generation EU recovery instrument, on the one hand, and the UN COVID-19 Response and Recovery Fund, the UN Central Emergency Response Fund and the Solidarity Response Fund, on the other hand. Second, it offers a comparative evaluation of the end results of the European and global emergency procedures in mitigating the impacts of the COVID-19 pandemic. Finally, it summarises the underlying elements of measures governing the aftermath of the ongoing crisis, i.e. those promoting a human-centred, green, sustainable, inclusive and digital approach to future life.

McCuskey, Elizabeth Y, ‘FDA in the Time of COVID-19’ (2020) 45(3) ABA Administrative & Regulatory Law News 7–9
Abstract: Over the past century, Congress has made the Food & Drug Administration (FDA) responsible for regulating the safety and efficacy of drugs and devices being deployed in the fight against the COVID-19 pandemic. The FDA’s regulatory infrastructure was built for public health threats and to combat manufacturers’ misinformation about treatments. This article spotlights the ways in which FDA has been adapting to a new challenge during the COVID-19 pandemic: combating misinformation emanating from within the executive branch.

McKerrell, Nick, ‘Scottish Public Protest at a Time of Covid-19’ (2021) 25(1) Edinburgh Law Review 105–111

McLaws, Mary-Louise, ‘Pandemics Will Happen: How Have We Minimised and Managed COVID-19?’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Mei, Ciqi, ‘Policy Style, Consistency and the Effectiveness of the Policy Mix in China’s Fight against COVID-19’ (2020) 39(3) Policy and Society 309–325
Abstract: As the first country stricken by the COVID-19 pandemic, China deployed a policy response that was chaotic at the start but effective in the end. A complete account to explain China’s COVID-19 experience should explain both. By examining policy changes in China’s fight against the pandemic, I show that pandemic as an exogenous shock invalidated the normal policy logics followed by multiple policy actors, resulting in policy inconsistency and chaos. A policy mix comprised traditional measures, i.e. strict community lockdown, cross-jurisdictional mobilization of resources and officials’ sanction contributed to the eventual effectiveness of China’s response to the pandemic. I argue that the policy mix during crises should conform with rooted national policy style to be consistent and effective.

Mełgieś, Katarzyna, ‘Legal Measures Undertaken by Public Authorities in Poland for Prevention and Combating COVID-19’ (2021) 14(2) Medicine, Law & Society 372–394
Abstract: The state is a special purpose organization and the directions of its activities are determined by public tasks. One of them is to ensure an efficient health care system, also effective in emergency situations such as those caused by an infectious disease pandemic COVID-19. In particular, legal instruments are used to create it, selected by the rulers within the limits set by law, including the applicable international standards, at the discretion of local governing authorities. The whole system is completed with organizational, medical and finally financial solutions. However, it is due to the fact that public authorities move around in the public space, due to the legality of their operation, that the legal instruments used are of significant importance for the assessment of the effectiveness of the performance of tasks related to combating infectious diseases, and thus ensuring health safety.

Mello, Michelle M and Wendy E Parmet, ‘Public Health Law after Covid-19’ (2021) New England Journal of Medicine (advance article)
Abstract: Covid-19 has spurred an outbreak of a different kind: litigation. To combat the pandemic, officials imposed extensive community-level mitigation measures using their broad but largely untested emergency powers. In response, more than 1000 suits challenged orders shuttering businesses, banning indoor worship services, restricting travel, and mandating mask wearing. As with other social aspects of the pandemic, this litigation will have lasting effects.

Mendez Bahena, Benjamin, Jorge Culebro Moreno and Pablo Cruz Hernandez, ‘Covid-19 Crisis Management in Mexico: Initial Reopening’ (2021) 13(2) Direito da Cidade 541–563
Abstract: The COVID-19 pandemic has shaken the whole world throughout 2020. In Mexico, the management of this crisis has fallen upon a federal administration that took power in December 2018 and promised to prioritize the poor and the marginalized. On the other hand, the health care system has been neglected for many years and is undergoing a transformation process (OECD, 2019; Presidency of the Republic, 2019). The present paper examines how federal government organizations managed the initial phase of the crisis, involving general confinement at the national level, and the first six weeks of the gradual reopening of activities, the so-called ‘new normality,’ which has been implemented by subnational governments. We employ crisis management theory as a theoretical framework to analyze coordination instruments in a profoundly fragmented health system, leadership styles, and the implementation of voluntary quarantine avoiding coercive measures. Concerning our methodology, we describe a mixed case study based on federal regulatory instruments, abundant publicly-available official information, and a press review for the study period. Finally in the concluding section, we point out the reasons why we consider that the management of the crisis in Mexico has been acceptable during the first months of the crisis.

Meßerschmidt, Klaus, ‘COVID-19 Legislation in the Light of the Precautionary Principle’ (2020) 8(3) The Theory and Practice of Legislation 267–292
Abstract: This paper examines in general terms the impact of the precautionary principle on COVID-19 legislation and management. In academic discussion the precautionary principle is usually referred to in the context of environmental policy. The principle can also be found, however, in health protection, which suggests its transfer to the pandemic situation. Contrary to the concern that the principle could serve as a blanket justification for extreme and arbitrary interventions in civil liberties, the paper demonstrates that, notwithstanding conflicts with the rule-of-law obligation to evidence-based legislation, the precautionary principle does not supplant the principle of proportionality. Thus, it sets limits to risk-related legislation even though it allows restrictions in the absence of scientific consensus. Reflecting on the scientific debate about the precautionary principle can help to maintain (or at least restore) rationality and prudent risk tradeoffs even in times of emergency legislation.

Migone, Andrea Riccardo, ‘Trust, but Customize: Federalism’s Impact on the Canadian COVID-19 Response’ (2020) 39(3) Policy and Society 382–402
Abstract: This article explores how Canadian federalism, with its complex mix of competencies, and the country’s punctuated gradualism policy style interface with urgent, complex decision-making like the COVID-19 pandemic. We find that while punctuated gradualism favors tailored responses to pandemic management it is weaker when coordination and resourcing are to be undertaken during non-crisis situations and that, while the level of cooperation among Canadian jurisdictions has progressively increased over the years, policy is still almost exclusively handled at the federal, provincial and territorial levels. Furthermore, the model appears to have critical ‘blind spots’ in terms of vulnerable communities that do not emerge as such until after a crisis hits.

Mikelenas, Valentinas, ‘Coronavirus and the Law: Lithuanian Experience’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: As in many other countries of the world, the pandemic of the coronavirus came to Lithuania unexpectedly, both for society as a whole and the public authorities, as well as for the country’s health system and business. Although the Government decided quickly enough to introduce quarantine, discussions have arisen upon the Government’s powers to introduce quarantine. The introduction of quarantine has raised not only the problem of the distribution of competence between Parliament and the Government but also many other issues in both public and private law. The pandemic has shown that many pieces of legislation do not provide for the specificities of legal regulation in quarantine or other extreme situations. As a result, both Parliament and the Government have had to adopt a number of new laws and other legal acts or amend legislation already in force during the pandemic. The pandemic has also shown weak support of the European Union and its institutions, as a result of this, the Member States have, in practice, dealt with pandemic problems on their own rather than centrally. For this reason, trust in the European Union can be further weakened.

Milinković, Igor, ‘Extraordinary Measures in Extraordinary Times: Legal Response to the COVID-19 Crisis in Bosnia and Herzegovina’ (2021) 14(2) Medicine, Law & Society 439–456
Abstract: The COVID-19 pandemic has profoundly affected all aspects of people’s daily lives. In response to the pandemic, many countries declared a state of emergency. Extraordinary measures have been implemented to reduce the spread of the new coronavirus. Some of these measures require significant restrictions of fundamental rights and freedoms, such as the right to privacy, freedom of movement, freedom of assembly, freedom of expression, religious freedoms etc. In Bosnia and Herzegovina (BiH), the BiH and entity authorities adopted decisions to provide a legal basis for implementation of extraordinary measures. The paper deals with the restrictive measures implemented during the COVID-19 crisis in BiH and their impact on human rights realization. The relevant decisions of the Constitutional Court of BiH are also analysed, including the decision in case AP-3683/20 according to which certain restrictive measures are contrary to the right to respect of private life and the freedom of movement.

Miller, Katie, ‘Finding Law in a Time of Emergency: COVID-19’ [2020] Australian Journal of Administrative Law 66
Abstract: The outbreak of the novel coronavirus and the urgent need to contain it has changed dramatically our society and the ways we live and work in a matter of weeks. The outbreak has crossed state and international borders and has touched nearly every aspect of our lives. The government response has required co-operation and co-ordination across the federation and heads of legislative power. The proliferation of new legislation and legislative instruments, as well as the interpretation of such documents, presents a challenge in citizens and lawyers alike in understanding what the rules are and the source of such rules at any given moment. The instruments which have had the most profound effect on our lives have been the biosecurity and health emergency declarations made under state and federal laws. At Commonwealth level, the Governor- General has declared a human biosecurity emergency under section 475 of the ‘Biosecurity Act 2015’ (Cth). In addition to amendments to facilitate the making of directions and declarations about the COVID- 19 emergency, emergency legislation has also been passed by various jurisdictions to facilitate the emergency response. Given the number of declarations, directions and amendments being made to facilitate the response to COVID-19, knowing what the law is at a given point in time and how it will be implemented has become a daily challenge.

Mistur, Evan, John Wagner Givens and Daniel Matisoff, ‘Policy Contagion During A Pandemic’ (SSRN Scholarly Paper ID 3662444, 28 July 2020)
Abstract: The spread of the COVID-19 pandemic has necessitated rapid policy changes at the national level. In response, social distancing policies, which use non-pharmaceutical methods to reduce the spread of the virus by keeping people apart, have been implemented globally. The rapid spread of social distancing policies across the globe invites questions as to how and why countries adopt these social distancing policies, and whether the causal mechanisms driving these policy adoptions are based on internal resources and problem conditions, political institutions and economic conditions, or external factors from other countries. In this paper we leverage daily changes in social distancing policies across countries to understand the impacts of problem characteristics, institutional and economic context, and peer effects on social distancing policy adoption. We find that peer effects, particularly mimicry of geographic neighbors and political peers, drive policy diffusion and shape countries’ policy choices.

Moloney, Kim and Susan Moloney, ‘Australian Quarantine Policy: From Centralization to Coordination with Mid-Pandemic COVID-19 Shifts’ (2020) 80(4) Public Administration Review 671–682
Abstract: Combining a historical institutionalism approach with institutional isomorphism and punctuated equilibrium, this article analyzes quarantine policy change across 120 years of Australian quarantine history. By anchoring its analysis within specific time periods (the years before the Spanish flu, seven decades of inaction, and multiple post-1997 pandemic updates and responses), the authors highlight when and why policies did or did not change and how the constant push-and-pull between state and Commonwealth institutional ownership altered policy possibilities. The heart of the analysis showcases how Australia’s successful COVID-19 response is a unique output of prior quarantine policies, institutional evolution, and mid-pandemic alterations of key national pandemic response plans.

Morison, John, ‘Towards a Democratic Singularity? Algorithmic Governmentality, the Eradication of Politics – and the Possibility of Resistance’ in Simon Deakin and Christopher Markou (eds), Is Law Computable?: Critical Perspectives on Law & Artificial Intelligence (Hart, 2020) < >
Abstract: This contribution steps back from considering the operation of AI within the legal process directly and considers a more foundational issue surrounding democracy, and the basic legitimacy for any legal system that can be gained from a connection with ‘the will of the people’. The first section considers briefly how the promise of online consultation has not fully delivered on its democratic potential. The paper then considers new developments in surveillance, where almost all aspects of everyday life are transformed into quantified data, and subject to monitoring and predictive analysis. It is argued that this amounts to a new, pervasive and totalising form of surveillance and control which can be understood best as a form of ‘algorithmic governmentality’. Building upon arguments about consultation, it is contended that developments in technology may in future have the effect of making existing ideas about consultation and democracy redundant as actual preferences can be measured directly without the need for an intermediary political process to represent preferences. This direct presentation of preferences, created by inference from the radical datafication process, offers a false emancipation by appearing to be, by its very nature, all-inclusive and accurate. This is a novel form of governance, seemingly beyond traditional politics and it is one that has the potential to undermine, and then transcend, many of fundamental attributes of citizenship which presently appear as part of the bargain within the government – governed relationship. This contribution seeks to explore the parameters of this development of ‘algorithmic democracy’, and the potential of law and other strategies to operate as resistance.
Extract (page 9): The Covid-19 health crisis has provided a perfect conjunction of political conditions to produce a government response that aligns with developing technology to extend this further, and produce a new regime of ‘bio-surveillance’.

Morshead, Tim, ‘The Law and COVID-19: The Prime Minister’s Muddle about the Government’s Own Rules (as of 27 March 2020) and a Call for Clarity’ (2020) 25(2) Judicial Review 174–177
Jurisdiction: UK
Abstract: The prime minister’s message to the nation on 23 March 2020 was made in anticipation of regulations actually made on 26 March 2020. But he did not accurately describe the restrictions imposed by those regulations. He has created the impression that people may only leave their homes for work that is itself in some undefined sense ‘absolutely necessary’ or ‘essential’. That is not what the regulations require. So far as the regulations are concerned, anyone may leave home for work, if the work itself means they cannot reasonably do it from home. The regulations do not require anyone to make value judgments about the relative importance of their work in the fight against COVID-19 or the like. Unless or until they are changed, the current regulations do not do what the prime minister said they would do.

Moti, Ukertor Gabriel and Jeremiah Tersur Vambe, ‘Responding to Coronavirus Pandemic in Nigeria: The Policy Dilemma of a Vulnerable Nation: A Review’ (2020) 6(4) International Journal of Health, Safety and Environment (IJHSE) 526-533
Abstract: The novel coronavirus pandemic, though mainly a major global public health concern, has significant socioeconomic implications of great consequences to economies and the well-being of the population, just as it is an assessor of the institutional structures and governance framework of nations. Whereas some countries were proactive with comprehensive mitigation, containment and management policies in response to the pandemic, some were in denial and procrastinated. Notwithstanding the initial reaction of countries, the policy actions appear generic in compliance with standard World Health Organization (WHO) protocols: lockdowns, testing and contact tracing, isolation and social distancing. The choices are not easy when it comes to adapting them to country specific contexts. Countries exhibited varying stages of institutional capacity, resilience, inclusiveness and vulnerabilities. Nigeria, Africa’s largest country by population and economy is adjudged as a medium, with varied capacity and high vulnerability entity. This paper is a review of the policy responses and the observed dilemma between science and economic pragmatism. Whereas science advocates flattening the curve which in some cases mean longer lockdowns, lockdown fatigue and restlessness of the vulnerable population occasioned by economic hardship compelled the government to ease lockdown with possible consequence of increase in infections. It may not be plausible to deal with the dilemma during the period of the pandemic, however, we recommended this offers an opportunity for the country to strengthen its health care system, educational institutions and pro-poor policies on post-covid-19.

Moulds, Sarah, ‘Scrutinising COVID-19 Laws: An Early Glimpse into the Scrutiny Work of Federal Parliamentary Committees’ (2020) 45(3) Alternative Law Journal 180–187
Abstract: Australia’s parliamentary model of rights protection depends in large part on the capacity of the federal Parliament to scrutinise the law-making activities of the Executive government. Emergency law-making undertaken in response to the COVID-19 pandemic has challenged the Australian Parliament’s capacity to provide meaningful scrutiny of proposed laws, particularly identifying and addressing the impact of emergency powers on the rights of individuals. In this context, the work of parliamentary committees has become increasingly important. Special committees, such as the Senate Select Committee on COVID-19, have been set up to provide oversight and review of Australia’s response to the pandemic. This article gives an early glimpse into the key features of the COVID-19 Committee and the way it may interact with other committees within the federal system to scrutinise the government’s legislative response to the pandemic. It also offers some preliminary thoughts on the capacity of these committees to deliver meaningful rights scrutiny.

Mukti, Abdul and Muhammad Wildan Ramdhani, ‘Lockdown Policy As A Corona Desease (COVID-19) Management Efforts Asked From The Environmental Aspect Of Life Based On Law Act No. 32 Of 2009 Concerning Protection And Management Of Environment’(2020) 3(1) Veteran Law Review 22–36
Jurisdiction: Indonesia
Abstract: The government has formed the COVID-19 (Task Force) Acceleration Countermeasures Group to discuss strategies to deal with the Corona Virus outbreak. One of Covid-19’s coping strategies, namely: Social restrictions in the form of Lock Down with modifications or rules that are clarified and clear in priority areas as of now, but proposals in the form of Lock Down in priority areas such as DKI are not approved by the government. Although in the end the DKI Jakarta Government issued a policy after approval from the central government through the Minister of Health in the form of Governor’s Regulation Number 33 Year 2020 concerning the Implementation of Large-Scale Social Debate in Handling Corona Disease 2019 (COVID-19) in the Special Capital Province of Jakarta and Governor Decree Number 380 Year 2020 concerning the Imposition of the Implementation of Large-Scale Social Restrictions in Handling Corona Disease 2019 (COVID-19) in the Special Capital Province of Jakarta. If the lockdown is really implemented, then this effort will indirectly have an impact on the environment, because the policy will relate to space that includes all objects, power, conditions, and living things, including humans and their behavior, which affect nature itself, continuity of life, and the welfare of humans and other living things. Therefore it is necessary to examine the relationship between the lockdown policy and COVID-19 countermeasures in the perspective of the Environmental Protection and Management Law. The author intends to find a connection point between the lockdown policy by looking at the impact it has on the environment by referring to the Law Act No. 32 Of 2009 Concerning Protection And Management Of Environment.

Murphy, Kristina et al, ‘Why People Comply with Covid-19 Social Distancing Restrictions: Self-Interest or Duty?’ (2020) 53(4) Australian and New Zealand Journal of Criminology 477–496
Abstract: On 11 March 2020 the World Health Organization declared the novel coronavirus outbreak (COVID-19) a global pandemic. At the time of writing, over 16 million cases of COVID-19 had been confirmed worldwide, and more than 650,000 people had died from the virus. A priority amongst governments globally is limiting the spread of the virus. In Australia, this response included mandatory ‘lockdown’ restrictions which limited citizens’ freedom of movement. This article uses survey data from 1595 Australians to examine compliance with COVID-19 lockdown restrictions in the early stages of the pandemic. Results revealed that a substantial number of Australians did not comply fully with the measures. Further, while self-interest and health concerns motivated compliance, normative concerns regarding duty to support the authorities dominated compliance decisions. The findings’ implications for both compliance research and for authorities wanting to nurture voluntary compliance with public health orders are discussed.

Musinguzi, Geofrey and Benedict Oppong Asamoah, ‘The COVID-19 Lockdown Trap, How Do We Get Out?’ (2020) 11(4) Journal of Clinical and Experimental Investigations Article em00752
Abstract: More than a third of the world population is currently under some form of partial or total lockdown to limit morbidity and mortality due to covid-19. Whereas these measures are working, they are exerting an unprecedented negative socio-economic impact on the general wellbeing, and thus may not be sustained for long. Alternative control measures that limit the spread of the virus and yet facilitate socioeconomic progression and wellbeing are urgent. In this article, we make suggestions based on the disease transmission characteristics, the World Health Organization recommendation, and current practices across the globe. The suggestions focus on the prevention of transmission and acquisition by; (1) ensuring all put on some form of protective barriers to prevent further spread and acquisition while in public or risky spaces, (2) proactively preventing contamination of surfaces at individual and group/community level, (3) disinfecting frequently all surfaces prone to contamination in public and private spaces (4) ensuring that all gathering, work, schools and other public places have COVID-19 prevention protocols in place and are followed, (5) developing an efficient surveillance system that ensures early detection and isolation of COVID-19 cases, (6) strengthening health facilities at all levels of the healthcare system to ably screen, test, isolate, and manage COVID-19 before complications set in, (7) Stepping up health education and awareness at population level on prevention measures for COVID-19 using all possible platforms, (8) Designing special prevention measures for congested neighborhoods and slum dwellings, care homes, and other institutionalized dwellings to prevent a surge in infection and catastrophes, and finally (9) strengthening national, regional and global collaboration to prevent cross-border transmission. A combination of several of the measures above should help ease lockdown and moreover sustain the gains in the absence of the vaccine – thus, ease the consequences of strict social distancing, travel bans and lockdown across settings.

Nash, Michael, ‘Emergencies & Extraordinary Measures’ (2020) 170(7879) New Law Journal 7
Jurisdiction: UK
Abstract: Considers the duration of emergency measures under the Civil Contingencies Act 2004 in response to the coronavirus outbreak. Highlights concerns that emergency measures, once introduced, may be retained, citing the example of the retention of citizens’ identity cards for several years after the end of the Second World War.

Ndedi, Professor Alain and Dr Jean Noundou, ‘Analysis of the Fight against the Coronavirus (COVID 19) in Cameroon and the Exit Strategies’ (SSRN Scholarly Paper ID 3585201, 25 April 2020)
Abstract: Cameroon encounters security concerns at the North West and South West Regions of the country, and in the East; and the drastic fall in oil revenues with the current price being below $ 13, or less than 15% of forecasts made by the Government, at $ 54 per barrel. To this must be added the economic recession, with recurrent complaints from economic operators regarding the galloping tax pressure and the drying up of tax and customs revenue, due in part to economic partnership agreements with the European Union. Before what can be seen now, there are significant expenditures related to the Football African Cup of Nations (CHAN) and the CAN infrastructure and significant expenditures on security equipment, associated with heavy bilateral and multilateral debt and a precarious health system with the cancellation of 2 national public and national events: Labor day (May 1st) and the Unity day (May 20th), due to the COVID 19 pandemic. Internationally, there is the fall in world growth, and in the main stock markets, due to stagnation, and plant shutdowns linked to the progression of the Coronavirus which deeply and durably affects Western nations. We must add to the above, thousands of deaths from Coronavirus, which is spreading at a rapid rate worldwide; first China, Europe, North America, Russia and Africa are affected. This paper is an attempt to present what the Cameroonian authorities are doing to curve the virus.

Ng, Yee-Fui and Stephen Gray, ‘Wars, Pandemics and Emergencies: What Can History Tell Us about Executive Power and Surveillance in Times of Crisis?’ (2021) 44(1) UNSW Law Journal 227–266
Abstract: In the fight against coronavirus, the Australian government has enacted a series of measures that represent an expansion of executive powers. These include the use of smartphone contact-tracing technology, mandatory isolation arrangements, and the closure of businesses. Critics have expressed concerns about the long-term implications of these measures upon individual rights. This article will analyse the validity of such concerns in the context of other historical uses of executive power in Australia in times of crisis: during the Spanish Flu pandemic of 1918, the First and Second World Wars, and the ‘War on Terror’ post-September 2001. Drawing its conclusions from these historical precedents, the article argues that clear legislative safeguards are a minimum necessary step both to prevent police and governmental abuse of privacy, and to foster and maintain trust in the government’s ability to manage their ‘emergency’ powers in a manner consistent with human rights.

Nguyen, Duc Tien, ‘“Authorized to Depart from the Law”: The Curious Case of Viet Nam in Times of COVID-19’ (2021) Statute Law Review Article hmab022 (advance article, published 20 September 2021)
Abstract: The COVID-19 pandemic has posed myriad brain-wracking questions to decision-makers at all levels. Viet Nam managed to curb mortality and morbidity to praiseworthy levels in the past COVID-19 waves, however, has now had its back against the wall amidst the recent exponential infection cases and draining medical resources. For swiftly flattening the curve, the legislature authorized the Government to take bolder steps where needed, even different from the laws. This article argues that while the empowerment comes from the goodwill of the legislature for the purpose of containing the raging outbreak, there remain procedural irregularities. This should garner more attention from the state authority to ensure the rule of law and legality of all state actions during the time of public health emergency.

Nguyen, Duc Tien and An Thanh T Chu, ‘Weathering The Storm: Viet Nam’s Legal And Policy Measures in the Time of COVID-19’ [2020] (6: Special Issue 2) Public Administration Issues 7–32
Abstract: The novel coronavirus has shaken the entire world to its roots. Yet, governments’ responses have taken many forms. Some countries were able to flatten the curve, while others struggled to pick up the pieces. This article provides governance implications drawn from Viet Nam’s COVID-19 experience. Accordingly, the country’s key features of its COVID-19 responses include resolute leadership, information transparency, central – local government coordination, public participation, and adequate preparedness. Besides, this article also highlights some of Viet Nam’s key legislative and policy initiatives in a bid to cautiously keep the pandemic under control and the economy rolling. By doing so, it makes a practical contribution to the discourse on public governance in the time of a public health emergency.

Nkuubi, James, ‘When Guns Govern Public Health: Examining the Implications of the Militarised COVID-19 Pandemic Response for Democratisation and Human Rights in Uganda’ (2020) 20(2) African Human Rights Law Journal 607–639
Abstract: The article is premised on the hypothesis that the Uganda Peoples’ Defence Force (UPDF) and the attendant auxiliary forces are not an ideal force for domestic deployment in contending with public health pandemics such as COVID-19. The UPDF has been the main architectural tool that has been deployed by the National Resistance Movement party, a former guerilla movement, to perpetuate militarisation in the country for the past 30 years. The conduct, power, authority and prominent position accorded to the UPDF in the management of COVID-19 and the enforcement of the prevention measures laid bare this reality. Thus, unlike in other jurisdictions where the militaries were deployed because of their superior capability to adapt and provide extra and immediate professional services to support the civilian authorities, in Uganda this deployment was different. It was informed by the long-held and widely-documented belief by the President of Uganda, Museveni, that the UPDF, which developed from his personal guerrilla army of the National Resistance Army (NRA), only holds a legitimate vision for the country and is far more reliable. The COVID-19 pandemic, therefore, was an opportunity to continue the deliberate build-up and normalisation of the infiltration of the military in what have hitherto been spheres of operation for the civil and public servants. Thus, a critical question arises as to whether the primary motivation factor for the UPDF deployment was political, to accentuate the presidency of Museveni in power through militarisation. The question is also whether any positive harvests from the deployment of the military in the fight against COVID-19 were unintended consequences and, if they did materialise, how they were used to further glorify the centrality of the military in dealing with societal crises, further entrenching militarism. The article concludes with some recommendations emphasising the need for accountability – more so, parliamentary oversight in the deployment of the military in such situations to counter a breach of rights and freedoms. Additionally, this would check the current trend of the executive having the exclusive power to deploy the military, making it susceptible to hijacking and eventual politicisation and militarisation.

Nomani, MZM and Faisal Sherwani, ‘Legal Control of Covid-19 Pandemic and National Lockdown in India’ (2020) 11(4) Journal of Cardiovascular Disease Research 32–35
Abstract: The legal control of COVID-19 pandemic during two month’s national lockdown in India derives its sustenance from Article 47 and Entry 29 of the seventh schedule of the Constitution of India, 1950. The controlling mechanism administered through the vintage law contained under the Indian Penal Code, 1860 and Epidemic Diseases Act), 1897. India witnessed COVID-19 infection in the states of Maharashtra, Tamil Nadu, Gujarat and Delhi. They account for two-thirds of India’s total cases surpassing Wuhan of Hubei province in China. On the legal front, the COVID-19 pandemic invented an innovative strategy under the Disaster Management Act, 2005 by the legitimate assumption of catastrophe and calamity. The implementation of quarantine law spearheaded the security of health professions as a significant problem. The public health reform discerned into Presidential promulgation of Epidemic Diseases (Amendment) Ordinance, 2020. The socio-economic fall out of the COVID-19 pandemic and consequent lockdown calls for judicial intervention to meet the goals of health care and equity. The paper examines the comparative case studies for testing the legitimacy of quarantine law enforcement. It delves deep into the Indian Supreme Court decisions in meeting the contemporary challenges posed by the COVID-19 pandemic in the framework of public health law reform in India.

