Administrative Law / Regulatory & Policy Responses / Governance
This general section includes responses by both legislatures and governments (so it is not strictly or exclusively administrative law), and includes literature on federalism, democracy, 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.
Achan, Martha Isabella et al, ‘COVID-19 and the Law in Uganda: Development and Application of the Public Health Act to Control the Pandemic, 2020-2021’ (2022) BMC Public Health: In Review (preprint, published online 8 March 2022) Abstract: Despite the discovery of vaccines, control and prevention efforts relied on non-pharmaceutical interventions (NPIs) for the novel Coronavirus disease 2019 (COVID-19). This article describes the process of development and application of the public health law in prevention and control of the COVID19 pandemic in Uganda.
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
Abstract: The article addresses inequality and governance in the face of the COVID-19 pandemic. Globally, it highlights ways in which COVID-19 has further exacerbated the already worrying inequality levels. Specifically, it addresses issues such as vaccine nationalism, rising income inequality levels, while the minority become richer, some from the manufacturing and selling of COVID-related products. From a governance perspective, it is argued that the reliance on liberal democracies to deliver equality is proving to be insufficient as these have been noted to pursue and prioritise market-based strategies that ultimately perpetuate inequality. Ultimately, it is forwarded that there needs to be a rethinking of the global political economy policies, including debt, health systems, intellectual property laws and trade, in order to directly address how such systems perpetuate inequality. In the context of the African continent, the article highlights the difficulty in accessing vaccines, posing a major threat to the continent, which is experiencing waves of the pandemic that are more disturbing than those that went before. It also highlights the extent to which paucity of research affects vaccine efficiency on the continent. COVID-19 has further worsened the already precarious political and economic situation in most of Africa, characterised by countries being unable to pay debt, electoral political violence, COVID-19 denialism, exploiting COVID-19 to clamp down on opposition, and misuse of COVID-19 funds. Thus, it is recommended that there needs to be an overhaul of the already broken fiscal and political environments rather than the adoption of piecemeal economic solutions such as debt freezes, or politically-flawed ones, that ultimately do not work.
Agyeman-Budu, Kwaku and Bettina Kwarteng, ‘Rule of Law and Human Rights During the COVID-19 Pandemic in Africa: Reflections from Ghana’ in Maame Efua Addadzi-Koom, Michael Addaney and Lydia A Nkansah (eds), Democratic Governance, Law, and Development in Africa: Pragmatism, Experiments, and Prospects (Springer, 2022) 505–527 Abstract: In the wake of the COVID-19 global pandemic, the Government of Ghana unlike many other African States did not formally declare a state of emergency. Rather, it enacted the Imposition of Restrictions Act, 2020 (Act 1012), which for all intents and purposes was an emergency legislation. This chapter examines the impact, if any, of COVID-19 on the rule of law and human rights in Ghana. The chapter therefore discusses the legal framework for dealing with emergencies under the Constitution and analyses Ghana’s response to the pandemic within that context. The effect of Act 1012 as well as other emergency legislation that were resorted to during the pandemic are thus explored to ascertain their consistency or otherwise with the rule of law in general, and fundamental human rights in particular.
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.
Akanji, Olajide O, Lohna Bonkat-Jonathan and Christopher O Ngara, ‘Legislating in Hard Times: Covid-19 and the Federal Legislature in Nigeria’ (2022) 2(2) International Journal of Parliamentary Studies 217–239 Abstract: This article interrogates the issue of the role of the legislature in social emergencies such as the covid-19 pandemic by examining the impact of the covid-19 pandemic on the legislature and the response of the legislature, using the Nigerian federal legislative institution (the National Assembly) as a case study. The aim is to distil some of the key legislative issues that have emerged since the spread of the virus to Nigeria, the challenges the legislature has faced, which have shaped its efforts to respond to the covid-19 problem, and the efforts of the legislature to address the problem. The article notes that Nigeria’s federal legislature, and indeed all legislatures, have to innovate with new ideas, technology and procedural flexibility in the performance of their traditional functions in order to ensure political accountability and remain relevant in times of emergency.
Akirav, Osnat, ‘Governing during the COVID-19 Pandemic’ (2023) 11(2) The Theory and Practice of Legislation 136–150 Abstract: We present a new perspective on government reactions to COVID-19 in terms of the stringency of their regulations to control it. Using the Government Stringency Index from the University of Oxford’s Coronavirus Government Response Tracker (OxCGRT) with a sample of 36 democracies, we determined that the governments’ regulations were less stringent when a woman was the head of the country, an oversized coalition was in office, and the country was not an island.
Akirav, Osnat and Ittai Bar-Siman-Tov, ‘The Knesset in the Pandemic: A Parliament Amid Weak Institutional Settings and Overlapping Crises’ (SSRN Scholarly Paper No 4891017, 10 July 2024) Abstract: Covid-19 challenged parliaments around the globe, and each legislature, with its unique characteristics, institutional and political settings, history and culture, addressed the challenge in its own way. This chapter depicts the story of the Israeli parliament (the Knesset), during the pandemic, against its unique settings: a weak parliament operating in the midst of a pre-existing political crisis, which was coupled with the Covid-19 crisis, and eventually developed into four overlapping crises. Section 1 provides the institutional setting, characterized by a weak parliament, a strong executive and an independent judiciary. Section 2 describes the four overlapping crises and four overlapping emergency regimes. Against this backdrop, section 3 depicts the Knesset’s operation and its performance in its lawmaking and oversight roles, during the pandemic. Section 4 concludes. This chapter aims to contribute to both the general scholarship about the strength and performance of parliaments and to the specific body of scholarship about legislatures in emergencies and pandemics.
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’).
Al-Fatih, Sholahuddin et al, ‘The Power of Ministerial Regulation in Handling COVID-19 in Indonesia’ (Proceedings, 3rd International Conference on Law Reform, 2022) 334–340 Abstract: This study tries to discuss the strength of ministerial regulations in responding to the Covid-19 pandemic in Indonesia. Through legal research methods, this article is expected to be able to contribute to the field of legal science, especially in the context of legal science on the rules of determining laws and regulations, as well as responding to legal reforms during and after the Covid-19 pandemic in Indonesia. The approach used in this study is a conceptual approach and is analyzed using the prefix method to find new arguments against the current factual conditions. The results of this study show that ministerial regulations in responding to the Covid- 19 pandemic in Indonesia have validity, bonding, and efficacy. On this basis, implementation of ministerial regulations during the Covid-19 pandemic has binding legal implications and legal force.
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 30–35This 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.
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.
Alm, James, ‘Trust, the Pandemic, and Public Policies’ (2022) 75(2) National Tax Journal 355–370 Abstract: What is the role of trust in designing public policies, especially during the current pandemic? In this paper, I examine recent research that demonstrates the crucial effects of trust. This research suggests, I believe, two main conclusions. First, there is much emerging evidence that trust — and especially trust in government — is a major factor in shaping the effectiveness of public policies. In particular, when trust in government is weak, many government policies do not achieve their goals because people simply do not follow the government’s laws, regulations, and directives. Second, there is also much emerging evidence that trust is not fixed and given and immutable, mainly determined by a country’s history and culture and institutions, as was once believed. Instead, recent evidence indicates that trust can vary significantly, even over short periods of time. Indeed, there is growing research that trust in government can be affected in systematic ways by systematic policy interventions. These conclusions suggest that there are ways out of our current wilderness, even if these strategies will be neither easy nor quick.
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.
Alpatra, Safira Dewata Putri, ‘Pandemic Preparedness in Indonesia: The Role of Law and Regulation’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 118–124 Abstract: COVID-19 19 is an infectious disease caused by an unknown virus called corona virus, before it broke out in Wuhan, China in December 2019. In 2005, the World Health Assembly urged its Member States to develop national pandemic preparedness plans. In response to this call, many countries have formulated their national plans. A developing country like Indonesia, face particular planning and other challenges with pandemic preparedness as there may be a higher death rate in Indonesia compared with more developed countries. Within its checklist of legal issues, WHO includes the need to ‘Identify the advantages and disadvantages of declaring a state of emergency during a pandemic’. The need to ensure that there is a legislative framework for the national plan and that an assessment has been made of the legal basis for public health measures which may need to be implemented during a pandemic, including travel restrictions, school closures, quarantine and isolation, and social distancing measures. That why the role of law and regulation is critical to the capacity of governments to respond to emergencies, lay the groundwork for recovery, and to help communities build resilience against future shock. This study aims to determine the role of law and regulation to face pandemic in Indonesia. This study uses qualitative methods. The results of this study show that there are three main areas which are, strengthening the legal and policy framework for the management of Covid-19 and its consequences, reduce the impact of the crisis on the judicial systems and those seeking justice pay special attention to the most vulnerable groups, especially women and marginalized groups, and advocate the urgent need of life-sustaining law and regulations, to help Indonesia to strengthen its governance and institutions, and to support and invest in a culture of justice to protect the rights and dignity of people everywhere.
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.
Ammann, Odile and Felix Uhlmannin, ‘Switzerland: The (Missing) Role of Parliament in Times of Crisis’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 179-200 [OPEN ACCESS BOOK] Extract from Introduction: In this chapter, we discuss two dimensions of Parliament’s reaction to the pandemic. We first provide a critical appraisal of the COVID-19 Act, which the Federal Assembly adopted in September 2020 in order to establish a statutory legal basis for the Federal Council’s numerous emergency ordinances (section II). We then examine how Parliament adjusted its own functioning to COVID-19, and the extent to which it maintained its capacity to act despite the crisis (section III). In both cases, our goal is to determine whether the Swiss legislature acted appropriately, a question which must be examined in light of Parliament’s constitutional status as ‘supreme authority of the Confederation’, and of its institutional duty to keep the federal executive and administration in check. By shedding light on the Swiss example, our chapter contributes to a rapidly growing legal and political science scholarship on the implications of COVID-19 for parliamentary lawmaking, both in Switzerland and elsewhere.
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.
Anderson, Evan D and Scott Burris, ‘Imagining a Better Public Health (Law) Response to COVID-19’ (2022) 56 University of Richmond Law Review 955-1005 (preprint) Abstract: The United States did not respond effectively to the COVID-19 pandemic; we were not even close to the league leaders. Several narratives are getting traction in explaining how the public health system lost its way during COVID-19. The ‘bad leaders’ narrative focuses on the incredible failings of, if not outright sabotage by, the Trump administration and its political allies. The ‘bad budgets’ narrative attributes problems in current public health practice to decades of underinvestment. This immiseration of key sectors of the public health ecosystem, along with related structural and cultural problems, underlies the ‘bad institutions’ narrative, which takes plenty of force and evidence from the continuing missteps by the nation’s key key public health entities. The ‘bad Americans’ narrative locates the root of our poor pandemic response in the selfish, ignorant, and tribal impulses of the populace in their embrace of Trumpian populism, vaccine denialism, and conspiracy theories. All these explanations capture part of the failure story and point to things to change and do differently if Americans want better results next time. In this paper, we want to focus on the failures within the public health community. Public health professionals—including the authors of this article —did fail, not each of us or in every case, but as a collective, as a field, as a ‘technology’ for managing a pandemic. We drew faulty inferences, gave poor advice, and launched COVID-19 control rules with shocking indifference to social, psychological, economic, and political factors. Public health cannot be blamed for bad leaders, or budget cuts, fake news, or bad law. All of us in public health could certainly fall back on the defense that we were not heeded or lacked the power to properly deploy our expertise. But such outward-looking explanations do not capture the elements of the story that are useful to public health going forward. Knowing who else we can blame does not help those of us within the field of public health to be better or do better. Irresponsible leaders, angry Americans, and insufficient budgets are not ‘problems’ that get in the way of public health— they are the conditions in which we work, and it just will not do to point to them as the causes of failure. Where we have agency in this broad field is over what we do, and there is plenty to talk about—not just COVID-19, but opioids, obesity, and other big problems we have identified that have not gotten better. This Article is not a thorough-going history of the pandemic response. By way of critique and suggesting a way forward for public health, we are going to imagine how public health—both the official agencies and the interconnected nodes in academia and health systems—might have approached COVID-19 differently. This is a story that focuses on good judgment as the lynchpin of optimal pandemic response and allows us to think about where good judgment seems to have been lacking, and how public health culture and institutions might change to improve the chances of better judgment next time.
Andone, Corina and Florin Coman-Kund, ‘Persuasive Rather than “Binding” EU Soft Law? An Argumentative Perspective on the European Commission’s Soft Law Instruments in Times of Crisis’ (2022) 10(1) Theory & Practice of Legislation 22–47 Abstract: This paper starts from the premise that argumentation in EU (Commission) soft law instruments is essential for their effectiveness, mainly due to its function to persuade addressees as a means to enhance compliance. Notwithstanding their importance in the EU legal-political landscape, the problem is how to ensure that these instruments devoid of formal legally binding force can function as effective governance tools by convincing addressees to comply, particularly during crisis periods such as the Covid-19 crisis, when fast and effective action is urgently needed. By pointing at a number of significant legal problems and concerns deriving from the Commission’s ‘hardened’ soft law instruments, we suggest a normative approach focusing on the potential of EU soft law instruments to act as highly persuasive tools. By making the instruments’ argumentation a core concern, we examine its role as a means to improve the intrinsic quality of EU (Commission) soft law and to foster effective compliance. To this end, we propose a theoretical-analytical framework combining insights from law and argumentation theory, that puts forward an argumentative toolbox for the analysis and assessment of EU (Commission) soft law instruments. This toolbox comprises four argumentative parameters that need to be taken into account in the drafting and evaluation of EU (Commission) soft law instruments: (1) the content of the argumentation, (2) the design of the arguments pointing at persuasive suggestions for cooperation, (3) the factors influencing argumentative effectiveness, and (4) the soundness of argumentation.
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.
Aneja, Kashish et al, ‘COVID-19 Law Lab: Building Strong Legal Evidence’ (2022) 50(2) Journal of Law, Medicine & Ethics 385–389 Abstract: The COVID-19 Law Lab platform enables quantitative representation of epidemic law and policies in a given country for multiple years, enabling governments and researchers to compare countries, and learn about the impacts and drivers of policy choices. The Law Lab initiative is designed to address the urgent need for quality legal information to support the study of how law and policy can be used to effectively manage this, and future, pandemic(s).
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.
Aprita, Serlika and Lilies Anisah, ‘The State’s Responsibility in the Welfare of People and Economic Recovery in the Face of Covid-19 from the Perspective of Law and Human Rights’ (2021) 21(2) Nurani: Jurnal Kajian Syari’ah dan Masyarakat 187–198 Abstract: The Covid-19 pandemic was taking place in almost all countries around the world. Along with the increasingly vigorous government strategy in tackling the spread of the corona virus that was still endemic until now, the government had started to enforce the Large-Scale Social Restrictions (PSBB) with the signing of Government Regulation (PP) No. 21 of 2020 about PSBB which was considered able to accelerate countermeasures while preventing the spread of corona that was increasingly widespread in Indonesia. The research method used was normative prescriptive. The government put forward the principle of the state as a problem solver. The government minimized the use of region errors as legitimacy to decentralization. The government should facilitated regional best practices in handling the pandemic. Thus, the pandemic can be handled more effectively. The consideration, the region had special needs which were not always accommodated in national policies. The government policy should be able to encourage the birth of regional innovations in handling the pandemic as a form of fulfilling human rights in the field of health. Innovation was useful in getting around the limitations and differences in the context of each region. In principle, decentralization required positive incentives, not penalties. Therefore, incentive-based central policies were more awaited in handling and minimizing the impact of the pandemic.
Arifianto, Rizky and Fitriani Ahlan Sjarif, ‘Analyzing Regional Legal Measures for Subsidizing Restrictions on Community Activities (PPKM) during the Covid-19 Pandemic: A Study of State Administrative Law in Java and Bali Regions’ (2023) 6(1) Nurani Hukum 198–220 Abstract: In recent years, Indonesia and the world have faced an unprecedented non-natural disaster, namely the Covid-19 Virus, which has severely impacted the economies of almost all countries. In response, Indonesia has implemented various legal instruments, including legislation and policy regulations, to address the crisis. One of the controversial legal instruments in Indonesia is the Minister of Home Affairs’ Instruction Number 15 of 2021, which pertains to the enforcement of restrictions on community activities in Java and Bali due to the Covid-19 pandemic. This paper examines the implementation of this instruction by the regions of Java and Bali, focusing on the policy regulations issued in response. The research methodology employed in this study is normative juridical research (Legal Research). The findings reveal that policy regulations are distinct from legislation and that the regions, including DKI Jakarta Province, Banten Province, Central Java Province, West Java Province, East Java Province, and Bali Province, have issued various legal instruments to comply with the Minister of Home Affairs’ instruction. However, both the central and regional governments must ensure that these legal instruments meet the requirements stipulated in the applicable laws and regulations. As Indonesia is a legal state, it is crucial for government officials to base their actions on the principles of the law.
Arifin, Saru, ‘Post-Pandemic Legislation in Indonesia: A Virtual Platform for Future Legislative Options?’ (2022) 2(2) International Journal of Parliamentary Studies 240–262 Abstract: Since the imposition of lockdowns or restrictions on social mobility in response to pandemics in 2020, the operations of many governments have undergone a radical transformation. Indonesia’s compliance with the new health protocols did not stand out as exceptional in this regard. This article investigates how and to what extent the Indonesian Parliament utilized ICT during the pandemic, as well as the future viability of ICT as a legislative tool. This article argues that the Parliament’s use of ICT during the pandemic improved its effectiveness, efficiency, and openness in carrying out its responsibilities. In addition, the number of MP s in attendance – albeit virtual – increased. This article suggests that appropriate regulation is required to authorize the use of ict in legislative activities and that trained human resources are necessary to address cyber-related errors resulting from external threats. Additionally, the adoption of ICT should not be limited to digitizing legislative activities. It must be founded on the institution’s core business.
Arifin, Saru, ‘The Quality of Indonesia’s COVID-19 Legislation’ (2024) 12(3) The Theory and Practice of Legislation 317–343 Abstract: Most countries affected by the COVID-19 pandemic have proclaimed a state of emergency following their constitutional provisions. Consequently, in response to the outbreak, several countries resorted to utilising the authority vested in their respective governments by the Constitution or preexisting legislation about disasters. Indonesia subsequently responded to extensive criticism from domestic and international experts for its delay in formally declaring a nationwide state of emergency in response to the outbreak. In the initial year of the COVID-19 pandemic, the country experienced significant societal and economic consequences due to inadequate crisis governance. This article argues that the government’s response to the COVID-19 outbreak was ineffective in preventing the Pandemic’s rapid spread and its adverse impacts on society and the economy. This situation was due to perceived poor quality content and underlying principles of the country’s legislation. Consequently, the insufficiency became apparent in the inconsistent strategies employed by both central and local governments in tackling the Pandemic, a need for more expertise among institutional personnel, inadequate allocation of resources for crisis management, limited collaboration among government agencies, and the vulnerability of law enforcement. This article proposes that Indonesia enhance its crisis management legislation to establish a comprehensive framework for the supervision and execution of various outbreak management strategies, including those associated with the COVID-19 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.
Arnold, Rainer and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic: Contributions to the World Law Congress 2021 in Barranquilla (Springer, 2023)Link to book page on publisher website
Book summary: This book brings together the contributions from the four workshops organized by Rainer Arnold at the World Law Congress of Barranquilla. From the point of view of the rule of law, the contributions deal to a large extent with the legal instruments and their application in the management of the pandemic. 16 country reports show the diversity of instruments, but they all confirm the importance and effectiveness of the rule of law. The basic principles of the concept of the rule of law are also examined, as are its universal validity and its relationship to constitutional jurisdiction. The reading provides insight into the differences and commonalities in the national perspectives of the fight against the pandemic and shows the common conviction that the rule of law provides the central orientation despite the extraordinary emergency situation.
Asamoah, Kwame and Bennet Kwadzo Nyadzi, ‘An Examination of the Role Played by Ghana’s Legislature in the Management of the COVID-19 Pandemic’ (2022) 10(2) The Theory and Practice of Legislation 203–222 Abstract: In the wake of the recently emerged COVID-19 pandemic, legislatures were regarded as one of the important government institutions that can help cushion nations against the economic and social disruptions inflicted by the health crises, given the important roles they play in policy-making within political systems. This paper examines the roles played by Ghana’s legislative institution in the management of the COVID-19 pandemic. The paper further explores some of the challenges to legislative activities during the height of the pandemic. From a content analysis of a variety of literature drawn from Parliamentary Proceedings, online journal articles, official documents, and news from credible media outlets, we found that Ghana’s legislative institution was crucial to the country’s management of the pandemic as they played important roles such as passing COVID-19 related laws, financial oversight, and providing a check on executive actions. The main challenge to parliamentary activities was the demand for rapid legislation, which weakened Parliamentary oversight and scrutiny functions. The study makes some recommendations to strengthen legislative responses to future pandemics.
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.
Atalay, Selin, ‘“The Ones Who Die Are Lost and the Survivors Are What We Have”: Neoliberal Governmentality and the Governance of Covid-19 Risk in Social Media Posts in Turkey’ (2022) 24(3–4) Health, Risk & Society 127–148 Abstract: This study focuses on understanding and explaining the technologies that affect the governance of the risk of Covid-19 in Turkey. To assess how this risk is governed by individuals, the study focuses on discussions around this disease within a Turkish Facebook group. The aim is to understand how individuals conduct themselves and establish norms of conduct against the risk of illness that, in this case of an infectious disease, involves governing the self while managing others. The results show that the discourse created around the governance of infection risk is very much in line with notions of neoliberal governmentality, individual responsibility, citizens as consumers, and individuals as entrepreneurs. Governing the risk of Covid-19 is related to prevalent ways of prioritising or recognising economic explanations, and cost calculation and assessment of successful governance using quantifiable variables, such as the number of new cases and deaths. Concepts like herd immunity and natural selection are open to discussion. Individuals who believe that the government is primarily responsible for risk governance assert that they are paying taxes and advocate that, disciplinary measures should be taken by the government, whereas the opposing view states that individuals are responsible for the governance of Covid-19 risk. We interpret both these opposing views as illustrating neoliberal governmentality and representing contractual and familial state–citizen relationships.
Atienza, Maria Ela L, ‘The Philippines under Lockdown: Continuing Executive Dominance and an Unclear Pandemic Response’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 445 Abstract: The Philippines has to date had one of the world’s longest lockdowns and states of emergency in response to COVID-19 and yet also had the second highest COVID-19 caseload in Southeast Asia as of July 2021. The Philippine government responded to the pandemic by declaring a state of public health emergency and placing the whole country under a state of calamity in March 2020, while Congress passed two laws that gave the president limited emergency powers to address the pandemic. These are consistent with the 1987 Constitution and other laws. However, the use of these emergency powers led to greater executive dominance, with Congress not maximising its oversight functions and the judiciary, already weakened before the pandemic, and struggling to function during it. In addition, the ineffective, punitive and top-down response of the executive branch to the pandemic led to more COVID-19 cases, violation of citizens’ rights, unequal treatment of different social groups and harassment of citizens and groups alleged to be critics and enemies of government. However, community-based initiatives of citizens, groups and local governments also addressed the pandemic and its effects.
Atiles, Jose, ‘Emergency Powers, Anti-Corruption, and Policy Failures during the COVID-19 Pandemic in Puerto Rico’ (2023) 45(3) Law & Policy 253–272 Abstract: This paper explores how the use of emergency powers by the US and Puerto Rican governments exacerbated the impact of the COVID-19 pandemic and manufactured the conditions for furthering the multilayered economic, legal, political, and humanitarian crisis affecting Puerto Rico since 2006. The paper discusses three cases. First, it examines how the multiple declarations of the state of emergency, and its constant renewals, produced contradictory public health policies. Since the start of the COVID-19 pandemic in March 2020, the Puerto Rican government has issued over 90 executive orders aimed at addressing the emergency, producing an unclear, contradictory, and unequal emergency management policy. Second, the paper focuses on the impact of the passing of Law 35 on April 5, 2020, which imposed severe penalties on those who disobeyed executive orders. As a result, hundreds of Puerto Ricans were arrested, fined, and incarcerated for violating the issued order. Third, the paper studies how, citing the presence of corruption, the Puerto Rican government implemented anti-corruption and anti-fraud policies that made it more difficult for those most in need of it—mainly poor and racialized individuals, as well as immigrants and working women—to access Pandemic Unemployment Assistance. Thus, the paper argues that emergency policies designed to address the pandemic, punitive governance, and anti-corruption and anti-fraud policies undermined Puerto Rico’s capacity to handle the pandemic, exacerbated its impact, and created an unequal recovery scenario.