Nomani, MZM and Madiha Tahreem, ‘Constitutionality and Legality of Corona Virus (COVID-19) Induced Lockdowns in India: Limits of Sanction and Extent of Liberation’ (2020) 11(3) International Journal on Emerging Technologies 14–18
Abstract: The Corona Virus (COVID-19) and its global spread have resulted in declaring a pandemic by the World Health Organization. India rapidly responded and clamped Lockdown from March 25, 2020, to April 14, 2020. The Government legitimized move on the constructional mandate of Article 47 and Entry 29 of the seventh schedule of the Constitution of India, 1950. It has also utilized time tested quarantine law contained under Indian Penal Code, 1860, and Epidemic Diseases Act, 1897. Such a health emergency was not contemplated under the Constitution of India, 1950; therefore, it has envisioned calamitous situation underpinned Disaster Management Act, 2005, to chart the preventive strategy of COVID-19. The innovation of COVID-19 as disaster and catastrophe fitted into the phrase ‘beyond the coping capacity of the community.’ The Central Government assumed the role of the custodian to undertake all preventive and anticipatory measures. Because of rising death cases after two weeks of Lockdown, it wanted to extend for the prevention of infectious and contagious diseases further. The paper is a critical appraisal of the constitutionality and legality of COVID-19 induced Lockdown and attendant sanction and liberation in the context of social and egalitarian context.

Nordberg, Ana and Titti Mattsson, ‘COVID-19 Pandemic in Sweden: Measures, Policy Approach and Legal and Ethical Debates’ (SSRN Scholarly Paper ID 3609803, 15 May 2020)
Abstract: In this article we analyse the legal approach and measures implemented by Sweden’s public authorities as a response to the COVID-19 pandemic and their legal background. Further, we discuss general legal and ethical questions related to measures to contain public health threats such as the current COVID-19 pandemic. It is outside of the scope of this paper to compare and critically analyse the effectiveness of Sweden’s public health strategy.

Oana, Serban, ‘The Biopolitical Turn of the Post-Covid World: Leftist and Neoliberal Insights of Puzzling Biopolitics’ (2021) 6(1) Public Governance, Administration and Finances Law Review 73–87
Abstract: As the 21st century became shaped by the matters of public health, the Covid-19 pandemic revealed that it is a trap to believe that we have to choose between the medicalisation of politics and the politicisation of medicine. My thesis is that models of good governance in the post-pandemic world must be shaped by leftist principles, values and practices, in order to ensure not the reopening, but the reconstruction of public life, which needs more than ever overcoming social inequalities and political polarisations, whereas liberal principles should be implemented in order to fix standards of economic performance and efficiency after applying mechanism of recovery. Governments as well as electoral spheres are reticent to biopolitical incursions, historically associated with panoptic systems. I claim that it is time to plead for positivising biopolitics as political humanism. My research will expose twelve themes for disseminating biopolitics as political humanism, focused on sensitive key-domains such as labour, social cohesion, security, infodemia, domestic life and good governance.

O’Flynn, Janine, ‘Collaborating After Crisis: How Public Administration Scholars and Practitioners Can Work Together’ (Melbourne School of Government, University of Melbourne, Governing during crises, Policy Brief No 8, 22 October 2020)
Key Points: The Policy Brief makes the following key points: (a) COVID-19 has laid bare the capacity challenges faced by governments and exacerbated entrenched disadvantage and inequality. The pandemic has acted as an accelerant of many problems that confront governments, shining light on how decades of reform have eroded government capacity and bought to the fore deep divisions in society. (b) Practitioners and scholars can work together on big challenges that confront us during the crisis and in the aftermath. We need a pivot from ‘big questions’ towards ‘big challenges’, so that public administration and management scholars can work closely with practitioners to address these challenges in real time. (c) To make a difference we need new ways of working collaboratively. If we are keen to collaborate in this crisis and beyond it makes more sense to look to successful collaborations rather than dwell on supposed tensions between scholars and practitioners.

Oh, Juhwan et al, ‘National Response to COVID-19 in the Republic of Korea and Lessons Learned for Other Countries’ (2020) 6(1) Health Systems & Reform Article e1753464
Abstract: In the first two months of the COVID-19 pandemic, the Republic of Korea (South Korea) had the second highest number of cases globally yet was able to dramatically lower the incidence of new cases and sustain a low mortality rate, making it a promising example of strong national response. We describe the main strategies undertaken and selected facilitators and challenges in order to identify transferable lessons for other countries working to control the spread and impact of COVID-19. Identified strategies included early recognition of the threat and rapid activation of national response protocols led by national leadership; rapid establishment of diagnostic capacity; scale-up of measures for preventing community transmission; and redesigning the triage and treatment systems, mobilizing the necessary resources for clinical care. Facilitators included existing hospital capacity, the epidemiology of the COVID-19 outbreak, and strong national leadership despite political changes and population sensitization due to the 2015 Middle East respiratory syndrome–related coronavirus (MERS-CoV) epidemic. Challenges included sustaining adequate human resources and supplies in high-caseload areas. Key recommendations include (1) recognize the problem, (2) establish diagnostic capacity, (3) implement aggressive measures to prevent community transmission, (4) redesign and reallocate clinical resources for the new environment, and (5) work to limit economic impact through and while prioritizing controlling the spread and impact of COVID-19. South Korea’s strategies to prevent, detect, and respond to the pandemic represent applicable knowledge that can be adopted by other countries and the global community facing the enormous COVID-19 challenges ahead.

Ohlin, Jens David, ‘Pandemics, Quarantines, Utility, and Dignity’ (SSRN Scholarly Paper ID 3591784, Social Science Research Network, 3 May 2020)
Abstract: Medical quarantines were once common in the United States, but in the last 50 years they have been used infrequently by the government. That changed with the spread of the novel Coronavirus, and the resulting Covid-19 illness, in 2020. Cruise ships where the virus had taken hold were quarantined and passengers were prohibited from disembarking. Residents of towns in Spain, and an entire province of China, were prevented from leaving by their respective governments. This Article argues that the permissibility of coercive quarantines is best understood as an example of threshold deontology. Threshold deontology is the view that individual human dignity must prevail over the common good, but that in moments of extreme emergency, when a ‘threshold’ has been reached, the reverse is true: the common good can trump individual rights. Part I provides a brief overview of the use of coercive quarantines to fight Covid-19 and the surprising lack of objection that these measures triggered. Part II explores the unmistakably utilitarian logic behind public health generally and quarantines specifically. Then, Part III introduces the concept of human dignity as a constraint on utilitarian public health by surveying three representative jurisdictions: The United States, German domestic law, and the European Convention on Human Rights. Part III concludes that even liberal democracies vary subtly but significantly in how strongly they protect human dignity and that these differing levels of commitment to human dignity help explain why some legal cultures have been so quick to resort to quarantines, while other communities have been reluctant. Finally, Part IV suggests that jurisdictions that are usually protective of individual rights but decide to fight Covid-19 with coercive quarantines are best understood as operating under the sway of threshold deontology. This Article does not defend threshold deontology as a moral theory but does argue that it is best understood as a covert form of indirect consequentialism. Moreover, this Article concludes that threshold deontology is the key moral battleground for debating the quarantine power during the Covid-19 era.

Olimid, Anca Parmena and Daniel Alin Olimid, ‘EU Institutional Resilience and Population Protection during COVID-19: Explaining the Social Impact of the Regulation (EU) 2021/24’ [2021] (69) Revista de Stiinte Politice. Revue des Sciences Politiques 109–119
Abstract: The aim of the study is to explore the general provisions and policy areas of the Regulation (EU) 2021/241 for the establishment and implementation of the ‘Recovery and Resilience Facility’ (RRF) and to explain why the horizontal principles and the recovery instruments make such a difference for the European Union (EU) recovery plans. The research of the nexus between the policy coordination, the resilience facilities and the population protection outcomes is mapped by designing on a legal and social account of: (1) the shared programmes and resources; (2) the harmonious implementation of the EU policies (EUp) in the context of the COVID-19 crisis; (3) the stipulation of the principle of additionality concerning the EU funding areas; (4) the goals of the intervention fields in accordance with the Annex VI of the RRF: the social policies, the social integration of the vulnerable groups of the population, the social inclusion, the employment policies, the economic policies, the digital transition, the territorial cohesion, the green transition by pointing: biodiversity and climate measures. The paper concludes with a discussion of the ‘institutional resilience’ and the ‘resilience dialogue’ by outlining the need for a coordinated response of the Member States (MS) to reinforce the link between EU policy areas and the economic governance.

Omar, Habibah, Indrawati S.h and Che Audah Hassan, ‘Law Enforcement Issues During Covid-19: Experience from Malaysia and Indonesia’ (2021) 6(SI6) Environment-Behaviour Proceedings Journal_
_Abstract: This article examines the legal issues relating to the State Administrators’ enforcement of policies, rules, and decision-making in Malaysia and Indonesia during the pandemic from the perspective of administrative law. The State Administrators have come out with various Standard Operating Procedures (SOP) that impacted the people. It is argued that administrative law can discern potential abuse by State administrators while enforcing the law. This article will examine the enforcement issues in both nations by utilizing doctrinal and comparative analysis. Consequently, some exercise of discretion of the executive can be questioned and challenged under the purview of administrative law.

Ondřejek, Pavel, ‘Threshold of Justification of Emergency Regulations: On Coherentism Requirement for the Justification of Measures Adopted in the Czech Republic during the COVID-19 Pandemic’ (2021) 27(2) Archiwum Filozofii Prawa i Filozofii Społecznej 41–53 (Jurisdiction: Threshold of Justification of Emergency Regulations)
Abstract: The article deals with justification of generally binding legal acts as part of a state governed by the rule of law. The ‘state of exception’ caused by the COVID-19 pandemic adds a new dimension to the issue of justification. The practice prevailing in the Czech Republic in 2020 did not reflect even the minimum requirements for justifying emergency measures, which brought on problems both in the practical application of the adopted measures and in their subsequent judicial review. The article attempts to find an appropriate level of justification, referred to as the threshold of justification and based on the coherentist theory of epistemic justification. The basis of such justification lies in the idea that individual grounds for justification can be found in the explanatory reports of the legislation, on the one hand, and in various pieces of relevant information available to the addressees, on the other hand. All these reasons should form a coherent whole and they should ultimately legitimize restrictions on the freedom of individuals. The final part of the article describes the importance of the threshold of justification for the review of proportionality and even reasonableness of the law.

Onoge, Elohor Stephanie, ‘Monitoring and Evaluating the Impact (Post-Legislative Scrutiny) of Emergency Regulation in Response to the COVID-19 Pandemic: A Case Study of Nigeria’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 39–46
Abstract: The threat posed by passing emergency laws and policies in response to the coronavirus (COVID-19) pandemic can be said to be a critical precursor of human rights abuses. In response to the COVID-19 pandemic, the Nigerian President issued the COVID-19 REGULATION 2020 exercising his powers under the Federal Quarantine Act, CAP Q2 Laws of the Federation of Nigeria 2004. Based on this, the Nigerian Federal Government has undertaken stringent measures, enforced restrictions and cessation of movement, social and economic activities in Nigeria to curtail the pandemic. Nigeria has employed human control to stop the disease’s spread, including travel bans, quarantine orders, social distancing, and lockdowns. The measures applied to curtail the spread of COVID-19 have an undoubted impact on human rights. The Nigerian government implemented these restrictive measures which impinge on human rights and democratic processes with authoritarian provisions. This study analyses the emergency measures implemented by the Nigerian government and human rights’ infractions and considers Post-Legislative Scrutiny to mitigate the government’s legislative actions as a safeguard for human rights and democracy in Nigeria. To ensure true democracy, Nigerian regulations, laws, and policy response to COVID-19 must align with international human rights commitments. And the temporarily imposed restrictions on rights are reviewed by the Legislature and do not become permanent. Questions to be addressed in this paper are: (1) Is the breadth of powers currently enjoyed by executive bodies, such as Public Health authorities and security forces under scrutiny and review of the Legislature? (2) Are there safeguards put in place by the Legislature, as an oversight to ensure democratic rule and respect for human rights in Nigeria? The paper uses the qualitative research method. It relies on content analysis of COVID-19 regulatory and legislative provisions, academic literature, articles, journals, and newspaper publications.

Opolska, Zuzanna, ‘How Has Norway Beaten the COVID-19 Pandemic?’ (2021) 7(1) Journal of Health Inequalities 7–11
Abstract: Norway is seen as a model in the fight against COVID-19. In 15 months, just 789 people died from the coronavirus. Frode Forland from the Institute of Public Health tells us how Norway managed to overcome the pandemic.

Ormerod, David, ‘Coronavirus and Emergency Powers’ (2020) 6 Criminal Law Review 473–477
Abstract: Reflects on emergency powers introduced by UK legislation in response to the coronavirus pandemic. Discusses issues including an initial lack of guidance on the restrictions, civil liberties and police powers involving dispersal of gatherings and reasonable excuses for leaving home, increased domestic violence and whether spitting or coughing at people is an offence. Notes changes to court procedures, such as the increased use of direct live links.

Oseni, Alexandra Adetutu, ‘Examining Implementation of Policy Effects on Coronavirus (Covid-19) in United State of America’ (2020) 96 Journal of Law, Policy and Globalization 123–129
Abstract: This particular study examines public policy implementation theories on the various interventions to combat the Coronavirus (COVID-19) pandemic. As underscored in the literature COVID-19 is perceived to be a respiratory disease caused by a novel Coronavirus. The virus was first noticed in Wuhan in China. This global killer-COVID-19 has caused many countries, including the United States of America, to get on rigorous policies measures to help contain the spread. Some of the perceived preventive measures taken by the United States of America include travel restrictions, official and self quarantines, postponements of events facility closures and curfews. All these are possible immediate solution proposed by healthcare experts and professionals to flatten the COVID-19 curve. As a result of adding to public policy literature and to also assist policymaker to understand the implication of their choice of intervention procedures, the study uses the two main approaches of policy or program implementation-top-down and bottom-up to all governors, decision makers on possible ways to approach pandemic issues. In the face of this COVID-19 pandemic, the study recommended that all preventive care, possible treatment tools (or medication), screening and if possible vaccination must be either free or demanded at a subsidized rate in order make eradication possible

Osman, Magda et al, ‘The Thorny Problems of COVID-19 Contact Tracing Apps: The Need for a Holistic Approach’ (2020) 4(S-COVID-19 Special Issue) Journal of Behavioral Economics for Policy 57–61
Abstract: Once we accept the potential advantages that may arise from investing in contact tracing apps (CTA) as a response to the current COVID-19 crisis, we need to consider the different challenges that arise, and how they can be solved. In so doing, and to make the job surmountable, we must understand the challenging class of problems that spans both technical and behavioral issues (thorny issues). In thinking about the value of contact tracing, and the potential resolutions to some of the core problems, this short piece outlines what policy makers may need to consider, especially if we are to successfully deal with the predicted second wave.

Osuji, Onyeka, ‘African Union and Public Health Crises in a Regional Legal Order’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 41–50
Abstract: In the context of responses to the Covid-19 pandemic, the paper examines the African regional regime for public health crises and disasters. Using the combined analytic lenses of Capability Approach, Institutional Theory, Constructivism, New Regionalism Approach and Actor Network Theory, it focuses on the opportunities offered by, and limitations of, the African Union legal order.

Oxford Analytica, ‘Concerns over Rule of Law Will Rise Post-Pandemic: Latin America’ (Expert Briefings, 27 October 2020)
Abstract: Latin America scores poorly on global assessments of both corruption perceptions and judicial independence. Impacts: Political interference in corruption cases in Brazil will mar early enthusiasm for the ‘Operation Car Wash’ probe; Anger over perceived over-stepping of legal limits in the imposition of lockdowns will drive post-pandemic protests; This will be particularly the case if, as seems likely, corruption allegations surrounding COVID-19 provisions themselves expand; Chile’s plebiscite on whether to draft a new constitution to address such issues may not be the last.

Pacces, Alessio M and Maria Weimer, ‘From Diversity to Coordination: A European Approach to COVID-19’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 283-296
Abstract: The COVID-19 pandemic is changing the face of Europe. Member States’ divergent responses to this crisis reveal a lack of unity in the face of a humanitarian catastrophe. At best, this undermines the effectiveness of health protection within the European Union (EU). At worst, it risks breaking up the Union altogether. Divergent national responses to COVID-19 reflect different national preferences and political legitimacy, and thus cannot be completely avoided. In this article, we argue that these responses should be better coordinated. Without coordination, the price for diversity is high. Firstly, there are damaging spill-overs between Member States, which undermine key pillars of European integration such as the free movement of persons and of goods. Secondly, national policy-making is easily captured by local interest groups. Our proposal is that the EU indicates – not mandates – a European exit strategy from asymmetric containment policies of COVID-19. In particular, the EU should help Member States procure and validate tests for infection and immunity. The EU should also indicate ways in which testing could be used to create safe spaces to work, thereby restoring the free movement of persons and of goods. We see a great advantage in such EU guidance: it could improve mutual learning between Member States, which have faced different timings of the epidemic and learned different lessons. Although the local political economy has so far delayed learning and undermined cooperation, the EU can mitigate both effects and indicate the way for Europe to resurrect united from the ashes of COVID-19.

Pagallo, Ugo, ‘Sovereigns, Viruses, and the Law: The Normative Challenges of Pandemic in Today’s Information Societies’ (SSRN Scholarly Paper ID 3600038, 13 May 2020)
Abstract: The paper examines the legal and political impact of the Covid-19 crisis, drawing the attention to fundamental questions on authority and political legitimacy, coercion and obligation, power and cooperation. National states and sovereign governments have had and still will have a crucial role in re-establishing the public health sector and addressing the colossal challenges of economic re-construction. Scholars have accordingly discussed the set of legal means displayed during this crisis: emergency decrees, lockdowns, travel bans, and generally speaking, powers of the state of exception. The aim of this paper is to stress the limits of such perspectives on powers of national governments and sovereigns, in order to illustrate what goes beyond such powers. Focus should be on the ontological, epistemic and normative constraints that affect today’s rights and duties of national states. Such constraints correspond to a class of problems that is complex, often transnational, and increasingly data-driven. In addition, we should not overlook the lessons learnt from such fields, as environmental law and internet governance, anti-terrorism and transnational business law, up to the regulation of Artificial Intelligence (AI). Such fields show that legal co-regulation and mechanisms of coordination and cooperation complement the traditional powers of national governments even in the times of the mother of all pandemics. The Covid-19 crisis has been often interpreted as if this were the last chapter of an on-going history about the Leviathan and its bio-powers. It is not. The crisis regards the end of the first chapter on the history of today’s information societies.

Palrecha, Harshita and Dhruv Nyayadhish, ‘Invoking the Epidemic Diseases Act, 1897 in Light of the Epidemic Diseases (Amendment) Ordinance, 2020’ (SSRN Scholarly Paper ID 3627581, 12 June 2020)
Jurisdiction: India
Abstract: The outbreak of the novel coronavirus demanded the invokement of the epidemic diseases act to combat the crises and provide a legal substance in enforcing rules and regulations. In times of such despair, the Epidemic diseases act, an act legislated in the pre-constitutional era came to the rescue. This paper analyses the provisions of the act and pitfalls faced in light of new challenges and the need to reform the act by inserting new provisions to better capture the modern-day challenges. This paper also deals with the Epidemic Diseases (amendment) ordinance, 2020 which received the assent of the president on April 23rd, 2020 which provided for stricter punishments for attacks against health workers, increased compensation, to make the offences cognizable and non-bailable among other things. This article seeks to establish whether the act and in addition to the new amendment is sufficient to combat current and future crises of similar nature to the novel coronavirus.

Pandey, Poonam and Mario Pansera, ‘Learning Beyond Boundaries: Policy-Making in the Time of a Pandemic’ (SSRN Scholarly Paper ID 3581378, 20 April 2020)
Abstract: This commentary critically analyses the recent policy response to the COVID 19 crisis in India. By debunking the illusion of control through intelligent use of science and technology, we argue for the recognition of multiple vulnerabilities that are often excluded in narrow, elitist and top-down S&T based accounts. In order to device an apt response for the current outbreak we propose for democratic governance of science and technology, learning across disciplinary boundaries and knowledge communities and inclusive and empowered knowledge sharing mechanisms.

Pandžić, Marijeta Vitez and Jasmina Kovačević, ‘Regulatory Systems of Selected European Union Member States in Covid-19 Pandemic Management and Lessons for the Future’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 967–996
Abstract: The European Union (EU) actively responded to the pandemic and the consequences of the pandemic in different areas of human activity (health, economic, social, etc.) adopting a series of regulations, measures and guidelines in different fields. EU member states acted in accordance with EU regulations and within their own legal system and the management structures. The aim of this paper was to analyze ten selected EU member states and their regulatory responses in the approach to pandemic control in relation to the mortality rate per million inhabitants on January 15, 2021. The following hypothesis was set: The regulatory systems and management structures of selected EU member states in the framework of the management of the COVID-19 pandemic have been successfully set up and implemented and have contributed to the lower mortality rate per million inhabitants until January 15, 2021. Ten EU countries were selected for the study according to their mortality rate per million inhabitants on January 15, 2021. Besides Croatia (average mortality), research included three member states with high (Belgium, Slovenia, Czechia), three with average (Hungary, Austria, Slovakia) and three with low mortality rate per million inhabitants (Ireland, Denmark, Finland). All available data from EU and ten selected countries were collected and analysed: about legal framework for crisis management, regulatory powers, level of decentralization in the health care system and whether the timeline of the pandemic control criteria according to the Institute for Health Metrics and Evaluation (IHME) was adequately set. Data were analysed in Microsoft Office Excel. Given the obtained results, hypothesis can be considered only partially proven. The legal framework used by studied EU countries for adopting pandemic control measures was not consistently associated with morality rate in this research. All studied EU countries used legal framework that existed prior to the COVID-19 pandemic, four of them had states of emergency provided in the Constitution (Czechia, Hungary, Slovakia and Finland), four of them effectively declared statutory regimes (Slovenia, Hungary, Croatia, Slovakia), and Belgium adopted pandemic control measures using special legislative powers. Three studied countries (Austria, Denmark, Finland) had high level of decentralised decision making in health sector and lower COVID-19 mortality rate. In the first pandemic wave (start in March, 2020) all studied countries respected the timeline in adopting pandemic control measures according to the IHME criteria. In the second pandemic wave (start in October, 2020) only four countries (Czechia, Ireland, Denmark, Finland) respected the timeline in adopting pandemic control measures and three (Ireland, Denmark, Finland) were in low mortality group. Within the concluding considerations of the studied countries and in their pandemic management models, Finland and Denmark were recognised as the most successful with lowest COVID-19 mortality rates. Long tradition of Public Health, decentralized health care decision-making, high level of preparedness in crisis management and adequate timeline in implementation of the pandemic control measures led to lower mortality in COVID-19 pandemic. In the future EU could take even more active role within its legal powers and propose scientific based approach in crisis management to help countries implement measures to preserve lives of EU citizens.

Parker, Richard W, ‘Why America’s Response to the COVID-19 Pandemic Failed: Lessons from New Zealand’s Success’ (2021) 73(1) Administrative Law Review 77–103
Abstract: COVID-19 is the ultimate test of administrative law and governance, as every country faces the common challenge of saving lives from a virulent pandemic at a manageable cost to the economy. Polls show that 48 percent of Americans think that COVID-19 posed an essentially impossible test and that the US has performed as well as most other countries in meeting the pandemic challenge. This Essay refutes that misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate despite over $2 trillion in U.S. deficit spending. In fact, U.S. performance at the level of South Korea, Australia, New Zealand, or Japan in containing the pandemic would have saved over 300,000 American lives in 2020 alone. This Essay then offers a detailed comparison of the COVID-19 response of the Trump Administration to that of New Zealand, which mounted a truly successful response. While some observers have dismissed New Zealand’s success as an artifact of good luck -- or of its geographic situation as a small, rural, island state -- this Essay offers evidence to suggest that these distinctions are of marginal importance compared to a more crucial contrast: New Zealand followed the pandemic containment ‘playbook’ to the letter while in the United States the Trump Administration departed from that playbook at every turn. Moreover, New Zealand’s response was centrally planned and tightly managed while the U.S. response was incoherent and de-centralized. The evidence thus strongly suggests that the tragic disparity between America’s COVID-19 performance and New Zealand’s is primarily due -- not to geography or happenstance -- but to a stark contrast in the pandemic response strategy adopted by New Zealand’s Prime Minister Jacinda Ardern compared to that of President Trump. Leadership matters.

‘Parliament’ (2020) July Public Law 568–569
Jurisdiction: UK
Abstract: Notes significant Parliamentary developments, including key provisions of the Coronavirus Act 2020; the approval of a House of Commons motion to allow Parliamentary procedures to be conducted in a hybrid form due to the coronavirus pandemic; and the holding of the first virtual Prime Minister’s Question Time.

Parmet, Wendy E, ‘The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic’ (2021) San Diego Law Review (forthcoming)
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.

Parmet, Wendy E et al, ‘COVID-19: The Promise and Failure of Law in an Inequitable Nation’ (2021) 111(1) American Journal of Public Health 47–49

Parmet, Wendy E and Michael S Sinha, ‘Covid-19: The Law and Limits of Quarantine’ (2020) 382(15) New England Journal of Medicine e28
Extract from Introduction: As Covid-19 spreads around the globe, governments have imposed quarantines and travel bans on an unprecedented scale. China locked down whole cities, and Italy has imposed draconian restrictions throughout the country. In the United States, thousands of people have been subjected to legally enforceable quarantines or are in ‘self-quarantine.’ The federal government has also banned entry by non–U.S. nationals traveling from China, Iran, and most of Europe and is screening passengers returning from heavily affected countries. Still, the numbers of cases and deaths continue to rise. Quarantines and travel bans are often the first response against new infectious diseases. However, these old tools are usually of limited utility for highly transmissible diseases, and if imposed with too heavy a hand, or in too haphazard a manner, they can be counterproductive. With a virus such as SARS-CoV-2, they cannot provide a sufficient response. In public health practice, ‘quarantine’ refers to the separation of persons (or communities) who have been exposed to an infectious disease. ‘Isolation,’ in contrast, applies to the separation of persons who are known to be infected. In U.S. law, however, ‘quarantine’ often refers to both types of interventions, as well as to limits on travel. Isolation and quarantine can be voluntary or imposed by law.

Parpworth, Neil, ‘The Coronavirus Act 2020’ (2020) 170(7881) New Law Journal 7–9
Abstract: Outlines the emergency powers contained in the Coronavirus Act 2020 Sch.21. Considers the powers in relation to ‘potentially infectious persons’, including screening, assessment, and detention, the duration of the transmission control period, the right of appeal, and the responsibilities of adults in relation to children.

Pati, Umi Khaerah, ‘Indonesian Government Policy in Mitigating Economic Risks Due to the Impact of the Covid-19 Outbreak’ (2020) 1(4) Journal of Law and Legal Reform 577–590
Abstract: Covid-19 pandemic have a negative impact on economies globally, including in Indonesia. The disease is advancing at great speed since the first Indonesian patient was referred to the hospital due to confirmed covid-19 (26 February 2020) until on 15 June 2019 there have been 50,187 patients infected. Several government policies have been implemented by regarding the economic sector as a main concern to prevent the breaking of the Indonesian economic chain. To anticipate, March 31, 2020 Indonesian President signed Government Regulation No. 21 of 2020, which regulates the implementation of PSBB (Large-Scale Social Restrictions), yet economic growth in the first quarter of 2020 showed a declining performance at 2.97 percent on 17 April 2020. Bank Indonesia views the level of the Rupiah exchange rate as fundamentally ‘undervalued’. The objective of this paper is, therefore, to overview the negative impact of the covid-19 outbreak on the Indonesian economy and the policies implemented by the government to mitigate the economic risks. Moreover this article is a normative economic analysis on the basis of secondary data, this study found that Indonesia is facing up an economic domino effect of covid-19 and Bank of Indonesia (BI) has taken several steps by strengthens policy coordination with the government and other authorities to stabilize the rupiah exchange rate and mitigate the impact of Covid-19 risk on the domestic economy.