Aung, Mi Khin Saw, ‘Legal Changes in the COVID-19 Pandemic in Myanmar’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer Nature, 2023) 109–121 Abstract: Myanmar conducts the request-based approach to control the COVID-19 pandemic effectively and to mitigate the economic impact. Myanmar has restricted the pandemic according to Prevention and Control of Communicable Diseases Law 1995 and has formed the different levels of Committee on Prevention, Control and Treatment of COVID 19 by Natural Disaster Management Law 2013 to manage and response the effects of COVID-19 pandemic with the issuance of orders, directions and instructions based on the advisory opinions of the think tank. The COVID-19 Economic Relief Plan (CERP) is set up to exclude the potential risks from the range of COVID-19 effects of this pandemic especially on the economy.
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.
A’yun, Rafiqa Qurrata and Abdil Mughis Mudhoffir, ‘Reproducing Indonesia’s Illiberal Legalism amid COVID-19: Public Health Crisis as a Means of Accumulation’ (2022) 22(2) Australian Journal of Asian Law 21–24 Abstract: While many nations have struggled to find the best strategies for controlling the Covid-19 pandemic, the government of Indonesia has shown little interest in it. This is evident from Indonesia’s messy handling of the outbreak, which continues to worsen the public health crisis. However, under the framework of disorder that constitutes Indonesia’s illiberal political-legal system, where the rule of law is largely absent, the crisis is a means to the accumulation of wealth and power. Instead of seriously containing the outbreak, the government tends to make decisions that maintain crisis, as this can create wider opportunities to extend state power and facilitate rent-seeking interests. The issuance of highly contentious regulations—which pose serious threats to human rights, extend state power, and undermine notable post-1998 institutional reforms—in the middle of the pandemic is an example of this tendency. Among these regulations are the Presidential Regulation in Lieu of Law (Perppu) on Covid-19, the Coal and Mineral Mining Law, the Constitutional Court Law, and the Omnibus Job Creation Law. The way these regulations were issued shows disregard for the principles of law-making process, such as transparency and public participation, and accentuates the illiberalism within Indonesia’s political-legal system. As such, Indonesia’s messy handling of the pandemic is not simply due to lack of leadership and institutional capacity; nor is it a result of democratic decline, as many have argued. Rather, it is an outcome of the longstanding illiberal political-legal system in which exploiting public health crises for predatory interests is inevitable.
Aziz, Jamal et al, ‘The COVID-19 Law and Policy Challenge: Inter-Provincial Coordination and Planning on Healthcare in Pakistan’ (2020) 2020 RSIL Law Review 63–94 Abstract: The SARS-CoV-2 (COVID-19) outbreak has highlighted the need for better inter-provincial coordination and planning within Pakistan’s devolved system of Government. The devolution of certain powers to provincial governments through the 18th Amendment has had a significant impact on Pakistan’s healthcare management systems. This paper explores the challenges of governance, service delivery, health information and policy coordination at federal and provincial levels.
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.
Babiker, Mohamed Abdelsalam, ‘COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism’ (2021) 65(S2) Journal of African Law 311–331 Abstract: This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan’s transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.
Baccini, Leonardo and Abel Brodeur, ‘Explaining Governors’ Response to the Covid-19 Pandemic in the United States’ (SSRN Scholarly Paper ID 3579229, Social Science Research Network, 20 April 2020) 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 66–73Jurisdiction: 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.
Barafi, Jamal et al, ‘Quarantine Regulations during the Coronavirus Pandemic: A Study in Light of National and International Legislation’ (2022) 11(2, Special Issue) Journal of Governance and Regulation 277-285 Abstract: Since the outbreak of COVID-19, countries have instituted multiple regulations and implemented various measures to preserve public health. One of the most important measures is quarantine, which restricts the right to freedom of movement enshrined in international and national laws (UN General Assembly, 1948). The study aims to clarify the freedom of movement concept and to consider the legality of quarantine as a restriction on this right (Talbi, 2021). It also aims to tackle the national regulations and procedures implemented in response to the COVID-19 pandemic in Jordan, the United Arab Emirates (UAE), and Kuwait. The research problem is the lack of clarity regarding the national legal framework and procedures related to quarantine, and the lack of deterrent penalties related to their violation, as well as the difference and disparity among the countries under study in response to the rules of international law and the application of procedures and penalties in the face of COVID-19. The authors relied on an analytical and comparative approach of the legislative provisions in addition to a statistical database published by a trusted website. The study concluded that the legal provisions related to confronting COVID-19 are still unclear and that the penalties do not serve as deterrents.
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.
Barker, Kim, Enrique Uribe-Jongbloed and Tobias Scholz, ‘COVID-19 and the “Myriad”: A Comparative Assessment of Emergency Responses from Europe and South America’ (2021) 1(1) Legalities 116–143 Abstract: The COVID-19 pandemic has highlighted – across intricate borders, different geographies, and legal jurisdictions – that there is only so much that can be done in the way of governance to tackle the challenge posed by a virus. The pandemic is a global problem, one which has affected almost every country in significant and seldom-felt ways. Governments have been forced to react, to respond with emergency measures, temporary rules and legislation, and impose restrictions on freedoms. It has brought to the fore a range of responses, locally, regionally, nationally, and internationally. What is particularly evident across the unfolding of the pandemic is the divergent approaches in introducing governance measures to control behaviour, to share data and information, and to report on the pandemic while holding decision-makers to account. Much of the reporting of government reactions to the pandemic has focussed on emergency restrictions, lockdowns, the suspension of ‘normal’ gatherings, public health data, and tracing apps. Each of these is bundled up with concerns over the interferences with freedoms, a lack of scrutiny and holding to account of governance bodies and lawmakers, and privacy concerns. The new ways of working, governing, and communicating emergency rules is a COVID-19 legacy for governments, but is it one that will shift our expectations? The balance between fundamental freedoms has been – to an extent – pitted against the public health agenda and the nature of the emergency response by governments across the world, but particularly in Germany, the UK, and South America. This article explores the nature of the government responses through emergency measures (and restrictions) and tracing programmes in three countries: Germany, the United Kingdom, and Colombia. The assessment – and comparison – of three countries, across two diverse regions – offers a unique discussion from the perspective of pandemic responses to the COVID-19 emergency. The pandemic itself provides an opportunity to compare countries, governance responses, and legalities that may not otherwise be possible. The myriad of responses seen throughout the pandemic offers a unique opportunity for comparative discussion – this paper provides that discussion, but in so doing, assesses whether it is possible to recommend a ‘one size fits all’ approach to governance emergencies.
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.
Bar-Siman-Tov, Ittai et al, ‘Sunsets and Emergencies: Temporary Covid Laws in Israel’ (SSRN Scholarly Paper No 4782954, 3 April 2024) Abstract: This study explores the relationship between temporary legislation – statutes enacted for a limited time and are set to expire unless their validity is actively extended – and emergencies, focusing on a study of temporary legislation during COVID-19 in Israel. It offers both an empirical analysis – examining whether and how the use of temporary legislation changed during the pandemic – and a normative evaluation of this use. The study additionally empirically investigates temporary legislation’s political function of facilitating the passage of bills, examining whether temporary legislation exhibits higher passage rates and faster legislative processes compared to permanent legislation.
Barreto, Tibersio et al, ‘Comparison of Covid-19 Handling Between Timor-Leste and Indonesia in a Responsive Legal Perspective’ (2022) 5(10) International Journal of Social Science Research and Review 13–21 Abstract: Efforts to reduce the spread of Corona Virus Disease (Covid-19) require comprehensive efforts, including in the legal realm, which indicates that legal products are appropriate and serve the needs and social interests of the community. Such a law called Nonet and Selznick is responsive law, which basically emphasizes the aspect of substantive justice. (Philippe Nonet & Philip Selznick, 2003). From the theoretical aspect it is clear that good law always responds and makes the law for humans, not humans for law. (Satjipto Rahardjo, 2007). In terms of handling the Corona Virus Disease (Covid-19) which is an emergency, it can be obtained an overview of how the law responds to many events, especially between Indonesia and Timor-Leste. Based on this description, the author is interested in studying more deeply related, How is the Handling of Corona Virus Disease (Covid-19) between Indonesia and Timor Leste in a Responsive Legal Perspective?
Barrett, Fiona, ‘Judicial Review and Public Inquiries: Procedure, Case Studies and Some Observations on the (Long) Covid Inquiry’ (2022) 27(4) Judicial Review 288–298Jurisdiction: UK Bartolucci, Luca and Luigi Gianniti, ‘The Italian Legislative Procedure During the Pandemic Emergency, the National Recovery and Resilience Plan and the Reform of Parliamentary Rules of Procedure’ (2022) 2(2) International Journal of Parliamentary Studies 295–303
Abstract: The paper analyzes the Italian legislative procedure during the pandemic, as well as its deterioration and some of the practices that characterized it. Furthermore, it takes into consideration the legislative procedure envisaged in the Italian National Recovery and Resilience Plan and some possible reforms of parliamentary rules of procedure.
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.
Basilien-Gainche, Marie-Laure, ‘The French Management of COVID-19: Normalisation of Regimes of Exception and Degradation of the Rule of Law’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 434 Abstract: To cope with the COVID-19 crisis, the French Parliament adopted on 23 March 2020 Statute Law n°2020-290 creating a new emergency powers regime: the ‘state of health emergency’. This, first, confers important powers and wide discretion on the executive branch and the administrative authorities. Secondly, the state of health emergency enables the executive to severely restrict rights and freedoms with minimal checks and balances. To expose how security-focused the management of COVID-19 was in France, this chapter examines the expansion of exceptional regimes under the guise of the pandemic challenge; the escalation of the executive powers that limit and suspend rights and freedoms; and the lack of any genuinely effective institutional oversight.
Bastrykina, Tatyana Stanislavovna et al, ‘Administrative Mechanisms for Public Health Protection During the Spread of COVID-19 and Their Impact on the Development of Legal Regulation of Social Relations’ (2022) 22(5) International Journal of Computer Science and Network Security 401–406 Abstract: The study examines the legal nature of administrative measures to curb the COVID-19 pandemic and their impact on the development of law. The recognition of the global spread of COVID-19 as a pandemic by the World Health Organization led to the adoption of large-scale administrative measures around the world to minimize the effect of the pandemic on public health. In the Russian Federation, these measures are expressed in the form of a special legal regime – a high-readiness regime. The purpose of the paper is to reveal various aspects of the impact of administrative measures for the protection of public health during the pandemic on the trends in the development of law as a regulator of public relations. To achieve the set goal, the study addresses the following objectives: the concept of public health is examined as a category that requires comprehensive support on the part of the state, the dynamics of law-making activities of Russian authorities in the course of the pandemic are analyzed; the measures adopted to preserve public health in the spread of COVID-19 that are associated with the restriction of certain constitutional rights of citizens are examined. A comparative study of anti-COVID restrictions in different countries of the world is carried out, their categories depending on the degree of severity are identified. The influence of the restrictions on the development of legal regulation of social relations is studied. An argument is presented that the imperative method of permissive type of regulation is predominant in the fight against the pandemic. The problem of admissibility of limitation of certain constitutional rights of citizens when introducing anti-COVID restrictions is analyzed. Based on the results of the study, proposals are formulated to bring in line the fundamental acts on human rights and the new legislation on the protection of public health.
Beal, Ron, ‘Texas Disaster Act and the COVID-19 Pandemic: The Validity of School Mask Mandates and How the Texas Supreme Court Engaged in a Legal and Ethical Disaster’ (2023) 54(2) St. Mary’s Law Journal 375–406 Abstract: This Article will initially interpret and analyze the relevant provisions of Chapter 418 of the Texas Disaster Act of 1975 as it relates to the granted powers of the Governor and local governmental entities.
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.
Begg, Morgan, ‘Powers of Detention in Victorian Pandemic Legislation’ (Report, Institute of Public Affairs, 25 March 2022) Abstract: This research highlights how the powers of detention in the Victorian government’s pandemic management legislation could be struck down for being incompatible with the Australian Constitution.
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.
Benkhashem, Abdallah Faraj Abdallah et al, ‘Legal Regulations for a State of Health Emergency in Libyan Law and Its Effectiveness in Limiting the Spread of the Covid-19 Virus’ (2022) 7(4s) BiLD Law Journal 317–329 Abstract: The situation caused by the covid-19 epidemic in numerous countries around the world requires governments to take exceptional measures. In normal circumstances, the state adheres to the application of its ordinary laws, and in exceptional circumstances, it is difficult to apply the same laws to the situation as in the case of the spread of the Corona virus, and a state of emergency is declared. Here, the problem of research arises in the search for the legality of declaring a state of emergency in Libyan legislation and the effectiveness of government decisions in limiting the spread of the Coronavirus. The researcher also aims, through this research, to define the concept of a state of public emergency and a state of emergency in comparative constitutions and the Libyan constitution, and a state of health emergency in Libyan law and the controls for its declaration. Announcing it through analysing the legal texts of the Libyan health law and its success in keeping pace with the epidemic situation in terms of controlling and punishing violators. For the state of emergency in models from different countries and through discussion. Research and analysis of information lead to obtaining a set of results, including the case of the spread of an epidemic, which is considered an emergency, as well as the lack of clarity from a legal and constitutional point of view from the competent authority to declare a state of health emergency in Libya. At the end of the research, we made recommendations that the authorities in Libya may adopt, including the need to intensify the legal and procedural effort to organize emergency states and spread epidemics in the Libyan health law and the upcoming Libyan constitution.
Benkhashem, Abdallah Faraj Abdallah et al, ‘Responsibility State in Islamic Theology and Libyan Law in the Event of an Epidemic Covid-19 Model Overview’ (2023) 7(1) Journal of Positive School Psychology 41–53 Abstract: The purpose of this research was to determine the scope of the state’s obligation according to Islamic jurisprudence and Libyan law in the event that an epidemic, using Covid 19 as an example, is allowed to spread. The fragility of the health authorities in Libya and their failure to absorb the Covid pandemic is the source of the difficulty with the research. This shortcoming is reflective of the fact that the state’s responsibilities in Libya are relatively limited. In Libyan law, there are a number of legal requirements that, if followed, would lead to increased emphasis on the responsibility of the state. The research used an analytical method to investigate Islamic jurisprudence and Libyan law regarding the nature of the state’s duty in the event of the spread of an epidemic (Covid 19). The inductive method was also used in the study to extrapolate the texts of the Holy Qur’an and the Sunnah of the Prophet regarding instances of the spread of the epidemic and the responsibility of the state according to Islamic jurisprudence and Libyan law. This was done in order to draw conclusions about these topics. In addition, a comparative method was used throughout the investigation. in order to make a comparison between the texts of Libyan law and Islamic jurisprudence in relation to the spread of diseases. According to the findings of the study, the concept of the Corona pandemic in Libyan law is compatible with Islamic law. Furthermore, the study revealed that it is the state’s responsibility to control the Corona epidemic in accordance with the principle of equality in duties and costs before society. According to the findings of the research, the legislation in Libya has to be revised in such a manner that it helps contribute to outlining the legal processes and measures that need to be taken for each epidemic individually. This will help restrict the development of similar epidemics in the future.
Berg, Angela van der and Marius Pieterse, ‘Governing Urban Crisis Through Adaptive Urban Law: Lessons from City Responses to COVID-19 in the Netherlands and South Africa’ (2024) 20(1) Utrecht Law Review 1–18 Abstract: The global Covid-19 pandemic exposed the fragility of urban systems and underscored the need to recalibrate regulatory and institutional frameworks for an anticipated crisis-prone future. This article explores the notion of ‘adaptive law and governance’; as a lens through which city authorities can test and modify legal and governance responses to future urban crises. It compares the experiences of managing Covid-19 in the two biggest cities in the Netherlands (Amsterdam and Rotterdam) and in South Africa (Johannesburg and Cape Town). This comparison, between two sets of urban municipal governments functioning under different constitutional systems and in different socio-economic contexts, provides insights pertaining to how adaptive urban governance during the pandemic was constrained or enabled by the interaction between the regulatory and institutional frameworks for and political realities of urban autonomy and intergovernmental relations. The article demonstrates that cities that govern within a flexible and decentralised legal and governance system are better positioned to develop and implement responsive measures to address crises or uncertainty. To enhance resilience, legal systems should promote transparent, risk-responsive, and reflective local governance tools to enable agile, context- specific and decisive crisis responses that can be employed as a matter of course rather than exception.
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.
Beynon-Jones, Siân, Emily Grabham and Nadine Hendrie, ‘“The Rules Are All over the Place”: Mass Observation, Time, and Law in the COVID-19 Pandemic’ (2023) 50(3) Journal of Law and Society 369–391 Abstract: This article analyses practices of pandemic time making that surrounded the imposition and communication of laws restricting daily life in parts of the United Kingdom in spring 2020. With colleagues, we commissioned a Mass Observation Project directive in summer 2020, asking contributors about their everyday experience of time during the COVID-19 pandemic. We analyse how legal temporalities emerge across 228 responses. Initially, law making seemed belated, missing the disruptive temporalities of the pandemic. Once they arrived, pandemic rules were sudden, changeable, and confusing. Mass Observation writers forged clusters of improvised practices – tactics of anticipation – to cope with these unsettling temporalities. Meanwhile, the Hansard Society, the Joint Committee on Statutory Instruments, and legal commentators argued that ‘fast-track’ pandemic law making was error ridden, putting the public at risk of unwitting criminal liability. Attentive to ‘polyrhythmic’ temporalities operating across fields of experience and action, our study underlines the contradictory qualities of apparently resonant constructions of legal time.
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.
Bikesha, Denis and Allan T Moore, ‘Public Health, Technology and Social Context in Rwanda’s COVID-19 Response’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 324 Abstract: Rwanda has, at the time of writing, managed to suppress the spread of COVID-19 to levels lower than all the countries that surround it in Central and East Africa. This chapter examines some of the main reasons why. From the pre-emptive stages of pandemic preparation, the Rwandan government planned for the use of information technology to be central within its public health approach and followed through with implementation of a range of measures utilising such technology when the virus was detected within Rwanda’s borders. From the use of robots for diagnostic and data collection purposes, to the deployment of drones to communicate public health guidance to the population, the benefits in reducing contact and transmission have been clear. Further necessary clarification is provided related to the legal basis for executive use of powers and the balance between human rights and state obligations under Rwanda’s 2003 Constitution (as amended in 2015). Finally, the chapter analyses the historical-social context of Rwanda that contextualises the likelihood of Rwandan people adhering to restrictions placed upon their everyday lives. The chapter concludes that, while some aspects of Rwanda’s approach may be replicable elsewhere, other reasons for Rwanda’s success may be less transferable, being dependent on the social context developed after more than two decades of transitional justice and reconciliation-based activities in the country.
Bjørnskov, Christian and Stefan Voigt, ‘This Time Is Different?:On the Use of Emergency Measures during the Corona Pandemic’ (2022) 54(1) European Journal of Law and Economics 63–81 Abstract: The COVID-19 pandemic has not only caused millions to die and even more to lose their jobs, it has also prompted more governments to simultaneously declare a state of emergency than ever before enabling us to compare their decisions more directly. States of emergency usually imply the extension of executive powers that diminishes the powers of other branches of government, as well as to the civil liberties of individuals. Here, we analyze the use of emergency provisions during the first wave of the COVID-19 pandemic and find that it can be largely explained by drawing on political economy. It does, hence, not constitute an exception. We show that many governments have (mis-)used the pandemic as a pretext to curtail media freedom. We further show that executive decrees are considered as a substitute for states of emergency by many governments.
Blokker, Paul, ‘Populism, COVID-19, and the Rule of Law: The Cases of Hungary and Poland’ (2021) 15(1) Politics. Rivista di Studi Politici 131–147 Abstract: The COVID-19 pandemic that started in Europe in early 2020 has not only had major effects on public health and European economies, but equally affected democratic politics in a significant manner. An important question is whether the COVID-19 crisis has created opportunities for (right-wing) populist parties to strengthen their position, and more generally, whether liberal democratic systems have suffered from the pandemic in terms of the guarantee of rights and in terms of an increase in monitoring and controlling of society and individual behavior. The paper will first discuss and contextualize the emergence of populism, focusing on its most prominent, right-wing version. Subsequently, the cases of Hungary and Poland will be discussed.
Blore, Ken and Felicity Nagorcka, ‘Human Rights and Trust in the Time of COVID-19: Lockdowns, Prison Conditions and Vaccine Mandates’ [2024] (110) AIAL Forum 21-49 Abstract: On the eve of the COVID-19 pandemic, Queensland joined the Australian Capital Territory and Victoria in enacting human rights legislation. The response to the pandemic required incursions on fundamental rights and freedoms which tested the human rights frameworks in each of these jurisdictions. Under that framework, whenever an act, decision or statutory provision limits a human right, generally that limit must be justified according to a test of proportionality. In this way, the legislation aims to embed a "culture of justification". This article follows how this culture of justification played out in the ACT, Victoria and Queensland for lockdowns, vaccine mandates and the heightened risks of transmission in a prison setting. It explores what these examples reveal about how human rights legislation interacts with trust in government institutions, and seeks to answer the following question: does a human rights framework help to build trust in government or might it, conversely, encourage scepticism about government decision-making?
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).
Boschetti, Barbara and Maria Daniela Poli, ‘The Pandemic Curvature of Democratic Space/Time. A Legal Perspective.’ in DP Palan (ed), State of Emergency: Italian Democracy in Times of Pandemic (Vita e Pensiero, 2022) Abstract: The paper outlines if and how the pandemic contributed to the curvature of the democratic space/time. The entire legal toolbox was deployed and shaped to counter the pandemic’s many impacts: not only regulatory strategies and decision-making processes, but also governance and even the legal lexicon. The short distance travelled in the journey towards recovery and resilience - which per se is a pandemic output - has already revealed the goal-oriented and performative face of the new NRRP/dedicated governance and regulatory framework, which seems able to temper the future and the risks it brings. It also paves the way to longer journeys, including the big transitions of our time - environmental and digital transitions, but also cultural and social ones - together with their transformative potential. Democracy is at a crossroad: it has the opportunity to be fit for the future (future-proof), or simply lost in transition(s). In this respect a few lessons emerge from the pandemic.
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, ‘Liability for Damage Caused by Normative Restrictions in the State of Epidemic’ in Edyta Hadrowicz (ed), Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 35–46 Abstract: A State of Epidemic is a key anti-epidemic emergency regime under Polish law. It is defined as a legal situation introduced in a particular area in connection with an epidemic in order to undertake anti-epidemic and preventive measures specified in the Act to minimize the effects of the epidemic. This article explores a problem of liability for damages caused by illegal or unconstitutional governmental regulations issued by Minister of Health and Council of Ministers as a reaction on COVID crisis and when the State of Epidemic had been formally announced. The analysis demonstrates that certain restrictions introduced by the Government, in particularly those as intrusive as the ban on leaving the home, must be directly and comprehensively authorised by the Parliament. Governmental regulations must not, without comprehensive statutory authorisation, encroach upon spheres of personal and business interests. However, claims for damages for normative restrictions—on the basis of the provisions of art. 417(1) § 1 of the c.c. and art. 77 of the Constitution—depends on a preliminary ruling of unconstitutionality or illegality of a particular restriction. If the Constitutional Tribunal is not finding the restriction unconstitutional or illegal, it is impossible to get compensation. However, there is only one first-instance judgment that has been issued in such cases so far. The court dismissed the entrepreneur’s claim for payment of compensation by the State Treasury for profits lost by him in connection with the introduction of the ban on conducting business activity.
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.
Braum, Stefan (ed), Experimental Law: The Rule of Law and the Regulation of the Corona Pandemic in Europe (Nomos, 2023) Chapters:
- Stefan Braum, ‘Pandemic Regulation: Virus in the Rule of Law?’ 11–42
- Jörg Gerkrath, ‘Constitutional Engineering of State of Exception Regimes within the European Union’ 45–64
- Basak Baglayan, ‘Covid Stress Test for the Rule of Law: States of Emergency under International Human Rights Law’ 65–86
- Silvia Allegrezza, ‘The Repressive Response of States to COVID-19 or the Duty to Health of the Superlative Citizen: An Overview of Comparative Law’ 135–152
- Valsamis Mitsilegas and Santiago Wortman Jofre, ‘Democracy, Trust, and the Rule of Law in Times of Pandemic: The UK Response to COVID-19’ 187–254
- Adan Nieto, ‘Controls and Penalties in the time of Pandemic: The Constitutional State on Trial’ 255–286
- Ralf Poscher and Katrin Kappler, ‘The Legal Framework of the COVID-19 Pandemic in Germany’ 287–326
- Rosaria Sicurella and Sandra MB Picicuto, ‘The Legal Framework of the COVID-19 Pandemic: The Italian Response to the Coronavirus Outbreak’ 327–382
- Li-ann Thio, ‘Legal Communitarianism and Pandemic Regulation in Singapore’ 383–440
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.
Brunet, Sylvia, ‘The Hyper-Executive State of Emergency in France’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 201-224 [OPEN ACCESS BOOK] Extract: The French management of the health crisis disrupts since March 2020 the usual democratic decision-making processes, in so far as neither the Members of Parliament nor locally elected representatives, but various experts (scientific council, Defence Council, Swiss expert, private consulting firms…) without any democratic legitimacy surround President Macron, who decides on his own what measures must be taken by ministers and by the political majority in Parliament. Under the pretext of an exception, not only democracy but also the Constitution and the guarantee of rights and freedoms have been undermined. The robustness of a democracy and the rule of law can, in particular, be assessed in exceptional circumstances, which test the coherence of a legal, political, economic, social and sanitary system. The risks are the normalisation of emergency regimes and the permanency of exceptional measures within the standardised rule of law, so that these regimes and measures remain insidiously in force even without any emergency nor exceptional circumstances. That’s why it remains to be seen whether the legislator and the courts will take back control in the coming months so that the ending of exceptional regimes can lead to a return to a more balanced, shared and protective decision-making system.
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.
Budiono, Arief et al, ‘Large-Scale Social Restrictions and Public Community Activity Restriction Legal Policy to Decrease COVID-19 Infections Effectivity to Handling COVID-19 Pandemic’ (2022) 10(A) Open Access Macedonian Journal of Medical Sciences 176–180 Abstract: The coronavirus disease 2019 (COVID-19) pandemic has caused a global impact. It also affected Indonesia. There had been tens of thousands of positive cases and thousands of deaths. Many paramedics also died to heal people from this disease. The Indonesian government determined this condition as a Social Emergency Condition and issued the Governmental Decree No. 21 of 2020 on Large-Scale Social Restrictions (LSSR) in 2020 (and Community Activity Restriction Enforcement [CARE] in 2021 with the Instruction of the Minister of Internal Affairs on Emergency CARE in Java and Bali islands). The Instruction of the Minister of Internal Affairs No. 15 of 2021 regulated the Application of the Emergency CARE due to the COVID-2019. In its implementation, the LSSR are ineffective in preventing the spread of the COVID-19 as there are some anomalies in the field, as this law is not strictly enforced. The spread of the COVID-19 becomes uncontrollable as there are no strict sanctions against violators of the LSSR. Meanwhile, the law-enforcing apparatus tend to ignore violations. This condition is different from the application of the CARE as it was more effective in decreasing the number of Covid-19 cases. This is because its implementation is equipped with supervision and strict sanctions. The strictness and the seriousness in applying the CARE yielded positive results, namely, the significant decrease of COVID-19 sufferers.
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.
Buhmann, Karin and Jingjing Wu, ‘Comparing Regulatory Responses to the Climate and Covid-19 Crises: A Social-Systems Theory-Informed Method for Inquiry’ (SSRN Scholarly Paper No 4940980, 27 March 2024) Abstract: The climate and Covid-19 crises are both recognized as wicked problems. Scientific information on climate change has been available since the 1970s and advanced by the Intergovernmental Panel on Climate Change (IPCC), Yet, responses by the national governments remain limited. Conversely, national governments’ responses to the Covid-19 health crisis, including information from the World Health Organisation (WHO), were much swifter. Understanding the causes for that difference in can offer important insights for future expert information and governance responses to major crises affecting humanity and the wider ecology. This article sets out the method and theoretical framing for a research project addressing that knowledge gap. Examining national governance responses to climate change and Covid-19, the project assesses those against communication from the IPCC and WHO. We explain aspects of Niklas Luhmann’s social systems theory that are of particular relevance to the inquiry, describe their application, and give examples of preliminary findings.
Bunikowski, Dawid and Robert Musiałkiewicz, ‘The Principles of Subsidiarity and Decentralisation During the COVID-19 Pandemic, with Particular Emphasis on the Polish and Finnish Legal Systems’ (2022) 28 Comparative Law Review 71–106 Abstract: The article focuses on the principles of subsidiarity and decentralisation during the COVID-19 pandemic, with particular emphasis on the Polish and Finnish legal systems (both countries in the Baltic Sea Region). How were those constitutional principles concerning self-government ‘treated’ (dealt with) by public authorities? It analyses the principles of subsidiarity and decentralisation, interpretations of the principle of decentralisation in both Poland and Finland, relations between the state and local self-government, cooperation between the government and self-government administration in combating the pandemic in selected countries, and Polish and Finnish regulations during the pandemic. Methodologically speaking, many different methods and sources are applied. The methodological approach is analytical (analysis of legal acts, literature, media releases and different reports), but also empirical (observation of reality). The thesis is that the principles of subsidiarity and decentralisation during the COVID-19 pandemic were commonly disregarded during the pandemic.
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.
Bustamante, Thomas and Emílio Peluso Neder Meyer, ‘Brazil: COVID-19, Illiberal Politics and the Rule of Law’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 225 Abstract: The denialist approach that the Brazilian government adopted to the COVID-19 pandemic makes the country an interesting case study of the consequences of politicised and populist responses to the virus, which are summarised in this chapter. Bolsonaro’s ‘underreach’ politics were based on a permanent strategy to expose the population to the virus in the hope of herd immunity, even after consensus had emerged on the inefficacy of such an approach. This chapter reconstructs the central aspects of this response.
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, ‘Covid-19 Litigation: The Drivers of Institutional Responses to the Pandemic and the Role of Courts’ in COVID-19 Litigation: The Role of National and International Courts in Global Health Crises (forthcoming) Abstract: The chapter concludes a book whose contributions are based on around 2400 decisions selected and available in an openly accessible Database and News Page (available at https://www.covid19litigation.org/). It provides a comparative analysis about the drivers of institutional responses to the COVID-19 pandemic and the role of courts in times of global health crisis. The comparative analysis is aimed to examine the different features of judicial review deployed by courts on anti-pandemic measures, its scope and intensity, in light of the different regulatory approaches taken by States. How courts have dealt with uncertainty and the extent to which scientific evidence has been considered a necessary basis for public choices are among the main aspects explored in the comparative analysis together with the different use of general principles by courts in judicial review. While examining the role of liability litigation and the space for immunity of the government in relation to the adoption of emergency measures, the chapter discusses the possible lessons learnt from courts and from their role as guardians of fundamental rights in the COVID-19 pandemic. From an institutional standpoint, the relevance of courts in emergency times not only contributes to ensuring compliance with the rule of law and fundamental rights, preserving the democratic allocation of powers, but it improves the quality of administrative decision-making especially when the interaction between administrations and courts is repeated. A comparative analysis of institutional responses to the pandemic crisis should therefore include judicial decisions and describe their evolution related to the availability of knowledge about the pandemic and the effects of restrictive measures.
Cafaggi, Fabrizio and Paola Iamiceli, ‘Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives’ (2021) 12(4) European Journal of Risk Regulation 792–824 [pre-published version available on SSRN] Abstract: The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during 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 has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of 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.
Çalı, Başak and Emre Turkut, ‘Turkey: Pandemic Governance and Executive Aggrandisement’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 248 Abstract: The pandemic in the first year accentuated the on-going process of executive aggrandisement in Turkey under its new presidential system that came into full effect in 2018. Turkey’s wide-ranging response to the COVID-19 pandemic was based on centralised, top-down executive measures without a clear legal basis; differentiated in a potentially discriminatory way across age and risk groups as well as types of business and gatherings; and enforced with little or no legislative and judicial oversight. Another notable feature of the Turkish pandemic response was the legal harassment and criminalisation of those who criticised the measures taken and selective enforcement of restrictions. This chapter reviews these four key features of the first year of the pandemic in Turkey.
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.
Canlela, Kacie, ‘Emergency Rulemaking’s Democracy Deficit: Lessons from the United States’s Paid Sick Leave Experiment’ (2021) 49(1) Fordham Urban Law Journal 65–107 Abstract: The article presents a general overview of notice and comment rulemaking, the good cause exception under the Administrative Procedure Act (APA), and statutory authorization to bypass notice and comment. It mentions how the Families First Coronavirus Response Act (FFCRA) was passed by the U.S. Congress and initially implemented by the U.S. Department of Labor (DOL). It also mentions emergency paid sick leave to quarantine due to COVID-19 exposure and sick leave.
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’.
Cartier, Emmanuel and Patricia Jonason, ‘The Articulation Between Soft Law and Hard Law in the Legal Management of Covid-19 in France and Sweden: Two Asymmetrical Strategies Revealing a Specific “Administrative Citizenship”’ (Working Paper, Södertörn University, Stockholm No 2024:1, 2024) Abstract: The legal strategies employed by France and Sweden to combat the Covid-19 pandemic differed significantly. Indeed, the articulation of hard law and soft law instruments varied, particularly due to differences in the trust placed by the state in its citizens. Meanwhile, both countries faced the same necessity of implementing efficient and effective standards designed to combat the pandemic. However, the fluctuating context in which these norms were established, along with the difficulty for the intended recipients to distinguish between what was mandatory and what was merely advisory, significantly contributed to the lack of legibility in health regulations in both countries.
Casey, Conor and David Kenny, ‘The Risk and Rewards of Ireland’s Leviathan: Rule of Law Values and the Irish Executive’s Crisis Response To COVID-19’ [2023] Irish Jurist (forthcoming) Abstract: One thing made abundantly clear by State responses to the COVID-19 pandemic is the exceptional level of power vested by many constitutional systems in the administrative state. The pandemic has highlighted, in an acute way, a longstanding reality of most constitutional democracies: that most policymaking and consequential political choices are made by the executive branch and bureaucracy rather than by the legislative branch.Many defend these institutional developments and the expansion of the regulatory and administrative state as indispensable for protecting the general welfare and promoting the common good. Others are concerned this vast power increases the risk of the arbitrary abuse of state power and threatens core rule of law and democratic values.In this article, we argue that the experience of the COVID crisis in Ireland provides a perfect example of both the importance of the administrative state to promoting the common good, and also why its vast powers must be carefully channeled. We employ a critical analytical lens proposed in recent literature to analyse the Irish administrative state’s response to the COVID-19 crisis and make the case that rule of law principles applied to executive action and regulation of this sort — an internal morality of administrative law — can both constrain the administrative state’s its scope for arbitrariness while also improving its efficacy and perceived legitimacy. We suggest that they help reconcile two critical aspects of public law thought and practice: the standing need for an empowered and energetic State and the need for all public power to be reasoned and purposive.In Part I, we outline the difficult dichotomy between the benefits and the deep risks of an expansive executive-led administrative state in times of crisis, and in the specific context of the COVID-19 pandemic, which was a perfect illustration of why a legislative-led response is not feasible in crisis. Part II examines Ireland’s COVID response, which exhibited an unprecedented delegation of rulemaking power to the executive; the vast empowerment of technocratic advisors; sweeping enforcement powers; and an inability to provide meaningful legislative oversight. It was, however, effective, and did not result in any democratic decay or serious, sustained, abuses of power. In Part III, we outline what Professors Sunstein and Vermeule term the ‘internal morality of administrative law’: a set of principles to ensure a more legitimate and effective administrative state through gauging compliance with fundamental rule of law precepts. In Part IV, we apply these principles to our Irish case study to show how they identify the moderate but important rule of law failures that beset this successful and ultimately benign crisis response. We argue that we should try to augment the culture of administrative states to recommit to these principles so that its crucial role in crisis response — and in governance more broadly — can be met with enthusiasm rather than suspicion.
Casey, Conor, Oran Doyle and David Kenny, ‘The Irish State’s COVID-19 Response and the Rule of Law: Causes for Concern’ (2021) 110(440) Studies: An Irish Quarterly Review 446–457 Abstract: Since March 2020, the most dominant issue in the Irish legal landscape has been, unsurprisingly, the COVID-19 Pandemic. Ireland has not declared a constitutional state of emergency since the pandemic reached its shores: it cannot, as a public health emergency is not grounds for use of emergency powers in the Irish constitution. But the Irish state’s approach to tackling the pandemic since March closely resembles a typical constitutional emergency response, heavily reliant on executive action in the form of regulations made by the Minister for Health. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and Emergency Measures in the Public Interest (COVID-19) Act 2020 (Emergency Measures Act) – the two main statutory planks of the state’s COVID-19 response – delegated broad powers to make regulations for ‘preventing, limiting, minimising or slowing the spread of COVID-19’ and to deal with the harsh economic and social effects of the pandemic. This authority was used to make ministerial regulations that implemented ‘lockdowns’ of varying stringency, similar to those in other states. This included shutting down non-essential business activity; mandating the wearing of masks on transport and business premises; restricting gatherings in private dwellings; limiting the number of people who could attend events; and preventing you from leaving your home unless you had a ‘reasonable excuse’. These powers are perhaps the most extensive powers delegated to the executive in the history of the state. To ameliorate the devastating socio-economic effects of the virus and these measures, the government also issued regulations introducing socio-economic supports such as rent freezes, eviction bans, business subsidies, and emergency social welfare supports. Some major measures – such as mandatory hotel quarantine for certain incoming travellers – were put on a statutory footing. But most restrictions on personal freedom were implemented by the Minister for Health making a regulation to prohibit an action, subject to a type of penalty specified by the Oireachtas. These penalties include the criminal sanctions of fines and imprisonment, supplemented by fixed penalty notices (colloquially referred to as ‘on-the-spot fines’) and an obligation to comply with directions issued by gardaí. The government also relied on its own inherent constitutional executive powers to issue public health advice, to unilaterally extend the immigration permissions of thousands of migrants in the state; and to compensate for the economic impact of lockdown measures. The government has, therefore, drawn liberally upon the three different faces of state power, the ‘force of law (imperium), the force of money (dominium) and the force of information (suasion) to respond to the COVID-19 pandemic.’ Assessing the state COVID-19 response: some positives Assessing whether the government’s response to COVID-19 has been, all things considered, optimal or reasonable, is a deeply complex moral, political and public health question, one far beyond the scope of this article. But one positive was robust constitutional institutions of government that have the capacity to act for the common good in the face of enormous challenges. When the virus reached Irish shores in March 2021, the Irish state was swiftly able to marry Hamiltonian qualities9 of dispatch, unity of purpose, and flexibility, with the technocratic expertise of its public health advisors and other civil servants to act to protect life, health, and socio-economic stability. The legislature, despite not housing a government majority, passed robust emergency legislation quickly and with some scrutiny. The government utilised these powers decisively, and with consultation with relevant expert advisors. This is no small thing. We do not, in making this observation, specifically endorse the choices made by the state and/or its technocratic advisors as compared to possible alternative measures or strategies. Rather, the readiness and willingness of the executive branch to swiftly act in good faith for the common good – with due regard for expert advice – is laudable compared with some of its comparators.
Castellà Andreu, Josep Maria, ‘Preserving Democracy and the Rule of Law in a Pandemic. Some Lessons from the Venice Commission’ in Josep Maria Castellà Andreu and Marco Antonio Simonelli (eds), Populism and Contemporary Democracy in Europe: Old Problems and New Challenges (Springer International Publishing, 2022) 253–272 Abstract: This chapter analyses the impact the COVID-19 pandemic is having on the European legal systems, and on Spain in particular, through the prism of the studies elaborated in the context of the health crisis by the Venice Commission. These documents explicitly recognise the relevance of the current health crisis in our societies and its impact on the founding objectives of the Council of Europe: the safeguarding of democracy, human rights and the rule of law. The analysis of the criteria of the Venice Commission in relation to the application, regulation and the redistribution of powers during states of emergency is indeed a useful tool to assess the use of the exceptional powers by States during the COVID-19 pandemic. In particular, reference to these standards may be useful to identify possible abuses by populist governments.
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?
Cathaoir, Katharina Ó and Christie MacColl, ‘COVID-19 Restrictions in Ireland and Northern Ireland: A Comparison of the Legal Framing of Reasonableness’ (2022) 73(2) Northern Ireland Legal Quarterly 234–259 Abstract: In 2020, Ireland and Northern Ireland implemented separate legislative strategies to tackle COVID-19, despite the island comprising a single epidemiological unit. This article evaluates and contrasts the framing of ‘reasonable excuses’ in the regulations adopted by Ireland and Northern Ireland between March and December of 2020. It submits that the rejection of an ‘all-Ireland’ approach, side by side lack of effective regulatory coordination and enforcement, likely had implications for transmission in each state. The regulations have entailed far-reaching incursions on civil liberties, often without providing the public with a clear evidence base. The complexity of the legislation as well as conflicting government guidance, contributed to a climate of public confusion, which created subsequent difficulties for enforcement, notably in the border regions. Insufficient coordination undermined measures by allowing for loopholes to be exploited. The article reflects on the human rights implications thereof, focusing on transparency and proportionality.
Cederblom, Michael L, ‘Towards Action and In Pursuit of Scofflaws: Shifting the Framework of Pandemic Public Health Punishment from Theory to Pragmatism’ [2022] Lincoln Memorial University Law Review (forthcoming) Abstract: The COVID-19 pandemic sparked a debate over whether public health interventions like mask mandates should be implemented and whether public health scofflaws should be punished. The result was a split largely across political lines; ‘permissive’ jurisdictions promoted ideas of individual freedom and condemnation of government-imposed punishment while ‘restrictive’ jurisdictions implemented a range of punishments attached to mask mandates. This political battle became one of stagnant theories and essentially fused considerations of public health and legal punishment. Bracketing political concerns, what philosophical theories fueled this divide? While public health generally employs a utilitarian framework limited by deontic constraints, permissive jurisdictions exuded a purer libertarian deontology and restrictive jurisdictions exhibited a retribution-laced utilitarianism. Neither are sufficient to guide public health punishment during a pandemic based on their reliance on too pure a theory. Permissive jurisdictions promoted government inaction which is simply in contravention to public health principles during an emergency, and restrictive jurisdictions used overly harsh punishments that threatens equity. What is needed is pragmatic reconciliation: the decision-making framework guiding public health punishment during a pandemic must recognize the exigency of the crisis and shift the balance of values (like emergency medicine) to prioritize population health and equity. Lawmakers utilizing this more grounded approach which draws on foreign example will deliver a more practical public health response that delivers fairer outcomes, protects individual liberties, and reduces overall suffering.
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.
Chang, Wen-Chen and Chun-Yuan Lin, ‘Taiwan’s Effective Pandemic Control with Dialogic Constitutionalism’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 311 Abstract: To date, Taiwan has successfully controlled the COVID-19 pandemic without serious restrictive measures or any lockdowns. Since the outbreak of the pandemic, Taiwan has been careful in formulating policies and issuing measures to balance the need for pandemic control and the maintenance of human rights protection, democracy and the rule of law. This chapter analyses how Taiwan has achieved success in pandemic control despite its barred access to the World Health Organisation and its geographic proximity and close economic ties to China. It is argued that legal preparedness after the 2003 SARS epidemic helped to some extent, but other than law, a comprehensive national healthcare system with affordable care, a high level of digital technology with cautious application, and a vibrant civil society actively engaged in the regulatory process and pandemic control were pivotal. In addition, the key mechanism keeping governmental power under control was a model of ‘dialogic constitutionalism’ that served to channel and initiate open and vibrant political dialogues with horizontal and vertical separations of powers between various government branches and, more importantly, between the government and wider society.
Chang Yu-Ling and Tsai Jen-Che, ‘Reviewing the Legal Formation Responding to COVID-19 Pandemic and Analyzing the Revision of Communicable Disease Control Act’ (2022) 38(19) Epidemiology Bulletin 110Jurisdiction: Taiwan
Abstract: During the Coronavirus disease (COVID-19) pandemic, the Special Regulations on Prevention, Relief and Revitalization for Severe Pneumonia with Novel Pathogens (hereinafter referred to as ‘Special Act’) was enacted for a certain duration in addition to the Communicable Disease Control Act. The article aims to study the added provisions on epidemic prevention according to three tiers: incentives and assistance for preventive and control measures, reinforcing existing regulations, and increasing liability and use of personal information for specific offenders. Furthermore, we analyzed the differences between the Special Act and the Communicable Disease Control Act and provided suggestions for the revision of the Communicable Disease Control Act in the future.
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.
Chen, Bruce, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’ (2023) 44(1) Statute Law Review Article hmac012 Abstract: The COVID-19 pandemic has created immense challenges for governments in their management of the public health response and tested the limits of public law. This article undertakes a comparative analysis of the common law jurisdictions of the United Kingdom, New Zealand, and Australia. It discusses the imposition of ‘stay at home’ restrictions pursuant to public health legislative frameworks, focusing on judicial scrutiny in the context of statutory interpretation. It examines the appellate cases of R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; [2021] 1 WLR 2326, Borrowdale v Director-General of Health [2021] NZCA 520; [2022] 2 NZLR 356, and Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520.Using these case studies, this article seeks to reveal key themes and implications for public law. What approaches have the courts adopted to construe public health emergency powers? How have the courts treated ‘rights-based’ principles of statutory interpretation? Have the courts approached interpretation in the usual manner or displayed an unorthodox level of deference to other branches of government? The article concludes on what implications the judicial approaches have for the interpretation of emergency powers in the future.
Cheesman, Samantha Joy, ‘The Hungarian Legislative Response to the COVID-19 Pandemic and Its Challenges to the Rule of Law’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 141–154 Abstract: This chapter examines how the response to the pandemic will have an impact for many years on rule of law mechanisms and human rights within Hungary. The arguments put forward in this chapter are supported by analysis of key legislation both domestic and international concentrating on how the concept of rule of law has been redefined. This analysis is conducted by focusing on the Hungarian legislation, Fundamental Law, and key sources engaging in the analysis of the effects that the COVID-19 pandemic has had on reshaping the legal landscape. In the unprecedented times of a global pandemic it is important to reflect on how the Governments of the world responded to the immediate danger and what ramifications those changes will have as the pandemic unfolds over the coming years. This raises questions regarding the European political landscape and how the cause of the rule of law can be furthered. This chapter argues that the rule of law project of the European Union (EU) as set out in Article 2 of the Treaty of the European Union (TEU) has been circumvented by several rogue states. The European parliament now is finding new ways to engage with and curtail ‘rogue’ Member States which, according to them, step out of line.
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.