Paton, Calum, ‘World-Beating? Testing Britain’s Covid Response and Tracing the Explanation’ (2020) Health Economics, Policy and Law (advance article, published 19 August 2020)
Abstract: The UK, and England in particular, has suffered egregiously poor outcomes in managing the Covid-19 pandemic. This short perspective points to the explanation in terms of both current British politics and the public health policy inheritance. Boris Johnson’s Premiership was born in an opportunistic assertion of British exceptionalism, and Johnson’s initial, fate-tempting reaction to the novel Coronavirus set the UK on the wrong path. Furthermore, the gradual erosion of professionalism in (especially health) policy-making over almost four decades, and the hollowing-out of the health protection infrastructure, both facilitated and accentuated a toxic approach to managing Covid-19.

Patterson, Amy S and Emmanuel Balogun, ‘African Responses to COVID-19: The Reckoning of Agency?’ (2021) 64(1) African Studies Review 144–167
Abstract: Although the COVID-19 pandemic had claimed over one million lives globally by late 2020, Africa had avoided a massive outbreak. Patterson and Balogun analyze pandemic responses by the Africa Centres for Disease Control and Prevention and various states collaborating with civil society. They argue that responses display forms of agency rooted in contextually relevant expertise, pan-African solidarity, and lessons learned about health messaging and community mobilization from previous health crises. Yet collaboration has not always been harmonious, as actors have adopted various approaches in their interactions with global health institutions and civil society partnerships, and they have actively debated the use of traditional medicine as a COVID-19 treatment.

Pearce, Neil et al, ‘Accurate Statistics on COVID-19 Are Essential for Policy Guidance and Decisions’ (2020) 110(7) American Journal of Public Health 949–951
Abstract: Disease surveillance forms the basis for response to epidemics. COVID-19 provides a modern example of why the classic mantra of ‘person, place, and time’ remains crucial: epidemic control requires knowing trends in disease frequency in different subgroups and locations. We review key epidemiological concepts and discuss some of the preventable methodologic errors that have arisen in reporting on the COVID-19 crisis.

Penssel, Renate, 'Germany's Response to the COVID-19 Pandemic: A Review of the Main Legal Sources, Their Application and Legal Questions Deriving Therefrom' (2020) 7(1) Jus et Civitas: A Journal of Social and Legal Studies 1-12
Abstract: The Federal Republic of Germany and its Lander responded to the uncontrolled spread of COVID-19 in March 2020 by ordering the most severe encroachments on fundamental rights in their previous history (like the prohibition of all events and gatherings of people, the closure of community and recreational facilities, of gastronomy and most shops, partially even a general curfew). The debate about the legality of these measures lead to a parliamentary reversion of their legal basis, the general clause for measures to fight an infectious disease, included in the "Protection against Infection Act". This article examines how this general clause and other provisions in German law have been developed and applied during the course of the crisis in order to obtain control over the spread of COIVD-19. It reflects the conformity of these developments and application with the requirements of the German constitution (especially with the guarantee of fundamental rights, the rule of law and the requirement of democratic legitimation) and documents, how they have been reviewed by jurisdiction up to now.

Persad, Govind, ‘Tailoring Public Health Policies’ (2021) American Journal of Law and Medicine (forthcoming)
Abstract: In an effort to contain the spread of COVID-19, many states and countries have adopted public health restrictions on activities previously considered commonplace: crossing state borders, eating indoors, and gathering together. These policies often focus on specific activities or groups, rather than imposing the same limits across the board. In this Article, I consider the law and ethics of these policies, which I call tailored policies. In Part I, I identify two types of tailored policies: activity-based and group-based. Activity-based restrictions respond to differences in the risks and benefits of specific activities, such as walking outdoors and dining indoors. Group-based restrictions consider differences between groups with respect to risk and benefit: examples are policies that treat children or senior citizens differently, policies that require travelers to quarantine when traveling to a new destination, and policies that treat individuals differently based on whether they have COVID-19 symptoms, have tested positive for COVID-19, have previous COVID-19 infection, or have been vaccinated against COVID-19.In Part II, I consider the public health law grounding of tailored policies in the principles of ‘least restrictive means’ and ‘well-targeting.’ I also examine how courts have analyzed tailored policies that have been challenged on fundamental rights or equal protection grounds. I argue that fundamental rights analyses typically favor tailored policies, and that equal protection does not preclude the use of tailored policies even when imperfectly crafted. In Part III, I consider three critiques of tailored policies, centering on the claims that they produce inequity, cause harm, or unacceptably limit liberty. I argue that we must evaluate restrictions comparatively: the question is not whether tailored policies are perfectly equitable, perfectly prevent harm, or completely protect liberty, but whether they are better than untailored ones at realizing these goals in a pandemic. I also argue that evaluation must consider indirect harms and benefits as well as direct and apparent ones.

Pesutto, John, ‘New Strategy, New Voices: Time to Change Victoria’s Crisis Approach’ (Melbourne School of Government, University of Melbourne, Governing During Crises No Policy Brief No 5, 10 August 2020)
Key Points: This Policy Brief makes the following central points: (a) Daily appearances by a single political leader, with or without senior officials by that leader’s side, may be viewed as serving one of the cardinal principles of crisis management. However, we might consider whether the Victorian Premier’s strategy of appearing daily is working. (b) There is a risk that any head of government, who is always going to be understandably political, may not be able to sustain the unusually high levels of public faith – that we see at the beginning of many crises – for any extended period of time. (c) Ballooning COVID-19 cases raise issues about whether the Government is hearing internally from all the voices it should be heeding and whether other people need to be brought into the room.

Petrov, Jan, ‘The COVID-19 Emergency in the Age of Executive Aggrandizement: What Role for Legislative and Judicial Checks?’ (2020) 8(1–2) The Theory and Practice of Legislation 71–92
Abstract: Extraordinary limitation of certain fundamental rights seems necessary in fighting the COVID-19 pandemic. Many countries have declared a state of emergency for that purpose. Yet, there is also a risk of misusing the emergency for power grabbing, especially in the current era of executive aggrandizement, democratic decay and abusive populist constitutionalism. In this setting the legislative and judicial checks on the executive create a dilemma. Their standard operation in the state of emergency could control the executive, but might also impair its capacity to fight the pandemic effectively. This article therefore focuses on the desired role of the legislature and the judiciary in COVID-19 emergencies. Although many constitutions address emergencies, they are often vague and leave considerable room for the involved actors themselves to adjust their behaviour. This article asks how parliaments and courts should use this de facto room. I argue that they should show some deference to the executive, its level depending on the stage and severity of the crisis, but should not clear the field for governments. They must modify their activities but not suspend them. My main argument is that the deliberative and scrutiny functions of the legislature and the dispute-resolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness of emergency measures by improving conditions necessary for compliance. The legislature and courts can contribute to the higher feasibility and legitimacy of the emergency measures and thereby increase voluntary compliance, which is crucial for tackling the spread of the new coronavirus. The article illustrates these issues by way of the case study of the Czech Republic – a country experiencing its first nationwide state of emergency amid tendencies towards democratic decay and managerial populism.

Pierre, Jon, ‘Nudges against Pandemics: Sweden’s COVID-19 Containment Strategy in Perspective’ (2020) 39(3) Policy and Society 478–493
Abstract: Sweden’s strategy to contain the COVID-19 pandemic stands out internationally as more liberal in terms of not ordering a complete lockdown of society. Sweden kept its primary schools, daycare centers and industries largely open. The government financially supported furloughed workers and increased its support to regional and local governments delivering healthcare and elderly care. However, the death toll in Sweden which passed 4000 by late May 2020 stands in stark contrast to those of other, comparable countries, raising questions about the design of the strategy, and its appropriateness. The paper argues that key assumptions sustaining the strategy, for instance that symptom-free people do not carry, and cannot transmit the Coronavirus, or that local and regional government staff had the necessary training and equipment to tackle the pandemic, along with problems associated with coordinating a decentralized healthcare system, may explain the poor performance of the Swedish containment strategy.

Pila, Justine, ‘Covid-19 and Contact Tracing: A Study in Regulation by Technology’ (2020) 11(2) EJLT: European Journal of Law and Technology_
_Abstract: A common theme of regulatory responses to Covid-19 has been the use of technology: in attempts to map the virus and its transmission, relax lockdowns and restart economies, and search for a vaccine to end the pandemic, technologies have held centre stage. Using the example of contact tracing, this Comment considers the significance of states’ reliance on technologies to achieve their regulatory objectives and some of the issues it raises. While most of the discussion around contact tracing systems has focused on privacy and data protection, their use also has wider implications for individuals and communities, particularly in the case of mobile apps. These concern legality, moral responsibility and community, autonomy, and democracy, which even expansive conceptions of privacy and data protection may not fully accommodate.

Pinheiro, Victor Marcel, Marcelo Ilarraz and Melissa Terni Mestriner, ‘The Impacts of the COVID-19 Crisis on the Brazilian Legal System: A Report on the Functioning of the Branches of the Government and on the Legal Scrutiny of Their Activities’ (2020) 8(1–2) The Theory and Practice of Legislation 193–212
Abstract: The article aims to describe and examine the different responses to the current Covid-19 crisis taken by the top offices of political Branches in Brazil: federal executive, National Congress and the Supreme Court. The article will show that state-level officials took most public health actions in Brazil, what gave rise to a clash between the President and Governors about who has authority to decide about public health measures. The federal executive, so far, has been more concerned with the economic responses to the imminent mass unemployment and household crisis. The National Congress has adapted its deliberation operations moving to a ‘remote deliberation system’, with extremely short deadlines and not exclusively related to covid-19 issues. In practice, this has made almost daily debate and deliberation on both Chambers Floor possible about dozens of measures, which will be briefly described in the paper. Notwithstanding the unprecedented technological innovation, there is still room for improvement. The Brazilian Supreme Court has also taken important decisions in the current situation. The decisions restricted the federal executive authority to deal with the crisis: the Court ruled that Federal Law n° 13.979/2020 cannot restrain state and municipal authorities from adopting public health policies against the virus spreading; the federal executive cannot reduce the publicity of administrative acts during the crisis and it is prohibited from instructing or advertising the population against scientifically agreed measures as quarantines and shutdowns. This background shows that the responses to the coronavirus crisis in Brazil have been fragmented and institutionally disperse. One cannot point out a single, exclusive institution responsible for the public health responses to the current crisis in Brazil.

Popadić, Sofija Nikolić, Marko Milenković and Marta Sjeničić, ‘The Covid-19 Epidemic in Serbia: the Challenges of Finding an Appropriate Basis for Responding to a Health Crisis’ (2021) 14(2) Medicine, Law & Society 229–246
Abstract: The World Health Organization declared the Covid-19 pandemic on 11 March, 2020. Serbia declared a State of Emergency (SoE) on 15 March, just days after the country’s first official case, part of an unprecedented global wave of emergency responses, with states reacting differently to the threat of the virus. Decision makers in Serbia opted to declare a SoE, followed by a series of governmental decrees and ministerial orders. This paper examines the Serbian government’s initial response. The legislation in force in March 2020 is analysed to explore what possibilities and instruments could have been used, with particular focus on legislation regarding infectious diseases and disaster responses, which allowed for the declaration of an emergency situation, and the introduction of legitimate restrictions to fight the outbreak. The paper concludes that the full potential of all available measures and instruments was not exhausted, especially regarding legislation relating to an emergency situation.

Popelier, Patricia, ‘COVID-19 Legislation in Belgium at the Crossroads of a Political and a Health Crisis’ (2020) 8(1–2) The Theory and Practice of Legislation 131–153
Abstract: This paper discusses the corona virus crisis legislation in Belgium, against the background of a political crisis. It raises the questions how a minority government could find legitimacy to take drastic measures that impact upon fundamental rights and how the political crisis impacted the position of Parliament. This is examined from the viewpoint of input, throughput and output legitimacy, and with a comparison to the position of Parliament in Belgium during earlier crises and in the federated entities. The conclusions point to the increased importance of expert advice, an over-use of ministerial police powers, but also to a more important role for Parliament than what we could have expected under the reign of a majority government. While the political crisis did not hinder firm intervention in an initial phase, it is, however, problematic to deal with the effects of the crisis over the longer term.

Popelier, Patricia et al, ‘Health Crisis Measures and Standards for Fair Decision-Making: A Normative and Empirical-Based Account of the Interplay Between Science, Politics and Courts’ (2021) 12(3) European Journal of Risk Regulation 618–643
Abstract: This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. The paper explains how trust theory and procedural rationality review help to address concerns related to legitimacy and expertise. The paper argues that courts should distinguish between two stages. In the initial stage, fear as a driver for government support based on expertise justifies that the proportionality test is limited to the question of whether measures were based on virologist expert advice. In the next stage, people expect the government to take expert-informed decisions, but also require that the government takes into account societal needs. Procedural rationality review in this stage demands that courts examine whether the decision was based on an informed balance of rights and interests.

Porcher, Simon, ‘“Contagion”: The Determinants of Governments’ Public Health Responses to COVID-19 All around the World’ (SSRN Scholarly Paper ID 3581764, 21 April 2020)
Abstract: To respond to the COVID-19 outbreak, governments all around the world have implemented public health measures that have resulted in different policies to contain the spread of the virus and to support the economy. These measures include travel restrictions, bans on mass gatherings, school closures and domestic lockdowns, among others. This paper presents a unique dataset of governments’ responses to COVID-19. The dataset codes the policy interventions with their dates at the country level for more than 180 countries. To facilitate cross-country and cross-time comparisons, the paper builds on different measures to create an index of the rigidity of governments’ responses to COVID-19. The index shows that responses to the pandemic vary across countries and across time. The paper also investigates the determinants of governments’ public health responses by focusing on the timing of contamination, the health risk of the population and health quality.

Pospelova, Svetlana I, ‘Violation Liability in the Context of the Spread of COVID-19: Russian Experience’ (2020) 27(4) Journal of law and Medicine 877
Abstract: The article investigates the legal regime of restrictive measures introduced in Russia due to the COVID-19 pandemic and provides statistical data on the spread of the infection. It describes special administrative violations and criminal offences first introduced during the pandemic: violation of therapeutic and epidemiological rules, dissemination of false information, and failure to follow the procedures introduced during the high-alert regime. Judicial and investigative practice is analysed. The most frequent violations of the legislation establishing requirements and restrictions to organisations and individuals during the spread of the new coronavirus infection are identified and issues of classification and differentiation of administrative and criminal liability for violation of sanitary and epidemiological rules and dissemination of false information about COVID-19 are addressed. Judgments by the Russian Supreme Court ensuring a uniform approach to court cases in all Russian regions are analysed.

Pozen, David and Kim Lane Scheppele, ‘Executive Underreach, in Pandemics and Otherwise’ (2020) 114(4) American Journal of International Law 608-617 (link to unpublished version of article on SSRN)
Abstract: Legal scholars are familiar with the problem of executive overreach. Especially in emergencies, presidents and prime ministers may claim special powers that are then used to curb civil liberties, marginalize political opponents, and subvert the rule of law. Concerns about overreach have surfaced once again in the wake of COVID-19, as governments across the globe have taken extreme measures to tackle the virus.Yet in other countries, including the United States and Brazil, a very different and in some respects opposite problem has arisen, wherein the national executive’s efforts to control the pandemic have been disastrously insubstantial and insufficient. Because so many public law doctrines reflect fears of overreach, President Trump’s and President Bolsonaro’s responses to COVID-19 have left the legal community flat-footed. In this symposium essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which executive underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

Praet, Patrick, ‘Reflections on the COVID-19 Restrictions in Belgium and the Rule of Law’ (2021) 30 Juridica International 194–207
Abstract: The paper examines the legality and legitimacy of Belgium’s COVID-19-related restrictions in light of national and international guidelines. Its discussion proceeds from the most vital characteristic of any law-based state: the government being subject to standards of substantive and procedural legality, even during a pandemic. After this, the effect of the crisis on the Belgian Rechtsstaat is examined, with special emphasis on the functioning of the separation of powers and on the unprecedented predominance of the executive power, alongside the legal basis for the latter’s actions. The author concludes that the Belgian measures against the virus’s spread have failed to meet the cumulative requirements of the rule-of-law test. Discussion then turns to the possibly huge ramifications for some wider debates in the field of philosophy of law, both for classic topoi ( such as law and morality or utilitarianism) and for contemporary current debates such as constitutionalism, sovereignty, and juristocracy. In its concluding remarks, the paper raises issues of the unspoken social contract between the people and the state: will the restrictions amid the pandemic go down in history as a singular, unique event or, instead, as a step on the slippery slope toward permanent crisis management in the name of a new sanitary order?

Price, Anna and Louis Myers, ‘Federal, State, and Local Government Responses to COVID-19’ (Law Library of Congress Legal Report, November 2020)
Abstract: The United States has responded to the COVID-19 pandemic at all levels of government. Congress has enacted legislation and the President and the executive agencies have promulgated rules and regulations and taken other action to implement responses to COVID-19 to alleviate economic and societal impacts. State governments have acted in similar ways, enacting legislation and relying on their own state agencies to respond to the pandemic, often targeting specific situations that impact their populations. Although local governments have narrower jurisdictional authority than state or federal governments, they have been on the front lines, supporting first responders and municipally-funded programs. Examples of local government responses range from creating mask mandates and policies to administrating funding received from state and federal governments for pandemic response.

Priel, Dan, ‘COVID-19: Cost-Benefit Analysis and Politics’ (2021) 57(3) Osgoode Hall Law Journal 537–565
Abstract: The COVID-19 pandemic forced governments around the world to make tough political decisions about the cost of saving lives and the limits of doing so. One of the striking aspects of the debates over these necessary tradeoffs is the relatively little weight individual rights seemed to have carried in these discussions. At first, this might have seen the triumph of cost-benefit analysis (CBA); and in a sense, it was. However, the pandemic has also shown the limitations of CBA, especially in the face of severe uncertainty. This essay reviews some of the sources of uncertainty in the context of the pandemic and shows how, in the face of such uncertainty, different countries fall back onto their political commitments, which include concern for individual rights. I thus argue that rather than being in competition to CBA, political considerations (including concern for individual rights) end up being incorporated into an impressionistic calculation of costs and benefits of government action. I conclude by suggesting that this is where future discussion of the theoretical foundations of CBA should focus on.

Purnhagen, Kai P et al, ‘More Competencies than You Knew? The Web of Health Competence for European Union Action in Response to the COVID-19 Outbreak’ (2020) 11(2) European Journal of Risk Regulation Special Issue -‘Taming COVID-19 by Regulation’ 297-306
Abstract: The European Union (Union) response to COVID-19 has been viewed as underwhelming. Observers are puzzled as to why a threat that seems so similar in severity is evoking such a variety of responses from Union Member States. Further, there is widespread public criticism of the Union for apparently failing to support its own Member States where, for instance, China, Russia and Cuba have done so. By early April 2020, calls for the Union to undertake debt mutualisation – so-called ‘coronabonds’ – to help pay for recovery had grown stronger, threatening the Union’s very future. The spectrum of potential measures taken at the Union level is wide. Disaster response regulation regularly comprises risk assessment, advance planning and mitigation, concrete emergency measures and recovery. Our main focus in this short article is on concrete emergency measures, although we also touch on recovery.

Rączka, Piotr, ‘How Does COVID19 Affect the Laws of Poland?: A Review of Selected Aspects of Administrative Law and the Local Government System’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 97

Radović, Maja Lukić and Marija Vlajković, ‘How Firm are the Bonds that Tie the EU Together? EU Rule Of Law Conditionality Mechanism and the Next Generation EU Recovery Fund’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and comparative law issues and challenges series (ECLIC) 57–88
Abstract: The Covid-19 pandemic has generated a one-in-a-generation challenge upon the EU, consisting of immediate danger for life and health, savings and jobs of its citizens, as well as for the stability and proper functioning of political and legal systems of its Member States. The manner in which the EU as a whole reacted to such sudden and grave challenge is by no means indicative of its political and legal-constitutional substance, and, consequently, of its capacity to subsist in its present form or to develop further. The centrepiece of the Next Generation EU (NGEU) is the Recovery and Resilience Facility, which should help Member States address the economic and social impact of the COVID-19 pandemic. The establishment of the pandemic recovery fund may be regarded not only as an ad hoc measure, but also as a crucial milestone in the path to overcoming the disbalance between Union solidarity and national interests. However, the whole EU budget deal depended on the acceptance of the Rule of Law Mechanism by all Member States. In the first part, this paper will analyse the COVID-19 recovery fund compromise solution as it has been finally agreed. Firstly, we will try to determine the effectiveness of the conditionality mechanism, in the light of European Council Conclusions on the ‘interpretative declaration on the new Rule of Law Mechanism’ and its legal effects. Secondly, we will tackle the issue of the enforcement of the Rule of Law protection mechanism, having in mind the causal link that should be detected, between the protection of the financial interests of the EU, with the non-respect of the EU values enshrined in the Article 2 TEU, by particular Member State(s). Consequently, we will try to envisage the impact of the implementation of this conditionality mechanism, taking into consideration which Member States, and EU citizens, would be ‘hit’ hardest by it. In the second part of the paper an attempt shall be made to perceive the conditionality mechanism, tied to the recovery fund, from the perspective of the principle of solidarity. Ultimately, this paper will try to answer the following question: in view of the necessary shift of priorities and the need for urgent reaction to the COVID-19 crisis, is the common European answer, in view of the core values of the EU and the principle of solidarity, optimal, and above all, will it be effective?

Rahman Rafid, Raihan, ‘Parliaments during the Pandemic: A “Dual State” Explanation of Bangladesh Jatya Sangsad’ (2020) 18(1 & 2) Bangladesh Journal of Law 25–27
Abstract: This article seeks to theorise the Parliament of Bangladesh (Jatiya Sangsad)’s response to the COVID-19 pandemic in light of the normative traits of global parliamentary responses to the public health emergency. It is argued that while the pandemic has contributed to the executive aggrandizement in established and unstable democracies alike, it has irreversibly marginalised the legislatures in countries with ‘pre-existing conditions’ like democratic decay, elected authoritarianism etc. This article adopts the ‘Dual State’ thesis expounded by Csaba Győry and Nyasha Weinberg in relation to Hungary and uses it as a theoretical lens to look through the Bangladesh Parliament’s performance during the pandemic. It concludes that Bangladesh’s total neglect of parliament as an institution of relevance during the pandemic is relatable to the Hungarian or Georgian style ‘Dual State’ approach to the crisis and this might end up normalising a perpetual marginalisation of the Jatya Sangad as an institution of accountability.

Ram, Sumit Kumar and Didier Sornette, ‘Impact of Governmental Interventions on Epidemic Progression and Workplace Activity during the COVID-19 Outbreak’ (SSRN Scholarly Paper No ID 3619202, 3 June 2020)
Abstract: In the first quarter of 2020, the COVID-19 pandemic brought the world to a state of paralysis. During this period, humanity has seen by far the largest organized travel restrictions and unprecedented efforts and global coordination to contain the spread of the SARS-CoV-2 virus. Using large-scale human mobility and fine-grained epidemic incidence data, we develop a framework to understand and quantify the effectiveness of the interventions implemented by various countries to control epidemic growth. Our analysis reveals the importance of timing and implementation of strategic policy in controlling the epidemic. Through our analysis, we also unearth significant spatial diffusion of the epidemic before and during the lock-down measures in several countries, casting doubt on the effectiveness or on the implementation quality of the proposed Governmental policies.

Raphael, Cohen-Almagor, ‘Israel Facing COVID-19’ (2021) 6(1) Public Governance, Administration and Finances Law Review 7–17
Abstract: This paper considers Israel’s response to the challenges raised by the Covid-19 pandemic with a specific focus on the invoked public policies and the related political, economic and legal concerns. I first provide some background information. Then, I outline the keys for the initial success in confronting the coronavirus pandemic. Three factors contributed to the initial Israeli success, namely: the government’s swift and effective reaction to the pandemic; the close cooperation and coordination between the organisations that were mobilised to counter the pandemic, and the effective implementation of governmental policies. However, mistakes were made during the second wave of the pandemic.

Raposo, Vera Lucia, ‘Can China’s “Standard of Care” for COVID-19 Be Replicated in Europe?’ (2020) 46(7) Journal of Medical Ethics 451–454
Abstract: The Director-General of the WHO has suggested that China’s approach to the COVID-19 crisis could be the standard of care for global epidemics. However, as remarkable as the Chinese strategy might be, it cannot be replicated in other countries and certainly not in Europe. In Europe, there is a distribution of power between the European Union and its member states. In contrast, China’s political power is concentrated in the central government. This enables it to take immediate measures that affect the entire country, such as massive quarantines or closing borders. Moreover, the Chinese legal framework includes restrictions on privacy and other human rights that are unknown in Europe. In addition, China has the technological power to easily impose such restrictions. In most European countries, that would be science fiction. These conditions have enabled China to combat epidemics like no other country can. However, the WHO might have been overoptimistic. The Chinese standard of care for treating COVID-19 also raises problematic issues for human rights, and the real consequences of these actions remain to be seen.

Raposo, Vera Lucia, ‘Portugal: Fighting COVID-19 in the Edge of Europe’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 723–730
Extracts from Introduction: Portugal has been praised, amongst its European pairs and outside Europe, for its answer to the CoViD -19 pandemic. The key – or one of the keys – for the Portuguese (moderate) success was the timely declaration of the state of emergency, done in a moment in which the country was not yet in a real public health crisis.… Basically, a large set of acts have been issued, not all of them clear enough, making it difficult to assess the regime under the State of Emergency in Portugal. The decision to impose the state of emergency was very debated among Portuguese constitutionalists. Some argued that the Constitution does not provide legal grounds to impose compulsory isolation and compulsory quarantine, therefore, such measures could only be imposed under the state of emergency…The necessity to impose the state of emergency in Portugal had a very clear purpose: to provide legal grounds for the suspension of some individual rights and liberties, as required to deal with the pandemic.

Raposo, Vera Lúcia, ‘Quarantines: Between Precaution and Necessity. A Look at COVID-19’ [2021] Public Health Ethics (forthcoming)
Abstract: The events surrounding COVID-19, combined with the mandatory quarantines widely imposed in Asia and Europe since the virus outbreak, have reignited discussion of the balance between individual rights and liberties and public health during epidemics and pandemics. This article analyses this issue from the perspectives of precaution and necessity. There is a difficult relationship between these two seemingly opposite principles, both of which are frequently invoked in this domain. Although the precautionary principle (PP) encourages the use of quarantines, including mandatory quarantines, and associated restrictive measures, the principle of necessity (PN) puts a break on such measures. The COVID-19 pandemic reveals once again the different interrelations between these two principles. However, the alleged conflict between the PN and the PP is based on a superficial analysis. The relation between these two principles is far more complex, as this article will demonstrate.