Chen, I-Ju, ‘The Impact of COVID-19 on Global Administrative Law’ (2021) 24(36) Juris Poiesis 280–287 Abstract: This article has two rationales. The first is to examine global administrative challenges and governmental responses to COVID-19. The other aim is to assess the impacts of the pandemic on a newly-emerging field of Global Administrative Law (GAL). The required measures of COVID-19 control, including national lockdown designation and implementation, have presented challenges which governments have struggled to deal with since early 2020. The problem has been further complicated by the anti-science stance of populist leaders such as Donald Trump and Jair Bolsonaro, who have downplayed the COVID-19 crisis and failed to take prompt and decisive measures of response. Administrative challenges arising from these failed measures revolve around racial inequality, contested access to healthcare systems and affected human rights, as well as impeded cross-border sharing of scientific data for global health efforts. These are the challenges to which a 21st century GAL must respond. GAL can be understood as a regime, which is composed of the legal rules, principles, and institutional norms applicable to processes of administration which are undertaken in approaches that implicate more than purely intra-state structures of legal and political authority. GAL as an emerging international legal regime entails dual insights. On the one hand, GAL is usually termed as global governance; on the other hand, such governance can be regulated by national administrative law. As a result, the discovered impacts of COVID-19 on the development of global administrative law include positive and negative effects. This article concludes that GAL plays a key role in responding to the pandemic as well as providing legal frameworks outlining states’ governance.
Chen, Ming Hsu and Daimeon Shanks, ‘The New Normal: Regulatory Dysfunction as Policymaking’ (2023) 82(2) Maryland Law Review 300–364 Abstract: Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a predetermined political goal that may not be otherwise attainable or attractive through regular processes—a striking example of bad faith governance. The consequences of this kind of dysfunctional policymaking can be dangerous, especially when it then becomes normalized in agency policymaking. Building on an emerging scholarship on internal administrative law, this Article looks inside agencies to expose the phenomenon of regulatory dysfunction in policymaking. It describes the structural characteristics and logics associated with irregular policymaking and provides a typology of agency responses to irregularities ranging from bureaucratic legalism to bureaucratic rationality. Using case studies from immigration law, environmental law, and public health law, it explains how the resulting irregularities can lead to dysfunction. It concludes by assessing the consequences of dysfunctional policymaking for administrative law and scholarship, showing where it makes a difference to flip the starting presumption of regularity. While irregularity is predictable, the normalization of dysfunctional policymaking is worrisome. This Article seeks to shift the discourse around administrative policymaking by injecting some realism about what is, and what should be, the new normal.
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.
Chidhawu, Tinotenda, ‘Zimbabwe’s Response to Covid-19 and Its Socio-Economic Impact’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 371–402 Abstract: This chapter presents an overview of the situation regarding Covid-19, and discusses the measures adopted by the Zimbabwean government to curb the spread of the pandemic. The Siracusa Principles, the General Comments of the Human Rights Committee and other human rights bodies provide the guiding standard in assessing the kind of measures that were adopted, the legality of the containment measures, the enactment of new laws or the use of existing legislation to address Covid-19, the constitutionality thereof, and the content of the law and how it has impacted on human rights. This chapter also discusses court decisions concerning the challenges to some of the measures adopted by the government, after which it examines the socio-economic impact of the measures taken by the government.
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. .
Chrysogonos, Kostas and Anna Tsiftsoglou (eds), Democracy after Covid (Springer, 2022) Book details, contents and pricing on publisher website
Abstract: This book, one of the first of its kind, explores the impact of the COVID-19 pandemic on modern Western democracies from a comparative constitutional law and policy perspective. Through 11 scholarly contributions, it tackles cutting-edge topics for the liberal state, such as emergency legislation, judicial scrutiny of COVID-19 measures, parliamentarism and executive decision-making during the pandemic. The book examines these topics both from a microscopic national constitutional angle, with a focus on European states, and from a macroscopic regional and comparative angle, on par with the American example. The COVID-19 pandemic is thus treated as an international state of emergency that has enabled far-reaching restrictions on essential human rights, such as freedom of movement, freedom of religion or even major political rights, while giving rise to the ‘administrative state.’ This edited volume explores each of these pressing themes in this exceptional context and evaluates different liberal states’ responses to the pandemic. Were these responses reasonable, effective and democratic? Or is the COVID-19 pandemic just the beginning of a new era of global democratic backsliding? How can liberal democracies manage similar crises in future? What lessons have we learned? The institutional knowledge gained turns out to be the key for the future of the rule of law.
Chua, Shirin and Jaclyn L Neo, ‘Democracy in the Time of COVID-19: Pandemic Management, Public Trust and Democratic Consolidation in Singapore’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 84 Abstract: The COVID-19 pandemic tested the legal, political, economic and public health systems of countries all over the world. Singapore – particularly as it found itself having to hold a general election in the middle of the pandemic – is no exception. However, whereas COVID-19 resulted in political upheaval and democratic backsliding in many countries, Singapore’s legal and political institutions generally proved resilient. It even seems that the pandemic threw up opportunities for democratic consolidation in Singapore as a result of increased citizen-state interactions during this time. Nevertheless, this democratic order is not to be taken for granted. Care must be taken to ensure that measures put in place during exceptional times do not result in the ‘permanence of the temporary’. Singapore will also need to do more to ensure that its most vulnerable migrant communities do not continue to disproportionately bear the burdens of the pandemic. Ultimately, the crisis should encourage Singapore to confront more fundamental questions as to the nature of its democracy and the identity of its political community.
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.
Conzutti, Andrea, ‘A Trial Vaccine to Combat COVID-19? The First Historical Case of Suspension of a Law by the Constitutional Court’ [2021] (3) Le Regioni 600–618 Abstract: The essay focuses on the recent order of the Constitutional Court, n. 4 of 2021, with which for the first time a contested law was suspended. In particular, the urgency of the pandemic crisis required a prompt response from the Constitutional Justice Body, which could not wait for the usual procedural deadlines. For this reason, the Constitutional Judges faced this exceptional situation by resorting to the equally exceptional institute of the suspension. We have thus witnessed a test of judicial efficiency, which has led in a very short time to the release of a conservative measure, suitable to avoid, in the meantime, a serious violation of the constitutional division of legislative competences between the State and the Regions.
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.
Coto, Ariel F, ‘Hero and Villain: The Defense Production Act in the Era of COVID-19’ (2021) 51(1) Southwestern Law Review 156–173 Abstract: In moments of crisis, heroic acts are typically those that are most decisive. Few statutes embody this sentiment more than the Defense Production Act of 1950 (DPA). The DPA has long been a statutory hero to a country that has needed to adapt to the international and domestic adversities of a post-industrial world. However, the line between hero and villain can often blur when decisive power begins to corrupt. In the nascent stages of the U.S. COVID-19 outbreak, President Trump invoked the DPA to galvanize the production of critical medical supplies for the federal stockpile. What resulted was a use of DPA power that brought states to their knees.
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 1-46 Introduction: This paper begins by describing the breadth of public authorities’ emergency powers to manage a pandemic, and provides an overview of emergency powers included in public health legislation, as well as the bare ex ante democratic processes that come with the exercise of those emergency powers (I). Next, it 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 (II). It also suggests that criminal law safeguards and constitutional rights litigation only offer limited accountability (III). Finally, it presents an argument in favour of enhancing public accountability to parliaments and citizens through public health legislation (IV). While these are not the only avenues for accountability through law – administrative review may represent another – common themes in these areas suggest that ex post judicial review of emergency responses, whether in public or private law, are limited by characteristic features of emergencies. In particular, the law in each of these areas leaves government with a relatively wide, though not unlimited, margin of manoeuvre in its pandemic response.
‘COVID-19 and Freedom of Movement’ (2023) 97(12) Australian Law Journal 868-869 Abstract: The COVID-19 pandemic resulted in many restrictive laws being imposed, both at the Commonwealth and the State level, with resultant legal challenges. Most challenges, however, were unsuccessful and were disposed of at the Supreme Court or Federal Court level. Two notable cases reached the High Court.
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.
Craig, Robin Kundis, ‘The Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes’ (SSRN Scholarly Paper ID 4028027, 6 February 2022) Abstract: Vaccination mandates have been controversial since long before COVID-19, but the current COVID controversies obscure a more pervasive problem for U.S. public health laws and vaccine-preventable diseases than the intense politicization surrounding the pandemic. Until the late 20th century, for most people the risk of various dread diseases was sufficiently high that they embraced new vaccines. The intentional result of federal and state vaccination policies was that fewer people got these diseases. The perverse result was that perceptions of disease risk shifted, making the vaccines themselves seem like the far riskier option to many people and pressures to eliminate or mitigate vaccination mandates increased. Perhaps most importantly, in the early 21st century, state legislatures increasingly enacted exemptions from school vaccination requirements, setting the stage for measles resurgences in 2015 and 2019. Focusing primarily on measles vaccination, this Article argues that, while not the only factor, a regulatory shifting baseline syndrome fueled the pre-COVID-19 resistance to childhood vaccination. In 1995, Dr. Daniel Pauly described the ‘shifting baseline syndrome’ and its problems for fisheries management. Pauly posited that each generation forgets what the ocean and its fisheries used to be and that this generational amnesia allows successive generations to accept the current impoverished state of marine fisheries as normal. The generational forgetting of prior fisheries, in other words, makes opaque what the goals of fisheries regulation should be, or even could be. This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a public legal regime, like a school vaccination mandate, so successfully eliminates a societal problem, like dread diseases, that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. This generational amnesia, in turn, can lead to changes in law and policy allow the prior problem to re-emerge in society, as occurred with measles outbreaks. While COVID-19 vaccination mandates are almost uniquely politicized and too new to reflect and regulatory shifting baseline syndrome, decisions are nevertheless being made in the COVID-19 context that may give the regulatory shifting baseline syndrome more room to operate, potentially threatening public health gains made with respect to a plethora of other vaccine-preventable diseases in the United States.
Crego, María Díaz, ‘Online Parliaments?: The Impact of Hybrid Working Methods in Legislatures’ Performance through the Lens of the European Parliament’ (2022) 2(2) International Journal of Parliamentary Studies 304–321 Abstract: The outbreak of the covid-19 pandemic forced many parliaments to ensure business continuity through the digitalisation of its activities. That was the case of the European Parliament, which held its first plenary session with remote electronic participation on 26 March 2020 and continued to work remotely until March 2022. During those two years, Parliament’s Rules of Procedure were changed, new videoconferencing tools and remote voting solutions were developed and parliamentary procedures were adapted to the new working methods. The digitalisation of parliamentary proceedings allowed the European Parliament to continue working during the crisis and can be praised for that. However, remote electronic participation is often criticised for its impact on parliamentary procedures and the way parliaments exercise their core functions. This paper proposes to look into the European Parliament’s experience during the pandemic in order to better assess the positive aspects and drawbacks of introducing remote working methods in legislatures.
Criste, Mircea and Andreea Verteș-Olteanu, ‘The Exercise of Fundamental Rights in Pandemic Times’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 219–232 Abstract: The present article examines the defining features of fundamental rights and freedoms in the context of the COVID-19 pandemic, with a focus on Romania’s legal framework for the establishment of a state of emergency. The pandemic presented an unparalleled opportunity to address the restrictions on fundamental rights and freedoms, particularly with regard to the limits of such restrictions. Fundamental rights are distinguished from fundamental freedoms, with the former imposing positive correlative obligations on the state and the latter being subject to negative obligations. The recognition, promotion, and protection of certain fundamental rights are related to transnational, global moral values, which have led to a real ‘inflation’ of rights. The article notes that limitations on the exercise of rights must be proportional, non-discriminatory, and cannot affect the very existence of the right or freedom. In Romania, the President has the authority to declare a state of emergency, subject to the approval of Parliament, which conducts a full analysis of the grounds and legality of the measure. The Romanian Constitution institutionalizes a series of effects generated by the establishment of the state of emergency to guarantee the exercise of parliamentary control in a situation of constitutional crisis. The aim of the article is to demonstrate that the management of crisis situations through the application of the state of emergency is a shared competence of the two representative authorities of the Romanian people—the Parliament and the President.
‘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 181-197pre-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.
Curley, Cali, Peter Stanley Federman and Ruowen Shen, ‘Expanding the Political Market Framework to Explain Executive Decision-Making during the COVID-19 Crisis’ (2023) 83(5) Public Administration Review 1281–1299 Abstract: The traditional political market framework (PMF) argues that elected officials respond to policy demands by adopting policy that furthers their goal of reelection. However, an emerging crisis can make this approach to decision-making challenging as the immediacy of response, the needs of the public, and technical expertise may conflict with reelection goals. This conflict can encourage elected officials to engage in blame avoidance by delegating policy-making powers to the bureaucracy. Utilizing a mixed methods approach to analyze state-level governor responses to COVID-19, this paper expands the PMF by capturing the influence of bureaucratic demands on elected official decisions to delegate or transfer power to the bureaucracy. We find evidence that bureaucratic expertise, under the right set of circumstances, influences policymaker decisions to delegate policymaking power. Lastly, we advocate for a renewed focus on democratic principles and the consequences of delegation for transparency, accountability, and social equity. In understanding the specific dynamics at play when bureaucrats and executives work to develop policy in crisis, practitioners may gain a better understanding of how to navigate difficult decisions. The specific executive orders across states are not particularly well-known, and providing evidence of the steps other states took to combat the crisis may prove useful to practitioners in the emergency management space. If practitioners have a more complete understanding of why policy is made and by what mechanisms, they may apply a focus on implementation strategies that are effective and relevant.
Czuryk, Małgorzata, ‘Legal Status of the Local Government in the Time of COVID-19 Pandemic’ (2020) 1 Cybersecurity 83–92Jurisdiction: 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.
Dacev, Nikola, ‘Pandemic Law (Case of Republic of North Macedonia)’ (2024) 3(1) Journal of Law and Politics 5–15 Abstract: The pandemic defined as an epidemic spread to larger regions is not unknown in the world. There are many pandemics in history that have had far-reaching consequences for humanity like plague, cholera, flu, severe acute respiratory syndrome coronavirus (SARSCoV) and Middle East respiratory syndrome coronavirus (MERS-CoV). But so far there has been no pandemic of this magnitude and such consequences as the Covid-19 pandemic, with so many infected and dead people. It has literally paralyzed life and led to unprecedented health, economic, political consequences on a global scale. The blow from Covid-19 was so great that even after almost two years we can not say with certainty when and if we will return to normal life at all, i.e. life before the pandemic. Many countries around the world are still struggling to fight the virus. As was the case in every area, Covid-19 had a serious impact on the legal systems. Many countries were not ready to deal with the coronavirus with appropriate legislation in terms of implementing appropriate measures to help their citizens. Thus, due to the urgency of the situation, new laws to combat the coronavirus were adopted in a speedy manner, and in some countries a number of decrees with a force of law were adopted in a state of emergency such as the case of North Macedonia. In this paper I will refer to the content of some of those decrees in North Macedonia, the need for them, the disputed provisions, especially those that directly violate the basic human rights guaranteed by the Constitution of the Republic of North Macedonia. The key question that needs to be answered is the appropriateness of those measures contained in the decrees, whether and to what extent they prevented the spread of the virus. But it is also equally important to find the answer to the question of the role of the legal systems, whether law as such will continue to exist in the same form and with the same content or we are already in the process of creating the so-called pandemic law.
Daly, Paul, ‘COVID-19 in Canada: The Legal Framework’ (CanLIIDocs No 561, 2022) Abstract: With successive waves of COVID-19 sweeping into Canada and over the population, the political and legal systems struggled to respond. In the province of Quebec, a popular metaphor is that of an airplane being constructed while still in flight: faced with pervasive uncertainty and rapidly changing conditions, it is necessary to pilot the plane but also to make ongoing structural adjustments to ensure the plane remains in the air. On a much more trivial level, the legal scholar charged with describing Canada’s COVID-19 response faces an unenviable task. Each of the COVID-19 waves would merit a detailed analysis in and of itself but space precludes such an approach. My goal, therefore, is to set out the general framework Canada’s political and legal systems have used to respond to the pandemic, illuminating the framework by examples drawn from various points in time. This framework is mostly backward-looking but, as it is likely to be used in response to future waves and future pandemics, it has also a forward-looking quality.
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, Tom Gerald, ‘The Pandemic and the Future of Global Democracy’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 5 Abstract: If global democracy were a patient, it was already ailing when the United Nations declared a global health emergency in January 2020. Democracy assessment organisations had been registering a 15-year trend of declines in the quality and persistence of liberal democracy worldwide, although counter-trends of democratic innovation and reinvention were also gathering momentum. This chapter reflects on the future of global democracy and capture key trends and developments in institutional and geo-political responses through three questions: has COVID-19 helped to rehabilitate liberal democracy’s reputation as a political system by revealing effectiveness in crisis? Has the pandemic crystallised a dramatic redrawing of the democratic atlas? Does the hardening of global tensions between China and competitor states during the crisis risk an unhelpful reframing of global democracy as merely an ‘anti-China club’? The driving argument is that while negative trends are dominant, positive trends and developments offer many reasons for hope.
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.
Daly, Stephen, ‘The Rule of (Soft) Law’ (2021) 32(1: Covid-19: Political Responses and Legal Consequences) King’s Law Journal 3–13Pre-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.
Damaskou, Anna, ‘The COVID-19 Pandemic and the Rule of Law: Turning the Crisis into Opportunity’ (re:constitution Working Paper, Forum Transregionale Studien, No 5/2022, 2022) Abstract: The still ongoing COVID-19 pandemic has caused an extraordinary, unprecedented situation worldwide. Certain mechanisms and processes pertaining the regular democratic functioning of countries may be temporarily suspended or circumvented, in order to enable concentrated decision-making and effective crisis-management. Such suspension or circumvention could mean an abuse of the state of emergency, serving particular political interests, combined with reduced space for public scrutiny. In the EU, even well-established democracies seem to be susceptible towards backsliding of the rule of law. In September 2020, the European Commission published its first Rule of Law Report, as part of strengthening the EU’s rule of law toolbox. The report aimed at monitoring significant developments between January 2019-September 2020, relating to the rule of law in the EU Member States. The report is expected to enhance the Commission’s responses at the EU level. Does, however, the methodology followed for the drafting of the annual EU Rule of Law Report ensure uncompromised objectivity and independence, so that the conclusions drawn facilitate the proposal of the necessary reforms in each Member State? The present Working Paper aims to serve as a ‘shadow report’ to the EU Rule of Law Report(s) focusing in particular on the repercussions of the Covid-19 pandemic.
Dang, Minh Tuan and Thi Ai Quynh Hoang, ‘The Challenges for the Rule of Law in the State of Emergency and the Case of Vietnam during the COVID-19 Pandemic’ (2024) 8(9) Journal of Infrastructure, Policy and Development Article 7497 Abstract: A state of emergency allows authorities to exercise special powers, including the temporary suspension of regular legal provisions and human rights standards. This scenario engenders a conflict between extraordinary powers and the foundational principles of the rule of law. This paper investigates one of the most contentious legal dilemmas concerning emergency powers: whether these powers must be exercised within the bounds of legal constraints. This paper also explores whether ordinary principles of legality apply in situations involving emergency powers. This study aims to examine how this tension is approached from different perspectives. It focuses on discussing the challenges for the rule of law in the state of emergency. It also studies Vietnam’s approach to addressing these challenges during the COVID-19 pandemic.
Dao, Tri Uc and Vu Cong Giao, ‘State of Emergency in Vietnamese Law: Reflections on the Government Response to the Covid-19 Pandemic’ (2022) 22(2) Australian Journal of Asian Law 5–19 Abstract: This article explores the Vietnamese government’s response to the Covid-19 pandemic, to examine the rationality and effectiveness of Vietnamese law on the state of emergency. In so doing, it investigates interpretations of the Constitution of Vietnam regarding emergency powers. The authors argue that although Vietnam has various regulatory provisions on state of emergency (including: emergency measures; decision-making processes; substantial criteria for entering and lifting the state of emergency; and legal remedies for, and consequences of, violation of emergency measures) many are not clearly or properly defined. Legally, emergency powers, especially the power of the executive, therefore, cannot be controlled. With tacit permission from the Communist Party, the loopholes in the current legal framework on the state emergency have allowed the application of extra-legal government decisions in response to the Covid-19, revealing structural weaknesses in the rule of law in Vietnam.
Dave, Dhaval et al, ‘Sudden Lockdown Repeals, Social Mobility, and COVID-19: Evidence from a Judicial Natural Experiment’ (2023) 20(2) Journal of Empirical Legal Studies 272–304 Abstract: The imposition and lifting of COVID-19 lockdown orders were among the most heatedly debated policies during the pandemic. Credible empirical evaluations of the effects of reopening policies are difficult because policymakers often explicitly linked sustained reductions in COVID-19 cases to the lifting of lockdown orders. This hardwired policy endogeneity creates challenges in isolating the causal effects of lifting of lockdown orders on social mobility and public health. To overcome simultaneity bias, we exploit a natural experiment generated by the Wisconsin Supreme Court when it abolished Wisconsin’s ‘Safer at Home’ order on separation-of-powers grounds. We capitalize on this sudden, dramatic, and largely unanticipated termination of a statewide lockdown order to estimate its effect—relative to a more gradual scaling back of restrictions—on social mobility and COVID-19 case growth. First, using anonymized smartphone data from SafeGraph and a synthetic control design, we find that termination of COVID-related restrictions had small and short-lived negative impacts on social distancing. Then, using data on case and mortality rates, we find no evidence that the Wisconsin Supreme Court decision impacted COVID-19 growth up to a month following the repeal. These findings suggest that in the absence of carrying new information, sudden lockdown repeals may generate smaller behavioral responses than policymakers anticipate.
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 la Sierra, Susana, ‘The State in Emergency Situations: An Uncertain Legal Framework Comprised of Fragments, and an Asymmetrical Balance of Powers’ (2022) 34(1) European Review of Public Law_ _Abstract: In this paper it is argued that legal orders were (in general) not prepared to deal with the pandemic we are still living through. Countries reacted on the basis of a composite of norms, and not necessarily a homogeneous and coherent one. In some cases, there were specific norms devoted to this type of situation, whereas in many others a general law of exception or of extraordinary powers was used as the legal framework for taking measures. As time has been passing, several different phases in the fight against the pandemic have followed one another and each of them was inspired by different principles, public goods and needs. Also, the role of State powers varies, and it is for lawyers to try and design a valid framework, which could be a useful tool for other health emergencies to come.
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, ‘Democratizing Emergencies: The Local Predicament’ (2022) 101 North Carolina Law Review (forthcoming) Abstract: Disasters are typically local events even in a pandemic. Throughout 2020 into 2021, state governors used their emergency powers to issue stay-at-home orders, close non-essential businesses and either prohibited or banned mass gatherings including gatherings for religious services. However, it has been local government that reacted more quickly in the beginning and has continued to act into early 2022 when many state governments refuse to consider social mitigation measures to curb transmission despite a national surge of nearly a million cases per day. For those citizens who desire their state government to do more in an emergency, local government often filled that gap. While these local cities and counties are enacting such measures like a school mask mandate in direct response to local public health metrics, many have faced resistance from their state. Some states have banned local authorities from enacting certain mitigation measures and have aggressively sought to restrain those local authorities from defying these bans through litigation and fines. While red states preempting blue city laws is not new, some of the states’ bans are more brazen in method and more crippling in outcome. This new form of ‘crippling preemption’ places local officials in an untenable predicament. Charged with providing for the health, safety and education of its citizens, local government cannot carry out its duties if state government removes critical public mitigation tools from its toolbox in a public health emergency. This Essay highlights the urgent need for local government to fully respond in an emergency and the most important problems facing proponents of responsive regulation. This Essay urges local government to continue to challenge state-placed limitations on local emergency orders. The Essay further concludes: 1) that the state and federal courts can and should bolster the local governments’ legitimacy in their actions on either constitutional or statutory grounds; and 2) that governments should model themselves on those successful state-local partnerships, especially ones that transcend party lines.