Raposo, Vera Lucia, ‘The Struggle against the COVID-19 Pandemic in Macao’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 747
Extract from Introduction: Unlike the tragic scenarios experienced in other regions, Macao keeps the infection controlled given that the Macao government has adopted efficient and suitably targeted measures against the CoViD -19 pandemic. Contrary to other countries where a declaration of the state of emergency is required to take further action, namely, to provide a legal basis to suspend individual rights and guarantees, such a drastic measure was not necessary in Macao. In the aftermath of the SARS epidemic of 2002- 2004 Macao, created a proper legal framework to deal with health crisis, Law n. 2/2004 (Law on the Prevention, Control and Treatment of Communicable Disease). All measures taken to deal with the pandemic come in the form of decisions of the Chief Executive, the highest executive authority in Macao (therefore, they are administrative decisions), and are legally grounded in Law n. 2/2004.

Rashid, A, ‘Curbing the Spread of COVID-19 Pandemic Caused by SARSCoV -2: Considering Psychological, Socio-Legal and Ethical Implications on Preventive Measures in Cameroon’ (2020) 3(1) International Journal of Biology and Genetics 1–13
Extract from Introduction: Here, we are going to explore the psychological, socio-economic, and ethico-legal concerns of this pandemic, through its implementation of isolation, quarantine, social distancing, constant washing of hands with soap, use of hand sanitizers, staying and working from home, obligatory wearing of masks in public places and national lockdown. The implication of these measures on the life of the population in a low middle income country like Cameroon has been elucidated.

Ray, Debraj and S Subramanian, ‘India’s Lockdown: An Interim Report’ (SSRN Scholarly Paper ID 3615479, 1 May 2020)
Abstract: We provide an interim report on the Indian lockdown provoked by the covid-19 pandemic. The main topics — ranging from the philosophy of lockdown to the provision of relief measures — transcend the Indian case. A recurrent theme is the enormous visibility of covid-19 deaths worldwide, with Governments everywhere propelled to respect this visibility, developing countries perhaps even more so. In advanced economies, the cost of achieving this reduction in visible deaths is ‘merely’ a dramatic reduction in overall economic activity, coupled with far-reaching measures to compensate those who bear such losses. But for India, a developing country with great sectoral and occupational vulnerabilities, this dramatic reduction is more than economic: it means lives lost. These lost lives, through violence, starvation, indebtedness and extreme stress (both psychological and physiological) are invisible. It is this conjunction of visibility and invisibility that drives the Indian response. The lockdown meets all international standards so far; the relief package none.

Reinders Folmer, Chris et al, ‘Compliance in the 1.5 Meter Society: Longitudinal Analysis of Citizens’ Adherence to COVID-19 Mitigation Measures in a Representative Sample in the Netherlands in Early April, Early May, and Late May’ (Amsterdam Law School Research Paper No 2020–33, University of Amsterdam, 2020)
Abstract: In the month of May, the Netherlands moved out of the ‘intelligent lockdown’, and into the ‘1.5 meter society’, which aims to mitigate the COVID-19 pandemic by means of safe-distance measures. This paper assesses how Dutch citizens have complied with these social distancing measures. It analyses data from two surveys conducted in May (between 8-14 and between 22-26) among nationally representative samples (N = 984 and N = 1021). We find that a combination of factors explains social distancing compliance. On the one hand we see that people are more likely to comply if they have an intrinsic motivation to do so, when they have the capacity to comply, when they have good impulse control, when they think compliance is normal, and when they see a general duty to obey rules generally. The paper also assesses how compliance has changed over time, assessing changes in May as well as how these are different from compliance with lockdown measures in April. During this period, there has been a gradual decline in compliance that coincides with a decline in intrinsic motivations and capacity for compliance, and there has been an increase in opportunities to violate the measures. The paper assesses what these changes may mean for current and future success of COVID-19 mitigation measures.

Reinders Folmer, Chris et al, ‘Maintaining Compliance When the Virus Returns: Understanding Adherence to COVID-19 Social Distancing Measures in the Netherlands in July 2020’ (SSRN Scholarly Paper ID 3682546, 28 August 2020)
Abstract: After its relative lenient, ‘intelligent lockdown’ approach to the COVID-19 coronavirus, the Netherlands has continued its singular trajectory in combating the pandemic. The month of July introduced further relaxations to prior mitigation measures, but also saw a resurgence of infections. This working paper examines how these developments are reflected in Dutch citizens’ compliance with safe-distance measures during this period. Building on our previous surveys during the months of May and June, we report the findings of two additional survey waves collected in early (7-10) and late (21-23) July among nationally representative samples (N = 1064 and N = 1023, respectively). The results show that the decline in compliance that was observed from May to June seems to have halted. At the same time, important predictors of compliance – such as citizens’ capacity to comply, perceptions of the threat of the virus, and support for mitigation measures – have ceased to decrease, or are increasing. Taken together, these findings suggest that Dutch citizens’ compliance with mitigation measures may be on the rise again. However, our findings also suggest that social norms for compliance continue to be eroding, which may continue to dampen citizens’ tendency to comply.

Reinders Folmer, Chris et al, ‘Sustaining Compliance with COVID-19 Mitigation Measures? Understanding Distancing Behavior in the Netherlands during June 2020’ (SSRN Scholarly Paper ID 3682479, 28 August 2020)
Abstract: In the month of June, the Netherlands had continued its singular trajectory in combating the COVID-19 pandemic. After the transition from the ‘intelligent lockdown’ into the ‘1.5 meter society,’ the month of June heralded further relaxations of the prior mitigation measures. Building on our previous surveys during the month of May, this paper reports the findings of two additional survey waves collected in June (between 8-11 and between 22-26) among nationally representative samples (N = 1041 and N = 1033). The results show that the processes that sustained compliance during the month of May continued to be influential, especially citizens’ intrinsic motivation to comply, their capacity to do so, their impulse control, and social norms that sustained compliance. Furthermore, there were some indications that extrinsic reasons, such as the likelihood of punishment and the fairness of enforcement, may have become more influential in shaping compliance. A comparison to the findings from May revealed, however, that compliance was gradually declining in the Netherlands, as were the resources that sustain it.

Renda, Andrea, ‘Walking the Post-Pandemic Talk: How to Incorporate Resilience in Better Regulation Systems’ (European University Institute, Technical Report, STG Resilience Papers, 2021)
Abstract: The pandemic revealed at once the lack of preparedness of many governments, and the inadequacy of existing scientific advice mechanisms in times of emergency. Use of foresight techniques and meaningful scientific advice can help governments anticipate possible low-probability, high-impact events that could have a disruptive impact on the economy and society. However, these techniques should be fully embedded in the policy cycle. Policies should be stress-tested regularly to ensure that they remain relevant and able to withstand unforeseen shocks. The bottom-up nature of contemporary policy evaluation is, by design, incompatible with long-term objectives such as ensuring systemic resilience. Rather than cost-benefit analysis, a more suitable decision-making criterion in policy appraisal would be the adoption of multi-criteria analysis, under the condition that criteria adopted for decision-making incorporate resilience alongside other policy goals, such as sustainability.

Renda, Andrea and Rosa Castro, ‘Towards Stronger EU Governance of Health Threats after the COVID-19 Pandemic’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 273-282
Extract from Introduction: In this article, we argue that the pandemic was predictable, and yet the level of preparedness shown by countries around the world, including most advanced economies, was wildly insufficient. For what concerns the EU, more coordinated action would have been desirable and has also been sought by the European Commission; however, such attempts arrived too late, and were hampered by fragmented governance, as well as by the lack of an EU-wide risk and crisis management framework.

Renninger, Philipp, ‘“Federalism, Chinese Style”? Or: How to Contain COVID-19 Through a Central-Local Chess Game’ (SSRN Scholarly Paper ID 3848784, 14 May 2021) >
Abstract: China’s central-local relations are often characterized as ‘federalism, Chinese style.’ However, the People’s Republic legally and politically rejects federalism. Instead, central-level leaders have constructed a unitary and democratic centralist system – and yet at the same time demand public policy not to ‘cut with one knife’ but to treat ‘the whole country as a chess game.’Such chess-game tactics also prevail during the current COVID-19 pandemic. This particularly holds true for coronavirus crisis management in the pandemic’s first epicentre, Wuhan city. On China’s central-local ‘chess board,’ there are ‘chess pieces’ of the state and the Communist Party. They have been supplemented by newly created mixed party-state organs like Wuhan’s Headquarters for COVID-19 Prevention and Control. With these chess pieces, central-level leaders perform three different vertical-horizontal ‘chess moves.’ These chess moves control local units not through the channels of the state but through the conduits of the Communist Party. In contrast, local units are not held accountable toward the population. Therefore, Wuhan has been allowed (and even required) to encroach on myriad human rights of millions of individuals during several months. Hence, the WHO’s appraisal of China’s anti-federal COVID-19 management as a ‘model’ for public policy in these challenging times appears questionable.

Renninger, Philipp, ‘The “People’s Total War on Covid-19”: Urban Pandemic Management Through (Non-)Law in Wuhan, China’ (2020) 30(1) Washington International Law Journal 63–115
Abstract: Although COVID-19 was first detected in the People’s Republic of China, the pandemic now appears contained there. Western and Chinese media attribute this apparent success to the central level of the Chinese state and the Communist Party. However, this article reveals that local entities provided critical contributions to China’s COVID-19 management, particularly in the pandemic’s first epicenter: Wuhan city in Hubei province. Chinese cities like Wuhan can fight public health emergencies through legal and nonlegal instruments. Although Wuhan had prepared for possible pandemics, its existing plans, institutions, and warning systems initially failed against COVID-19. The city did not contain the viral outbreak beginning in November 2019. As a result, Wuhan officials were forced to use strict measures to manage the COVID-19 pandemic. From January 23, 2020, a lockdown cordoned off the city, and from February 10, a closed management of neighborhoods introduced a curfew-like shutdown. These two cordons sanitaires and other so-called normative documents were imposed by Wuhan’s own COVID-19 Headquarters, a municipal mixed party-state organ. Still, the central level must approve"or even directly command"all fundamental decisions of local COVID-19 management. The center controls local entities like Wuhan not through channels of the state but through the vertical and horizontal conduits of the Communist Party, treating ‘the whole country as a chess game.’ China’s ‘COVID-19 chess’ has proven itself an effective method of pandemic containment. However, this central-local ‘chess game’ yielded detrimental effects for many individuals within and outside Wuhan. The reason is that China’s central level, aiming at eliminating COVID-19 instead of merely flattening the curve, neither requires Wuhan to contain COVID-19 proportionately and balanced, nor allows individuals to challenge these containment measures in court. Therefore, without being held accountable, Wuhan could encroach on myriad rights and freedoms for millions of individuals for several months. And despite subsequent easing, China’s ‘people’s total war’ against COVID-19 continues"but its focus has shifted. The strictest containment measures now apply to foreign nationals and Chinese citizens returning from abroad, as China has drawn a third cordon sanitaire around its national borders.

Reyes, Eduardo, ‘Power Grab’ (2020) 117(14) Law Society’s Gazette 22–23
Abstract: Discusses some concerns about the Coronavirus Act 2020, with reference to the interpretation of police powers under the Act by some police forces and the potential for reduction of local authority’s obligations to provide care and support to vulnerable adults. Considers whether the Act was really necessary and if the Civil Contingencies Act 2004 would have sufficed.

Robertson, Christopher T et al, ‘Indemnifying Precaution: Economic Insights for Regulation of a Highly Infectious Disease’ (2020) 7(1) Journal of Law and the Biosciences lsaa032
Abstract: Economic insights are powerful for understanding the challenge of managing a highly infectious disease, such as COVID-19, through behavioral precautions including social distancing. One problem is a form of moral hazard, which arises when some individuals face less personal risk of harm or bear greater personal costs of taking precautions. Without legal intervention, some individuals will see socially risky behaviors as personally less costly than socially beneficial behaviors, a balance that makes those beneficial behaviors unsustainable. For insights, we review health insurance moral hazard, agricultural infectious disease policy, and deterrence theory, but find that classic enforcement strategies of punishing noncompliant people are stymied. One mechanism is for policymakers to indemnify individuals for losses associated with taking those socially desirable behaviors to reduce the spread. We develop a coherent approach for doing so, based on conditional cash payments and precommitments by citizens, which may also be reinforced by social norms.

Rocco, Philip, Daniel Béland and Alex Waddan, ‘Stuck in Neutral? Federalism, Policy Instruments, and Counter-Cyclical Responses to COVID-19 in the United States’ (SSRN Scholarly Paper ID 3615329, 27 May 2020)
Abstract: Federalism plays a foundational role in structuring public expectations about how the United States will respond to the COVID-19 pandemic, as both an unprecedented public-health crisis and an economic recession. As in prior crises, state governments are expected to be primary sites of governing authority, especially when it comes to immediate public-health needs, while it is assumed that the federal government will supply critical counter-cyclical measures to stabilize the economy and make up for major revenue shortfalls in the states. Yet there are reasons to believe that these expectations will not be fulfilled, especially when it comes to the critical juncture of the COVID-19 pandemic. Though the federal government has the capacity to engage in counter-cyclical spending to stabilize the economy, existing policy instruments vary in the extent to which they leverage that capacity. This leverage, we argue, depends on how decentralized policy arrangements affect the implementation of both discretionary emergency policies as well as automatic stabilization programs such as Unemployment Insurance, Medicaid, and the Supplemental Nutrition Assistance Program. Evidence on the US response to COVID-19 to date suggests the need for major revisions in the architecture of intergovernmental fiscal policy.

Rodriguez, Daniel B, ‘Road Wary: Mobility, Law, and the Problem of Escape’ (2021) Iowa Law Review (forthcoming)
Abstract: In this article, I consider how the phenomenon of individuals relocating for temporary periods, as has been the case during the COVID-19 crisis, raises interesting and significant issues for modern law and public policy. We should attend to what I call the problem of ‘escape’ through imaginative legal and policy solutions, even while accepting as inevitable the demand of Americans to fleeing for what they see as comparatively greener pastures.

van Rooij, Benjamin et al, ‘Compliance with COVID-19 Mitigation Measures in the United States’ (SSRN Scholarly Paper No ID 3582626, Social Science Research Network, 22 April 2020)
Abstract: The COVID-19 mitigation measures require a fundamental shift in human behavior. The present study assesses what factors influence Americans to comply with the stay at home and social distancing measures. It analyzes data from an online survey, conducted on April 3, 2020, of 570 participants from 35 states that have adopted such measures. The results show that while perceptual deterrence was not associated with compliance, people actually comply less when they fear the authorities. Further, two broad processes promote compliance. First, compliance depended on people’s capacity to obey the rules, opportunity to break the rules, and self-control. As such, compliance results from their own personal abilities and the context in which they live. Second, compliance depended on people’s intrinsic motivations, including substantive moral support and social norms. This paper discusses the implications of these findings for ensuring compliance to effectively mitigate the virus.

Rozell, Mark J and Clyde Wilcox, ‘Federalism in a Time of Plague: How Federal Systems Cope With Pandemic’ (2020) 50(6–7) The American Review of Public Administration 519–525
Abstract: This article compares and contrasts the responses of Australia, Canada, Germany, and the United States to the COVID-19 outbreak and spread. The pandemic has posed special challenges to these federal systems. Although federal systems typically have many advantages—they can adapt policies to local conditions, for example, and experiment with different solutions to problems—pandemics and people cross regional borders, and controlling contagion requires a great deal of national coordination and intergovernmental cooperation., The four federal systems vary in their relative distribution of powers between regional and national governments, in the way that health care is administered, and in the variation in policies across regions. We focus on the early responses to COVID-19, from January through early May 2020. Three of these countries—Australia, Canada, and Germany—have done well in the crisis. They have acted quickly, done extensive testing and contact tracing, and had a relatively uniform set of policies across the country. The United States, in contrast, has had a disastrous response, wasting months at the start of the virus outbreak, with limited testing, poor intergovernmental cooperation, and widely divergent policies across the states and even within some states. The article seeks to explain both the relative uniform responses of these three very different federal systems, and the sharply divergent response of the United States.

Rudnyeva, Oleksandra and Olena Prykhodko, ‘The State as a Guarantor of the Protection of the Rights of Individuals and Legal Entities in the Conditions of Coronavirus Crisis Of 2020’ (2020) 73(12 cz 2) Wiadomosci Lekarskie 2752–2757
Abstract:
Objective: The aim of the article is to stimulate discussions about the necessity to improve the legal regulations that guarantee a proper public health policy, as well as to determine the balance between the level of restrictions that may be imposed by State in order to protect both, the public interest of health and the economic development.
Materials and methods: National legislation of Ukraine, United Kingdom and France on public health and health policy, case law of these countries, including high court decisions were used for dialectical, comparative, synthetic and systemic analyses.
Conclusions: As the legality of government officials’ actions principle is a fundamental constitutional principle in most European countries, states must establish such legal provisions to avoid short-term and long-term conflicts when the rights of individuals and legal entities are being restricted. At the legislative level, it is necessary to adopt transparent rules to attract private funding to the health sector. Development of the e-health and telemedicine systems could be boosted through the use of public-private partnership tools.

Rosenbaum, Daniel B, ‘Towards Mission Creep: Fragmented Local Governance in the Face of Crisis’ (2020) 29(2) Journal of Affordable Housing 229–243
Abstract: In a world of broad legal mandates and narrow, intermittent funding streams, special purpose governments adapt as a means of institutional survival. An entity created to tackle specific problems may experience a subtle yet significant shift in mission over time—from an issue-centered mission (guided primarily by the problems identified in its enabling statutes) to an operations-centered mission (guided by the broad powers conferred in those same statutes). These shifts can have real ramifications for government administration. They can impede an entity’s ability to respond to crises, defend its foundational purpose, and promote and wield its institutional power.Framed against the backdrop of the COVID-19 pandemic and the widespread societal dislocations and housing challenges it has caused, this Essay makes an initial attempt to consider how mission creep may apply in the local governance context. Through three case studies drawn from the field of housing and community development, the Essay examines the causes and pitfalls of local mission creep and concludes by advocating for collaborative governance, institutional introspection, and performance audits as a way to combat them.

The Rule of Law and the Response to COVID-19’ (Proceedings of the Joint Conference of the Four Neighbouring Law Commissions, Jersey Law Commission, 3 July 2020)
Foreword: The COVID-19 pandemic has brought about challenges to governments globally as they have had to respond quickly to the public health emergency by adopting stringent measures to combat the spread of the virus. In the jurisdictions served by the four neighbouring Law Commissions, the responses of the respective governments have not been uniform and such differences cannot be attributed to the different levels of the spread of the virus only. The differences between these responses, at least partially, are also anchored in the diverse constitutional arrangements of the four jurisdictions. Moreover, the governments have at times struggled to balance their responses with the respect for fundamental rights and freedoms and respect for the rule of law. Striking the balance between the urgency of the responses required by a public health crisis and the rule of law is a challenge for every legitimate government. Achieving the balance not only protects human rights and safeguards institutions but may also help to support the measures required by the emergency by sustaining public trust in the institutions and in the legitimacy and necessity of the measures introduced. It is an issue that has been considered in both international instruments and national legal frameworks including the World Health Organization’s International Health Regulations; the International Covenant on Civil and Political Rights (ICCPR) and the Siracusa Principles; the UN 2030 Sustainable Development Agenda; and the Venice Commission Rule of Law Checklist. Ten principles to reconcile the immediate exigencies of a crisis with the long-term legitimacy offered by the rule of law may be derived from these sources: legality, necessity, proportionality, non-discrimination, time limits, non-derogable rights, international obligations, parliamentary scrutiny, effective remedy and transparency. Bodies engaged with law reform such as the Law Commissions attending this online Joint Annual Meeting of the four neighbouring Law Commissions have a role in supporting governments achieve the best outcomes. The meeting presented a timely opportunity to take stock of what measures had been introduced and to evaluate their compatibility with human rights and the rule of law. The discussion allowed examination too of the fundamental principles which should guide the governments across the jurisdictions as they embark upon the exit strategy from the adopted measures and consideration of the principles that should govern the action of the Governments in future should similar situations arise. Presentations were made by each of the Law Commissions for England and Wales, Ireland, Scotland and Jersey. The Law Commission of England and Wales gave an oral presentation about potential post-COVID law reform priorities and did not present a formal paper to the meeting. The papers prepared by or digests of the presentations from each of the Law Commissions of Ireland, Scotland and Jersey follow.

Rundle, Kristen, ‘Reassessing Contracting-out: Lessons from the Victorian Hotel Quaratine Inquiry’ (Melbourne School of Government, University of Melbourne, Governing During Crises No Policy Brief No 7, 21 September 2020)
Key Points: This Policy Brief makes the following central points: (a) The role of private security contractors in Victoria’s hotel quarantine system has been the subject of intense public interest ever since the connection between actions of the guards and Victoria’s ‘second wave’ of COVID-19 infections became apparent. (b) Despite extensive efforts to ascertain who made the decision to contract-out responsibility for maintaining the quarantine system to private security guards, and why, both points remain unclear as the COVID-19 Hotel Quarantine Inquiry progresses to its conclusion. (c) This Policy Brief sets out the sequence of events that led to this Inquiry and seeks to clarify the questions raised. It argues that we need to look beyond standard mechanisms of political accountability in order to address the structural problems posed by contracting-out highstakes government functions. (d) Specifically, we need to analyse more deeply the appropriateness of contracting-out in cases that carry serious consequences for public safety and security, and develop frameworks to achieve better decision-making on when, and whether, to contract out complex government functions. The failures in this case underscore that choices about who delivers such government functions, and how, matter to those directly affected by them.

Russell, David and Toby Graham, ‘Götterdämmerung’ (2020) 26(5) Trusts & Trustees 381–388
Abstract: The legal regime applicable in England is comprised in The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020…. The unfortunate reality, which will survive long after the COVID-19 virus is vanquished, is that we seem to have accepted, for the first time in history, that a Minister of the Crown can take decisions which destroy livelihoods and businesses, all without Parliamentary authority or the possibility of compensation. Nor is it clear that the measures which have been adopted have statistical support. There are no reliable figures as to the numbers affected (the so-called denominator) or even consistent standards as to numbers of deaths or serious infection (which may be affected by lack of rigorous analysis as to the actual cause of death). Alternative approaches in other countries (specifically Taiwan, Hong Kong, Singapore and South Korea) appear to have been spectacularly more successful than those currently in place in the USA or Europe, at far less cost. Even more moderate restrictions (as in Sweden) appear at the time of writing to be achieving similar results to the present more restrictive approaches so far discussed.

Saad-Filho, Alfredo and Alison J Ayers, ‘“A Ticking Time-Bomb”: The Global South in the Time of Coronavirus’ (2020) 85 Journal of Australian Political Economy 84
Abstract: At the time of writing, in May 2020, the spread of COVID-19 seems to have peaked in most Western countries; in contrast, the pandemic has been accelerating in the Global South, home to 75% of the world’s states and 85% of its population (TNI, 2020), with dramatic outcomes in Algeria, Brazil, Ecuador, India, Iran, Mexico, the Philippines, Turkey and elsewhere. This article offers a political economy overview of the coronavirus pandemic in the South. Our starting point is that COVID-19 met a world already gripped by overlapping differences, divisions and crises (Boffo ‘et al.’ 2018; Saad-Filho 2020), and these fragilities will intensify disproportionately the impact of the pandemic on the South. Yet, the Global South has not figured prominently in the booming literature (Davis 2020). Left debates have been similarly circumscribed, with attention focusing overwhelmingly on Europe and North America (Hanieh 2020). Our first thesis is that examination of the pandemic must be global, in order to capture its highly-differentiated and closely interrelated histories and dynamics.

‘SAAPA SA’s Response to Lockdown Regulations on Alcohol’ (2020) 113(5) Servamus Community-based Safety and Security Magazine 56
Abstract: The Southern African Alcohol Policy Alliance in South Africa (SAAPA SA) welcomed the COVID- 19 lockdown regulations announced by Minister of Police, Mr Bheki Cele on 25 March 2020 prohibiting the distribution and sale of liquor for the lockdown period. This prohibition certainly helped to address the concerns that SAAPA SA and its regional partners have been communicating with regard to the risks that the use of liquor poses for controlling COVID-19. This message, which has been echoed in posters circulated by government, has focused on two key issues.

Sabri, Ahmad Zaharuddin Sani Ahmad et al, ‘Movement Control Order on Legal and Social Aspects: Malaysian and Indonesian Government Initiatives During Covid-19’ (2020) 1(4) Journal of Law and Legal Reform 563–576
Abstract: The Covid-19 pandemic hit another grim milestone on as worldwide deaths from the disease exceeded 100,000. Many countries have enforced social distancing rules and even lockdowns in an effort to contain the spread of the virus. Malaysian Government, in almost daily bases proposed initiatives and efforts to uphold Malaysia social, economic and national stability. This article deliberates an analysis on social media sentiment index by topics mentions in Malaysian government. The Malaysian government Covid19 major initiative discuss within this article is the proposition to reopening selected business sectors during Movement Control Order (MCO). This analysis was conducted using Social Media Engagement Growth components such as likes, comments and shares. The social media platform mentions in this study include all mentions or discussion of the initiatives across all public social media, Facebook, Twitter, Instagram, Forums and blogs.

Saha, Atrayee and Eswarappa Kasi, ‘Pandemics and State Response: A Socio-Anthropological Analysis of West Bengal and Andhra Pradesh States’ (SSRN Scholarly Paper ID 3637771, 29 June 2020)
Abstract: Pandemics are not new neither to Indian society nor to global economy. The intensity of the spread of a pandemic and the number of people affected in a country and specific regions depend a lot on the measures of state control at the local and centre-level. State-civil society cooperation led by the Central government and the State governments play an important role in reducing the impact of a pandemic. With the help of evidences collected from previous studies and new reports and available data sets, an attempt has been made to understand the ways in which the state governments are working to control the spread of the pandemic. West Bengal and Andhra Pradesh have been taken up for the analysis because of their high density of population and almost similar infrastructural development and the problems faced during the spread of a pandemic. The state responses in these two states have been analysed and compared with other states which have equally managed to control the pandemic despite lack of infrastructural availability.

Samuels, Alec, ‘Coronavirus Act 2020: An Overview by a Lawyer Interested in Medico-Legal Matters’ (2020) 88(2) Medico-Legal Journal 86–89
Jurisdiction: UK
Abstract: The Act and the regulations. How long they might last. The suspension of the renewals. Enforcement and the role of the police. Protection of whistleblowers. The trial scene. The ultimate impact.

Sanchez-Graells, Albert, ‘COVID-19 PPE Extremely Urgent Procurement in England. A Cautionary Tale for an Overheating Public Governance’ (SSRN Scholarly Paper ID 3711526, 14 October 2020)
Abstract: In this short paper, I reflect on the case study of the procurement of personal protective equipment (PPE) for the English NHS during the first wave of the COVID-19 pandemic. I put forward two main claims. My first claim is that the UK Government not only was particularly ill-positioned to deal with the pandemic as a result of years of austerity and the institutional unsettling resulting from the continuous reform of the NHS, its internal market and its supply chain—but also due to the imminence of Brexit and its political ramifications. My second contribution is that, in its desperate reaction to the PPE fiasco, the UK Government misused and abused the disapplication of the standard procurement rules on the basis of the ‘extremely urgent need’ exemption. This resulted in the opaque award of large numbers of high value contracts to companies that would not survive basic screening under normal conditions. Overall, my goal is to lay bare the more general problems in the UK Government’s approach to the governance of public procurement and its increasing insularity as a result of Brexit, with the hope that this will show a path for change that could avert even more significant fiascos in the face of the massive challenges that climate change will bring.

Santos Rutschman, Ana, ‘Portugalʼs Response to COVID-19’ (SSRN Scholarly Paper ID 3640061, 1 July 2020)
Abstract: This essay for the Regulatory Review’s special series on Comparing Nations’ Responses to COVID-19 examines the early response to the pandemic in Portugal. The essay focuses on measures adopted in connection with the declarations of state of emergency and state of calamity, as well as the treatment of migrant populations throughout the pandemic.

Sarmanayev, Salavat Hamitovich et al, ‘Organizing the Interaction among Different Levels of Public Authority in the Russian Federation in the Context of Covid-19 Restrictions: Social-Legal Issues and Possible Solutions’ (2021) 7(Extra-D) Laplage em Revista 260–267
Abstract: The study aims to evaluate legal norms governing the interaction of public authorities in the Russian Federation in the context of the coronavirus pandemic (COVID-19) and the practice of organizing such interaction. Its implementation was studied with the help of analytical and statistical materials, as well as reviews of litigation practice. The authors of the article used the following methods: general philosophical and general and special scientific methods. As a result, they determined several problems that hinder the effective legal regulation of the interaction between public authorities during the COVID-19 pandemic. These are: mixing legal regimes that establish the rules of conduct and standard operating activities of citizens and organizations under the conditions of a pandemic disease; the federal government’s refusal to specify the scope of regional powers within the scope of protecting an individual’s rights and freedoms; the insufficient efficiency of Organs special agencies that protect the population against emergencies; the insufficient legal guarantees of Organs local self-government bodies in fulfilling their public functions.

Saunders, Cheryl, ‘A New Federalism? The Role and Future of the National Cabinet’ ( Melbourne School of Government, University of Melbourne, Governing during crises Policy Brief No 2, 1 July 2020)
Key Points: The Policy Brief makes the following central points: (a) The National Cabinet deserves considerable credit for the (so far) very effective response to the pandemic in Australia. The COVID-19 public health crisis could not have been effectively met without drawing on the powers, knowledge and capacities of both the Commonwealth and the States, achieving a balance between collective action and tailored responses. (b) On 29 May, the Prime Minister announced that the National Cabinet would be transformed into a permanent body, replacing the existing intergovernmental architecture under the Council of Australian Governments (COAG). (c) The published outline for the structure of the new arrangements, presenting the National Cabinet and the Council on Federal Financial Relations (CFFR) as the two principal components of a National Federation Reform Council, supported by two task forces, seven National Cabinet Reform Committees and a series of intergovernmental expert advisory groups, potentially presents a major shake-up of Australia’s intergovernmental machinery.

Savostin, AA, IA Admiralova and Ye V Kashkina, ‘Administrative and Legal Consequences of the Spread of Coronavirus Covid-19: The Russian and Foreign Aspects’ in Research Technologies of Pandemic Coronavirus Impact (RTCOV 2020) (Atlantis Press, 2020) 312–315
Abstract: The manuscript analyzes the administrative and legal consequences of the spread of a new coronavirus infection, both in the Russian Federation and abroad. After the detection of coronavirus infection, the leaders of the legislative bodies of many countries began to actively draft and adopt regulations aimed at preventing the spread of the new disease....

Scheinin, Martin, ‘Finland’s Success in Combating Covid-19: Mastery, Miracle or Mirage?’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook on Law and the COVID-19 Pandemic (Routledge, 2022, forthcoming)
Abstract: This paper addresses Finland’s relative success story in combating COVID-19. While Finland did not adopt a clear strategy of suppression, its numbers of cases and deaths have been remarkably low in European comparison. There are explanations for why the country’s ‘hybrid’ strategy has worked in curbing the epidemic without far-reaching restrictions upon human rights or a major blow to the economy. Geographical location, low population density and cultural factors of avoiding close proximity with others have mattered, but also societal choices. Finland has a modern comprehensive catalogue of constitutional rights, reflecting the principle of interdependence between all human rights and including a general positive obligations clause. During COVID-19 it sought to give equal attention to civil and political rights, economic, social and cultural rights, equality rights and the rule of law. This interdependence-based approach is a main explanation of why Finland’s response has, by and large, been human-rights-compatible. Finland provides examples of best practice in designing a framework for emergency powers and preserving the role of Parliament. Nevertheless, during COVID-19 the Emergency Powers Act, as well as the Communicable Diseases Act, have proved not fit for purpose and would require thorough revision to prepare for future pandemics.

Schmitter, Philippe, ‘Food for Thought about the Impact of the COVID-19 Virus upon the Institutions and Practices of “Real-Existing” Democracy’ (COVID-DEM Exclusive, 17 April 2020)
Abstract: Ab initio, what most has impressed me is the political ambiguity embedded in the COVID-19 crisis and, hence, the uncertainty of its outcome. The core of this ambiguity seems to me to lie in the radical distance between what it could and should do to ‘real-existing’ democracy (RED) in principle and what it is more likely to do in practice, i.e. between what might be done and what probably will be done in terms of public policy and institutional reform… One thing is indisputable (to me), namely, that RED – regardless of its many variants – will not remain the same. This is an affirmation based both on the history of the previous impact of such large-scale plagues upon pre-existing political regimes, and on the fact that contemporary REDs were already in a crisis of fundamentals before the virus appeared.

Schomaker, Rahel M and Michael W Bauer, ‘What Drives Successful Administrative Performance during Crises? Lessons from Refugee Migration and the Covid-19 Pandemic’ (2020) 80(5) Public Administration Review 845–850
Abstract: The Covid-19 pandemic affects societies worldwide, challenging not only health sectors but also public administration systems in general. Understanding why public administrations perform well in the current situation—and in times of crisis more generally—is theoretically of great importance, and identifying concrete factors driving successful administrative performance under today’s extraordinary circumstances could still improve current crisis responses. This article studies patterns of sound administrative performance with a focus on networks and knowledge management within and between crises. Subsequently, it draws on empirical evidence from two recent public administration surveys conducted in Germany in order to test derived hypotheses. The results of tests for group differences and regression analyses demonstrate that administrations that were structurally prepared, learned during preceding crises, and displayed a high quality in their network cooperation with other administrations and with the civil society, on average, performed significantly better in the respective crises. Evidence for Practice While practitioners often prefer centralized and hierarchical solutions in times of crisis, this study highlights the potential of reflexive and adaptive use of multiactor networks to cope with the extraordinary. Administrations that are prepared and that display a high quality in their network cooperation with other administrations and with civil society, on average, performed significantly better in their respective crises. Knowledge management and resource sharing—both among administrative units and with civil society—increase organizational ability to perform well in crisis situations. Administrations do best when lessons learned in crises are accessibly stored and when previously successful crisis networks can be quickly revitalized, thus allowing for intercrisis learning—documentation of best practices during crises—via smart or traditional forms of data storing and organizational memory keeping—further boost the performance of administrations during succeeding crises. In the early stages of a crisis, decision makers need to invest in organizational self-awareness of how challenges are mastered and how insights about optimal coping are best passed on.

Schwarz, Kirrily, ‘Who Is Making Our Laws?: The Separation of Powers in 2020’ (2020) 72 LSJ: Law Society of NSW Journal 40–43
Abstract: The COVID-19 pandemic response has shone a light on modern lawmaking. As Kirrily Schwarz reports, it’s raising questions about human rights, parliamentary spending, and public policy.

Seifter, Miriam, ‘Countermajoritarian Legislatures’ (2021) 121(6) Columbia Law Review 1733–1799
Abstract: State and federal courts routinely cast state legislatures in the role of democratic hero. Recent events illustrate: Some states have embraced the nondelegation doctrine, striking down governors’ pandemic responses based on the theory that those weighty choices belong to the legislature. During the 2020 election, federal judges invoked an ‘independent state legislature’ doctrine to question voting rights measures from state executive actors and courts. Democratic romanticism regarding state legislatures permeates public dialogue too. The legislature is often described as the true majoritarian branch, unlike ‘unelected bureaucrats,’ courts, local governments, and governors. But this rhetoric is not reality. As this Article explains, state legislatures are almost always a state’s least majoritarian branch. The combination of our districting scheme, geographic clustering, and extreme gerrymandering means that state legislatures are recurrently controlled by the state’s minority party. Indeed, this Article finds that minority-party rule has afflicted state legislative chambers hundreds of times in the modern era. In contrast, state governors and state courts are overwhelmingly chosen via simple statewide elections, with no electoral college or lifetime appointment. This reframing destabilizes conventional narratives about state government. It opens a host of broader inquiries about the extent to which state and federal courts should and do rely on majoritarian analysis, the appropriate relationships between the state branches, and the vertical distribution of power between states and local governments. Most immediately, this Article offers a series of course corrections that can bring prominent doctrines in line with state legislative reality.

Sekhri, Abhinav, ‘Learning to Live with Crisis Governance Long after the Coronavirus?’ (SSRN Scholarly Paper ID 3603202, Social Science Research Network, 17 May 2020)
Abstract: This paper demonstrates that the crisis governance model adopted in India, although arguably necessary for the time being, comes at a serious cost. The wholesale concentration of powers in the executive is antithetical to the fibres of democracy. Moreover, the legal basis of this investiture of powers is shorn of sufficient safeguards for oversight. To prevent lasting changes to the ‘normal’ forms of governance, it is imperative for government to relinquish these powers when no longer necessary. When might that occur in context of COVID-19 is the focus of this paper. I argue that India’s past experiences, the peculiar legal basis of the extraordinary powers used during the COVID-19 Pandemic, and the judicial abnegation of responsibility that has been on display thus far, all make it reasonable to assume that these powers are not going to be relinquished any time soon. Learning to live with the Coronavirus, then, might also force learning to live with the decrees of crisis governance.

Seppänen, Samuli, ‘Ideological Responses to the Coronavirus Pandemic: China and Its Other’ (2020) 16(1) University of Pennsylvania Asian Law Review 24
Abstract: This Article discusses the ongoing coronavirus pandemic as an instance of ideological contestation between the People’s Republic of China and its ideological Other—the ‘Western’ liberal democracies. Much of this ideological contestation highlights the idiosyncratic aspects of opposing ideological narratives. From the illiberal perspective, promoters of liberal narratives on governance and public health can be said to focus too much on procedural legitimacy and, consequently, appear to be ill-placed to acknowledge and respond to public health emergencies. Conversely, from the liberal perspective, advocates of illiberal narratives appear to be responding to a never-ending emergency and, consequently, seem unable to take full advantage of procedural legitimacy and rule-based governance in order to prevent public health emergencies from occurring. The coronavirus pandemic also exposes the aspirational qualities of both ideological narratives. On one hand, it appears aspirational to assume that the coronavirus response in liberal democratic countries can be based on the respect for individual freedom, human dignity, and other liberal first principles. On the other hand, the image of a strong, stable government projected by the CCP also seems to be based on aspirational notions about the coherence and resilience of the P.R.C.’s governance project. In the middle of the pandemic, it appears that the coronavirus follows no ideological script.

Serowaniec, Maciej and Zbigniew Witkowski, ‘Can Legislative Standards Be Subject to “Quarantine”? The Functioning of the Tablet Sejm in Poland in the COVID-19 Era’ (2020) 8(1–2) The Theory and Practice of Legislation 155–170
Abstract: Extraordinary circumstances, and the COVID-19 pandemic undoubtedly meets this criterion, require extraordinary solutions to be adopted, extending to the state decision-making process to prevent such crises from escalating. For this reason, the introduction of the possibility of holding a remote session of the Sejm seemed a reasonable move from an epidemiological point of view, but in practice, it proved to be a great challenge, not only from an organisational and technological point of view, but also in terms of ensuring respect for fundamental legislative principles. The aim of this article is to show how the current parliamentary majority has instrumentally played on the Parliament and the legislative process under the guise of fighting against the effects of the COVID-19 pandemic to gain makeshift political benefits, without any regard for the standards of law-making in a democratic rule of law state.

Sessa, Carmelina, ‘Coronavirus and Effects on the Rule of Law: How Fundamental Rights Live with Mass Surveillance Technologies in Democratic Systems – An Analysis of Europe and Italy in a Global View’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 47-56
Abstract: In the management of the Coronavirus Pandemic, law is called to play a synergistic role with the science to guarantee the public order and safety. In the European context Italy is to be examined, i.e. the first state in Europe to launch containment measures of the spread of the virus and to protect public health. Through a comparative approach, the purpose here is to examine the assumptions and the impact of the emergency legislation on the Italian democratic system. Evaluating within what limits fundamental human rights and freedoms’ compression can be legitimated on a national and international basis in exceptional events allow to analyse the relative reflections on the rule of law. Finally, the discussion focuses on the compatibility of using mass surveillance technologies on the International and European regulatory framework where balancing techniques and the principle of proportionality represent the core in framing the regulatory activity. Despite undoubted short-term benefits, the concern is to safeguard both the protection of personal data and health, in the face of this ‘invisible enemy’, considering that the link between emergency regulation and prolonged compression of rights in technological innovation requires special attention.

Shale, Itumeleng, ‘Implications of Lesotho’s COVID-19 Response Framework for the Rule of Law’ (2020) 20(2) African Human Rights Law Journal 462–483
Abstract: Lesotho’s COVID-19 response was proactive. A state of emergency was declared prior to confirmation of any positive case of the virus in the country. The approach was two-pronged in that, first, a state of emergency was declared under section 23 of the Constitution with effect from 18 March 2020 and, second, a disaster-induced state of emergency was declared in terms of sections 3 and 15 of the 1997 Disaster Management Act with effect from 29 April to 28 October 2020. An ad hoc body aimed at oversight of the response was also established, but was disbanded after four weeks and replaced with another similarly ad hoc body. On the basis of the three core principles of the rule of law, this article interrogates the repercussions of this approach on the principle of the rule of law, in particular, compliance with international human rights obligations contained in ICCPR, the African Charter as well as municipal laws, namely, the Constitution and the Disaster Management Act. It is argued that while Lesotho had to act swiftly in order to protect lives, in so acting the existing legal and institutional frameworks were ignored in violation of the rule of law principle. The article concludes by recommending that in order to avoid similar challenges in the future, the existing legal and institutional frameworks must be strengthened rather than replaced as such duplication of institutions depletes meagre resources and creates a platform for the misuse of public funds and corruption.

Sharma, Bhumika and Rajinder Verma, ‘Need for a New Legal Framework for Pandemic like Covid-19’ (2021) 11(1) Journal of Exclusion Studies 147-152

Shatkovskaya, Tatyana V et al, ‘Anti-Crisis Legal Regulation in the COVID-19 Conditions: The System of Restrictions or Creative Legal Impact’ (2020) 8(4) International Journal of Economics & Business Administration (IJEBA) 748–761
Abstract:
Purpose: The purpose of this study is to scientifically and critically comprehend the experience of European countries in overcoming the COVID-19 consequences and, on its basis, to construct an optimal model of modern anti-crisis legal regulation.
Design/Methodology/Approach: The authors constructed the anti-crisis legal regulation model and studied using the systematic scientific approach and the method of analysis and programming to reconstruct typical patterns of social relations, basing on knowledge about the regulation object and using legal tools and techniques. Through the methods of modeling and reconstruction the authors could develop and substantiate the anti-crisis model structure. In order to determine the national characteristics of the subject, the authors used the comparative legal method as well as statistical, system-structural and functional methods.
Findings: As a result of the study, the authors made the conclusions about the essence of the crisis impact caused by the COVID-19 on the mechanism of legal regulation, about the features and principles of anti-crisis legal regulation, in particular, its subject, method, goals and tasks, and means of legal influence. The authors determined the conditionality of the anti-crisis legal regulation model by the initial legal principle underlying it, and the national legal awareness features. The authors prove that total restrictions make the population to overstep law, thereby reduce the authority of the law and trust in the legal bodies, deform legal awareness, violate existing legal relations and relationships.
Practical Implications: The results of the study, based on a wide range of empirical data, are necessary for the development of state programs for the business normalization and the economy recovery, as well as for the formation of national strategies for anti-crisis legal regulation and guidelines, recommendations and clear procedures for the public emergency introduction. In particular, the authors proposed to use political and legal programming as a method of legal regulation in a crisis.
Originality/Value: The novelty of the article is to develop the structure, models and features of anti-crisis legal regulation in COVID-19 pandemic conditions on the analysis and generalization of the experience of some European countries. The study proves the low effectiveness of the restrictive anti-crisis model of legal regulation in comparison with the creative legal impact both in conditions of a crisis and in overcoming its negative consequences.

Shebaita, Maged, ‘COVID-19 and the State of Emergency in Egypt’ (SSRN Scholarly Paper ID 3597760, 10 May 2020)
Abstract: The nightmare of COVID-19 outbreak spread all over the world by the announcement of WHO on March 14th, 2020 that COVID-19 is a pandemic. The word PANDEMIC is not just an ephemeral word; it led to massive consequences in the legal field especially with regard to the governmental powers, not only in Egypt but also in other democratic countries. The overarching target of this research is to highlight the measures, espoused by the Egyptian government to confront COVID-19 and the constitutional restrictions over its power.Part 1: The State of Emergency and its Restrictions in the Egyptian LawPart 2: COVID-19 as a State of Emergency and the Governmental Measures Part 3: The Legal Restrictions on the Governmental Measures

Shiels, Robert, ‘The Instant Law of Coronavirus: Part 1’ (2020) 24 Scots Law Times 153–159
Abstract: Discusses criminal and civil case law arising from the coronavirus pandemic which has resulted in the enactment of instant legislation using emergency procedures.

Shih, Victor, ‘China’s Leninist Response to COVID-19: From Information Suppression to Total Mobilization’ (21st Century China Center Research Paper (forthcoming), 2021)
Abstract: Chinese party-state’s response to coronavirus outbreak has gone through two phases so far: the information suppression phase in the beginning of the crisis and the mobilization phase later aimed at containing the pandemic’s spread. The CCP achieved key objectives in both phases owing to the party-state’s hierarchical and authoritarian structure, the party’s ability to transcend state institutions, and the state’s ownership over vital economic resources. Beyond the party’s Leninist structure, the containment effort was helped by community parastatal organizations such as the neighborhood committees. This paper describes the institutions and processes that have helped CCP to achieve relative success so far in containing the coronavirus. It also points to its limits of China’s authoritarian response to public health crisis and to the plight of marginalized social groups like the migrants.

Shongwe, Musa Njabulo, ‘Eswatini’s Legislative Response to COVID-19: Whither Human Rights?’ (2020) 20(2) African Human Rights Law Journal 412–435
Abstract: Having been confronted with the COVID-19 pandemic, the Kingdom of Eswatini has had to adopt both soft and hard response measures. The constitutional emergency response framework had not envisaged the type of emergency brought about by COVID-19, forcing the state to enact extraordinary regulatory measures. Unprecedented emergency powers have been conferred on state functionaries. Questions have arisen as to the nature of these emergency powers, the manner in which these powers have been exercised and the absence of special oversight mechanisms. The response measures and regulations have had an unparalleled impact on lives and livelihoods of Emaswati. This article explores the nature of emergency powers in the laws of Eswatini, and the particular effects of the COVID-19 regulations on human rights. This article commences with an analysis of constitutional emergency powers in Eswatini and the limitations thereof, and considers the question of why the state did not invoke a constitutional state of emergency. The article proceeds to examine the nature of statutory emergency powers under the Disaster Management Act, and considers whether there are effective legal limitations on the exercise of executive authority and effective safeguards against the abuse of power. The article then deals with the particular impact of the COVID-19 response legal framework on human rights protection. In this regard, the article advances examples of situations where rights have been infringed. Finally, the article proposes that the state’s response measures should continuously endeavour to mitigate the long-term impact on human rights.

Shundovska, Marijana Opashinova, ‘Are Emergency Measures in Response to COVID-19 a Threat to Democracy? Fact and Fiction – The Case of North Macedonia’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 57–65
Abstract: The unprecedented outbreak and spread of the COVID-19 virus in the world and its grave consequences on human health, the economy and the everyday life forced national parliaments either to change its standard work mode or transfer their constitutional competences to the executive by declaring state of emergency. The detrimental effects of this unorthodox situation, especially on functioning of democracies, government branches’ division, economic disturbances and losses of jobs are yet to be determined and analyzed. Not expecting that the virus will reach pandemic proportions, the Macedonian parliament was dissolved for early parliamentary elections that ought to be carried out by a technical government, a commitment taken from the Przino Agreement in 2015. The state had faced a unique situation to get through the pandemic with a dissolved parliament and a technical government with limited competences. The constitutional vagueness regarding the work of the parliament in emergency situations and the duration of mandate of the parliamentarians allowing for different interpretation thereof, made the situation even more complicated than before. Consequently, the Government had to propose a proclamation of state of emergency for the first time since the independence, in order to be able to adopt legally binding regulations to manage the crisis. The State President proclaimed state of emergency on 18 March 2020 that had to be extended two more times, once for an additional 30 days and another for 8 days, in order to observe the electoral deadlines for the re-scheduled parliamentary elections. Some experts have strongly argued that the government with its hands untied in these challenging and de-parliamentarized times might abuse its competences by adopting regulations that have nothing to do with the state of emergency. This paper will reflect on the unique political and legislative processes in the state and its effects on the parliamentary democracy.

Shvetsova, Olga et al, ‘Constitutional and Institutional Structural Determinants of Policy Responsiveness to Protect Citizens from Existential Threats: Covid-19 and Beyond’ (Binghamton University, Working Paper Series No 4, 1 May 2020)
Abstract: A multitude of government forms and institutional variations have the same aims of serving their countries and citizens but vary in outcomes. What it means to best serve the citizens is, however, a matter of broad interpretation and so the disagreements persist. The ongoing COVID-19 pandemic creates new metrics for comparing government performance – the metrics of human deaths, or, alternatively and as we pursue it here, the metrics of the speed of government response in preventing human deaths through policy adoption. We argue in this essay that institutional and government systems with more authority redundancies are more likely to rapidly generate policy in response to crisis and find better policy solutions compared to centralized systems with minimal authority redundancies. This is due to a multiplicity of access points to policy making, which increase the chances of a policymaker crafting the ‘correct’ response to crisis, which can be replicated elsewhere. Furthermore, citizens in centralized and unitary governments must rely on national policymakers to get the correct response as subnational policymakers are highly constrained compared to their counterparts in decentralized systems. As policy authority is institutionally defined, these policy authority redundancies correspond to specific institutional and constitutional forms. In this paper, we provide a mathematical/formal model where we specifically analyze the contrast in the speed of policy response between more centralized and autocratic states versus democratic federations.

Shvetsova, Olga et al, ‘Policy Error and Policy Rescue in COVID-19 Responses in the United States and United Kingdom’ (Binghamton University, Citizenship, Rights, and Cultural Belonging, Working Papers Series No 103, April 2020)
Abstract: The ongoing COVID-19 pandemic represents an existential threat to societies around the world. There has been considerable variation in both rhetoric and policy responses among the many national governments. This piece explains how democratic institutions, in particular federalism, can impact the speed and degree of policy responses protecting citizens, even when national leaders share similar public rhetoric that is non-conducive to speedy policy response. Comparing the policies of United States and United Kingdom with the backdrop of their national leaders’ public stances, we argue that having multiple decision points due to the redundancy inherent in federalism increases the chances that a citizen will receive the “correct” policy, even when policy-makers at some levels of government put forth “wrong” policy responses. However, in unitary government, society must rely on the central leader to determine the “correct” policy as sub-national policy-makers are constrained by institutions in their ability to respond. That, due to inherent error probability, delays policy response.

Sibony, Anne-Lise, ‘The UK COVID-19 Response: A Behavioural Irony?’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 350-357
Abstract: The diversity of responses to the COVID-19 outbreak across countries both internationally and within the European Union (EU) is considerable and the lack of a coordinated response at the EU level is being criticised. Within this natural experiment involving different national policies, possibly the most strikingly distinct path is the one initially chosen by the UK and in which The Netherlands is persevering. Instead of trying to avoid contamination as much as possible though drastic measures such as early lockdown, the strategy is to encourage herd immunity. In the UK, this initial policy choice was presented as being based on both epidemiology and behavioural sciences. ‘Behavioural fatigue’, a little-known phrase not found in the most comprehensive textbook, suddenly rose to (probably short-lived) fame. The suggestion was that people would get tired of staying home so lockdown would be ineffective. In The Netherlands, the Prime Minister announced similarly relaxed rules about social distancing, and though he did not explicitly refer to any behavioural input, it is nonetheless highly likely that there was one.6 The initial moves of both of these governments met with scepticism and appeared shocking to many. The association between behavioural input in the policy decision and the decision to let the virus spread by refraining from ordering lockdown is unfortunate, but it is there. ‘How could a government rely merely on nudges in the face of grave danger?’ observers legitimately asked. While no government relies merely on nudges (even The Netherlands has ordered schools and bars to close), this particular episode in the unfolding worldwide coronavirus saga gives behaviourally minded analysts pause. It is worth considering the proper place of behavioural insights in the difficult policy choices at hand.

Sihombing, Eka NAM and Cynthia Hadita, ‘Administrative Measures Problems in Medan Mayor Regulation Number 11 of 2020 Concerning Health Quarantine in the Accelerated Handling of Covid-19’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 444–452
Abstract: Medan Mayor Regulation Number 11 of 2020 concerning Health Quarantine in the Context of Accelerating Handling of Corona Virus Disease 2019 (COVID-19) in Medan City, hereinafter referred to as Regulation of Mayor (Perwal) COVID. Based on the COVID-19 regulation, the Medan city government began to carry out mask raids in various crowded places, to several violators. The Civil Service Police Unit personnel immediately took administrative actions, one of which was the detention of electronic identity card (KTP-el). The purpose of this research is to unravel the problem whether the administrative measures contained in the COVID-19 regulation are in accordance with the general principles of good governance and higher legislation. The method used in this paper is normative juridical legal research, using an approach to legal principles and statutory regulations. The nature of the research used in this paper is prescriptive. The results showed that administrative action in the form of detention of KTP-el is formulated inaccurately. Such actions have the potential to cause members of the public to violate the provisions of other laws and regulations which result in the imposition of administrative fines based on the provisions of Article 63 (5) jo. Article 91 (1) of Law No. 23 of 2006 concerning Population Administration as amended by Law No. 24 of 2013.

Silva, Jameson Martins da and Deisy de Freitas Lima Ventura, ‘Between Science and Populism: The Brazilian Response to COVID-19 from the Perspective of the Legal Determinants of Global Health’ (2020) 17(2) Revista de Direito Internacional 67–83
Abstract: A populist government has been held accountable for the 120 thousand preventable deaths in Brazil so far, due to the Covid-19 pandemic. Domestic law has played a major role in the pandemic response, both as an opposing force and as an instrument of populism and denialism. The international legal sphere has, for its turn, provided an alternative of resistance against the latter. This piece assesses the Brazilian response in the light of the Legal Determinants of Health framework, put forward by The Lancet-O’Neill Institute of Georgetown University Commission on Global Health and Law. The two first sections unfold the origins and contents of the legal determinants of health. The third offers a brief account of the Brazilian experience during the pandemic, stressing the far-right populist agenda of the federal government. The last section explores the legal aspects of the response, in its domestic and international dimensions. Lastly, we pinpoint some preliminary conclusions we may draw from the pandemic experience thus far, in particular by the interplay of populism and global health law.

Silva, Michael Da, ‘COVID-19 and Health-Related Authority Allocation Puzzles’ (2021) 30(1) Cambridge Quarterly of Healthcare Ethics 25–36
Abstract: COVID-19-related controversies concerning the allocation of scarce resources, travel restrictions, and physical distancing norms each raise a foundational question: How should authority, and thus responsibility, over healthcare and public health law and policy be allocated? Each controversy raises principles that support claims by traditional wielders of authority in ‘federal’ countries, like federal and state governments, and less traditional entities, like cities and sub-state nations. No existing principle divides ‘healthcare and public law and policy’ into units that can be allocated in intuitively compelling ways. This leads to puzzles concerning (a) the principles for justifiably allocating ‘powers’ in these domains and (b) whether and how they change during ‘emergencies.’ This work motivates the puzzles, explains why resolving them should be part of long-term responses to COVID-19, and outlines some initial COVID-19-related findings that shed light on justifiable authority allocation, emergencies, emergency powers, and the relationships between them.