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.
deLisle, Jacques and Shen Kui, ‘China and COVID-19: An Archetypal Legal and Governmental Response to an Exceptional Challenge’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 43 Abstract: China’s handling of the COVID-19 pandemic reflected long-standing features of Chinese law and governance. The initial troubled response was consistent with incentives created by conflicting or ambiguous allocations of authority and imposition of accountability along fragmented functional, vertical and geographic, horizontal lines – known in Chinese as tiao and kuai. Later measures to control the pandemic showed the system’s formidable capacity to mobilise vast resources and shape citizens’ behaviour, and the absence of legal constraints on regime choices. Legal reforms to address vulnerabilities revealed in the crisis are unlikely to transform basic features of the system.
Delledonne, Giacomo, ‘Executives During the COVID-19 Pandemic: Contradictory Trends’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 47–59 Abstract: This chapter focuses on how the executives have adapted to the pandemic challenge since March 2020. To do so, it develops a comparative analysis of the role of the executives in facing the COVID-19 pandemic in three selected European jurisdictions, namely, Belgium, Germany, and Italy. An underlying assumption in this chapter is that executives, more or less inevitably, are crucial actors in major crises; still, it remains to be seen how these very crises impact on their structure and functioning.
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 827–831Jurisdiction: 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.
Díez-Picazo, Luis María, ‘The State as Protector/Guarantor of Last Resort: General Conclusions’ (2022) 34(1) European Review of Public Law_ _Abstract: This text reflects the oral conclusions presented at the end of the EGPL reunion in September 2021. Given the broad variety of topics touched by the different speakers, these conclusions deal in particular with two questions: the legal problems posed by the practice of triage (i.e. selecting which patients can be attended when not all of them can be treated) and the ambiguities of the ‘state’ as guarantor of last resort. The conclusions also include a reference to their author’s professional experience during the pandemic.
Diller, Paul A, ‘Emergency Rule: A New Paradigm for State and Local Governance?’ (2023) 50(4) Fordham Urban Law Journal 723–738 Abstract: The COVID-19 pandemic led to an explosive growth in the use of emergency powers by officials at the state and local levels in the United States. Governors and mayors using emergency powers preceded the pandemic, but the scale and scope of the actions taken pursuant to such powers during Covid dwarfed those of prior instances. This essay suggests that Covid may have ushered in an increased normalization of the use of emergency powers. It offers and analyzes some recent examples thereof, and then assesses the normative implications of the increased use of emergency powers for local governance. The essay concludes that the unilateral nature of emergency powers undercuts the argument for local government rooted in the value of its participatory nature.
Diller, Paul A, ‘Governors Slightly More Bound? A Critique of the Uniform Law Commission’s Model Public-Health Emergency Authority Act’ (2024) 112(4) Kentucky Law Journal (forthcoming) Abstract: In response to the boldest and most pervasive use of emergency powers by governors in United States history during the COVID-19 pandemic, the Uniform Law Commission has proposed the Model Public-Health Emergency Authority Act. The Act seeks to correct some of the excesses of the Covid emergency response, while at the same time shoring up governors’ authority to respond to the next public health emergency. This Article argues that, on the whole, the Act is a disappointment because it continues to allow governors to rule their states indefinitely, with few restrictions, during declared public health emergencies. The Act imposes some soft procedural requirements that any politically competent governor should be able to evade fairly easily. For states that have already enacted significant post-Covid emergency rule reform, or whose courts interpreted their emergency schemes during Covid to restrict gubernatorial authority, the Act would be a step backwards. For those states that have yet to re-assess their emergency regimes since Covid, however, and whose existing regimes grant their governors broad powers, adoption of the Act would likely be better than the status quo.
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.
Doan, Hai, Jing-Bao Nie and Elizabeth Fenton, ‘The Precautionary Principle in Public Health Emergency Regime: Ethical and Legal Examinations of Vietnamese and Global Response to COVID-19’ [2023] Bioethics (advance article) Abstract: Responses to the COVID-19 pandemic have been widely criticized for being too delayed and indecisive. As a result, the precautionary principle has been endorsed, applauded, and proposed to guide future responses to global public health emergencies. Drawing from controversial issues in response to COVID-19, especially in Vietnam, this paper critically discusses some key ethical and legal issues of employing the precautionary principle in public health emergencies. Engaging with discussions concerning this principle, especially in environmental law where the precautionary principle first appeared as a guiding principle with objective content(s), this paper formulates the precautionary principle as ‘in dubio pro salus’, which is about advising, justifying and demanding states to proactively prepare for scenarios arising out of any public health emergency. It distinguishes the precautionary principle into moderate and hard versions. A moderate version largely takes a holistic approach and fulfils a series of criteria specified in this paper, while a hard version either permits restrictive measures to be deployed primarily on a hypothetic basis or expresses an instrumental mentality. The hard version should be rejected because of the ethical and legal problems it raises, including risk-risk tradeoffs, internal paradoxes, unjustified causing of fear and unreasonable presupposition. Ultimately, this paper defends the moderate version.
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.
Dobbs, Mary and Andrew Keenan, ‘Territorial Approaches to a Pandemic: A Pathway to Effective Governance?’ (2022) 73(2) Northern Ireland Legal Quarterly 202–233 Abstract: Pandemics, including COVID-19, highlight the issue of multilevel governance, where and how powers should be allocated, and the challenge of ensuring coherency. This issue comes clearly into focus in epidemiological units where internal jurisdictional boundaries exist, as in the case of the island of Ireland with the border between Northern Ireland/the United Kingdom and Ireland. This article evaluates the approaches to policy-making on the island of Ireland, and considers whether the two jurisdictions adequately addressed cross-border issues in light of the concept of subsidiarity. The core focus is on a COVID-19 Memorandum of Understanding (MOU) agreed between Ireland and Northern Ireland in April 2020, with consideration also of proposals for a two-island approach. The article argues that subsidiarity would call for a centralised approach or at least substantial cooperation to facilitate effective policy implementation and coherency. The MOU reflects these ideas, through supporting substantial cooperation, but with some significant weaknesses that manifest in its implementation. Alternative issues arise when considering a potential two-island approach. Together, the MOU and the alternative of a two-island approach highlight that context is a crucial consideration for subsidiarity and evaluating the approaches to cross-border issues. It can make centralisation and substantial cooperation (and therefore coherency more generally) significantly more challenging and thereby also highlights the limits 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.
Đorđević, Anđela and Rok Zupančič1, ‘Everyday Anxieties in a Divided Society at the Time of Covid-19: Consequences of the Dual Legal and Administrative System in the North of Kosovo’ (2021) 15(1) Journal of Comparative Politics 39–55 Abstract: This paper analyses the measures introduced by the governments of Serbia and Kosovo in the north of Kosovo aimed at suppressing the spread of COVID-19. Northern Kosovo is an interesting case due to the existence of dual legal and administrative system – one run by the Serbian government in Belgrade, and the second one run by the Kosovo authorities in Pristina. Drawing from the theory of contested statehood, the authors argue that the institutions of both sides, who have been vying for power in this region for years, used almost all available means to demonstrate their respective “statehoods“ (ability to execute power) regardless of consequences this has had for the locals. The analysis has shown, first, that in such a conundrum, the majority of people attempted to adhere to the measures of both systems in order to avoid both formal (legal) and informal (social) sanctions; second, that the authorities do not shy away from fighting for supremacy even in the cases, where the cooperation of all stakeholders would be sine qua non for reducing the impact of pandemics.
Doubek, Pavel, ‘COVID-19 Quarantine in Taiwan: From “Success Story” to Perilous Deprivation of Liberty’ (2024) 28(2) The International Journal of Human Rights 267–292 Abstract: While the world praised Taiwan for its exemplary management of the COVID-19 pandemic, a debate on its compliance with rule of law and human rights was shadowed. This manuscript examines the stringent policy of mandatory quarantine and isolation in Taiwan through the lens of personal liberty and argues that despite its effectiveness for public health, it was disproportionate, arbitrary and likely amounting to the ill-treatment of quarantined persons. Notwithstanding its implications for coronavirus policies elsewhere, the legal ramifications of Taiwan’s lesson are also vital for scholarly debate on the limits of the established international human rights framework during the time of the pandemic.
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.
Drew, Joseph, Natural Law & Government: After the COVID-19 Revolution (Springer, 2022) Link to book page on publisher website
Contents:
- Natural Law and Government, or, After the COVID Revolution? 1-15
- Human Flourishing 17-32
- Moral Government 33-52
- Sortition: A Partial Defence of Human Dignity 53-69
- Structure, Remit, and Size of Government 71-94
- Evaluating Policy Success: COVID Response and Human Flourishing 95-112
- Funding Moral Government 113-130
- Education 131-143
- Can We Have Government and Human Flourishing? 145-162
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.
Drossos, Yiannis, ‘COVID-19 as a Global Institutional Event and Its Institutional Treatment in Greece’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 115–122 Abstract: This article, reflects an oral presentation given on 5 March 2021. Offering remarks and comments on the institutional impact of the anti-COVID measures indicates the institutional relevance of the pandemic. It is argued that the COVID-19 pandemic, notwithstanding its global nature, has marked a gradual retreat from the globalization. It has also marked the ‘return’ of the state -in contrast to the market- as the powerful actor suitable to assume and guarantee the measures necessary to combat the pandemic. The pandemic has also brought up some more general issues, such as the relation between science and politics, the relevance of the Constitution in times of ‘exception’, the reinforcement of the Executive at the cost of the Legislative, the need to accept limitations to the individual rights in order to combat the pandemic, the role and the limits of the Judiciary in times of the exceptional threat posed by the pandemic. The article then briefly presents the anti-COVID measures taken by Greece until the first months of 2021 and ends up raising the question whether the pandemic has created the pattern and mindset for permanent changes in our institutional structures and procedures.
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.
Dube, Felix, ‘The Rule of Law in a State of Disaster: Evaluating Standards for the Promulgation, Administration and Enforcement of Emergency Regulations in South Africa’ (2023) 15(1) Hague Journal on the Rule of Law 143–159 Abstract: This paper applies the rule of law test to emergency regulations adopted to combat a national disaster in South Africa. A declaration of a national state of disaster, such as a pandemic, triggers emergency powers which enable the executive to mitigate the disaster, assist and protect the public, provide relief, and protect property. However, emergency powers provide a pretext for the executive to limit constitutional rights and to curtail the enjoyment of freedoms. These unprecedented powers also pose a risk of arbitrary exercise of public power, which can only be prevented if the promulgation, administration and enforcement of emergency regulations conform to the principles of legality, rationality and proportionality. These principles are understood as tenets of the rule of law in South Africa. They require a strong commitment to respect, protect and promote human rights at a time when they are most vulnerable to violation by the State. Given the role of the judiciary in the maintenance of the rule of law, and the litigation against the emergency regulations adopted in response to the outbreak of the COVID-19 pandemic, this paper also discusses the ensuing case law to illustrate the practical application of the rule of law test to a national disaster.
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?
Duong, Anh Son and Kim Hanh Dung Vu, ‘Balancing Medical Needs and Economy Policy in the Covid-19 Pandemic: A Review of the Vietnamese Government Response’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer Nature, 2023) 79–107 Abstract: The COVID-19 pandemic in Vietnam, notably the fourth wave, which began in April 2021 with the appearance of a new strain of the virus, has had serious consequences for people’s health and livelihoods, as well as presenting unprecedented economic challenges. Faced with this situation, the National Assembly and the government have hastily enacted a series of rules aimed at preventing the spread and breakout of the COVID-19 pandemic while also maintaining social security programs and limiting health and economic damage. The purpose of this research is to examine policies to assist businesses and employees based on an analysis of current rules (updated until September 2021) and a survey of nine businesses, so giving some discussions and suggesting policy recommendations to overcome the pandemic.
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.
Eboibi, Felix E and Ebi Robert, ‘Global Legal Response to Coronavirus (COVID-19) and Its Impact: Perspectives from Nigeria, the United States of America and the United Kingdom’ (2021) 47(4) Commonwealth Law Bulletin 593–624 Abstract: Global COVID-19 legislation contains the spread of the disease. However, the Nigerian government’s response to the spread of the virus suffers some technical flaws. Consequently, this paper asks how Nigeria’s response to the pandemic compares with those of the United States of America (US) and the United Kingdom (UK). Qualitatively, it seeks to substantiate the proposition that Nigeria’s response relies too heavily on executive directives and extra-judicial controls, leading to human rights abuses. Even worse is the absence of specific provisions in the Nigerian legislation detailing the application of remote hearing to facilitate redress arising from these infractions comparable to what is obtainable in the US and UK. The paper highlights the several loopholes demonstrated by Nigeria’s legal response to the COVID-19 pandemic, its impact, and the lessons the Nigerian government can adapt based on the US and UK experiences.
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.
Eisma-Osorio, Rose-Liza et al (eds), Parliaments in the Covid-19 Pandemic: Between Crisis Management, Civil Rights and Proportionality: Observations from Asia and the Pacific (Konrad-Adenauer-Stiftung, Ltd, 2021) [OPEN ACCESS BOOK] Contents:
- Karsten Grabow, Parliaments in the COVID-19 pandemic: Involved Adequately or Bypassed by the Executive? 1
- Jürgen Bröhmer, Legally Strong Executive Branches, but it’s more About Democracy and Politics: The Case of Australia 17
- Madan B. Lokur, Silences and Other Sounds: The Indian Parliament in the Pandemic 37
- Linda Yanti Sulistiawati, Indonesian Parliament’s Slumber during Pandemic 61
- Akiko Ejima, Please Stay at Home: Japan's Soft Approach in Combatting COVID-19 79
- Virus Ik-hyeon Rhee, The National Assembly in the Pandemic: A temporary Ally of the Government to Combat a Stealthy Virus 99 [Jurisdiction: Korea]
- Munkhtsetseg Tserenjamts, Parliament and Pandemic: Political, Economic and Health Challenges in Mongolia 119
- Geoff McLay, New Zealand's Legal Response to COVID-19: The Challenge of Executive Overreach, Continuity of Parliamentary Control? 141
- Rose-Liza Eisma-Osorio, Hansel Jake B. Pampilo and Ma. Nikka Andrea F. Oquias, The Shifting Power Dynamics between the Philippine Congress and the President in the Time of the SARS-CoV-2 Pandemic 163
- Anton Ming-Zhi Gao, Taiwan’s Success: A Hard-won Battle 185
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.
Ellaboudy, Ahmed, ‘When Emergency Is Permanent: Egypt’s Legal Response to COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 411 Abstract: For almost half a century, emergency regulations have been used in Egypt for the purpose of allowing the executive authorities to repress any form of opposition. Therefore, when a ‘real’ emergency took place in the form of the COVID-19 pandemic, Egypt was unable to develop alternative tools to deal with it. The historic reliance on emergency powers as the default way of governing for decades has affected the whole legal culture of Egypt. The only kind of emergencies that informed Egyptian practice in the use of emergency powers were related to security concerns. Nevertheless, legislative amendments to existing emergency law and other procedures were introduced to respond to the economic damage and public health concerns arising from COVID-19. Legal interventions by civil society organisations played an essential role in enhancing the right to health during the pandemic. Further, Egypt conducted the Senate and House elections during the time of the COVID-19 crisis. While the House elections were not possible to be delayed because of the tight constitutional deadline, the Senate elections could have been postponed to minimise health risks. In summary, Egypt’s approach to the COVID-19 crisis was the adoption of the minimum possible actions, while not changing the way the system functions and aiming to quickly return to the ‘normal’ mode of governing.
Elliott, E Donald, ‘US Response to COVID-19’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 313–316 Abstract: This article concludes that the U.S. response to COVID-19 was hampered by politics; the decentralization of the U.S. political system and the ‘fee for service’ approach of the U.S. healthcare system. However, the technological prowess of U.S.-based pharmaceutical companies resulted in the development of effective mRNA vaccines in record time.
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.
Everett, Pamela M, ‘Legal Actions and Impacts of the COVID-19 Pandemic’ in Monica K Miller (ed), The Social Science of the COVID-19 Pandemic: A Call to Action for Researchers (Oxford University Press, 2024) 65
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.
Fabbrini, Federico and Christy A Petit (eds), Research Handbook on Post-Pandemic EU Economic Governance and NGEU Law (Edward Elgar, 2024) Book summary: This Research Handbook provides a comprehensive analysis of post-pandemic EU economic governance and Next Generation EU (NGEU) law. It explores the profound impact of Covid-19 on the architecture of EU economic governance, focusing on the establishment and implications of the NGEU Recovery Fund.
Fagbayibo, Babatunde and Udoka Ndidiamaka Owie, ‘Crisis as Opportunity: Exploring the African Union’s Response to COVID-19 and the Implications for Its Aspirational Supranational Powers’ (2021) 65(S2) Journal of African Law 181–208 Abstract: The COVID-19 pandemic has proved challenging to states and regional organizations, exposing gaps in political leadership as well as in the preparedness of economic and public healthcare systems. As states and organizations contend with the pandemic, the African Union’s response in this regard, thus far, indicates the imperative of enhanced multilateralism. Its response also provides a template for endowing the organization with assertive, binding powers over its member states and, as such, achieving its supranational aspirations. In this respect, this article argues that the African Union’s display of progressive internationalism, swiftness of action, agency and legitimacy in combatting the coronavirus pandemic are elements that can be applied in sharpening its processual quest for supranationalism.
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.
Faryadi, Masoud and Morteza Nejabatkhah, ‘Challenges of Administrative Law in Managing Health Emergencies’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Jurisdiction: Iran
Abstract: The Covid-19 virus epidemic in the country created a special emergency situation that affected all health, economic and social sectors. Public affairs management in health emergencies requires special administrative laws and regulations, and for this reason, the administrative law of the country should have taken precautionary measures to establish necessary mechanisms to manage these affairs in these circumstances. Although public health management is a category of health administrative police, however, Iran’s administrative law has several legal gaps in this area; such as the lack of a comprehensive public health management law, ambiguity in the legal system governing emergencies, lack of a specialized council in the field of coordination of public health management, fragmentation and organizational parallelism, ambiguity in standards of the public service delivery, lack of mechanisms to anticipate and prepare for future health crises. Therefore, reforms in the administrative legal system and the development of health administrative law are necessary for the proper management of health crises.
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)
Feliziani, Chiara, Ilde Forgione and Viviana Di Capua, ‘Judicial Review and Restrictive Measures. How Has the Intensity and Scope of Judicial Review Changed During COVID-19 in Italy?’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 287–296 Abstract: The article aims to analyse how the intensity and scope of judicial review has changed during COVID-19 pandemic. In doing this, the analysis will start from a brief critical review of the main legislative and administrative acts issued by the Italian Government to face the crisis. Then, the contribution will focus on the most relevant judicial review adopted during the pandemic to verify the legitimacy of the Regional and Municipal emergency acts which contain restrictive measures.
Fenna, Alan and Shaun Goldfinch, ‘The Politics and Policy of COVID-19 in Australia and New Zealand’ in Anthony BL Cheung and Sandra Van Thiel (eds), Crisis Leadership and Public Governance during the COVID-19 Pandemic (World Scientific, 2022) 211–235
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.
Fermeglia, Matteo and Steven Van Garsse, ‘Belgian Responses to COVID-19’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 95–102 Abstract: This contribution appraises the most relevant measures adopted in Belgium against the spread of the Covid-19 Pandemic. Moreover, it underscores how the complex Belgian institutional setup has hampered the adoption of prompt and effective responses to the Pandemic. To this end, in Section 1 it fleshes out the structure of the Belgian state, in particular highlighting the tangled division of competences across different levels of government. In Section 2 and 3, it analyses the measures adopted by the Federal, Regional and Local governments amidst the most severe phase of the Pandemic’s outbreak. Relevant, the unclear allocation of competences and powers among levels of government as to the adoption of Covid-19 measures led to legal and institutional conflicts. In Section 4, 5 and 6 it skims through the evolution of the emergency regulatory regime following the Covid-19 spread, the measures aimed at contact-tracing and those aimed at supporting economic activities, respectively. In Section 7, it displays the most relevant domestic case law against the adopted Covid-19 measures. Last, in Section 8 it analyses the latest developments towards a new comprehensive legal regime to tackle the current and future massive health crisis in Belgium.
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.
Fikry, Ahmad Habib Al, Muhammad Riyan Afandi and Dian Latifiani, ‘National Law Development through Civil Procedure Law Reform as a Manifestation of State Goals during the Covid-19 Pandemic’ (2021) 5(2) Lex Scientia Law Review 41–64 Abstract: The purposes of this paper are: (i) to describe various problems in the philosophical, sociological and juridical aspects of the existence of civil procedural law as formal law in Indonesia; and (ii) offer solutions to these problems by updating the civil procedural law. The method in this paper uses normative legal research with a statutory approach by conducting a literature study using primary and secondary materials. The results of this paper indicate several things. The first, sociologically, people’s lives develop dynamically so that the provisions of civil procedural law are not in accordance with the times. As for juridically, this provision is not unification, legal uncertainty, and a legal vacuum. The second, legal reform is part of the development of national law by taking into account the framework of the national legal system. The third, there are efforts and forms of civil procedural law reform carried out by each element of state power. The novelty of this paper is containing a comprehensive discourse that answers the problem of the applicability of civil procedural law with the efforts and forms of reform of civil procedural law in Indonesia. The conclusion in this paper is the provisions of civil procedural law need to be updated based on philosophical, sociological, and juridical considerations. Reform of civil procedural law must take into account the national legal system, principles, and content material in its formation.
Finch, Naomi et al, ‘Undermining Loyalty to Legality? An Empirical Analysis of Perceptions of “Lockdown” Law and Guidance during COVID-19’ (2022) 85(6) The Modern Law Review 1419–1439 Abstract: This article substantially extends the existing constitutional and legal critiques of the use of soft law public health guidance in the UK during the COVID-19 pandemic. Drawing upon the findings of a national survey undertaken during the first wave of the pandemic in June 2020, it shows how the perceived legal status of lockdown rules made a significant difference as to whether the UK public complied with them and that this effect is a product of the legitimacy that law itself enjoys within UK society. Based on this analysis, it argues that the problems with the Government’s approach to guidance, that have been subjected to criticism in constitutional and legal terms, may also be open to critique on the basis that they risk undermining the public’s loyalty to the law itself.
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.
Fiorina, Morris P, Who Governs?: Emergency Powers in the Time of COVID (Hoover Institution Press, 2023) Abstract: In a democracy, a government’s authority derives from the consent of the governed. When emergencies hit—such as the COVID-19 health crisis—how are authorities, both elected and unelected, empowered to act? Experts in political science, democratic governance, and jurisprudence examine the wave of executive orders that followed the onset of this pandemic in 2020, as well as the legal and public responses to them, to consider what is right, lawful, and just.
Firdaus, Muhammad Ihsan, ‘The Legal Effectiveness Limitation on Freedom of Movement in According to Overcoming the Spread of Covid-19 Pandemic in Indonesia’ (2022) 5(11) International Journal of Social Science and Human Research 5002–5008 Abstract: The Covid-19 pandemic has been spread throughout the world, which has caused the governments of each country to implement a restriction on human rights, which is freedom of movement. This is a step and a response from the government to overcome the spread of Covid-19, as well as the Indonesian government. As a state of law (rechtstaat), of course the Indonesian government has its own specialty to respond and to enforce a regulation to deal with di Covid-19 pandemic, in accordance with the provisions of the emergency constitutional law and the limitation on human rights. The limitation on freedom of movement throughout the implementation of limitation on human rights that have been implemented by the Indonesian government, if it traced, they are PSBB, Transitional PSBB, Emergency PPKM and 4-Level PPKM. These are all of the responses and steps that have been taken by the government to cope and to overcome the Covid-19 pandemic. However, of course, the implementation is not always in accordance with what is expected, so it is worth questioning the legal effectiveness, whether it is in accordance with the sense of justice as the law is implemented, or not in accordance and far-reached from the sense of justice as one of the objectives of the law.