Silverman, Ross D, ‘Contact Tracing, Intrastate and Interstate Quarantine, and Isolation’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 34–39
Abstract: Contact tracing, quarantine, and isolation are core communicable disease control measures used by public health departments as part of a comprehensive case ascertainment and management strategy. These are practices with historic roots enabled by state laws and policies and have been used by other countries to slow and stop the spread of COVID-19. To date, their implementation as part of U.S. response efforts at the national, state, and local levels has been confounded by the scale of the COVID-19 outbreak; lack of a systemic infectious disease response; insufficient and fragmented funding streams; low levels of public accountability; and concerns about the impact of such efforts on individual privacy, liberty, and travel rights, as well as the financial and personal costs that may arise out of a positive diagnosis. Recommendations have been offered by expert groups on both the scaling up of contact tracing and ensuring ethical implementation of such measures. One state has passed legislation establishing an oversight framework for state contact tracing and associated data collection and use. Legal challenges to interstate quarantine rules have, thus far, been unsuccessful. Recommendations include: appropriating federal funding adequate to mount and sustain rapid, comprehensive, culturally-appropriate state and local testing, treatment, contact tracing, and supported quarantine and isolation service efforts; building contact tracing systems that cover social as well as health care supports for those affected; and, to bolster trust and participation in public health efforts, implementing contact tracing-related health communication efforts targeted to reach the diverse array of communities affected by the pandemic.

Simoni, Alessandro, ‘Limiting Freedom During the Covid-19 Emergency in Italy: Short Notes on the New “Populist Rule of Law”’ (2020) 20(3) Global Jurist (advance article, published 9 June 2020)
Abstract: The implications of the severe lockdown regime introduced in Italy in the context of the Covid-19 emergency can be correctly understood only through a broader look at how the text of the provisions adopted by the government is transformed by media reporting and law enforcement practice. From such a perspective, it appears clearly that we are witnessing nothing more than the most recent segment of a populist approach to the use of legal tools, the history of which starts well before the pandemic.

Skerratt-Williams, Sian, ‘COVID-19: The Welsh Perspective’ (2020) 2017 Estates Gazette 58
Abstract: Explains how and why certain responses to the coronavirus pandemic by the National Assembly for Wales differ from those adopted by the UK Parliament. Focuses on business and residential tenancies, health protection and business support measures.

Smit, Anneke, ‘State of Emergency: Decision-Making and Participatory Governance in Canadian Municipalities during COVID-19’ (University of Windsor, September 2020)
Abstract: Extract from Executive Summary: Against a backdrop of the provincial legislative frameworks enabling municipal states of emergency across the country, this study presents a scan of municipal decision-making practice during the early weeks of the 2020 pandemic. While responses were as varied as the underlying governance cultures of Canadian municipalities, some patterns emerged: the exercise of unilateral mayoral powers, the cancellation of council and committee meetings, and deep limitations on public participation in all levels of municipal decision-making. The study also highlights some encouraging signs, including some municipalities that managed to continue robust public consultation and participatory decision-making even at the beginning of the pandemic, and some new practices which will continue to improve municipal governance when the pandemic recedes. The study concludes with recommendations for reform of provincial state of emergency legislation as well as changes to municipal governance practice, to ensure that Canada’s local governments are better prepared for the next emergency — whether another wave of COVID-19 or something new.

Sobieraj, Janusz and Dominik Metelski, ‘Governments’ Responses to COVID-19 and the Implications of the Governance and Control of the Pandemic’ (SSRN Scholarly Paper No ID 3707251, 15 July 2020)
Abstract: National governments have their individual strategies to combat the COVID-19 pandemic which largely boil down to managing restrictive policies. In other words, individual governments introduce and lift appropriate restrictions depending on the development of the epidemic situation in their own countries. Therefore, throughout the entire duration of the COVID-19 epidemic, national governments choose restrictions and policies in relation to the scale of the problems arising, taking into account both medical and economic factors. Based on the Oxford COVID-19 Government Response Tracker (OxCGRT), covering the period from 1st January to 8th June of 2020 (160 days in total), we have developed a longitudinal data model that shows structural differences in crisis management at national level. Using an innovative index developed by Oxford University staff, which combines different measures of government reactions, we describe the difference in government reactions, showing how changing government responses affects the rate of new infections.

Sorabji, John and Steven Vaughan, ‘“This Is Not A Rule”: COVID-19 in England & Wales and Criminal Justice Governance via Guidance’ (2021) 12(1) European Journal of Risk Regulation 143-158
Abstract: Soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, with a long history of use. As such, its deployment per se as part of the regulatory response to COVID-19 in England & Wales is unremarkable. What is more striking, however, is the extent to which soft law was deployed, with over 400 pieces of ‘guidance and regulations’ created by the government in Whitehall, to say nothing of the other primary and secondary legislation passed to deal with the crisis. In this article, we do three things. First, we look at the place of soft law in administrative law in England & Wales. We then turn to the broad regulatory framework, including soft law, which governs the COVID-19 pandemic in our jurisdiction. This background then allows us, in the final part of this article, to take a deep dive into the criminal justice system. Here, we show how the senior judiciary predominately relied on soft law in the form of judicial guidance and protocols to manage the system. This was against the backdrop of targeted legislation that provided for an expansion of access to the criminal courts via video and audio links and also a limited number of Practice Directions that have the force of law. Our deep dive allows us to argue that the approach taken by the senior judiciary to the use of soft law during the COVID-19 pandemic has, in a number of ways, been more effective than that taken by the government. That being said there remains room for improvement, particularly as concerns the nature of the judicial guidance issued and clarity in terms of what guidance was in place and when.

Srinivasan, Raghavan, Anuj Kumar and Priyanka Chadha, ‘Comparison of Indian and New Zealand Leadership during COVID-19’ (2020) 12(4B) PIMT Journal of Research 20–23
Abstract: In this paper, the authors want to compare two different styles of leadership in different continents during COVID-19. In this article, the governance in the form of leadership of two leaders one from India and another from New Zealand have been compared to handle the situation of COVID-19. The authors are comparing two different governance based on leadership theories. This article suggests the even though the governance of New Zealand was in the hand of the female leader but she effectively controlled the COVID-19 pandemic. Indian government was facing too much of internal and border issues which diverted the attention to handle COVID-19.

Starodubov, Sergil, Viktoriia Vladyshevska and Maryna Pyzhova, ‘Liability for Violation of Quarantine: Novelties of Administrative and Criminal Legislation’ (2020) 9(2) Ius Humani Law Journal 137–158
Abstract: Public legislation has long failed to meet such large-scale challenges as the SARS-CoV-2 pandemic. In emergencies, to protect the lives and health of the population, it is necessary to promptly make decisions on the legal regulation of public relations that have developed due to the spread of Covid-19. For this purpose, the state has created legal mechanisms that are designed to ensure compliance with the rule of law and which need the scientific-legal assessment. The objective of the work is to analyze the novelties of administrative and criminal legislation, which regulate the liability for violation of quarantine. The object of research is the norms of administrative and criminal law. The subject of the study is public relations that have developed as a result of the introduction of quarantine and which are governed by administrative and criminal law. To achieve this goal, the situation in foreign countries was firstly analyzed; general patterns were identified; alternative solutions were proposed, with a minimum restriction of human rights and freedoms. Then, the novelties of the national legislation were studied in more detail; additional specific problems were identified; and a more balanced legislative policy was proposed. As a result of the study, the current state of legal regulation in the areas of administrative and criminal law related to quarantine violations was analyzed; the liability for such offenses was characterized; some conclusions regarding the existing related problems were made and options for their solution were proposed, as well as propositions for modernization of legislation were made.

Staunton, Ciara, Carmen Swanepoel and Melodie Labuschagine, ‘Between a Rock and a Hard Place: COVID-19 and South Africa’s Response’ 7(1) Journal of Law and the Biosciences Article lsaa052
Extract from Introduction: Considering the time it took to reach its borders, South Africa had time to prepare a COVID-19 response and draw on the importance of its community-informed response to other epidemics. However, despite the impact that these regulations were going to have on civil society, the lack of public deliberation and community engagement in developing these regulations is concerning. Furthermore, the criminalization of non-compliance with these public health measures seeks to undermine their aims, has the potential to increase stigma and discrimination of the disease, and fails to address the real issue: ensuring that the population has the means to comply with the regulations. Combined, these factors question whether South Africa has learned from its response to its HIV epidemic. In outlining the first month of South Africa’s COVID-19 response, this paper will critique the lack of engagement and the criminalization of non-compliance and discuss their potential impact.

Steen, Trui and Taco Brandsen, ‘Coproduction during and after the COVID-19 Pandemic: Will It Last?’ (2020) 80(5) Public Administration Review 851–855
Abstract: Coproduction is flourishing under COVID-19, but can we expect it to last? Most likely, in post-COVID-19 times, people and institutions will easily slip back into business as usual. This essay addresses the relevance of coproduction under COVID-19 and argues for the need for coproduction initiatives to persist well beyond the pandemic. The conditions that made coproduction emerge are likely to change as emergency regulations and funds are abandoned and the sense of urgency disappears. Areas of public life where there could be a more lasting effect are those where the basic conditions for successful coproduction are already in place and only a push was necessary for coproduction to take off. These conditions include basic commitment, complementarity, and supportive regulative frameworks, all of which can be sustained beyond the crisis with targeted choices and sufficient support.

Stefan, Oana Andreea, ‘The Future of European Union Soft Law: A Research and Policy Agenda for the Aftermath Of COVID-19’ (2020) 7 Journal of International and Comparative Law 329 [pre-published version of paper on SSRN]
Abstract: Following an analysis of selected COVID-19 emergency instruments, this paper shows that the current crisis increases the salience of both the advantages and the drawbacks of soft law instruments. It argues that now is a decisive moment for the future of the EU soft law, from the point of view of research, as well as of policy-making. It is necessary to use the opportunity offered by this crisis to clarify, without impairing flexibility, the processes through which soft law should be issued, as well as the potential effects that such instruments can have absent legally binding force.

Stephenson, Peta, Ian Freckelton and Belinda Bennett, ‘Public Health Emergencies in Australia’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Stern, Shai, ‘Pandemic Takings: Compensating for Public Health Emergency Regulation’ (Bar Ilan University Faculty of Law Research Paper No No 20-10, 24 June 2020)
Abstract: The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the ‘stay at home’ and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation.

Sulistiawati, Linda Yanti, ‘Indonesia’s Legal Framework in Combating Covid-19’ (National University of Singapore, NUS Law Working Paper No No 2020/021, 4 August 2020)
Abstract: This paper depicts the laws and regulations used by the Government of Indonesia in tackling the COVID-19 Pandemic. To combat COVID-19, the Indonesian government opted to act via the Contagious Diseases Law without having to enact the Emergency Situation Law. Moreover, the Government of Indonesia also utilized the Health Quaratine Law, established the COVID-19 Expediting Management Task Force, and Large-Scale Social Distancing. There are at least 4 different types of regulations and policies utilized by the Government of Indonesia during the COVID-19 Pandemic period: (1) General policies, eq.Large-scale social distancing, School closures, etc; (2) Policies toward COVID-19 patients, eq. Presidential Regulation on the development of observation and containment facilities in in Galang Island, Batam City, Riau Province in relation to COVID-19 or other infectious diseases; (3) Stay-home policy to prevent spread of COVID-19, enacted by Ministrial Offices; (4) Travel bans to prevent spread of COVID-19 within and outside Indonesia; (5) Softening the economic impact of COVID-19 eq.various regulation from the Central Banks, Industrial and Trade Ministry, and Financial Services Authority on exports, imports, international currency, Giro, regular banking, Syariah banking, stock exchange, etc, in relation to COVID-19; and (6) Financing the Management of COVID-19. The legal framework for combatting COVID-19 is already in place in Indonesia. There are many laws and regulations that are available, including the Constitution, presidential, governmental and ministerial regulations. However, overlaps and inconsistencies can be seen in some cases, and these make situation more dire for the people of Indonesia. These inconsistencies should be resolved quickly by the government.

Sullivan, Barry, ‘COVID-19 and American Democracy’ (2020) 66(102) Il Diritto dell’Economia 123–146
Abstract: This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell’economia on responses to the COVID-19 pandemic by governments around the world.

Sunstein, Cass R, ‘The Meaning of Masks’ (2020) 4(S - COVID-19 Special Issue) Journal of Behavioral Economics for Policy 5-8
Abstract: Many incentives are monetary, and when private or public institutions seek to change behavior, it is natural to change monetary incentives. But many other incentives are a product of social meanings, about which people may not much deliberate, but which can operate as subsidies or as taxes. In some times and places, for example the social meaning of smoking has been positive, increasing the incentive to smoke; in other times and places, it has been negative, and thus served to reduce smoking. With respect to safety and health, social meanings change radically over time, and they can be dramatically different in one place from what they are in another. Often people live in accordance with meanings that they deplore, or at least wish were otherwise. But it is exceptionally difficult for individuals to alter meanings on their own. Alteration of meanings can come from law, which may, through a mandate, transform the meaning of action into a bland, ‘I comply with law,’ or into a less bland, ‘I am a good citizen.’ Alteration of social meanings can also come from large-scale private action, engineered or promoted by ‘meaning entrepreneurs,’ who can turn the meaning of action from, ‘I am an oddball,’ to, ‘I do my civic duty,’ or, ‘I protect others from harm.’ Sometimes subgroups rebel against new or altered meanings, produced by law or meaning entrepreneurs, but often those meanings stick and produce significant change.

Susanto, Isma Novalia Firdha, Bayu Aji Satria and Sholahuddin Al-Fatih, ‘Government Legal Act Comparison between Indonesia and South Korea in Handling Covid-19 Pandemic’ (2021) 2(1) Indonesian Journal of Law and Policy Studies_
_Abstract: Coronavirus Disease of 2019 (COVID-19) with the official name of SARS-CoV-2 has been a serious emerging alert for countries around the world, which makes it a global outbreak of respiratory illness caused by a novel (new) coronavirus. Some countries did a remarkable job on flatten their COVID-19 case rate curve, the finest world reputation in handling this pandemic is given to the Republic of Korea or more known as South Korea which has amazed other world leaders wondering how Moon Jae-in, current President of South Korea, has successfully implied effective and accurate strategies in handling this world outbreak in South Korea. Asides from South Korea succeed, there are some countries who are fall way behind such as the Republic of Indonesia who is currently concerning not only in the medical sector, but the emerging economic sector is severely impacted which leaves us a solicitous feeling towards the future of our nation. In this case, a comparative study is needed to reflect on what has not yet done right. This paper discusses what sort of precise policy reconstructions should be adapted by the Indonesian government from the South Korean government’s effective strategy accuracy in handling COVID-19.

Tafani, Ismail, ‘Immunity of the Legal Order to COVID-19 Infection: The Response of the Albanian Legal Order to the Infection’ (2021) 9(1) Global Journal of Politics and Law Research 39–56
Abstract: The scope of this article is the analysis of the situation created by the Coronavirus which has been a risk to the health of the humans and at the same time has affected the legal systems in a country. In addition, this article will try to highlight likewise in the whole World, the same way the Albanian legal system is caught eminently unprepared to respond and protect ‘the right to health’ and consequently the management of the COVID-19 pandemic. The situation of the pandemic in addition of being a great test for the human immunity, seems to have done the same for the ‘immunity” of legal systems in general and the Albanian system, on which the study will be focused mainly. Although the legal system provided for exceptional measures to respond to the situation in a subtle way in respect to fundamental rights, the Albanian government in particular and governments around the World seem to have been disoriented and have lost the thread to react in a natural way in respect to the provisions of the legal order in response to the COVID-19 and respect for individual rights of health with dignity. This disorientation of the government actions towards the response to the situation seemed to be ineffective and contagious like the virus itself. The situation of COVID-19 infection has begun to be managed through the law that regulates infections and infectious diseases, adopting various secondary regulations in accordance with this law. Thus, in Albania, the Government has made legislative interventions through the decree laws, to tighten the administrative sanctions against people who did not respect the ‘lockdown’. This legislation was followed by the proclamation of the state of emergency throughout the Albanian territory. The state of emergency is foreseen in the Albanian, obviously taking into account the proportionality of the reaction to the danger. In this context, the article intends to make a detailed analysis considering some comparative aspects, and as regards the proportionality of the measures adopted by the Albanian government. It will be highlighted moreover the principle of proportionality in the state of emergency, the inclusion of the non-compliance with government instruction towards prevention of the spread of COVID-19 as criminal offences in a state of emergency as a guaranty for the right to health.

Tamburini, Francesco, ‘The COVID-19 Outbreak in North Africa: A Legal Analysis’ (2021) Journal of Asian and African Studies (advance article, published 13 January 2021)
Abstract: North African nations, especially Egypt, Algeria, and Morocco, have been heavily affected by COVID-19 if compared to other African countries. Governments in North Africa took proactive legal measures to manage the virus threat, safeguarding population health, but also triggering repressive and invasive mechanisms that in some cases jeopardized basic freedoms and rights. This work will analyze comparatively the anti-COVID-19 legislations, pointing out how the legislative measures mirrored the level of transition of democracy, the opacity of some regimes, exploitation of the pandemic to foster repressive control, and highlighting the weakness of new democratic institutions unprepared to balance health security and democracy.

Tamrin and Indah Adi Putri, ‘Politics of Law Policies for Adaptation of New Habits in Overcoming the Spread of Covid-19 in West Sumatera Province’ (International Conference on Social Science, Political Science, and Humanities (ICoSPOLHUM 2020), 2021) 85–92
Abstract: The Indonesian government is late in dealing with the spread of Covid-19, the government’s policy to issue Presidential Decree No. 12/2020 on April 14, 2020 concerning the Determination of the Covid 19 Non-Natural Disaster was carried out after the WHO’s warning regarding the readiness of the government on March 12, 2020. Economic considerations for the formulation of government policies were less responsive to public health protection guarantees, there was a strain on government interests between economic issues and interests community about health insurance issues. The West Sumatra Government made efforts to find a middle ground between economic interests and public health insurance by issuing a Regional Regulation on ‘Adaptation of Habits in the Prevention and Control of Corona Virus Disease 2019’ as the first regional regulation containing criminal sanctions against health regulations for the spread of Covid -19 in Indonesia, The Perda was passed on September 11, 2020, the formulation of this Perda is a form of application of more stringent sanctions imposed by administrative sanctions that have been implemented by the Governor Regulation (Pergub), Regent Regulation (Perbup)) and Mayor Regulations (Perwako). This study describes the form of policy arrangements in dealing with the spread of Covid-19 that has been carried out by the West Sumatra Regional Government. Through the use of qualitative methods and research using a phenomenological approach, it was found that policies to overcome the spread in West Sumatra Province proceed from the constitutional level, the level of policy and level of real action in society.

Tănăsescu, Camil, ‘Behavior during the Pandemic: A Problem of the Rule of Law’ (Proceedings, Zenodo, 2020) 108–112
Abstract: With the recession generated by the sudden appearance of the infectious agent Sars-COV-2, the whole world has amazingly, unusually, limited its economic and social activity. At the same time, this collapse represents an exogenous and symmetrical opposition to the systems of law, health, education, economy, finance, transport, protection and defense of fundamental rights and freedoms. The pandemic is a state of security, government and population to adhere or not to what was obvious: the virus is still alive and we are preferences. From here, we mean firm attitudes to comply with special provisions to help negative attitudes, such as to justify stray outings in groups, denial of dangers or amnesia on compliance with regulations. Throughout this article, we aim to review the consequences that the behavior of the individual or companies will support and translate into group-level behavior. It is understandable that this period is a crossroads and that, as soon as the phenomena return to normal, we will realize the behavior acquired during the COVID-19 pandemic, as well as how it affects the protected social relations protected by legal norms. Another coordinate proposed for debate and analysis is whether the state of the pandemic affects the social value of trust and what implications may have the distrust of individuals in the measures taken by state authorities, but also distrust of the authorities in citizens, and the repercussions on implementing new rules with character prohibitive. KEYWORDS: behavior, pandemic, Sars-COV-2, COVID-19, social relations, trust, fundamental rights and freedoms

Tang, Shui Yan and Brian An, ‘Responses to COVID-19 in China and the United States: How Governance Matters’ (2020) The National Interest (forthcoming)
Abstract: Emergency management necessarily requires collaboration across multiple layers and units of government. A country’s governance and intergovernmental system shapes its approaches to emergency management. This article focuses on two countries that have different governing systems—China and the United States. China’s administrative contracting system relies on vertical mechanisms such as hierarchical personnel control to hold local government officials accountable, thus creating incentives for delays in addressing crises when they first emerge. The United States’ polycentric system allows local officials, who are held accountable to local electorates, to sound alarms on emergencies early on. Yet the system may easily suffer from a lack of coordination across levels and units of government. A comparison between the two countries lays the foundations for comparing government responses to COVID-19 and other crises. It also illustrates the need to think about broader governance issues in preparation for large-scale crises in the future.

Taruvinga, Gwinyai Regis, ‘COVID-19 and Governance in Zimbabwe’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions)
Abstract: In this essay, I draw on the International Monetary Fund (IMF)’s definition of governance as being a ‘broad concept covering all aspects of the way a country is governed, including its economic policies and regulatory framework, as well as adherence to the rule of law.’ Zimbabwe’s polarized political culture is crucial to understanding its politics. This polarization has adversely affected Zimbabwe’s ability to deal with COVID-19. Thus, when Makamba succumbed to COVID-19, his family issued a strongly worded statement that spoke to the challenges that the family went through in trying to receive treatment. The family’s statement observed that a visit to a hospital in Zimbabwe would be tantamount to a death sentence.

Teichman, Doron and Kristen Underhill, ‘Infected by Bias: Behavioral Science and the Legal Response to COVID-19’ (SSRN Scholarly Paper ID 3691822, 13 September 2020)
Abstract: This Article presents the first comprehensive analysis of the contribution of behavioral science to the legal response to the COVID-19 pandemic. At the descriptive level, the Article shows how behavioral insights were incorporated into the political debate regarding the legal response to the pandemic, and it highlights the potential misuse of such insights by interested parties. The Article further considers how different psychological phenomena such as loss aversion and cultural cognition influenced the way policymakers and the public perceived the pandemic, and how these phenomena and other cognitive biases affected the design of laws and regulations responding to COVID-19. At the normative level, the Article compares nudges (i.e., choice-preserving, behaviorally informed tools that encourage people to behave as desired) and mandates (i.e., obligations backed by sanctions that dictate to people how they must behave), and it argues that mandates rather than nudges should serve in most cases as the primary legal tool used to promote risk reduction during a pandemic. The Article nonetheless highlights the role nudges can play as complements to mandates.

Terzyan, Aram, ‘Russia and Covid-19: Russian Adaptive Authoritarianism During the Pandemic’ (2021) 7(3) Journal of Liberty and International Affairs 345–355
Abstract: This paper explores Russia’s response to Covid-19, with a focus on its implications for political freedoms and human rights across the country. It investigates the relationship between the pandemic and reinforcing authoritarianism in Russia. This paper is an in-depth case analysis that uses policy analysis and process tracing to examine Russia’s response to Covid-19 and its effects on Russian domestic politics. The study concludes that the Russian authorities have considerably abused Covid-19-related restrictive measures, not least through curtailing the freedom of assembly and expression. In doing so the Russian authorities have conveniently shielded themselves from mass protests amid constitutional amendments and upcoming legislative elections. Nevertheless, while the authoritarian practices that the Kremlin resorted to during the pandemic are not much different from those of other authoritarian regimes, they proved insufficient in curbing anti-regime dissent. This study inquires into the political repercussions of crisis management in authoritarian regimes and concludes that their authoritarian reactions lead to further crackdowns on civil liberties and political freedoms.

Thaler, Jeff, ‘The Next Surges Are Here: What Can American Governments Lawfully Do In Response to the Ongoing COVID-19 Pandemic?’ (2021) 42(1) Mitchell Hamline Law Journal of Public Policy and Practice 165–221
Abstract: Extract from Introduction: Part I of this article addresses what needs to be done going forward by first looking at the current pandemic in the context of previous pandemics and epidemics, and best approaches to respond to them. Part II looks at what the federal government legally could do and cannot do to contain the spread of the virus. Part III then looks in detail at some of the legal opportunities and obstacles at the state and local levels to control the spread of COVID-19 in the United States by such means as social distancing, stay-at-home, travel restriction, and face covering orders. Arguments about the ‘right’ to interstate travel, the dormant commerce clause, and ‘rights’ to worship, dine or shop wherever and whenever one wants, are not new—in fact, one of the leading cases on point is over 100 years old, and arose out of a smallpox epidemic. Part IV concludes with suggestions for how, collectively, we can best exercise clear vision and foresight to reduce the human and economic toll from the pandemic.

Thaler, Jeff, ‘2020 Vision: What Can a Governor Do When the 2nd COVID-19 Surge Comes?’ (SSRN Scholarly Paper ID 3604706, 25 May 2020)
Jurisdiction: USA
Abstract: Memorial Day weekend, and the U.S. is about to exceed 100,000 deaths and 1.7 million confirmed cases from COVID-19--while more and more lawsuits are being filed challenging governmental restrictions on gathering or travel.This pandemic is not the first, nor will it be the last, pandemic or epidemic to ravage the world. This is the first essay to assess in detail our current pandemic in the context of previous ones, in terms of important medical, policy and legal trends and precedent. It is important to understand how past pandemic history should inform 2020 litigation and governmental responses, so that the mistakes of the past can be avoided. It also reviews current litigation decisions, primarily at the federal level. Additionally, the essay analyzes what the federal government could legally mandate to contain the spread of COVID-19, but more importantly focuses upon what a State Governor can do now or in anticipation of the likely new surges of COVID-cases and deaths-- in the context of case law focused upon such primary constitutional rights or liberties as the right to travel, the dormant commerce clause, and the right to gather (including, for churches, the Free Exercise Clause). The essay concludes that a State can best protect its residents’ health through properly-drafted regulations or executive orders, drawing on legal and medical precedent that will survive court challenges.

Thomas, Robert H, ‘Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority’ (2020) 43 University of Hawaii Law Review (forthcoming)
Abstract: Hawaii’s government has a long experience responding to public health emergencies. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices. The law’s first major test has been a dramatic one: the COVID-19 worldwide pandemic. Hawaii’s governor exercised his authority to issue a declaration of emergency, and later issued supplemental proclamations purporting to extend the termination date for the emergency. This article analyzes whether the statute’s internal limitation on delegated emergency power—the ‘automatic termination’ provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued—may be enforced by the courts. It argues that that the circumstances in which a court would sustain a challenge are limited, and that the primary remedy will be a political one. It should not be so, however, because Hawaii precedents confirm that the courts should enforce the essential separation of powers boundaries between the other branches. This article examines the prominent narrative threads that have emerged from Hawaii’s history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

Thomson,David K, ‘The Undiagnosed Long-Term Impact of Judicial Review on Emergency Public Health Orders’ (2021) 60(3) Judges’ Journal 6-9
Abstract: The article reports that emergency orders designed to control COVID-19 require courts to examine government authority to act in response to a crisis. Litigation on public health orders reveal important question surrounding separation of powers, lawful delegation of authority, and the judicial role in ensuring against encroachments by the co-equal branches of government into constitutional guarantees.

Thomson, Stephen and Eric C Ip, ‘COVID-19 Emergency Measures and the Impending Authoritarian Pandemic’ (2020) 7(1) Journal of Law and the Biosciences, Article lsaa064
Abstract: COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.