Fisher, Roger S, ‘Travel Restrictions and Border Security Measures on the Canada–US Border During the COVID-19 Pandemic: Does Law Matter in a Crisis?’ in Stanley D Brunn and Donna Gilbreath (eds), COVID-19 and a World of Ad Hoc Geographies (Springer, 2022) 379–398 Abstract: Limited travel restrictions and border controls may be justified on a short-term emergency basis in the early stages of an outbreak of infectious disease even though such measures, if applied broadly, may not conform to the principles of ethical public health practices and almost certainly infringe on constitutionally protected rights and freedoms. Although the broad travel restrictions and border controls on the Canada-U.S. border raise a number of novel legal and public policy issues in terms of their necessity, efficacy, and constitutionality, a tradition of judicial deference in cases involving public health measures during a pandemic suggests that the courts may uphold the travel restrictions and border control measures as a necessary and reasonable limit on constitutionally protected rights and freedoms.
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.
Fox, Dov, ‘The Vaccine Cases and Administrative Power’ (2022) University of San Diego School of Law: The Blue Brief - Faculty Review of 2021-22 U.S. Supreme Court Term 12–14 Abstract: The legal question was basically the same in both of the Supreme Court’s big 2022 federal vaccine mandate cases. It boiled down to whether a federal agency—the Department of Health and Human Services in one case, the Occupational Safety and Health Administration in the other—exceeded the statutory authority that Congress has granted to it. This brief case comment analyzes why the majority upheld the HHS mandate but struck down the OSHA one. A lot came down to past HHS and OSHA regulations to inform the limits of each agency’s authority. Namely, HHS has routinely issued conditions that obligate participating facilities to protect patient health and safety. The vaccine mandate went further than past HHS regulations—after all, the agency had previously been able to rely on compliance with state requirements—but fit within its longstanding practice of protecting healthcare workers and patients. OSHA lacked this historical precedent. By contrast, OSHA had never before issued a regulation ‘addressing a threat that is untethered, in any causal sense, from the workplace,’ in the sense that COVID-19 is a hazard encountered wherever people gather, not just at work.
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.
Fraenkel-Haeberle, Cristina and Elena Buoso, ‘COVID-19 and Government Response in Germany: Building Resilience by Comparison of Experiences’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 103–114 Abstract: This contribution investigates the German response to the COVID-19 pandemic. The analysis highlights the measures taken by the German government in cooperation with subnational units to mitigate the spread of infections, as well as the efforts made to stem the economic consequences of the containment measures. The emergency situation turned out to be a real stress test for the German legal system, and a serious challenge for democratic institutions.
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.
Franciosi, Laura, ‘Covid-19 and the Italian Legal System’ (2023) 15(1) Journal of Civil Law Studies 365–391 Abstract: COVID-19 hit Italy with particular violence. Then spreading around Europe and worldwide, the virus raised unprecedented issues requiring the implementation of urgent measures to prevent its propagation. This Article focuses on selected topics of the Italian civil law particularly affected by the rise of COVID-19 and tries to provide brief comparative remarks. Namely, after summarizing the most important events that occurred in Italy––originating from the discovery of the first Italian case of COVID-19 in Codogno––it outlines relevant social and legal scenarios. This Article also concentrates on commercial lease contracts, and subsequently addresses the legal implications of vaccination, with reference to the consent of incapacitated persons.
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.
Frankford, David M, ‘How COVID-19 Has Infected the Totality of Life (Including Law)’ (2022) 74(3) Rutgers Law Review (forthcoming) Abstract: The COVID-19 pandemic, stemming from the SARS-CoV-2 virus, has shown, as if proof were necessary, that a pandemic is an inseparably biological and social phenomenon that combines interacting elements of nature, including evolution, as well as political, social, and economic forces. As such, the COVID-19 pandemic has affected every sphere of human existence.In this Article, I analyze the more important elements of this seamless web by breaking it down into a number of categories: the virus itself (and some linked phenomena) and the political, economic, and social instability that it has caused everywhere. This instability ranges from effects on forms of primary association like the family to those on forms of secondary association including education, the economy, state legitimacy, social solidarity and law in the United States and, to some extent, in other nations, and health care delivery and public health in the United States.Pre-pandemic society in the United States was becoming increasingly fractured and polarized. In this ecology, a virus as smart and nimble as SARS-CoV-2 worked its will, seeping into everything because it fed on and exacerbated every crack and crevice; and these impacts are not linear but recursive, feeding into and amplifying one another. Instability in primary association partially feeds off of and into economic instability. Likewise, economic instability is concurrently a consequence and a cause of growing political instability. In turn, both forms partially derive from and cause the growing delegitimization of social solidarity and, in particular, the collective enterprise of public health. The latter is one reason that the United States’ capacity to respond to this pandemic and any on the horizon has been reduced. The most vulnerable among us have suffered the greatest hardship, but our society as a whole has been diminished.
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.
Friedery, Réka, ‘Pandemic, Free Movement Restrictions and EU Soft Law’ (International Law and Crisis – Impact and Challenges, Collection of Papers from the International Academic Online Conference, Comenius University in Bratislava, Faculty of Law, 22nd – 23rd of April 2021, 2021) Abstract: Covid-19 pandemic generated such a threat that Member States of the European Union restricted free movement between Member States on the ground of public health as part of their crises management. Nevertheless, free movement of persons between Member States and the limitation of this freedom have multiple layers. The paper aims to analyse the complementing nature of EU soft law and Member States’ free movement restrictions during the present pandemic, with a special focus on the EU Commission’s key role. The paper presents the multiple layers of free movement and its restrictions: public health, border policy and soft law form the frame of free movement restrictions. The main aim of the article is to define the scope of role soft law can play in the integrated approach during time of crises in the EU; the article helps to understand the EU’s use of soft law in crises management.
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.
Fromont, Louise and Arnaud Van Waeyenberge, ‘Trading Rule of Law for Recovery? The New EU Strategy in the Post-Covid Era’ European Law Journal (advance article, published online 19 June 2022) Abstract: The ambition of this article is twofold. First, it argues that, in order to enhance respect for the rule of law by its Member States, the EU has launched a new strategy albeit essentially based on mechanisms which were not specifically designed to protect the rule of law. Second, the article aims to clarify the notion of rule of law resulting from this strategy and to subsequently analyse its consequences. In doing so, this article will thereby demonstrate that the instruments used by the new strategy promote a notion of the EU rule of law which implies a constant arbitrage between the rule of law and the economic objectives pursued by the EU. The risk may be, however, that it would subjugate fundamental values (as defined in Article 2 TEU) to the logic of European economic integration, thus inverting the hierarchy between protection for the rule of law and economic values.
Fuente, Oscar Pérez de la, ‘Accountability and COVID-19: The Spanish Perspective 1’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: Accountability is a key element in understanding the exercise of political responsibility in democratic societies. Each political culture has its own conception of how this public servant accountability is to be specifically produced, sometimes limited to purely administrative issues, sometimes with an essentially political component. Free and pluralistic elections are one of the most common and effective mechanisms by which politicians are held accountable.
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.
Gajdošová, Martina, ‘Coronavirus-Delegated’ Law-Making and the Official Publication Instruments: A Review of the Latest Decision of the Slovakian Constitutional Court’ (2022) 68(2) OER Osteuropa Recht 235–253 Abstract: In the Slovak Republic, the pandemic situation has brought a new competence to legislate for public health authorities. Such delegated law-making and also the manner of their publication in the official publication instrument became the subject of a review before the Constitutional Court of the Slovak Republic. The paper provides a look at the Constitutional Court’s decision of December 2021, which stabilised the ‘Corona’ delegated law-making competence of state authorities in the field of public health, both at the central and local level, and the publication of such decrees in the Journal of the Government of the Slovak Republic. The decision of the Constitutional Court confirmed the existence and functionality of the so-called main and the so-called secondary official publication instrument in the Slovak Republic (the Collection of Laws of the Slovak Republic and the Journal of the Government of the Slovak Republic), both of which have their historical predecessors from the second half of the 19th century, both Hungarian and Czechoslovak. The paper also summarises the themes that arise from this decision for legal science, in particular delegated law-making, delegated law-creator, promulgation of legal regulations and official publication instruments in Slovakia.
Gajdošová, 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).
Gajić, Aleksandar V, ‘Facing Reality: A Need to Change the Legal Framework of the EU Public Health Policy and the Influence of the Pandemic of Covid-19 on the Perception of Identity and the Role of the EU’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLI) 353–374 Abstract: The main aim of this article is to highlight two interconnected issues raised in the context of the COVID-19 pandemic. The first one concerns a need to change the EU Health Policy legal framework, particularly the founding treaties (TEU and TFEU), while the second one relates to the issue of the very perception of the identity of the European Union. The possible adequate solution for the situation created by the unprecedented nature of the COVID-19 pandemic and unprecedented measures that followed, was to proclaim state of emergency, which was largely avoided. It seems that it should be considered whether there is a need for amendments of the European Union founding treaties and/or the Charter on Fundamental Rights by providing the possibility of the state of emergency proclamation in the case of ‘the threats of the life’ of the EU. The European Union is not entrusted with the competencies, powers, and responsibilities in health matters such as a pandemic, however founding treaties, functioning institutions as well as procedures seem sufficient for an effective response to health crises such as the one caused by the COVID-19 pandemic. However, having in mind experience with the COVID-19 pandemic it seems that there is a need to strengthen the EU legal framework concerning the issues of pandemic and similar threats, not by altering the nature of the EU competence regarding health issues, but by identifying the threats such as pandemic in the founding treaties that should contain basic regulations concerning European Centre for Disease Prevention and Control. In that manner the efficient response would be in a form of an institutionalized mechanism at the core of the European Union instead of being fully dependent on the variable political will. At the same time there is an urgent need to identify those Health Policy issues that should be an adequate subject of judicial scrutiny. The COVID-19 pandemic also proved that Member States and the European Union should be more realistic regarding the perception of the role and identity of the European Union. The author argues that the identity of the European Union is blurred with a variety of considerations and that its content and features should be more determined, not only in academic literature but also in political practice, especially when it comes to the issue of self-determination of the European Union. The world is not the same as it was before the pandemic, and it seems that the European Union, in order to be prepared to face new challenges, must build its identity in realistic parameters and act in one voice ‘if it wants to make itself heard and play its proper rôle in the world’, as it was declared in the 1973 Declaration on the European Identity.
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, Anton Ming-Zhi, ‘Critical Review of the Legal Measures Against COVID-19 in Taiwan’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 21–38 Abstract: Covid-19 pandemic strikes all over the world. With a view to tackling this pandemic, a wide range of unprecedented fundamental right intrusive measures, such as large-scale lock down, electronic tracking without court decision, medical devise rationing measures, etc., have been adopted and implemented. Despite the effectiveness of these measures in preventing further virus spreading, the concerns of violation of constitution law concerns would be raised after the pandemic has eased. Taiwan performed very well in tackling covid-19 from the record of 253 days without local confirmed cases in 2020 and the only 16250 confirmed cases by 4 October 2021. However, success in avoiding virus spreading may not mean the legal measures play key role. Also, if the law does play roles, it is also possible that these measures could not pass the unconstitutional tests. In order to provide a structural analysis of the related fundamental right intrusive measures, this article will begin with the introduction of the main laws and ‘guidelines’ in combating COVID-19. Afterwards, a critical review will be provided to investigate into the institutional failure and the unconstitutional concerns from the measures.
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, ‘Regulatory Competition, Coordination and Polity Convergence in the Covid Ecosystemic Crisis: A Policy Approach’ (2023) 23(1) Global Jurist 75–98 Abstract: The paper briefly sketches different ‘adaptations’ possible to address the Covid crisis and then advances three possible avenues for future policy analysis of Covid-related measures, each of these avenues being based on a ‘conjecture’, respectively an evolutionary, a critical, and a cosmopolitan, and conjecture. The evolutionary conjecture implies regulatory transplants, the critical conjecture elicits competition of Covid-related measures, and the cosmopolitan conjecture assumes coordination of policies. The paper discusses how these conjectures based on pre-Covid literature could explain the regulatory dynamics and then asserts that growing evidence shows that regulatory measures appear to naturally lead to a ‘polity convergence’ based on a common core of ‘Covid-biopower’ and ‘Covid-biopolitics’. This convergence defies the initial expectations that the fragmented reactions to the Covid crisis could be explained by using the traditional research tools and also poses unprecedented critical issues that demand an expansion of the horizon of policy research.
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.
Gaviria-Mira, Julián and Esteban Hoyos-Ceballos, ‘Dealing with the Pandemic and Social Unrest: A Stress Test for Colombian Institutions’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 156 Abstract: This chapter makes a critical reconstruction of the Colombian institutional response to the COVID-19 pandemic. This response was undertaken in the midst of very difficult economic and social conditions and was characterised by an authoritarian drift by the Colombian government. These difficult conditions and this drift can be synthesised in the following elements: (i) the pandemic was accompanied by a severe economic crisis; (ii) this economic crisis particularly affected the most vulnerable which, in turn led to (iii) a social outburst; (iv) the government turned to emergency measures and the restriction of human rights (both to cope with the pandemic and the social unrest); and (v) all this was accompanied by a weak response from the public authorities called upon to control the executive.
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, ‘The Bound Executive: Emergency Powers during the Pandemic’ (2021) 19(5) International Journal of Constitutional Law 1498–1535 [unpublished 2020 paper available on SSRN] Abstract: Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as ‘Schmittian’ and ‘post-Madisonian,’ characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the response. Taken together, these findings suggest that, during COVID, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights may be ill-suited to other kinds of emergencies, such as a pandemic.
Głąb, Zbigniew and Magdalena Kocejko, ‘Between Safety and Isolation: The Governmental-Ministerial Approach to Care Homes in Poland during the COVID-19 Pandemic’ (2024) 39(6) Disability & Society 1524–1545 Abstract: This paper presents an analysis of statements issued by the Polish Ministry of Family and Social Policy, relating to care homes and the threat to the health and lives of their inhabitants during the COVID-19 pandemic. Despite the declared intention by the government to carry out the transition from residential care to community-based support, the results of the study reveal that under the slogans of care, safety, and commitment, the traditional vision of disability that promotes the operation of segregated institutions is reinforced. Ensuring safety is understood as strengthening the institution of a care home by emphasizing its importance, allocating additional resources, and introducing organized isolation practices that do not necessarily account for subjectivity and residents’ rights. The authors, using the critical approach, point to elements of the discourse that may be remembered most by recipients. The paper is focused on an approach presented by the Polish Ministry of Family and Social Policy during the COVID-19 pandemic regarding care homes. While the discussion about transition from residential care to community-based support in Poland seems to be advanced, there are still facilities for over 100 inhabitants. In the face of the COVID-19 crisis, the Ministry’s communication related to facilitating the transition to independent living was pushed aside, while the traditional institutional-oriented approach came to the fore. The communication by the Ministry is transmitting to the public a strong message that presents care homes as safe places that should be supported and developed as a key housing option. The lack of attention to issues such as transition from residential care to community-based support and a human-rights approach in communication led us to formulate the concept of a turbo-institutional approach implicit in the Ministry’s communiques.
Gnes, Matteo, ‘Italian Response to COVID-19’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 135–148 Abstract: The article describes the response of Italy during the first year and half of the COVID-19 pandemic, from its outbreak until Autumn 2021, focusing on the public health measures response. The scope of the article is to describe the public health measures adopted as well as their legal basis and the main legal problems that such measures raised, to identify the mistakes, the administrative problems and the inefficiencies that affected the Italian response. Section I provides a chronicle of the main events, from a legal and administrative perspective, that characterized the Italian response to COVID-19. Section II offers a synthetic picture of the regulatory context in which the measures were adopted, of the new legal environment set up to deal with the pandemic and discusses the main legal problems and issues that characterized the management of the pandemic. The Final Section briefly describes the main legal problems and lessons for the future that the COVID-19 pandemic may provide.
Gnes, Matteo, ‘Wars and Fights against Pandemics: The Re-Emerging Role of the State as Guarantor of Last Resort’ (2022) 34(1) European Review of Public Law_ _Abstract: The global health emergency caused by Covid-19 urged States to find new ways of protecting their citizens and regulating their lives, to cooperate with each other, to change priorities on their political agendas. Probably, the pandemic will change the course of history. The pandemic woke up the State from its ‘dormant’ status. The State is regaining an important and major role as guarantor of last resort, especially in the fields where the European Union (at this stage of European integration) does not and cannot act as such: external security, internal security and public order, safety of its citizens, State economic interests in the so-called ‘strategic’ sectors. It may be questioned if the role of the State as guarantor of last instance is unchallengeable, or if the European Union may, little by little, acquire such a role. Although this would be advisable, at this stage of European integration the State remains the guarantor of last instance, for at least three reasons: the special allegiance between the State and its citizens, the national solidarity and the possibility to use emergency powers.
Göçoğlu, Volkan and Hayriye Şengün, ‘Initial Responses to COVID-19 Pandemic in Turkey: General, Financial, and Legal Measures’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 157–171 Abstract: The COVID-19 pandemic started in Wuhan, China, and spread to almost all over the world in four months. As pandemic cases began to be detected and increased in countries, governments have started to pursue various policies such as closing the city and country borders, social distance practices, the prohibition of going out, and creating herd immunity. Especially with the closure measures implemented, the countries’ financial systems have been adversely affected, and many sectors have suffered losses. On the other hand, the provision of public services in countries has become more complex. Therefore, countries have taken several measures to maintain their public services without interruption. Legal services are one of the essential services affected by this situation. This study deals with the general, financial and legal measures that Turkey has adopted to combat against COVID-19 pandemic. As a result of the study, while the functional features that stand out in the measures are presented, some suggestions are made for a better crisis management.
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.
Goodyear, Michael P, ‘Inherent Powers and the Limits of Public Health Fake News’ (2022) 95(2) St. John’s Law Review 319–378 Extract from Introduction: Part I of this Article establishes the contours and severity of the COVID-19 pandemic. Part II discusses the current status of fake news under prevailing First Amendment precedent. Then, Part III turns to the concept of inherent powers, analyzing how inherent powers have been historically understood both through Supreme Court precedent and as emergency powers. Part III continues by specifically addressing inherent powers related to public health and the inherent power of censoring speech during wartime. Part IV constitutes the main analysis of this Article. First, this Article argues that the traditional First Amendment rationales militate towards lower protections for fake news, especially in the context of COVID-19 misinformation. Next, it evaluates whether restrictions on COVID-19 fake news fit within each of the three historical inherent powers categories: (1) longstanding international custom, (2) powers pursuant to constitutionally enumerated powers, and (3) emergency powers. Finding that there are strong countervailing interests in favor of restricting COVID-19 fake news under all three inherent powers categories, this Article then concludes by looking to the future of government regulation of fake news both in public health and in general.
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.
Graber, Mark A, ‘COVID-19, the United States and Evidence-Based Politics’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 72 Abstract: The populist attack on evidence-based politics in the United States resulted in a public policy too often based on ideology, partisanship and wishful thinking rather than on scientific consensus. Institutions that might have blunted the populist challenge to evidence-based politics in the United States had been captured before the pandemic or were captured during the pandemic. Hundreds of thousands of people may have died because President Trump was uninterested in science (or in governing). Most notably, while the Supreme Court initially placed more emphasis than the Trump administration on evidence-based public health concerns, ideology, partisanship and wishful thinking had a major say and increased influence on that tribunal’s voting and religion jurisprudence after Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Comey Barrett.
Granat, Mirosław, ‘Limitations of Civil Rights During a Period of Introduction of Extraordinary Measures in Poland Vis-à-Vis the Pandemic Caused by the SARS-CoV-2 Virus’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 151–161 Abstract: In Poland, during the COVID-19 pandemic, the legislator did not introduce any extraordinary measures provided for in the 1997 Constitution of Poland, including the state of natural disaster, even though there existed grounds for its introduction. It seems that the legislator’s decision was motivated by the preparations for the presidential elections. During the pandemic, a specific legal regime, referred to as ‘the state of epidemic’, was introduced by means of ordinary statutes and secondary legislation. In a situation where executive bodies regulate the legal position of citizens by means of lower-order legal acts, civil rights are inevitably infringed upon. This situation caused a great deal of social tension. Interference with civil liberties was to some extent limited by judgements of common courts and administrative courts. If the period of the epidemic had any positive side, it was to demonstrate the great value of independent courts and judges for the protection of civil rights.
Graver, Hans Petter, ‘Baselining COVID-19: How Do We Assess the Success or Failure of the Responses of Governments to the Pandemic?’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 214 Abstract: This chapter discusses the relative successes and failures of the management of the pandemic, with a particular focus on the rule of law. Success and failure can be measured along many lines, and depend and vary relative to the indicators chosen. Defining the aim is crucial both for the assessment of proportionality and for the benchmarking of performance. A rule of law evaluation cannot take as its basis the public health consequences of the pandemic. A more relevant approach is the consequences of the pandemic and the measures employed on democracy and the rule of law. The chapter argues that even well-established democracies, such as the Nordic states, have made their institutions more vulnerable. When our political rulers set out to deal with a future crisis, they will do so with the legacy of the pandemic as precedent, unless we now review our experiences and enact measures to prevent this.
Gray, Anthony, ‘Proportionality in Administrative Law and Its Application to Victoria’s Proposed Pandemic Legislation’ (2022) 29(1) Australian Journal of Administrative Law 21–42 Abstract: This article describes the use of proportionality in United Kingdom and Australian administrative law. There remains uncertainty regarding use of the doctrine, particularly in Australia. The article defends proportionality on the basis it reflects the rule of law. Its flexibility is an asset. Arguments against proportionality are considered weak. The use of proportionality reflects a culture of justification for the use of government power in a way that impacts an individual’s human rights, which reflects Australia’s liberal democracy. The article then considers application of proportionality principles to Victoria’s mooted pandemic laws. It finds that proportionality principles provide a more fertile ground for effective judicial review of the proposed extreme measures than Wednesbury unreasonableness.
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.
Grez Hidalgo, Pablo, ‘Legislative and Judicial Scrutiny of the Emergency Response to the Pandemic in the UK: Stubborn Accountability Gaps’ (2023) 27(3) Edinburgh Law Review 310–321
Grez Hidalgo, Pablo, Fiona de Londras and Daniella Lock, ‘Parliament, the Pandemic, and Constitutional Principle in the United Kingdom: A Study of the Coronavirus Act 2020’ (2022) 85(6) The Modern Law Review 1463–1503 Abstract: Constitutions come under pressure during emergencies and, as is increasingly clear, during pandemics. Taking the legislative and post-legislative debates in Westminster and the Devolved Legislatures on the Coronavirus Act 2020 (CVA) as its focus, this paper explores the robustness of parliamentary accountability during the pandemic, and finds it lacking. It suggests that this is attributable not to the situation of emergency per se, but to (a) executive decisions that have limited Parliament’s capacity to scrutinise; (b) MPs’ failure to maximise the opportunities for scrutiny that did exist; and (c) the limited nature of Legislative Consent Motions (LCMs) as a mode of holding the central government to account. While at first glance the CVA appears to confirm the view that in emergencies law empowers the executive and reduces its accountability, rendering legal constraints near-futile, our analysis suggests that this ought to be understood as a product, to a significant extent, of constitutional actors’ mindset vis-à-vis accountability.
Grez Hidalgo, Pablo, Fiona de Londras and Daniella Lock, ‘Use of the Made Affirmative Procedure in Scotland: Reflections from the Pandemic’ (2022) 26(2) Edinburgh Law Review 219–227 Abstract: Concerns about delegated powers are not new. Their use in Westminster has been the focus of a dedicated stream of work by the Hansard Society for almost ten years, the Lords’ Constitution Committee has published two comprehensive reports raising significant constitutional concerns about the current state of affairs, and numerous scholars have explored their effects and challenges. These interventions take place against the backdrop of five years in which the balance of law-making powers in the UK has shifted in unprecedented ways due to Brexit and COVID-19. The recent publication in November 2021 of two critical reports by the Delegated Powers and Regulatory Committee and the Secondary Legislation Scrutiny Committee highlights a sense of growing momentum for a ‘reset’ of the use of delegated legislation in Westminster. Less has been said about the situation of delegated powers at the devolved level, and the literature on the Scottish situation is dated.5 Intuition would suggest that differences in the electoral system (which make a strong majoritarian government gaining control of the unicameral parliaments in Cardiff, Edinburgh and Stormont difficult, if not unlikely) mean that devolved executives cannot get away with broad delegations of powers. This certainly seemed to be the case in Scotland, as the SNP led a minority government for most part of the pandemic, until 31 August 2021, when the First Minister announced an agreement with the Scottish Green Party. However, a recent ‘Inquiry into the use of the made affirmative procedure during the coronavirus pandemic’ by the Scottish Delegated Powers and Law Reform Committee (DPLRC), which has just published its report, has drawn attention to the fact that concerning practices at Westminster level may also be present at the devolved level. Thus, in a recent oral evidence session, Graham Simpson MSP, a DPLRC committee member, claimed that while, between 2011 and 2019, only nine Scottish Statutory Instruments (SSIs) had been made under the made affirmative procedure (MAP), between 20 March 2020 and 2 December 2021, 132 SSIs were subject to the MAP – a remarkable increase. This growth is partly explicable by the legislative framework through which the Scottish Government’s pandemic response is shaped. Both the Coronavirus Act 2020 – a UK-wide piece of law – and the Public Health etc (Scotland) Act 2008 allow for regulations to be made by the MAP where a Scottish Minister considers there to be a reason of urgency for so doing. The regulations are made by laying a draft before the Scottish Parliament, and they cease to have effect after twenty eight days unless they are approved by Parliament.10 Given the quickly changing epidemiological situation, one might argue that there is in principle little objectionable about the use of the MAP to make such regulations if the statutory condition of urgency is met and potential negative effects on the principles of accountability and shared power between the Scottish Government and the Scottish Parliament are appropriately mitigated through restrained use of the MAP. However, our analysis of a sample of SSIs made during the pandemic suggests that these conditions may not have always been met.
Griglio, Elena, ‘National Parliaments’ Resilience under the Euro-Zone and the Covid-19 Crises: Continuity and Discontinuity in the Euro-National Scrutiny’ (2022) The Journal of Legislative Studies (advance article, published online 1 September 2022) Abstract: Among the epochal crises experienced by the EU in the last 15 years, the Euro-zone and the Covid-19 stand out for their impact on the Euro-national economic and financial governance structure, which challenges the relationship between the executive and the legislative branches and raises major concerns for the role of national parliaments. This contribution aims to analyse how national parliaments have reacted to these challenges in order to identify elements of continuity or discontinuity. After considering the contextual entry conditions met by parliaments in the two outbreaks, the article analyses the scrutiny procedures and practices developed in the European Semester and in the post-Covid recovery framework. The assessment witnesses the resilience of national parliaments’ scrutiny vis-à-vis major changes in the Euro-national governance structures. It confirms an adaptive capacity outside of any real ‘learning curve’ between the two outbreaks, but with potential innovations on the ground of the ex post scrutiny.
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, ‘COVID-19, Rule of Law and Democracy: Analysis of Legal Responses to a Global Health Crisis’ (2022) 14(2/3) Hague Journal on the Rule of Law 349–369 Abstract: The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny and the use of power without restraint. Under such conditions, adherence to the foundational values of democracy and the rule of law come under increased pressure if not threat. The demands of emergency provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. This article provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States. It offers an outlook on how to prepare for future emergencies by building on the lessons of the current one.
Grogan, Joelle, ‘The Limited Role of the European Union in the Management and Governance of the COVID-19 Pandemic’ (2021) 18(3) International Organizations Law Review 482–506 Abstract: Building on two global Symposia hosted by the Verfassungsblog and convened by the author, the 2020 ‘COVID-19 and States of Emergency’ and the 2021 ‘Power and the COVID-19 Pandemic’, in addition to the findings of the Democracy Reporting International ‘Rule of Law Stress Test’ which surveyed EU Member States’ responses to the pandemic, this article investigates the impact of the pandemic on governance and legal systems within the EU, and evaluates the actions taken by EU institutions and national governments in response to the health crisis against the standards of the rule of law.
Grogan, Joelle, ‘(Un)Governing: The COVID-19 Response in the UK’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 60 Abstract: The United Kingdom’s response to the COVID-19 pandemic has exposed fractures in the constitutional settlement of power between government, parliament, and the devolved legislatures, and has been characterised by hypertrophied executive dominance, U-turn policymaking, and the extended adoption of severely restrictive measures. This chapter examines the challenges the pandemic has presented to law and governance, parliamentary oversight and accountability, devolution, and for human rights, civil liberties and access to justice within the wider political, economic and social context. It critically analyses the law and decision-making process in response to the global health emergency across the UK, and in doing so, highlights where reform is needed in preparation for future crises.
Grogan, Joelle and Julinda Beqiraj, ‘The Rule of Law as the Perimeter of Legitimacy for COVID-19 Responses’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 201 Abstract: This chapter examines the impact of the COVID-19 pandemic on governance and legal systems, and evaluates the actions taken by governments in response to the health crisis against the standards of the rule of law. Identifying concerning trends in executive aggrandisement and rule of law backsliding, it argues how practices undermining the rule of law also undermine effective pandemic response. It advocates a way forward for governance during and following the health emergency, building on lessons to be learned on how best to formulate policy and design the most effective legal measures which can be gleaned from collective global experience. Improving both the quality of law and the use of law can bolster public trust in governance which is, itself, an essential element in the most effective strategies in response to the pandemic. However, such adherence rests on a balance between accountable and rationalised executive decision-making, and the active scrutiny and review of the legislature and the judiciary.
Grogan, Joelle and Alice Donald, ‘Lessons for a ‘Post-Pandemic’ Future’ in Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 473 Abstract: This chapter synthesises findings from the analysis of law – and the application of law – during the COVID-19 pandemic in a range of national contexts, and draws lessons to strengthen preparedness for future emergencies. It ventures that states on the spectrum from democracy to autocracy exhibited a wide variety of approaches that defy easy categorisation and challenge pre-existing assumptions about state responses during emergency. Democracies and autocracies proved equally, and unpredictably, vulnerable to the pandemic in terms of both public health outcomes, and the ‘health’ of their institutions and their capacity to adapt and effectively respond to pandemic conditions. The chapter ventures that good governance and public trust have proved inseparable during the COVID-19 pandemic and must be the focus for investment and development. The chapter makes recommendations in respect of legal reform; the use of expertise; inequality; democratic rehabilitation; global and multilevel governance; and building public trust through rational discourse.
Grogan, Joelle and Alice Donald, ‘Policy Paper on the Implications of COVID-19: Insights into State Governance and the Rule of Law, Human Rights and Good Governance during the COVID-19 Pandemic’ (RECONNECT Project, European Commission, 30 January 2022) Abstract: This paper outlines the key findings of our research on the impact of the COVID-19 pandemic on law and legal systems throughout the world from the perspective of the rule of law, democracy and human rights. It highlights challenges to pre-existing assumptions about state performance during conditions of a health crisis, and puts forward recommendations based on what can be identified as positive practices both within the European Union (EU) and beyond it. The research is based on the RECONNECT supported ‘Power and the COVID-19 Pandemic’ Symposium, which published comparative analyses on the impact of the pandemic - and government responses to it - on the legal systems in 64 countries worldwide, including 26 EU Member States, and it also draws from further bodies of research to support these findings. This paper provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the findings are drawn from a global study, specific highlight and focus in the formulation of this paper was given to EU Member States and the actions they took over the course of the first 18 months of pandemic. The key findings and policy-oriented recommendations for post-pandemic measures and processes are applicable in a global setting, but are, again, targeted for particular relevance to EU Member States.
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.
Grogan, Joelle and Alicia Ely Yamin, ‘Mapping COVID-19 Legal Responses: A Functionalist Analysis’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 354–366 Abstract: Drawing on insights from two global symposia that together reported on governmental responses to COVID-19 in 75 countries, this chapter traces two cross-cutting themes that shed greater light on varied impacts on civil liberties and socio-economic rights. First, it considers whether a constitutional state of exception is preferable to using ordinary legislation in managing the impacts on civil liberties of a health and social crisis. The chapter suggests that whether countries are successful in limiting the potential for abuses is best understood in light of socio-historical factors, as well as informal rules that underpin normative and institutional legitimacy, as much as the formal legal vehicles used. Second, the pandemic has exposed the effects of decades of privatization, reduced social spending and rising inequality on health. The chapter suggests that the ways laws structure financing and organization of health systems (public health and care) are as critical to understanding responses as legal recognition of health-related rights. With respect to both civil liberties and health-related rights, the chapter argues that the key to understanding the varied impacts and responses to COVID-19, as well as to consolidating the democratic rule of law post-pandemic, is examining the wider contexts and contingencies that shape how formal legal rules operate.
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.
Gruszczynski, Lukasz, Mateusz Zatoński and Martin Mckee, ‘Do Regulations Matter in Fighting the COVID-19 Pandemic? Lessons from Poland’ (2021) 12(4) European Journal of Risk Regulation 739–757 Abstract: In this article, we argue that the design and timing of regulatory responses, as well as the adherence of the population to the relevant rules, have a critical impact on the progression and public health consequences of the COVID-19 pandemic. This hypothesis is empirically tested using the example of Poland, a country that experienced, compared to its Western European neighbours, a relatively mild first phase of the pandemic. In this context, we compare Poland with selected countries, including France, Germany, Spain and the UK, and we supplement them with examples from other Visegrad Four (V4) countries – Czechia, Slovakia and Hungary. On that basis, we conclude that while the observed differences between the countries in the progression of the COVID-19 pandemic are the result of a multitude of complex and interrelated reasons (such as demographic structure, population density and connectivity or cultural factors), 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 the number of COVID-19 infections and related deaths, provided that the adherence of the 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.
Günther, Christian M, ‘Legal vs. Extra-Legal Responses to Public Health Emergencies’ (2022) European Journal of Health Law (Advance article, published online 4 March 2022) Abstract: There is a long-established claim that emergency action through the law is impossible, or bound to be ineffective. This article seeks to challenge this position by reference to the response of many European states to the Coronavirus pandemic and by drawing on Lon Fuller’s theory of law. It argues that there are a number of reasons why a fragmentation of governance between ordinary, legal action and emergency, extra-legal action is neither necessary nor desirable in this specific context. In societies that are generally rule of law compliant governance according to formal legal principles is not only constraining, it also possesses the quality of a ‘liberating limitation’, creating the room for effective, sustainable action. Too little has been made of this positive dimension of the legal form as an instrument for emergency action.
Gutorova, Natalia Oleksandrivna, Yuliia Yuriivna Zabuha and Tetiana Oleksandrivna Mykhailichenko, ‘Legal Issues of Epidemic Safety Due to the Pandemic COVID-19 and the War in Ukraine’ in The European Dimension of Modern Legal Science (Baltija Publishing, 2022) 181–205 Abstract: The experience of fighting the COVID-19 pandemic has shown how vital epidemic safety is for each country. Furthermore, it is not just about saving the lives and health of millions of people. The economic crisis engulfed the whole world. At the same time, we had a crisis in the tourism sector, restricting access to proper and quality education and temporarily restricting freedom of movement. The restrictions on human rights and freedoms were significant, and many countries introduced them in violation of the law. With the increase in the number of mental and psychiatric diseases, the following problems of economic character are a partial list of the negative consequences of this pandemic. In order to prevent these consequences or reduce them to a minimum, the state must have a properly developed system of measures to contain the epidemic and pandemic. That is why they especially need proper legal regulation. This study is devoted to issues that arise precisely at the last (third) level of legal regulation of epidemic safety, when, as a result of an epidemic or pandemic, the state must declare a state of emergency. In addition, Ukraine has a large-scale war, started by the Russian Federation on February 24, 2022, and martial law. These, as well as many other factors, indicate an even more significant deterioration in the country is already the somewhat unfavorable epidemic situation, which determines the relevance of the chosen topic.
Gwaibi, Numvi, ‘Cameroon: Parliamentary (Un)Scrutiny amid Multiple Crises’ (2022) 10(2) The Theory and Practice of Legislation 147–164 Abstract: Cameroon’s parliament is constitutionally mandated to perform multiple functions, including the power to make laws. Like most legislatures, parliament is also empowered to perform familiar representative functions during the unfamiliar abnormal context of a crisis. However, parliament’s competence in the legislative domain is severely restricted by the President, who is neither accountable to the Prime Minister nor the legislature. The executive further dominates the legislative agenda by controlling the admissibility criteria of bills in parliament, which gives pride of place to that introduced by the President. Following the outbreak of the Covid-19 pandemic, the government, in line with World Health Organization recommendations, developed a response plan and also rolled out a solidarity fund of one billion francs CFA. Following persistent allegations of mismanagement of Covid-19 funds, and the leaking of an audit report that alleged massive embezzlement of public funds, Cameroon’s parliament summoned the Minister of Finance to account for the financial misappropriations. However, 24 hours to the session dedicated for this exercise, the item disappeared from the agenda. This paper utilises primary and secondary data, legal and judicial texts, among others, to document how Cameroon’s parliament has responded to the multiple crises that have impacted the country over the past decades.
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’.
Habibi, Muhammad, ‘The Pandemic and the Decline of Indonesian Democracy: The Snare of Patronage and Clientelism of Local Democracy’ (2021) 5(2) Asian Political Science Review 9–21 [pre-print available on SSRN] Abstract: The quality of Indonesia’s democracy has decreased, and several findings of democratic institutions indicate a significant reduction that touches aspects of civil liberties and pluralism and the function of government. It is essential to research how far theocratization has taken place in Indonesia during the COVID-19 Pandemic. The method used in this research is qualitative with a meta-theory approach. The results of this study show, first, that democratic sectors, especially in the context of general elections, are still at high risk of corruption. Over the past year, Indonesia has been political corruption that is the mother of all forms of corruption in the state structure that can affect the implementation process and the quality of democracy. Second, requests for political dowries by political parties and corruption by regional heads for campaigning purposes. They resulted in interactions between elites that form patronage and clientelism composed of patrons held by the economic elite with resources. The two factors above are important reasons for estimating the declining quality of Indonesian democracy.
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) 71–76Jurisdiction: 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.
Hadrowicz, Sandra, ‘The Liability of Public Authorities for “Legal Damages” During the Covid-19 Pandemic’ in Edyta Hadrowicz (ed), Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 47–62 Abstract: The outbreak of the Covid-19 pandemic caused numerous changes in socio-economic life around the world. All countries around the world faced the challenge of dealing with the effects of the pandemic. However, the actions taken by the public authorities have not been without detriment to various spheres of human activity, in particular the sphere of economic activity. As a result, the affected entrepreneurs have suffered numerous losses, for which it is necessary to find an appropriate legal basis. For this reason, the chapter considers whether, and if so to what extent, a public authority may be held liable for Covid damages caused to entrepreneurs when the intrusive actions of the authority have been assessed as lawful. The analysis concerns the admissibility of holding public authorities liable for legal damages both in Poland and Germany.
Hadrowicz, Edyta, ‘Possible Liability of the State Treasury for the Restriction of Economic Activities During the Pandemic of COVID-19’ in Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 1–20 Abstract: In connection with numerous restrictions on civil rights and freedoms, in particular on the freedom to conduct business activity during the SARS-CoV-2 virus, the question arises whether entrepreneurs who suffered damage due to these restrictions may seek compensation from the State Treasury. Thus, the subject of this study is an attempt to answer the question of the possibility to effectively pursue claims for compensation from the State Treasury for damage caused to entrepreneurs as a result of the implementation of bans or restrictions in certain areas of economic activity in connection with the COVID-19 pandemic. Lawsuits for compensation for such damage are currently being announced in the public space, and their legal basis is provided by the provisions of Article 417 et seq. Polish Civil Code.
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.
Halkis, Mhd, David Yacobus and Suhirwan Suhirwan, ‘The COVID-19 Pandemic Emergency for the Doctrine of Asymmetric Warfare’ (2022) 6(S6) International Journal of Health Sciences 7677–7695 Abstract: Several countries that have involved the military in handling Corona Virus Disease 2019 (COVID-19) have been relatively successful. The authors researched the doctrine of asymmetric warfare during the COVID-19 pandemic emergency. The Indonesian government assigns the Indonesian National Army (TNI) during an emergency. Help to support the smooth circulation of fulfilling the population’s basic needs, cross-regional population transportation, crime is not widespread, offices continue to run with restrictions on the number of people working, and the economy recovers quickly. This research framework uses moral philosophy. Deontological views and utilitarianism become the main assessment instruments to build the doctrine of asymmetric warfare. This research uses a case study approach. The study results show that the Indonesian people see the emergency condition of the COVID-19 pandemic as an asymmetrical warfare. The government is aware of the implications of the COVID-19 pandemic occurring at various government levels in terms of spread, duration, and number. All resources are used to deal with COVID-19, including the military, because civil society does not have many facilities and capabilities of TNI personnel.
Halliday, Simon et al, ‘Why the UK Complied with COVID-19 Lockdown Law’ (2022) 33(3) King’s Law Journal 386–410 Abstract: Evidence suggests that the UK’s first lockdown attracted high levels of compliance.2 Yet, a question remains about exactly why the UK public complied. Understanding people’s motivations towards compliance is important for governments when, in periods of crisis, they seek to use rules to change an entire population’s routine behaviour at considerable pace. This is particularly the case in the context of a pandemic where changes in even a small number of people’s behaviours can make a big difference to the overall number of infections. While hitherto research has generally explored adherence to behavioural restrictions irrespective of the legal status of their underpinning rules,3 our analysis focuses specifically on what drove public compliance with lockdown law. Our interest in compliance with law thus offers a particular contribution to the broader research endeavour of understanding public behaviour during lockdown, specifically examining the role of law and legal culture in the UK’s public responses to the pandemic.
Handfield, Robert B et al, ‘A New Acquisition Model for the next Disaster: Overcoming Disaster Federalism Issues through Effective Utilization of the Strategic National Stockpile’ (2024) 84(1) Public Administration Review 65–85 Abstract: Using primary data collected from interviews with federal and state government officials and secondary data related to PPE distribution and state healthcare statistics, we discovered evidence that the use of the Strategic National Stockpile (SNS) to distribute personal protective equipment to state and local agencies in need during the height of COVID-19 was indeed poorly designed to cope with the COVID-19 emergency, leaving many states with shortages of badly needed medical supplies. As a result, many states struggled to organize an uncoordinated procurement response—which we suggest is due to federalism issues. To overcome federalism challenges and increase future disaster preparedness, we recommend four necessary reforms to the SNS that include (1) the incorporation of uncompensated industry experts into SNS administration, (2) the provision of an emergency production board for times of crisis, (3) elevated political leadership for the SNS, (4) improvement of federal-state supply chain governance.
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.
Harlinah, Sitti and Andi Sri Rezky Wulandari, ‘Development and Urgency of Administrative Law Tools After the Enactment of Law No. 2 April 2020 During the COVID-19 Pandemic’ (2024) 2(2) Rechtsnormen Journal of Law 145–155 Abstract: The purpose is to determine the position of administrative legal instruments in the formation of public policy, as well as analyze developments and the urgency of administrative law as an alternative to government policy during the Covid-19 pandemic. Conclusion is the instruments of administrative law in the formation of public policy develop dynamically over time along with the needs of the state and citizens.
Harrington, Alexandra, ‘Summary Report Concerning Responses to COVID-19 in the USA’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 85–94 Abstract: The United States of America (US) has been profoundly impacted by the Covid-19 pandemic, leading the world in both Covid-19 cases and deaths despite access to vaccinations and advanced treatments. Critical to the US response to Covid-19 from a legal and regulatory perspective is the dichotomy between federal and US state governance powers and systems, which have frequently come into conflict during the pandemic. At the same time, the pandemic occurred during a highly divisive presidential campaign, in which responses became a matter of political rhetoric, and an equally contentious aftermath. The change of presidential administrations in January 2021 brought significant shifts in national policies and rules regarding Covid-19 response and recovery. However, the tensions between national and state legal and regulatory responses remains and continues to be evident in responses to the rise of variants, particularly the Delta variant, across the country. This article reviews Covid-19 legal and regulatory responses and the national and state levels in order to highlight how these entities have addressed economic, social, and public health-related issues.
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 26-36Pre-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)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.
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.
Hau, Lucia de Canossa Silva and Ketut Adi Wirawan, ‘Analysis of the Existence of State Law in Implementing a State of Emergency in the Covid-19 Situation in Timor-Leste’ (2023) 6(2) Sociological Jurisprudence Journal 117–122 Abstract: Concerning ‘The Existence of the state of Law in implementing of a State of Emergency in the Covid-19 Situation’ is a constitutional reflection. Regarding state issues in the juridical aspect, the researcher sees that there have been multiple lexical interpretations in the use of the words Estado Emergencia and Estado de Esesaun. In the author’s opinion, this theoretical issue is that the concept of Staatnoodrecht (Netherlands) is divided into two parts, namely Subjective Staatnoodrecht and Objective Staatnoodrecht. There are two formulations of the problem. First, does the real situation of Covid-19, which attacks the population of the entire territory of Timor-Leste, meet the requirements to be declared Timor-Leste in a state of emergency? Second, how is the existence of state law in a state of emergency? This study uses normative juridical methods, including statutory, conceptual, and historical approaches. This research is expected to find basic theoretical ideas to realize the existence of the law state in implementing emergencies in the Covid-19 situation.
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.
Hemming, Andrew, ‘Will Democratic Freedoms and Human Rights Survive a Second Pandemic in Australia?: A Case Study of the Legal Foundations and Mechanisms of Implementation of Australia’s COVID-19 Response’ (2024) 98(8) Australian Law Journal 578–595 Abstract: This article is a case study of the laws and regulations at both the Commonwealth and State level that were relied upon to uphold Australia’s COVID-19 response, and the behavioural mechanisms used by governments in Australia to implement these regulatory policies. The question will be posed now that borders have been re-opened and normality restored in a ‘we will have to live with COVID-19’ environment, whether the draconian restrictions on democratic freedoms and human rights could reoccur unless Australia changes the manner in which these laws and regulations are imposed by governments and interpreted by the courts, especially given the High Court’s decision in ‘Palmer v Western Australia’. This question is particularly important given the announcement on 21 September 2023 that the Commonwealth Government was setting up a COVID-19 Response Inquiry to identify lessons learned to improve Australia’s preparedness for future pandemics.
Hettiarachchi, CA, CD Attanayake and SS Wijesinghe, ‘Law of “Isolation” and Its Legitimacy of Practice in Sri Lanka: A Judicial Review’ (2022) 28(1) Journal of the College of Community Physicians of Sri Lanka 541–554 Abstract: Isolation of persons is a key strategy to prevent and control highly contagious diseases throughout the history worldwide and its importance had re-emerged due to COVID-19 pandemic. In Sri Lanka, like other countries, this isolation process is mainly governed by the law. The Quarantine and Prevention of Diseases Ordinance is the main law in this regard where the powers are mainly vested with health authorities. Conclusions and Recommendations: Quarantine and Prevention of Diseases Ordinance of Sri Lanka and its regulations can be used to prevent and control COVID-19 effectively as adequate and powerful provisions are available, especially in relevant to isolation of persons. However, the relevant law is often wrongly interpreted and imposed by authorities as well as non-authorities. Authorities and Authorized Officers need to be empowered on their powers and limitations to implement the law legitimately in order to achieve the maximum control and prevention of COVID-19 and other infectious diseases.
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.