'The Threat of COVID-19’ (2020) 24(2) Jersey and Guernsey Law Review 131–139
Abstract: Reviews the range of emergency regulations enacted by Jersey and Guernsey in response to the coronavirus pandemic, including key features of measures concerning screening, education and day care, restrictions on movement, and residential tenancies.

Tillman, Seth Barrett, ‘COVID-19: Can the Oireachtas Legislate During the Pandemic?’ (2020) 38(7) Irish Law Times 94
Abstract: Seán Ó Fearghaíl, the Ceann Comhairle, has informed his colleagues, that in light of ‘a very serious constitutional problem,’ the Seanad will be unable to pass legislation after Sunday. He is supported by advice offered from the Attorney General and the Secretary General of the Department of the Taoiseach. The single argument which has been put forward in public in support of the Ceann Comhairle’s position is not entirely frivolous. It is the sort of argument beloved by legal academics giving final examinations based on fictitious fact patterns. Such arguments usually do not play prominent roles in the legal advice offered by officers of state, senior law officers, and highly placed civil servants during national and international emergencies. I respectfully suggest the Attorney General has erred, and the Ceann Comhairle erred in relying on such advice.

Tiwari, Ruchi, ‘An Empirical Research Study on COVID-19: A Cause for Replace Decrepit Epidemic Law’ (2020) 40(71) Studies in Indian Place Names 1534–1542
Abstract: Freshly, India has invoked various provisions of the Epidemic Diseases Act of 1897 to control communicable disease which is more or less turned into the most critical one globally. Coming up of COVID-19 has opened the debate for the new legislation or to clear the pending bill The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill, 2017 or to come up with special legislationnamed The Epidemic Bill, 2020. Here, the public health should be the concern in present condition of the society. Objective To respond to Epidemic situation for dissemination of lessons learnt from present crisis across the country that has begun with the strong need of legislation which can repeal the Epidemic Act,1897.

Tobyn, Graeme William, ‘How England First Managed a National Infection Crisis: The Plague Orders of 1578’ (SSRN Scholarly Paper ID 3608582, 4 June 2020)
Abstract: The current Covid-19 pandemic and lockdown in the UK have parallels with the first ever national management of epidemic infection in England, the Plague Orders of 1578. Combining historical research of the Tudor and Stuart periods with information sources and broadcast news as the epidemic in England unfolds in real time during lockdown, the areas of official guidance, epidemiology, social distancing and quarantine, financing measures, the national health service, fake news and burial of the dead are compared. Then as now, social distancing and quarantine measures were applied for the sake of preserving life, loss of livelihood ameliorated by government loans and dangerous opinions suppressed, the flight to second homes by the rich observed and health inequities uncovered. Taxation of the wealthiest in a parish to pay for measures and promotion of home remedies and over-the-counter preparations are among the differences of the early modern period. Wholly unprecedented in comparison with the past is the quarantining of the whole society and the financial package for workers on furlough to avoid mass unemployment. In the new, less polluted normal after lockdown, people should be given more credit for sophisticated understanding than was allowed in past centuries when fear and punishment coerced the majority to conform and share in decisions about national and community life.

Toth Jr., Robert J, ‘Revisiting Jacobson v. Massachusetts: The Covid Cases’ (2021) 54(4) Creighton Law Review 559–604
Abstract: How should the political branches of state and local governments cooperate with one another to promulgate emergency public health legislation? And how much deference should the judiciary allocate state executives and legislatures when reviewing such legislation? This Note proposes a local application of the War Powers Resolution’s ‘sliding scale of deference’ in an effort to strike a constitutional balance between state executives and state legislatures. A local application of this fluid system of checks and balances would protect against unnecessarily burdening emergency executive orders by allowing state legislatures to recalibrate hurried emergency orders. Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive orders. This process extends an additional layer of security to public health and fundamental rights in light of a declared emergency. In sum, granting state legislatures more deference in redressing emergency public health orders and mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to public health and fundamental rights during declared emergencies.

Trabucco, Fabio Ratto, ‘The COVID-19 Post-Lockdown Italian Scenario from an Eco-Socio-Legal Perspective’ (2020) 3(25) Białostockie Studia Prawnicze 99–116
Abstract: This paper offers an analysis of the possible COVID-19 post-lockdown effects on the powerful factors that constitute the Italian national interest. The interdisciplinary perspective, being at the base of this study, considers a scenario characterized by three factors: time, budgetary policy, and communication. Since the social post-lockdown crisis began, Italy has been facing a problem of social justice in terms of participation, which is absent for now, especially in the political framework. The policy proposals should take account of unpopular decisions, whereas from a legal and geopolitical perspective it is necessary to have a more defined foreign policy, a clearer Italian positioning concerning international alliances with national interest as a reference point.

Trein, Philipp, ‘Authoritarian Rule and Liberal Democracy in Times of Crisis’ (SSRN Scholarly Paper ID 3625523, 12 June 2020)
Abstract: In this paper, I analyze two research questions. Firstly, I assess if countries with a past of autocratic government are more likely to impose harsher lock-down measures during the COVID-19 pandemic. In using multilevel regression models, I show that countries with an authoritarian past tend to impose more restrictions on citizens’ individual freedom compared to countries with a democratic past. I explain this finding with a transference of policy practices over time. Secondly, I explore whether anti-pandemic policies result in democratic backsliding. I compare the development of democracy before and after the ‘“Spanish Flu”’ of 1918-1920 with interrupted time series models. My findings suggest that this pandemic did not change the trend of democratic decline at the time.

Trijono, Rachmat et al, ‘A Regulatory Model to Fight Covid-19 Plague Attack’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 410–417
Abstract: Regulations to fight plague attacks can be identified to have specific characters. This character forms a specific model. The regulations for dealing with plague are numerous. Specifics character of the regulations for fighting the plague attack is first, all of the regulations were directed to fight the plague. Second, it is made quickly. Third, it is made to complete the emptiness of plague regulation. This research is important to do to find a model for preventing the spread of the Covid-19 plague. The research question is how the ‘regulatory model for fighting plague’? The regulations for dealing with plague describing as a ‘plague regulatory model’ is the theory as a result of this research. The regulatory model found in this study is obtained in the form of the ‘tree regulation model’. The 1945 Constitution is the root of the regulation tree. Law Number 4 of 1984 is the basic law as stem regulation. Law Number 6 of 2018 and Law Number 2 of 2020 as the bough regulation, and then another form of regulation as the small-branch regulation. The leaf is the content of the regulation. This research used a qualitative method, with a grounded approach, which is based on document data in the form of statutory regulations. The result of this research is the ‘tree-regulation model’. This model is the form of a regulatory model for fighting the plague attack. The purpose of this model is to eliminate disease outbreaks, especially at this time the Covid-19 outbreak, while the benefit of this model is to be used in creating new laws against disease outbreaks quickly, not only covid-19 but also other disease outbreaks, such as diarrhea, smallpox. Research suggests is the ‘tree-regulation model’ can be used as a hypothesis for other researchers to verify.

Tsevas, Stelios, ‘Greece: Seeking Balance in Times of Emergency’ (2020) 15(4) European Procurement & Public Private Partnership Law Review 307–309
Abstract: In my first report on Greece’s public procurement system, I identify three categories of notable developments: the first one (I.) By the force of these acts, which are to be ratified by the Parliament within a 3-month-period, the Government introduced wide derogations from 2014 Directives in order to facilitate the purchase of sanitary material and equipment by public authorities. Thus, Article 17(2) of that law provided for a special awarding procedure available for every public authority, public body, public company and utility being involved in the operation of Migrant Reception Centres.

Tsourdi, Evangelia (Lilian) and Niovi Vavoula, ‘Killing Me Softly? Scrutinising the Role of Soft Law in Greece’s Response to COVID-19’ (2021) 12(1) European Journal of Risk Regulation 59-76
Abstract: Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we provide a holistic and nuanced assessment of Greece’s regulatory response to COVID-19, focusing on the role of soft regulation. Through the vehicle of ‘acts of legislative content’, which can be broadly conceptualised as softly-adopted hard law, the Greek government largely achieved the goals of flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was rather limited, at least if judged by its overall volume, and it complemented hard law rather than constituting the primary basis of COVID-19 restrictions. Soft law adopted in the area of restrictions to freedom of movement illustrates this. The role of soft law was not, however, completely negligible. Soft law instruments regulated the processing of personal data, directly impacting the rights to privacy and data protection. Soft law was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Our analysis reveals that Greece’s success in handling the first wave of the pandemic, while effective, was not beyond reproach. The greatest victims were asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement arguably unjustifiably restricted when limitations were lifted for the rest of the population. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and are in full respect of their fundamental rights.

Tsuji, Yuichiro, ‘Japanese Government Actions Against Covid-19 Under the Directives of Constitutional and Administrative Law’ (2020) 4(1) Cardozo International & Comparative Law Review 1–34
Abstract: This paper further elucidates the actions of the Japanese government against COVID-19 during the first five months of 2020. On May 25, 2020, the government lifted the emergency declaration passed under the amended Art. 49(2) of the amended Influenza Special Measures Act (ISMA). This paper argues that the effects of the Japanese government action is not unique, but is instead similar to those of other countries. In 2012, the Japanese government had passed ISMA against severe acute respiratory syndrome (SARS), not COVID-19. The Government hesitated to use ISMA against COVID-19 for political reasons. The government opened advisory boards and chose a policy judgment If a delay in governmental actions led to an increase in the number of serious patients, the governmental inaction was subjected to the State Redress Act and the people of Japan could, through the election process, change the government in the next election. The emergence of COVID-19 has compelled Japanese scholars to question the validity of legal principles. Outside of Japan, the New York Times argues that the Japanese constitution should be amended to cope with such an emergency. This paper is vigilant of the governmental interventions that are carried out in the name of emergency and keeps legal principle under the rule of law. An emergency does not allow us to ignore the law; nor does it put the administration above the law. If the emergency is predicted, we can prepare and prevent resulting distress with the use of law. If an emergency occurs, we can mitigate damages and recover by interpreting or amending the existing statutes. The lessons from the actions undertaken by the Japanese government should be shared with other countries that have democratic constitutions. When we start a constitutional and administrative law analysis, the legal and political responsibilities should be distinguished.

Tushnet, Mark, ‘The Fundamental Attribution Error as Applied to Governance and the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3858272, 2 June 2021)
Abstract: Something akin to what social psychologists call the ‘fundamental attribution error’ underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated. This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the ‘novel’ coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it ‘merely’ a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad. The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.

Tyagi, Deepika, ‘Isolation, Quarantine and Law: An Overview during Covid-19 Crisis’ (2020) 14(1) IME Journal 81
Abstract: Quarantine, Isolation and law, all three components working together since the emergence of COVID-19 pandemic. It is highly contagious disease spreads worldwide. To take a strictest action becoming mandatory and necessarily for every nation by keeping in view it’s alarming rapidly spreading situation. As this COVID-19, first highlighted in china wet market located at wuhan. It spreads from human to human and as travelers are more prone to hit by pandemic and potentially spread to others by becoming infected by it. So many countries first ban travelling and movement of people from one place to another. Those having recent travelling history need to be to put in isolation if found with any of symptom and their family members or dear ones with whom they were in contact after coming generally be quarantined. To make it successful various laws implemented in their respective countries. In this paper, we will highlight briefly the law, quarantine and isolation how made in sync or impactful in dealing such epidemic globally time to time. India’s Central Government and state governments are empowered to regulate health-related matters. The Epidemic Diseases Act is the main legislative framework at the central level for the prevention and spread of dangerous epidemic diseases. The Act empowers the central government to take necessary measures to deal with dangerous epidemic disease at ports of entry and exit. The Act also empowers the states to take special measures or promulgate regulations to deal with epidemics within their state jurisdictions. In such emergencies the states delegate some of these powers to the deputy commissioners in the districts, typically through state health acts or municipal corporation acts. Thus, responsibility for directly addressing the crisis rests with the deputy commissioner at the district level.

Tzifakis, Nikolaos, ‘The Western Balkans during the Pandemic: Democracy and Rule of Law in Quarantine?’ (2020) 19(2) European View 197–205
Abstract: In the Western Balkans, as elsewhere around the world, governments took extraordinary measures to effectively contain the spread of COVID-19, measures that entailed serious restrictions to individual freedoms. They also introduced extra powers that upset the ordinary division and balance of governmental power. In this context, several analysts have expressed concern that the authoritarian trend observed in the region during the last decade will become further entrenched. The worst fear, that some of the Western Balkan leaderships may retain extraordinary powers indefinitely, has not been confirmed. However, constitutionally prescribed procedures were disregarded and the operation of formal and informal mechanisms of checks and balances ignored. The article argues that the ease with which the Western Balkan leaders removed any checks and controls over their rule raises the valid question of how they may deal with future circumstances which may endanger their power.

Uhlmann, Felix and Eva Scheifele, ‘Legislative Response to Coronavirus (Switzerland)’ (2020) 8(1–2) The Theory and Practice of Legislation 115–130
Abstract: The Coronavirus is a stress test not only for society but also for the legal order. It is usually the government first to respond. Still, Parliaments play an important role in the time of crisis as well. This is especially the case the longer the pandemic lasts. The Swiss Federal Parliament has seized its operations early in the pandemic. It has reconvened in May for an extraordinary session. The main topic of this session was the approval of the government’s emergency measures. It was expected that the Parliament will also debate initiatives for emergency law from its members and that it will decide on its modus operandi. Also, the decision for an abortion of the session at the wake of the crisis was discussed. Proposals are to be expected to allow sessions by video conference. The paper will deal with the aforementioned questions from a legal perspective. It will analyse the nature of and the relationship between emergency law by the executive and the legislative branch. It focuses on the function of Parliament and its modus operandi in the moment of crisis. It will refer mostly to the Swiss Federal Parliament but will also, especially in comparison, take a look at cantonal law and practice. Some preliminary conclusions are offered at the end of the paper.

Uşaklıoğlu, Ahmet Yavuz, ‘The Crucial Effects of COVID-19 on Digital Law’ (SSRN Scholarly Paper ID 3572561, 10 April 2020)
Abstract: The whole world was affected by COVID-19 immensely. Lots of businesses, schools, universities could execute their duties with the digital devices and programs. Today, digitalization is not an option, but is an obligation for post-modern individual. In addition, digitalization touches every aspect of life and forces many areas to radical changes. Law is also a discipline that will be affected very intensely by digitalization. Thus, the law which regulates every relations, situations and acts is under obligation of providing justice. Hence, the law, which is located in the center of life, will be affected by digital developments when everything is getting digitalized especially in Post-Corona period. In this context, this article illustrates the crucial effects of Corona Virus on Digital Law.

Utrilla Fernández-Bermejo, María Dolores, ‘Soft Law Governance In Times Of Coronavirus In Spain’ (2021) 12(1) European Journal of Risk Regulation (advance article, published 9 February 2021) 111-126
Abstract: During the first few months of the COVID-19 pandemic, between March and July 2020, Spanish national and regional authorities made extensive use of soft law mechanisms to fight the spread of the virus and to tackle the consequences of the crisis. Soft law was used either as an instrument in and of itself, or as a justification for hard law instruments, with more than 200 non-binding measures being enacted by the State and by the Autonomous Communities. Spanish courts also extensively used soft law as a tool to interpret existing hard law instruments, many of them related to the protection of the fundamental right to personal integrity. Such uses give rise to concerns as regards the transparency of administrative action and the principle of legal certainty. Moreover, the widespread use of soft law measures as criteria justifying the adoption of binding measures restricting fundamental rights may have consequences from the perspective of the democratic accountability and judicial control of executive action. Overall, this points to the need to reconsider the current system of constitutional and legal constraints attached to this form of regulation, for example by introducing some binding procedural rules relating to its adoption and its publication, as well as by clarifying its legal effects and the mechanism through which it can be enforced by courts.

Vaz Lopes, André, ‘What Can the World Learn from Brazil about What Not to Do to Beat a Pandemic?’ (SSRN Scholarly Paper ID 3821914, 7 April 2021)
Abstract: This brief comment aims to discuss some errors of the Brazilian government in combating the pandemic caused by SARS-CoV-2 in contributing to the expansion of knowledge not only about what should be done by governments, but also about what should not be done in coping with the health crisis. Although the main focus is related to actions to combat COVID-19, the discussion presented is not restricted to decisions explicitly made in the pandemic management and mainly involves Brazilian national macro-agendas on political leadership and public management.

Veuger, Stan and Jeffrey Clemens, ‘Politics and the Distribution of Federal Funds: Evidence from Federal Legislation in Response to COVID-19’ (AEI Economics Working Paper No 2021–08, May 2021)
Abstract: COVID-19 relief legislation offers a unique setting to study how political representation shapes the distribution of federal assistance to state and local governments. We provide evidence of a substantial small-state bias: an additional Senator or Representative per million residents predicts an additional $670 dollars in aid per capita across the four relief packages. Alignment with the Democratic party predicts increases in statesâ€TM allocations through legislation designed after the January 2021 political transition. This benefit of partisan alignment operates through the American Rescue Plan Actâ€TMs sheer size, as well as the formulas through which it distributed transportation and general relief funds.

Venkata, Srikar, ‘Containing Pandemics in India - Going Beyond Lockdowns’ (SSRN Scholarly Paper ID 3609105, Social Science Research Network, 22 May 2020)
Abstract: In India, despite two full months of lockdown, the number of COVID-19 cases have only kept increasing. Globally too, objective analysis of mortality figures tells us that lockdown as a pandemic containment strategy did not generate any concrete reduction of COVID-19 cases. Here, the paper analyses the origins of lockdown, why it may have been utilized for tacking COVID-19 pandemic now globally, and alternative solutions for the Republic of India. However, the paper is a general critique of the lockdown strategy and the paper’s implications can be applied to other nations as well, subject to localized analysis.

Ventura, Deisy de Freitas Lima, Fernando Mussa Abujamra Aith and Danielle Hanna Rached, ‘The Emergency of the New Coronavirus and the “Quarantine Law” in Brazil’ (2021) 12(1) Revista Direito e Práxis 102-139
Pre-print available on ResearchGate
Abstract: Law no. 13,979, of February 6, 2020, regulates public health measures related to the emergence of the new coronavirus with high potential to restrict fundamental rights, including quarantine and isolation. This critical analysis addresses the international dimension of the emergency, and the casuistic and anti-democratic procedure of the Brazilian law. Based on health law principles and the epidemiological legislation in force, it scrutinizes restrictive measures and safeguards for its implementation.

Vera-Cruz Pinto, Eduardo, ‘Law after the COVID-19 Pandemic: The Fundamental Binomials’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The COVID-19 pandemic suspended the world and affected the political, social and economic constructions in which we lived. The law cannot be the same. It is necessary to separate the legal legitimacy to create and apply the rule of law and the political legitimacy to create and apply the law. This implies preparing the critique of the current dominant doctrine about the sources of ‘Law’ based on the fundamental binomials posed by the post- COVID-19 situation. Placing State law in the Rule of Law involves confronting installed powers that violate with impunity fundamental rules of law that protect the human person and his dignity, by reforming state institutions and by changing mentalities. This goes through the media and journalists, through the courts, judges and lawyers, through the University and the legal profession schools, through the cult of fear and the risk of freedom, through the debate about the Constitution.

Vese, Donato, ‘Managing the Pandemic. The Italian Strategy for Fighting Covid-19 and the Challenge of Sharing Administrative Powers’ (2020) European Journal of Risk Regulation (advance article, published 3 September 2020)
Abstract: This article analyses the administrative measures and, more specifically, the administrative strategy implemented in the immediacy of the emergency by the Italian government in order to determine whether it was effective in managing the COVID-19 pandemic throughout the country. In analysing the administrative strategy, the article emphasises the role that the current system of constitutional separation of powers plays in emergency management and how this system can impact health risk assessment. An explanation of the risk management system in Italian and European Union (EU) law is provided and the following key legal issues are addressed: (1) the notion and features of emergency risk regulation from a pandemic perspective, distinguishing between risk and emergency; (2) the potential and limits of the precautionary principle in EU law; and (3) the Italian constitutional scenario with respect to the main provisions regulating central government, regional and local powers. Specifically, this article argues that the administrative strategy for effectively implementing emergency risk regulation based on an adequate and correct risk assessment requires ‘power sharing’ across the different levels of government with the participation of all of the institutional actors involved in the decision-making process: Government, Regions and local authorities.

Villagran, Michele AL and Marcelo Rodriguez, ‘COVID-19 in Latin America and the Caribbean: Experts Examining Legal Responses’ (2021) 46(3) Canadian Law Library Review 10–15
Abstract: Since March 2020, a group of librarians, professors, and legal professionals have been monitoring legal responses to COVID-19 throughout Latin America and the Caribbean. Each member of the project is currently following various countries within this region. In this article, the authors will describe how the project was created and highlight the initial challenges in terms of securing and evaluating trustworthy sources of information in the middle of a pandemic. The authors will summarize the legal responses and any disinformation issues within the countries they have been monitoring: Argentina, Chile, Uruguay, Peru, Bolivia, and Paraguay. Finally, the article will conclude with the authors enumerating the achievements of the group as well as future plans for the project.

Von Batten, Karl, ‘The Effects of Multiple Delayed National Regulatory Actions on the Number of COVID-19 Infections in the European Union and the United Kingdom’ (SSRN Scholarly Paper ID 3625365, 10 June 2020)
Abstract: There is a noticeable difference in the amount of time it took European Union (EU) member states and the United Kingdom (UK) to enact nationwide stay-at-home orders and mandatory face mask provisions in response to the COVID-19 pandemic. Some EU member states enacted nationwide stay-at-home orders and mandatory face mask provisions shortly after the first confirmed case of COVID-19 infection within their respective jurisdiction. In contrast, other EU member states and the UK took much longer to initiate similar regulatory measures. This study’s findings indicate that there is a statistically significant difference in the number of COVID-19 infections between these two groups of countries, with a higher number of COVID-19 infections in the group of countries that took longer to enact nationwide stay-at-home orders and mandatory face mask provisions. This study’s findings also show a moderate positive correlation between the number of confirmed COVID-19 infections and the lag time between the first confirmed COVID-19 infections and the issuance of nationwide stay-at-home orders and mandatory face mask provisions, respectively. The results also show a very strong positive correlation between the number of confirmed COVID-19 infections and the number of COVID-19 infection tests. A Stepwise multiple regression analysis was performed, in place of Poisson regression, due to a failure to fit. The regression results indicate that confirmed COVID-19 infections increased by 0.0454 infections each test performed, decreased by -60,017 because of mandatory face mask provisions, and increased by 1,141 each day of lag time between the first confirmed COVID-19 infections and the issuance of mandatory nationwide face mask provisions.

Wadjo, Hadibah Z et al, ‘The Effectiveness of Law Number 6 Year 2018 and Law Number 4 Year 1984 in Handling the COVID-19 Pandemic for Inter-Island Travel in Ambon City’ (2021) 4(2) Scholars International Journal of Law, Crime and Justice advance article, published 13 February 2021
Jurisdiction: Indonesia
Abstract: This paper specifically wants to analyze the effectiveness of Law Number 6 Year 2018 and Law Number 4 Year 1984 in Handling the Covid-19 Pandemic for Inter-island Travel Players in Ambon City, and Constraints in the Application of Law Number 6 Year 2018 and Law Number 4 Year 1984 in Handling the Covid-19 Pandemic for Inter-Island Travel in Ambon City. This research uses empirical juridical research. The approach used is a statutory approach, the data sources used are primary data and secondary data, data collection techniques that support and are related to this research are interviews, observation and decision studies which are then analyzed qualitatively. The results showed that the Health Quarantine Law, as well as the Disease Outbreak Law which could be used to criminalize anyone who obstructed the handling of the outbreak were not effective for inter-island travelers in Ambon city, because this has never been implemented, which is very ironic with the reality that the perpetrator these trips often violate the law in the form of not following Health protocols. As for the obstacles in the application of the Health Quarantine Law and the Disease Outbreak Law to be applied to inter-island travelers in Ambon city, namely the Factors of Law, Public Awareness, Lack of Quarantine facilities, and Lack of Government Control.

Waismel-Manor, Israel et al, ‘COVID-19 and Legislative Activity: A Cross-National Study’ (SSRN Scholarly Paper No ID 3641824, 2 July 2020)
Abstract: Insufficient attention has been given to studying a vital organ jeopardized by COVID-19: legislatures. Legislatures across the globe have been shut down or limited due to COVID-19. In a comprehensive multidisciplinary study, exploring legislatures across 159 countries, we show that there is no causal relation between the severity of COVID-19 and limitations on legislatures’ operation. This suggests that legislatures are at risk of being shut down either due to unfounded fear from COVID-19 or as an excuse for silencing legislatures. We find that legislatures in healthy democracies are relatively immune to this risk, while those in frail democracies and authoritarian regimes are more at risk of becoming casualties of COVID-19. In partially free countries, the use of technology can mitigate this risk.

Waismel-Manor, Israel et al, ‘Online Supplement for COVID-19 and Legislative Activity: A Cross-National Study’ (Bar Ilan University Faculty of Law Research Paper No No 20-13, 3 July 2020)
Abstract: This is the online supplement for the article Waismel-Manor, Israel, Bar-Siman-Tov, Ittai Rozenberg, Olivier, Levanon, Asaf, Benoît, Cyril and Ifergane, Gal, COVID-19 and Legislative Activity: A Cross-National Study (2020).

Walker, Neil, ‘The Crisis of Democracy in a Time of Crisis’ (SSRN Scholarly Paper ID 3642537, 3 July 2020)
Abstract: The word ‘crisis’ has two different shades of meaning. It can refer to an unstable situation in political or social affairs that persists and intensifies over the relatively long term. Closer to the original Greek meaning of krisis, a crisis also refers to a traumatic episode or condition whose resolution remains unclear and replete with danger. The crisis of democratic leadership is a crisis of the first sort – a slow burn tending towards meltdown. The coronavirus pandemic is a crisis of the second sort – a traumatic event spiralling into an uncertain and perilous future. The paper argues that the crisis of the first sort is currently feeding into and feeding off the crisis of the second sort. COVID-19 has had an extraordinary effect on the political landscape. Its challenge democratic leadership and to the paradigm of representative democracy more generally may be framed according to a number of key features. First, the pandemic may be considered as a premonitory event. Secondly, it poses various acute problems of collective action, both within and beyond the polity. Thirdly, it highlights the dense interconnectedness of the issues that form our political agenda. And fourthly, it suspends many aspects of social and political life, both pausing our capacity to act and interrupting the flow of the world we act upon. Each of these features has double-edged implications for our capacity to steer our democracies. Each threatens to reinforce democratic impotence, but at the margins each also offers some hope of democratic renewal.

Wang, Yanbai Andrea and Justin Weinstein-Tull, 'Pandemic Governance' (SSRN Scholarly Paper No ID 3887153, 14 July 2021)
Abstract: The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.This Article finds order in the chaos of the pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged. Two of these behaviors describe intergovernmental conflict. Governments undermined each other by destabilizing and criticizing each other’s actions. They did so at all levels: up (when local governments undermined states), down (when the federal government undermined states), and across (when the federal government undermined itself). Governments abdicated responsibility when they failed to act. Two additional behaviors describe intergovernmental coordination. Governments collaborated when they actively worked together, both vertically and horizontally, to harmonize their policies. And they engaged in bandwagoning when they avoided taking initiative in making pandemic policy, opting instead to follow the leads of others. We argue that these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided national battles. These battles provided a default set of relationships that became organizing principles for the pandemic response. We use these insights to sketch the contours of a way forward. To address the role confusion that arose from our multi-sovereigned system of governance, we propose a federal pandemic statute that emphasizes and balances role clarity, state independence, and explicit governmental action that disrupts inequality. To lessen the pull of partisanship, we advocate for the creation of decentralized but inclusive subject-matter networks among international, federal, state, and local authorities.

Wang, Zhiqiong June, ‘Law in Crisis: A Critical Analysis of the Role of Law in China’s Fight against COVID-19’ (2020) 29(2) Griffith Law Review 253-272
Abstract: This article analyses the role(s) of law in several critical aspects in China’s fight against COVID-19 during the period of its initial outbreak in Wuhan in late 2019 and early 2020. It first provides an analytic framework on the existing laws on the prevention and control of infectious diseases and responses to public health emergencies, focusing on the relevant mechanisms, institutions and procedures under the law. It then analyses several critical aspects of the operation of the legal framework, including information disclosure, the management of the crisis, and the legality of the various post lockdown measures and practices. It reveals that few legal requirements were in fact complied with during the fight against the COVID-19 emergency and, as such, Chinese law in a time of crisis was indeed itself in crisis.

Ward, Christopher, ‘Cruising through the Coronavirus: A Journey through International Law’ (2020) 66 LSJ: Law Society of NSW Journal 71–73
Abstract: Centuries ago, the international movement of plague and sickness led to the development of rules of quarantine. In the 14th Century, the practice of quarantine developed in Croatia, and then Italy. History records that the Master of a vessel arriving in Venice during this period was required to make a declaration through a window to a health magistrate, and if plague was suspected, the vessel and its crew and any passengers were required to lie at anchor for 40 days ('quaranta giorni’). In more recent history, countries including Australia and the United States of America maintained quarantine stations for arriving passengers. Quarantine has been used as a blunt instrument to meet challenges of disease including outbreaks of yellow fever, smallpox, cholera, Spanish flu and the SARS virus.

Ward, Ian, ‘Masks, Mingling and Magic: Gibberish Law in the Age of Covid’ [2021] Liverpool Law Review (advance article, published online 26 October 2021)
Abstract: The experience of Covid-19 has taught us many things, not least the consequence of what John Milton termed ‘gibberish law’. Law drafted amidst the ‘throng and noises of irrational men’. The closer purpose of this article is the attempt to regulate ‘gatherings’ during the coronavirus pandemic, including the re-invention of a bespoke crime of ‘mingling’. A jurisprudential curiosity which, it will be suggested, is symptomatic of a broader malaise. An assault on the integrity of the rule of law which is only too familiar; much, it might be said, like the arrival of a pandemic. The first part of the article will revisit three particular gatherings, in part to debunk the myth of the unprecedented. But also to introduce some themes, literal and figurative, of masking and muddle. The conjuring of what Shakespeare called ‘rough magic’. The second part of the article will then take a closer look at the jurisprudential consequence of this conjuration. The final part will venture some larger concerns, about the crisis of parliamentary democracy in the ‘age of Covid’.

Wardhany, Nyimas Enny Fitriya and Megawati Barthos, ‘Analysis of the Implementation of the Quarantine Law Indonesia’s Health During the Covid Pandemic 19’ (Proceedings of the 1st International Conference on Law, Social Science, Economics, and Education, ICLSSEE 2021, March 6th 2021, Jakarta, Indonesia, 2021)
Abstract: The COVID 19 pandemic has changed the habits that exist in society. The Government of the Republic of Indonesia uses Law Number 2 of 2002, Article 84, and Article 93 of Law Number 6 of 2018 concerning Health Quarantine to regulate society during the Covid 19 pandemic. However, how is the implementation in society? By using a qualitative approach and descriptive analysis method, it was found that many violations occurred in the community. Crowd offense was a widespread problem. Recommendations that can be done so that violations can be mitigated are socialization through community structures and using local wisdom as a bridge to enforce the health quarantine law.

Webber, Grégoire, ‘The Duty to Govern and the Rule of Law in an Emergency’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 163
Abstract: Across the world, the legislative and judicial branches of government have retreated in part during the COVID-19 pandemic, while members of the executive branch have assumed greater responsibilities. Is such a shift in responsibilities justified by this emergency or exceptional situation? This chapter explores this question by reviewing the duty to govern, the duty to govern in compliance with the Rule of Law, the constrained nature of any emergency or exceptional powers, and the duty incumbent on those exercising extraordinary authority to return to the normal situation as much as circumstances allow.

Webster, Premila and Keith Neal, ‘Covid Reflections: Let Us Talk of Politicians and Professors’ (2021) 43(1) Journal of Public Health 1-2
Extract: Disease experts have been issuing warnings for years but Covid-19 showed how unprepared the world was for an outbreak. The UK was among the nations with the highest death toll from the pandemic, while some countries with fewer resources did much better. Perhaps it could be salutary to reflect on some of the underlying issues and the specific challenges that may have played a part. One structural reform that took place in the last decade could be a useful starting point. The introduction of The Health and Social Care Act 20121 led to the replacement of the independent Health Protection Agency. Its long-standing experience had included dealing with local, national and global outbreaks, expertise in dealing with infectious diseases and emergency preparedness as well as the local intelligence built up over the years. The replacement body, Public Health England (PHE), became an executive agency of the Department of Health and took directions from ministers. Was the resulting loss of autonomy the reason PHE had to accede to the Government’s decision to exclude pandemic preparation from the 14 Public Health priorities for 2019–202 and prioritize Brexit-related issues?

Weiss, Avi, ‘Binding the Bound: State Executive Emergency Powers and Democratic Legitimacy in the Pandemic’ 121(6) Columbia Law Review 1853–1893
Abstract: The COVID-19 pandemic has triggered an unprecedented increase in unilateral lawmaking by governors under each state’s emergency executive power statute. These actions have been met with controversy and a significant amount of resistance. This Note argues that the resistance to COVID-19 rules in the United States may be partially attributable to the way state emergency power statutes concentrate virtually all the power to enact emergency rules in the hands of governors. As this Note demonstrates, the state executive emergency power regime, like all emergency power frameworks, grapples with the inherent tension between technocratic agility and democratic legitimacy. Drawing on a novel fifty-state survey, this Note shows how, notwithstanding the drafters’ attempt to balance executive power with legislative constraint, the statutes as written effectively place all substantive decisionmaking in the hands of the governor, leaving only a binary on/off switch for the legislature to terminate the state of emergency. This consolidation of power in a chronic emergency bypasses the deliberative legislative process, increasing technocratic agility at the expense of democratic legitimacy. This Note suggests a revision to the statutes, inspired by the Congressional Review Act, that would encourage legislative deliberation through a fast-track approval process, while still preserving the prerogative of the governor to enact pandemic policy.

Weissert, Carol S et al, ‘Governors in Control: Executive Orders, State-Local Preemption, and the COVID-19 Pandemic’ (2021) 51(3) Publius: The Journal of Federalism 396–428
Abstract: The nation’s governors took strong and decisive action in responding to the 2020 COVID-19 pandemic, often directly affecting their local governments. These actions allow us to examine this question: Will governors’ actions in an unprecedented emergency situation centralize the authority of the state or rely on local governments to deal with localized problems? Additionally, what factors affect those decisions? We examine all governors’ executive orders affecting local governments in the first five months of the 2020 pandemic. We find that preemption did occur, especially in the early months of the pandemic. States that gave their localities more autonomy were associated with preemption throughout the pandemic; the governor’s party affiliation and her ideological match with local officials were associated with greater preemption in some phases of the pandemic but not others.

Wenander, Henrik, ‘Sweden: Non-Binding Rules Against the Pandemic – Formalism, Pragmatism and Some Legal Realism’ (2021) 12(1) European Journal of Risk Regulation 127-142
Abstract: The Swedish measures to fight the spread of COVID-19 differ from the strategies used in other comparable countries. In contrast to the lockdown approach that has been applied in many European countries, the Swedish strategy has been based to a substantial extent on individuals taking responsibility under non-binding recommendations. This contribution explores the Swedish strategy from a constitutional and administrative law perspective, highlighting the tension between the formalist system for delegation of norms under the Swedish Constitution and the pragmatic use of non-binding rules such as ‘General Recommendations’ adopted by the Public Health Agency. The article concludes that the official use of soft law instruments is confusing from a legal perspective, because non-binding rules do not offer the traditional formal mechanisms for legal protection, publication of norms, or accountability. The legal-realist approach of the Supreme Administrative Court’s case-law, however, has the potential of balancing some of the unfortunate effects arising from the Swedish combination of formalism and pragmatism.

Wexler, David B, ‘High-Rises, Staircases, and Social Distancing: TJ in Informal Policy Statements’(Arizona Legal Studies Discussion Paper No 20-15, 2020)
Abstract: A short essay showing how therapeutic jurisprudence and its concepts of therapeutic design of the law (TDL) and therapeutic application of the law (TAL) can be used in short, informal policy statements, including matters such as maintaining social distancing on a staircase of a high-rise apartment building.

Widjaja, Gunawan, ‘COVID-19 Pandemic and Law No. 6 Year 2018 Regarding Health Quarantine’ (2020) 5(2) Journal of Indonesian Health Policy and Administration 50–56
Abstract: By late March, to anticipate the spreading of COVID-19 pandemic, the President of the Republic of Indonesia has issued several regulations. The Author has examined that the main laws that were used as the based for the issuance of those regulations are Law No.6 Year 2018 regarding Health Quarantine (the Health Quarantine Law). Therefore in order to handle COVID-19 pandemic, an understanding of the Law become a must. The aim of this research is to elaborate and explain the Health Quarantine Law to reduce the COVID-19 pandemic. This research is normative legal research. The research used secondary data, which consisted of primary legal sources and secondary legal sources. Data were collected through the ‘google scholar machine’. Data obtained were analyzed using a qualitative approach. Findings and analysis proved that besides those newly issued regulations there were several measures and acts that should be taken to handle the COVID-19 pandemic in Indonesia. The Author suggests that the Central Government shall take the necessary steps as soon as possible.

Wilberg, Hanna, ‘Interpreting Pandemic Powers: Qualifications to the Principle of Legality’ (SSRN Scholarly Paper ID 3711811, 21 September 2020)
Abstract: In this paper I argue against using the so-called ‘principle of legality’ to read down statutory powers to avoid infringing on liberty, in circumstances where the limit on liberty does not amount to an established common law wrong and is justified as a proportionate means for achieving a legitimate objective. I consider the arguments for and against following this approach in relation to emergency powers, and suggest that the strengths of the arguments for and against need to be balanced in the particular circumstances.

Wiley, Lindsay F, ‘Federalism in Pandemic Prevention and Response’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 65–70
Abstract: Federal-state conflicts over business regulations, controls on personal movement, and financial support and coordination of supply chains have dominated headlines during the coronavirus pandemic. States hold the reins on most community mitigation measures (e.g., quarantine and isolation, physical distancing, and mask wearing), which may vary depending on local conditions. The federal government has authority to promulgate national guidelines and surveillance capabilities that states rely on when implementing, modifying, and easing community mitigation measures, but these guidelines have been inconsistent or absent. The federal government has provided limited financial support and coordination of supply chains to provide a foundation for state and local implementation of more targeted mitigation measures, which depend on widespread testing and disease surveillance. Federal-state conflicts have stymied efforts to ramp up and coordinate need-based distribution of resources for: 1) implementing widespread testing, tracing, and supported isolation and quarantine of individuals; 2) ensuring widespread availability of adequate personal protective equipment for health workers, other essential workers, and the general public; and 3) ensuring widespread access to therapeutics and vaccination based on equitable and public health-based criteria.

Wiley, Lindsay F, ‘Public Health Law and Science in the Community Mitigation Strategy for Covid-19’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa019
Abstract: The Bay Area Orders, which broke the floodgates on mandatory sheltering-in-place as a strategy for mitigating the spread of Covid-19 in the USA, originated in post-9/11 public health preparedness plans and long-standing relationships between public health scientists and lawyers.1 The powerful combination of public health science and law has prompted more than its fair share of legal and ethical controversy. From compulsory vaccination orders to sanitary cordons, from ‘Big Gulp bans’ to prohibitions on the sale of tobacco products at pharmacies, public health laws have often put judges in the position of assessing the reasonableness of restrictions on individual and economic liberty. The standards of review judges have developed to guide this task, require political leaders to articulate not only the purpose of their actions but also the fit between their ends and the means they have adopted. Assessing the means-ends fit usually boils down to a discussion of scientific evidence and guidelines.

Williamson, Myra, ‘A Stress-Test for Democracy: Analysing the New Zealand Government’s Response to the COVID-19 Pandemic from a Constitutional Perspective’ (2020) 8(6) Kuwait International Law School Journal 55–105
Abstract: This article explores the New Zealand Government’s response to the COVID-19 coronavirus pandemic through a legal and constitutional lens. It adopts an essentially doctrinal analysis in describing the response but intertwines a comparative law thread, to draw selected comparisons with how other governments have responded. It offers some political, demographical and historical insights to provide background information for non-New Zealand readers. The article aims to provide a comprehensive view of New Zealand’s constitutional arrangements and how they have impacted on the Government’s response to COVID-19 as well as a critical analysis of that response by assessing the effectiveness of various measures adopted by the New Zealand Government. The article consists of six sections. Section one provides an introduction to New Zealand’s constitutional framework including some demographic information for non-New Zealand readers. Section two describes the New Zealand Government’s overall response to the COVID-19 pandemic. Section three discusses the declaration of a national state of emergency. Section four examines the Parliamentary oversight mechanism known as the ‘Epidemic Response Committee’. Section five explores the role of the media and the importance of upholding the right to freedom of expression when responding to the pandemic. Finally, section six draws out some overall recommendations for New Zealand and other countries to consider when moving forward and preparing for the next pandemic.

Winblad, Ulrika, Anna-Karin Swenning and Douglas Spangler, ‘Soft Law and Individual Responsibility: A Review of the Swedish Policy Response to COVID-19’ (2021) Health Economics, Policy and Law (advance article, published 10 August 2021)
Abstract: Sweden’s coronavirus disease 2019 (COVID-19) response, initially based largely on voluntary measures, has evoked strong reactions nationally and internationally. In this study, we describe Sweden’s national policy response with regard to the general public, the community and the health care system, with a focus on how the response changed from March 2020 to June 2021. A number of factors contributed to Sweden’s choice of policy response, including its existing legal framework, independent expert agencies and its decentralized, multi-level health care governance system. Challenges to the health- and elder care system during the pandemic, such as the need to increase intensive care- and testing capacity, and to ensure the safety of the elderly were addressed largely at the regional and local levels, with national authorities assuming a primarily coordinative role. Although the overall response based on voluntary compliance has persisted, the national government started to take a more prominent role in public messaging, and in enacting legally binding restrictions during subsequent waves of the pandemic. This study illustrates that not only policy responses, but also the fundamental structure of the health- and elder care system and its governance should be considered when evaluating the impact of the COVID-19 pandemic.

Windholz, Eric L, ‘Governing in a Pandemic: From Parliamentary Sovereignty to Autocratic Technocracy’ (2020) 8(1–2) The Theory and Practice of Legislation 93–113
Abstract: Emergencies require governments to govern differently. In Australia, the changes wrought by the COVID-19 pandemic have been profound. The role of lawmaker has been assumed by the executive exercising broad emergency powers. Parliaments, and the debate and scrutiny they provide, have been marginalised. The COVID-19 response also has seen the medical-scientific expert metamorphose from decision-making input into decision-maker. Extensive legislative and executive decision-making authority has been delegated to them – directly in some jurisdictions; indirectly in others. Severe restrictions on an individual’s freedom of movement, association and to earn a livelihood have been declared by them, or on their advice. Employing the analytical lens of regulatory legitimacy, this article examines and seeks to understand this shift from parliamentary sovereignty to autocratic technocracy. How has it occurred? Why has it occurred? What have been the consequences and risks of vesting significant legislative and executive power in the hands of medical-scientific experts; what might be its implications? The article concludes by distilling insights to inform the future design and deployment of public health emergency powers.

Witkowski, Zbigniew and Katarzyna Witkowska-Chrzczonowicz, ‘Poland AD 2020: Arbitrary Legislative Process or Legislative Lawlessness?’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 25
Abstract: The victories of the political camp of the right wing in successive parliamentary elections in 2015 and 2019 unexpectedly brought about a completely new approach to the institutions, processes, and procedures and political phenomena in Poland. Relatively quickly, it became apparent that the new majority had decided to undermine the standards which had been accepted to date in the democratic world, including the rule of law. Ignoring the foundations of democracy also affected parliament and its legislative process. As a result, the functions of the parliament and the role of the opposition were de facto weakened, without taking into account the rights of minorities universally respected and thus far unquestionably recognized in a well-established democracy.

Wolf, Gabrielle, ‘COVID-19 in Historical Context: Australian Legal and Regulatory Responses to Past Influenza Pandemics’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Woo, JJ, ‘Policy Capacity and Singapore’s Response to the COVID-19 Pandemic’ (2020) 39(3) Policy and Society 345–362
Abstract: Despite its excellent public healthcare system and efficient public administration, Singapore has been severely affected by the COVID-19 pandemic. While fatalities in the city-state remain low and contact tracing efforts have been largely successful, it has nonetheless experienced high rates of infection and the emergence of large infection clusters in its foreign worker dormitories. This paper analyses this dual-track policy outcome – low fatalities but high infection rates – from a policy capacity perspective. Specifically, the policy capacities that had contributed to Singapore’s low fatality rates and effective contact tracing are identified while the capacity deficiencies that may have caused its high rates of infection are discussed. In doing so, I argue that the presence of fiscal, operational and political capacities that were built up after the SARS crisis had contributed to Singapore’s low fatality rate and contact tracing capabilities while deficiencies in analytical capacities may explain its high infection rate.

Xiao, Youdan, ‘Challenges and Response Proposals on Public Health Emergency Legal System under COVID-19 Epidemic’ 35(3) Bulletin of Chinese Academy of Sciences 240-247
Abstract: The occurrence and rapid outbreak of COVID-19 epidemic, has posed severe challenges to China’s current public health emergency legal system with the Infectious Diseases Prevention Law and Regulations on Emergency Response to Public Health Emergencies as the core. The obvious shortcomings and deficiencies are exposed in the aspects of Emerging Infectious Diseases (EID) prevention, authority allocation difference on disease control and emergency response, public information disclosure and the legality of emergency measures. According to the needs of epidemic prevention and control, it is urgent to declare a State of Emergency in Wuhan and other local areas, and to improve the prevention and control system for EID in the follow-up legislation, so as to establish a regular legal mechanism for public health early warning and safeguard the public rights to know.

Xu, Ting, ‘Uncertainty, Ignorance and Decision-Making’ (2021) 3(1) Amicus Curiae Series 2, 10–32
Abstract: A great deal of decision-making during crises is about coping with uncertainty. For rulemakers, this poses a fundamental challenge, as there has been a lack of a rigorous framework for understanding and analysing the nature and function of uncertainty in the context of rulemaking. In coping with crises, modelling has become a governance tool to navigate and tame uncertainty and justify decisions. This is because models, in particular mathematical models, can be useful to produce precise answers in numbers. This article examines the challenges rulemakers are facing in an uncertain world and argues that one of the most important challenges lies in rulemakers’ failures to understand the nature of uncertainty and ignorance in the contested arena of science for decision-making. It focuses on the relationship between uncertainty, ignorance and decisionmaking through a case study of the interaction between modelling and rulemaking in the Covid-19 pandemic. In so doing, this article provides an alternative strategy to number- and model-based rulemaking in an uncertain world. It provokes a rethinking of using science to measure and govern human affairs and the impact of numbers and quantification on law.

Yahman and Azis Setyagama, ‘Legal Problematics Against Policy Covid-19 in Indonesia’ (2020) 17(4) PalArch’s Journal of Archaeology of Egypt / Egyptology 1022–1038
Abstract: This Government Regulation is a follow-up to the implementation of Law No. 6 of 2018 concerning Health Quarantine. Countermeasure for the Corona Covid-19 virus by applying this large-scale restriction will lead to legal problems regarding the rights of citizens which are also protected by laws and regulations, particularly those relating to Human Rights. The purpose of this research is to find out the impact of the implementation of social distancing in overcoming the Corona Covid-19 Virus epidemic that hit Indonesia today. The study of this study uses a normative juridical approach which is a study that examines the norms that exist in a statutory regulation, in this case the norms that exist in Law No. 6 of 2018 and Government Regulation No. 21 of 2020. In addition to the normative approach, a sociological assessment was also carried out in particular the impact caused by social restriction policies in tackling the Corona Covid-19 virus outbreak. The research results achieved show that the choices made by the Indonesian government by imposing social restrictions are the most appropriate choice given the socio-economic conditions of Indonesia are different from countries that impose regional quarantine or lockdown.

Yang, Kaifeng, ‘Unprecedented Challenges, Familiar Paradoxes: COVID-19 and Governance in a New Normal State of Risks’ (2020) 80(4) Public Administration Review 657–664
Abstract: This Viewpoint essay understands China’s COVID-19 responses through the lens of six paradoxes, focusing on normal and non-normal governance, competing values, expertise and politics, centralization and decentralization, public and private, and technology and institutions. Preliminary lessons are drawn regarding pandemic governance: embedding resilience into all aspects of governance; developing a public value framework for pandemic governance and improving individuals’ ethical capacity; institutionalizing policy capacity on pandemic governance and requiring expertise in relevant positions; balancing centralized coordination and decentralized responses with a stable and ready-to-work commanding center; enabling businesses and nonprofits for pandemic governance but regulating them appropriately; and enacting technologies to revolutionize pandemic governance with proper institutional safeguards.

Yeon, Thomas, ‘Comparative Reflections on COVID-19 Responses: Drafting, Powers, and Interpretation’ (2021) Statute Law Review, Article hmab009 (advance article, published 9 March 2021)
Abstract: This article examines comparatively approaches in Hong Kong and English law on powers created by the use of subordinate legislations to combat the COVID-19 pandemic from the perspectives of legislative drafting and statutory interpretation. These powers, being wide and flexible in nature, pose a tension between two competing concerns. On the one hand, they enable law enforcement officers to be able to deal with the unique challenges posed by a public health crisis. On the other hand, they pose the potential to restrict fundamental human rights disproportionately. This article will proceed in three parts. First, the article will analyse the responsibilities of drafters in drafting subordinate legislations and the techniques therein; the discussion will be contextualized within a need for urgent public health responses to combat the pandemic. Second, the powers conferred upon law enforcement officers and restrictions on individual liberty under Hong Kong law and English law will be analysed. Third, approaches to interpreting the relevant legislations under the two jurisdictions will be examined. It will be argued that despite the need to confer wide and flexible powers to the executive to combat the pandemic, specificity of language and precision in articulating these powers remain of cardinal and overarching importance.

Yoshida, Kunihiko, ‘Comparative Study of Legal Scheme for Covid-19 Disasters: Asian Responses’ 72(3) The Hokkaido Law Review 1–19
Abstract: In the context of disasters, Japan has been overwhelmed by earthquakes. In recent years, due to the precipitous climate change, we have been frequently hit by floods. Now all of us have been facing the daunting Coronavirus pandemic disaster for more than a year, since February 2020. In dealing with this continuing pandemic, we need to confirm some principles for disaster recovery: First, the protection of vulnerable people in disasters, and second, the need for public assistance for inclusive recovery. In this sense, the role of governments is important.

Zabuha, Yuliia Yu, Tetiana O Mykhailichenko and Svitlana V Rak, ‘Legal Regulation of Epidemic Security Under the Covid-19 Pandemic Conditions in Some Post-Soviet Countries and Poland’ (2020) 73(12 cz 2) Wiadomosci Lekarskie 2758–2767
Abstract:
Objective: To reveal the features of the epidemic safety and security legal regulation in Belarus, Kazakhstan, Moldova, Poland, Russia and Ukraine during the COVID-19 pandemic.
Materials and methods: This study is based on Belarusian, Kazakh, Moldavian, Polish, Russian and Ukrainian regulatory acts as well as national court judgments. Such methods as dialectical, comparative, analytic, synthetic, comprehensive, statistical and generalization approaches have been used in the article.
Conclusions: the study confirmed that the direct impact on the spread and dynamics of morbidity during the COVID-19 pandemic in the countries to be analyzed is determined by: the presence of government agencies and special institutions involved in combating, preventing and monitoring the spread of infectious diseases and their readiness for effective measures in emergency situations caused, in particular, by epidemics; timeliness and duration of quarantine restrictions, their severity and scope; observance of these restrictions by the population; effectiveness of law enforcement responses to violations. The strengthening of administrative and/or criminal liability had no significant impact on the morbidity situation in the country.

Zander, Michael, ‘An Extraordinary Act of Parliament’ (2020) 170(7882) New Law Journal 15–16
Abstract: Outlines the speed of the legislative process of the Coronavirus Act 2020. Highlights concerns expressed in the reports of two House of Lords Select Committees, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee regarding the potential effect on civil liberties of certain ministerial powers under the Act, particularly those not specifically limited to the duration of the coronavirus outbreak.

Zhang, Chao et al, ‘Logic Analysis of How the Emergency Management Legal System Used to Deal with Public Emerging Infectious Diseases under Balancing of Competing Interests: The Case of COVID-19’ (2021) 9(7) Healthcare 857
Jurisdiction: China
Abstract: Development of measures for mitigating public emerging infectious diseases is now a focal point for emergency management legal systems. COVID-19 prevention and containment policies can be considered under the core goal of social and individual interests. In this study we analyzed the complexity between individual and public interests as they conflict when implementing disease preventative measures on an epidemic scale. The analysis was used to explore this complex landscape of conflicting social, public, and legal interests to quantify the potential benefits of public acceptance. Here we use the large-scale COVID-19 epidemic backdrop to examine legal norms of the emergency management legal framework. We find that the implementation of emergency management legal system measures involves the resolution of both direct and indirect conflicts of interest among public groups, individual groups, and various subsets of each. When competing interests are not balanced, optimal policies cannot be achieved to serve and safeguard shared social and community stability, whereas effective social outcomes are obtainable through the development of targeted policies as defined within the emergency management legal system. A balanced legal framework in regards to emergency management legal norms can more effectively serve to mitigate and prevent the continued spread of emerging infectious diseases. Further developing innovative procedural mechanisms as a means to ensure emergency response intervention should take into account the weighted interest of the different social parties to determine priorities and aims to protect legitimate public interests.

Zhangrun, Xu, ‘Viral Alarm: When Fury Overcomes Fear’ (2020) 31(2) Journal of Democracy 5–23
Abstract: The coronavirus (COVID-19) epidemic has revealed the corruption of Chinese authoritarianism under Xi Jinping. In an unsparing critique, Tsinghua University professor Xu Zhangrun argues that Chinese governance and political culture under the Chinese Communist Party have become morally bankrupt. The Party deceived the Chinese people as the viral outbreak in Wuhan spread across China before developing into a global pandemic. Chinese officials were more concerned with censoring the internet and news of the disease to preserve Xi’s one-man rule than with protecting the people from a public-health disaster. Xu calls on his fellow citizens to reject the strongman politics of the People’s Republic in favor of greater reform and the creation of a constitutional democracy.

Zhao, Suisheng, ‘Rhetoric and Reality of China’s Global Leadership in the Context of COVID-19: Implications for the US-Led World Order and Liberal Globalization’ (2020) Journal of Contemporary China (advance article, published 7 July 2020)
Abstract: When President Trump-led America abandoned the global leadership, China casted itself as the global leader in response to COVID-19, placing challenges to the US-led world order and liberal globalization. China’s rhetoric, however, has not matched its actions in comprehensively providing global public goods and developing universally accepted values. As neither the US and China have taken the global leadership that most countries can trust and count on, the world is in the danger of moving toward the vicious power rivalry, hampering the multilateral responses to global crisis such as COVID-19.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info. That's Fine