Hickman K C, Tom and Joe Tomlinson, ‘Judicial Review during the Covid-19 Pandemic’ (2023) 27(3) Edinburgh Law Review 252–283 Abstract: The public health crisis during the COVID-19 pandemic subjected judicial review to competing pressures. There was pressure for courts to be accommodating to governments both substantively and procedurally, for judicial review to be minimised and restricted and for powers to be broadly and generously construed. On the other hand, the unparalleled intrusions on individual freedoms and the need for hurried rule-making with little political scrutiny called for heightened vigilance and might have justified the courts developing a role acting in partnership with Governments in ensuring COVID-19 rules were lawful, reasonable and proportionate. The reported decisions in England, Wales and Scotland reveal the dominance of the first of these pressures and they paint a markedly deferential picture. Judicial rulings had negligible impact on COVID-19 restrictions. Courts did not act in partnership with the Government in shaping COVID-19 rules. The system of judicial review nonetheless had impact through what we described as its “second look” function: providing a mechanism for triggering public servants to look again at a decision and amended or change them to provide a sounder balance between public health imperatives and competing rights and interests.
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, ‘Proportionality and Protracted Emergencies: Australia’s COVID-19 Restrictions on Repatriation Rights’ (2023) 45(1) Sydney Law Review (forthcoming) Abstract: The COVID-19 pandemic plunged governments into a world of ‘tragic choices’. With minimal forewarning and limited available infrastructure to enable freedoms in an alternative way, governments were required to restrict rights to meet the more urgent, ‘existential’ need to control threats to life. The nature of the emergency limited the role of courts in assessing challenges that raised rights and proportionality arguments against restrictions. In this article I argue that rights based proportionality reasoning can nonetheless retain a meaningful role in emergency settings. To do so, I compare how courts in Israel, New Zealand and elsewhere applied proportionality reasoning in public law challenges to restrictions on repatriation rights during the pandemic. I argue that judicial scrutiny of a restriction’s proportionality can intervene in ‘executive path dependency’ — the failure of executive emergency governance to invest in infrastructure over time to render restrictions less necessary. Such scrutiny can also provide for more principled systems of allocating scarce resources. I then demonstrate how various Australian mechanisms — constitutional, administrative and political — failed to supply the same protection in challenges to restrictions on repatriation rights. I trace this to the faith that the Australian system places in popular, majoritarian accountability mechanisms, whose operation is altered in emergency settings.
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
Hill, Guzyal and John Garrick, ‘The Turbulent Effects of COVID-19 Policy on Australian Federalism and National Uniform Legislation’ (2023) 97(11) Australian Law Journal 842 [pre-published article available on SSRN[ Abstract: The COVID-19 pandemic prompted intergovernmental reforms across nine jurisdictions in Australia, with divergent state policies reviving debates about the core federal structure. This article probes the effects of the divergent COVID-19 policies on the federation and examines how state responses can, in future, strengthen federation by considering unique regional characteristics within a national context. Advocacy coalitions, such as public health, business and economic, have influenced policy responses, some seeking strict measures to contain the virus others prioritising economic recovery. This study identifies that the divergent and incremental post-pandemic legislation occurring within individual jurisdictions may lead to divisions that may not be beneficial for the next emergency. Rushing into expedient legislation that serves one jurisdiction may not produce optimal outcomes for that state or Australia as a whole, especially when shaped by strong local advocacy coalitions. Longer-term considerations and a more cohesive approach are necessary to ensure best outcomes for the states, territories and the Australian federation.
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.
Hobbs, Harry and George Williams, ‘Australian Parliaments and the Pandemic’ (2023) 46(4) University of New South Wales Law Journal (forthcoming) Abstract: Parliaments play a crucial role during a pandemic in supporting their community to safely navigate the public health emergency. Parliaments must meet regularly, be provided with sufficient time to debate key measures and issues, exercise legislative oversight, and scrutinise government administration and policy. We examine whether Australian Parliaments met these standards during the covid-19 pandemic. We find that Australian Parliaments often performed poorly.
Hobbs, Harry and George Williams, ‘Did Australian Parliaments Meet Regularly During the COVID-19 Pandemic?’ (2024) 72 Papers on Parliament 20–36 Abstract: The COVID-19 pandemic posed significant challenges to governments and governance systems all over the world. Faced with a complex and uncertain virus, Australian governments imposed extensive public health controls to protect the community. Borders were closed, dancing was prohibited, and businesses were shuttered. Families were prevented from seeing their loved ones in aged care homes, whole communities were confined to their local government area, and people were banned from meeting 2 or more friends for a walk outside. These measures were not imposed after consideration by parliament; they were implemented by the executive. The executive is uniquely positioned to provide quick, decisive, and flexible responses to protect public health and safety in periods of crisis. However, the actions taken by the executive raised questions about the role of parliament during this time. Australia is a representative democracy governed under a system of responsible government in which the executive answers to the people through their representatives in parliament. One might have expected parliament therefore to come to the fore as a highly visible and deliberative forum for community debate. Parliamentary processes offered the opportunity to scrutinise government measures and to build public trust. A striking feature of the response to the COVID-19 pandemic, however, was the ‘contraction’ of parliament. In this article, drawn from a longer piece in the UNSW Law Journal, we examine and assess how Australian parliaments responded to the pandemic. We divide our paper into 2 substantive parts. Part 1 assesses the core functions of parliament to enable us to identify 4 key roles that parliament should undertake during a public health emergency. Parliament should meet regularly, be provided with sufficient time for debate on key measures and issues, and exercise both legislative and executive oversight. In part 2, we assess Australian parliaments against the first of these functions. We ask whether Australian parliaments met regularly during the pandemic.
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 Jr., James G, ‘National Legal Paradigms for Public Health Emergency Responses’ (2022) 71(1) American University Law Review 65–109 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 modern public health emergency 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 and Leila Barraza, ‘Legal Pitfalls In Response to 2019 Novel Coronavirus’ Slate - 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, Lauren T Dunning and Jennifer L Piatt, ‘State Public Health Emergency Powers in Response to COVID-19’ (2023) 113(3) American Journal of Public Health 275–279
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, 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.
Hofmann, Ekkehard, ‘COVID-19 and the Federal State’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 77–89 Abstract: After almost two years through the pandemic, COVID-19 has proven to be a considerable and specific challenge for liberal states such as the Federal Republic of Germany. Its constitution requires state actors on all levels to take action to protect its citizens against risks entailed by infectious diseases, but also to respect the rule of law and fundamental rights, data protection legislation and institutional arrangements, particularly the relationship between the central level (‘Bund’) and the states (‘Länder’). As it turns out, this federalist structure does not provide for an adequate legal framework when it comes to global pandemics such as COVID-19.
Hohmann, Balázs, ‘The Impact of the Government’s Restrictive Measures on the Transparency of the Administrative Proceeding in the Context of the COVID-19 Pandemic’ in Jeton Shasivari and Balázs Hohmann (eds), Expanding Edges of Today’s Administrative Law (ADJURIS, 2021) 154–162 Abstract: Social distancing has become a distinctive feature of the recent global outbreak of the COVID-19 coronavirus and the government’s response to it. This is also reflected in the way public administration systems perform their tasks and is a comprehensive feature of the way in which national and European public administrations are performing their tasks at the time of the lecture. In this context, the handling of cases in person has been suspended in several countries, and some public administration staff have switched to working from home. This situation has perhaps highlighted even more sharply the phenomenon that had already emerged in national regulations in the context of the electronisation and digitalisation of processes and electronic communication. And in this context, the question rightly arises, which has become even more striking in the current period: will the transparency of public administration, and within it the transparency of the process of public administration in individual cases, towards the client, remain sustainable in the long term if the client and society do not meet the public administration in person, but only through electronic platforms? The study will seek answers to these questions that can be scientifically substantiated.
Holčapek, Tomáš, ‘Judicial Oversight in Times of a Pandemic’ (2021) 12 Czech Yearbook of Public and Private International Law 360–370 Abstract: This paper focuses on judicial decision-making during the Covid-19 pandemic, especially in the area of judicial oversight or review of various restrictive measures adopted in order to protect public health. A pertinent question is how well-equipped courts are to protect individual rights from excessive interference by public authorities at a time when a lot of essential information about nature and severity of the threat, and which counteractions would be the most suitable, is unavailable. Is it a valid point that law is prepared for usual, nonexceptional circumstances, but fails in times of a true crisis? For this purpose, the paper analyses selected case law and evaluates how it approaches a problem which most developed countries are currently attempting to resolve.
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.
Hosseini Sadrabadi, Iraj, ‘The Legal System of the Health Emergency Condition to Fight against the Covid-19 Epidemic in France’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: The crisis and the situation caused by the corona virus, which started in late 2019 in Wuhan, China, were not limited to that area and became increasingly known as a pandemic on a mondial scale. The health risks of this virus were so great compared to similar viruses that now a large number of patients, along with a large number of victims, have a worrying future. In these circumstances, the public authorities, including the government, the parliament and other public authorities and institutions of France, took measures and decisions regarding the mentioned circumstances. All the measures taken or anticipated have been designed to allow the French health system to better cope with the growth of the coronavirus. From the point of view of public law and, of course, administrative law, this issue has given rise to challenges and debates in the area of the type, scope of measures and also the legal basis for creating a health emergency within the legal community. The government was looking for a stronger juridic base. To this end, the French government, in addition to legislative measures, on March 18, 2020, two bills, one on the organic law on the conduct of the Constitutional Council in the processing of complaints related to the rights and freedoms guaranteed by the Constitution, and the other on Common law, under the title of emergency measures to deal with the epidemic, he presented the Covid 19 to the French Senate, which has become the legal basis for government.
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) 8(4) European Journal of Comparative Law and Governance 271–303 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, ‘Federalism, Leadership, and COVID-19: Evolving Lessons for the Public’s Health’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 153–166 Abstract: The default governance architecture for public and individual health care in the United States is federalism, the division of responsibility between federal and state governments. A public health emergency such as a pandemic typically produces swift federal actions to support affected individuals, businesses, and states. Such actions include exercising executive emergency power to disseminate supplies, enacting relief bills, and triggering agencies to facilitate financial and regulatory relief. An emergency also typically involves coordination between federal and state governments, as state and local public health officials need federal funding and guidance but also perform key functions such as isolation orders, testing, contact tracing, and vaccine dissemination. In the case of COVID-19, some of the usual patterns have been disrupted. The two major federal response bills enacted in March 2020 followed prior playbooks, offering financial assistance such as increased Medicaid funding and unemployment insurance benefits as well as novel policies such as paid leave to care for COVID-19-positive relatives. The bills largely relied on states to take up funds, implement emergency assistance, and exercise regulatory options to reach those harmed by the pandemic and its attendant recession. This approach built on states’ preexisting policies, heightening differences between states and intensifying the pandemic’s inequitable impact. This chapter evaluates the atypical federal pandemic response – which witnessed an executive branch rejecting much of the centralized responsibility necessary for addressing emergencies – and the wildly variable state response – some of which prioritized politics over health, and all of which depended on the strength of preexisting social programs – to determine the legacy of the novel coronavirus for federalism in public health emergencies.
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.
Imalingat, Tara, Nerima Were and Allan Maleche, ‘Political Opportunism and Pandemic Mismanagement in Kenya’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 181 Abstract: More than a year after the first COVID-19 case was confirmed in Kenya, the country had still not declared a state of emergency. The pandemic, and Kenya’s response to it, exposed a blatant disregard for the rule of law and human rights and a derogation of constitutional principles. This chapter examines the authorities’ response, arguing that when the executive opted not to declare emergency powers it acted outside of the constitutional framework and undermined the rule of law. The effect of this conduct was the heightened erosion of human rights, especially of marginalised communities, and the deepening of inequality. The chapter concludes by offering a set of recommendations that may strengthen Kenya’s constitutional democracy and its response to future emergencies.
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.
Iqbal, Ayesha and Amjad Iqbal Falak, ‘COVID-19 Epidemic in Pakistan: Review on Precautionary Measures (Law Policy, Governance) and Impact on Pakistan’ (2022) 3(3) International Journal of Economics Development Research (IJEDR) 236–244 Abstract: The COVID-19 pandemic has ruined the worldwide economy. The study intended to evaluate the pandemic effects on the Pakistan economy, openly emphasizing economic growth and poverty alleviation and the efforts take to control pandemic in the country. The investigation discovered that the pandemic affects the financial development of the country, and the measure taken by the official though their policy law and good governance are the good initiatives to decrease pandemic effect in the country.
Isaq, Mohammad, ‘Navigating Legal Terrain: The Interplay of Human Rights and Judicial Review Law in the COVID-19 Era’ (2024) 13(2) Leicester Student Law Review 74–88
Ismulail, Andi Muhammad Rifqi et al, ‘The Effectiveness of Palu Mayor Regulation Number 19 of 2020 Concerning the Implementation of Discipline and Law Enforcement of Health Protocols as an Effort to Prevent and Control Covid 19 in Palu City’ (2023) 4(1) Journal of Aafiyah Health Research (JAHR) 18–30 Abstract: The Increasing Cases of the Covid 19 Pandemic to Indonesia, As a form of emergency response, the Palu City Government of Central Sulawesi Province stipulated Palu Mayor Regulation number 19 of 2020 concerning the implementation of discipline and law enforcement of health protocols as an effort to prevent and control corona virus disease 2019. The purpose of this study is to Analyze in Depth the Effectiveness of Palu Mayor Regulation Number 19 of 2020 concerning the Implementation of Discipline and Law Enforcement of Health Protocols as an Effort to Prevent and Control Covid 19 in Palu City based on input, process and output factors. Inputs, processes and outputs do not run in accordance with Palu Mayor Regulation Number 19 of 2020 because they are less firm and binding and coercive in the field and there are still communities, both individuals and business actors, who violate rules related to the implementation of discipline and law enforcement of health protocols. The suggestion is to be more assertive and remain consistent in providing education and awareness to the public in implementing health protocols, especially in the city of Palu.
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.
Ivan, Angela S, ‘Convergent and Divergent Legal Trends in Addressing the CORONAVIRUS Pandemic at the EU Level’ (2021) 14(63) Bulletin of the Transilvania University of Braşov. Series VII: Social Sciences and Law 37–42 Abstract: The greatest humanitarian crisis of the 21st century, triggered by the pandemic emergence and spread of the Covid-19 coronavirus, has caused all European Union States to identify and apply rapid solutions to limit and stop this humanitarian disaster. The ways approached by each Member State in achieving this desideratum were different depending on the potential of assistance and endowment of the hospitals but also on the legal and legislative measures applied. The different percentages of the level of vaccination of the population that vary from state to state show how important is the unitary approach of information measures, strategic organization but also the convergent legislative correlation at the European Union level in stopping this scourge. The percentage of vaccination has proved to be closely linked to saving lives, a conclusion which leads to the need to address a convergent strategy across EU Member States on the measures needed to achieve the highest possible percentage of vaccination at the level of all EU Member States to stop this virus and return to normality.
Iwasaki, Masaki, ‘Segmentation of Social Norms and Emergence of Social Conflicts Through COVID-19 Laws’ (SSRN Scholarly Paper ID 4021862, 31 January 2022) Abstract: In the name of combating COVID-19, many countries have enacted laws that restrict citizens’ freedom of movement and freedom to operate businesses. These laws attempt to use the expressive effects of law and legal sanctions to make people conform to legal norms different from pre-existing social norms. The economic theory of law and social norms predicts that when legal norms deviate significantly from social norms, they can cause people to protest or violate them, leading to a division of social norms and possible social conflicts not only between the state and its citizens but also among people with different beliefs. Using Japan’s COVID-19 laws as a case study, this paper examines under what conditions laws that aim to change social norms can fail and what the side effects are in such cases. In Japan, we have seen a fragmentation of social norms, with the emergence of citizens pejoratively called ‘self-restraint police,’ who enforce behavioral restrictions illegally on others and rural residents who interfere with and harass urban citizens returning to their hometowns. Such informal surveillance among residents during the pandemic recalls the government’s misuse of neighborhood organizations during World War II to encourage residents to monitor each other. Also, the government’s over-hyping of the dangers of COVID-19 has led to discrimination against patients and health care workers, an alarming echo of Japan’s history of discrimination and lifelong isolation of leprosy patients.
Jacobs, Carolien et al, ‘Containing COVID-19 in the Democratic Republic of the Congo: Government Measures and Women’s Compliance’ (2021) 65(S2) Journal of African Law 287–310 Abstract: This article concerns the unfolding COVID-19 pandemic in the Democratic Republic of the Congo. It analyses the sanitary measures that the government has taken to respond to the pandemic since March 2020, the way these measures are enforced, and the extent to which women comply with the measures. The article draws from desk research and empirical data from the eastern city of Bukavu, where the research team conducted 134 structured interviews. The findings show widespread willingness to comply with some of the main measures because of fear of sanctions, fear of the pandemic and because of trust in the state or church. The article argues that many women hold the state accountable for the success in containing the virus, but also criticize the state for not providing livelihood assistance during the state of emergency. Further research is needed to assess the impact of COVID-19 on state legitimacy.
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.
Jafari, Ahmad, Hamid Abhari and Sam Mohammadi, ‘A Comparative Study of Civil Responsibility of Government towards Users the Covid 19 Vaccine in Iran and US Law’ (2023) Comparative Law Review (forthcoming) Abstract: Corona virus or Covid-19 is a disease which affected most of the countries for many year such as Iran and America and caused lots of difficulties and suffering for governments and people. Now days one of the important matters regarding the civil responsibilities of the government is transmission and spread of Corona virus among people. Due to that the aim of this project is to comparatively analysis the conditions of the civil responsibility of government towards the use of Covid-19 vaccination and methods of compensation in the Iranian and US Law system. Writer of this article tried to refer to the subject by sticking to descriptive-analytic method to explain the adaptation of the civil liability of legal system of Iran and America and find out the differences between them. Results obtained from this research show the government responsibility plan regarding this epidemic disease. It means the action or decision by the authorities can lead the responsibility of the government. Also, in US Law system to compensate the lost and damages caused by this covid-19 vaccination the compensation fund and civil responsibility insurance to compensate this case is established. And other achievements are that the government's exemption from non-judgment damages is exceptional and the main principles of the necessity require compensating unjust loss. The government can only cite it when it is sure that it has legal documentations.
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.
Jasanoff, Sheila and Stephen Hilgartner, ‘A Stress Test for Politics: A Comparative Perspective on Policy Responses to COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 289 Abstract: This chapter presents interim findings of the Comparative Covid Response (CompCoRe) study, a qualitative comparison of policy responses to COVID-19 in 16 countries begun in April 2020 < https://compcore.cornell.edu/>;. To contain the virus, governments around the world enacted extraordinary limits on personal freedom and economic activity. National policies and outcomes varied dramatically. Some countries achieved a coherent response and significant degree of control in the arenas of health, economics and politics. Others achieved public consensus on how to proceed, but with mixed results. Still others experienced policy chaos, with extensive conflict in all three arenas. The virus seemed to target structural weaknesses in health, economic and political systems, revealing tacit assumptions about science and public reason that guide governance in different countries. These assumptions typically are not formally codified, but they are a crucial part of the constitutional orders of contemporary societies and deeply shape relationships between the state, scientific experts and citizens.
Jashari, Murat, Behar Selimi and Islam Pepaj, ‘Political and Constitutional Approach Toward Covid 19: The Cases of Kosovo and Croatia’ (2021) 42(3) Zbornik Pravnog fakulteta Sveučilišta u Rijeci 817–834 Abstract: This paper analyzes the political and constitutional confrontation of Kosovo and Croatia with the COVID-19 pandemic. The similarities of the constitutional provisions governing emergencies and possible restrictions on human freedoms and rights in both countries, alongside hybrid parliamentary systems with strong presidents, have produced the same approaches, respectively similar in political and constitutional terms as well as in academic and professional aspect. Therefore, this paper is focused more on government responses to the situation, including divergences between presidents and governments, as well as constitutional court approaches and respective academic opinions on the subject axis: extraordinary measures within the ordinary or extraordinary legal order with a formal declaration of a ‘State of Emergency’. Both countries set out for the first model, contenting themselves with amending legal frameworks without a formal declaration of a state of emergency. How and why, it happened is explained in the second and third parts of the paper, resulting in conclusions and recommendations.
Jilkine, Vladimir, ‘COVID-19 Pandemic and Changes to Finland’s Legislation in Line with the WHO Guidelines’ (2022) 22(1) SOCRATES: Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 13-23 Abstract: The article analyses new legislative amendments in Finland, including an interim amendment to the Infectious Diseases Act, which aims to protect the life and health of clients and patients using social and medical services. The rapid spread of the number of cases of coronavirus infection in Finland, including the new Omicron strain, required urgent measures and new amendments to the legislation. Therefore, in the context of the overall fight against the coronavirus pandemic in the world, these provisions of the Finnish Constitution are a transition from the absolute priority of universally recognised norms of international law to the priority of the Basic Law, subject to the condition of the inadmissibility of guaranteed restriction of human rights. Finland’s desire to comply with the global integration processes in the context of persisting risks of the spread of coronavirus infection has led to digital harmonisation of legislation and legal norms in accordance with the principles of international law. The amendments to Finnish legislation were based on the enshrined provisions of the Constitution and the existing international legal framework, considering possibilities for responding to pandemic and transboundary emergencies in accordance with WHO guidelines.
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) 2021Jurisdiction: 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.
Jonski, Kamil and Wojciech Rogowski, ‘Evidence-Based Policymaking during the COVID-19 Crisis: Regulatory Impact Assessments and the Polish COVID-19 Restrictions’ (2023) 14(1) European Journal of Risk Regulation 65–77 Abstract: The COVID-19 pandemic transformed our understanding of the state’s role during a public health crisis and introduced an array of unprecedented policy tools: ever-stricter travel restrictions, lockdowns and closures of whole branches of the economy. Evidence-based policymaking seems to be the gold standard of such high-stakes policy interventions. This article presents an empirical investigation into the regulatory impact assessments accompanying sixty-four executive acts (regulations) introducing anti-pandemic restrictions in Poland over the first year of the pandemic. To this end, the study utilises the so-called scorecard methodology, which is popular in regulatory impact assessment research. This methodology highlights the shallowness of these documents and the accompanying processes, with an absence not only of a sound evidence base behind specific anti-pandemic measures or estimates of their economic impacts, but even of the comparative data on restrictions introduced in other European Union/Organisation for Economic Co-operation and Development (OECD) countries. Overall, the collected data support the hypothesis that the ad hoc pandemic management process crowded out the law-making process through tools such as regulatory impact assessments and consultations. In other words, the genuine decision-making occurred elsewhere (with the exact process being largely invisible to public opinion and scholars) and drafting legal texts simply codified these decisions, with the law-making process becoming mere window-dressing.
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
Kadomatsu, Narufumi, ‘Legal Countermeasures against COVID-19 in Japan: Effectiveness and Limits of Non-Coercive Measures’ (2022) China-EU Law Journal (advance article, published online 11 April 2022) Abstract: This paper analyzes the Japanese legal responses to COVID-19. Japan did not declare the state of emergency on the constitutional level. In addition, it did not enact a new law and instead amended existing statutes several times to cope with the situation. The paper first introduces provisions of the Novel Influenza Act and Infectious Diseases Acts provisions before and after the February 2021 amendments. The remarkable feature of the Japanese countermeasures was the focus on non-coercive measures. There is no compulsory scheme to ensure ‘staying at home’ for general residents. Regarding the facility managers, the NIA provided for the public announcement of non-compliance of the ‘recommendation’ to ensure effectiveness. The legal nature of such public announcements is disputed in Japanese administrative law. The February 2021 amendments added the possibility of issuing an order whose effectiveness was guaranteed by administrative fines. This paper analyzes the traditional emphasis of ‘administrative guidance’ in Japan and proposes hypotheses as to why open non-compliance cases of facility managers are observed. Concerning patients, prior to the February 2021 amendment, the IDA provided for the problematic legal figures of ‘recommendation’ and ‘immediate execution’. The Feb. 2021 amendment, which added administrative fines, made the legal figure more complex. COVID-19 countermeasures have highlighted the difficulty of legal control when public behavior change is a policy goal. We must proceed by trial and error and accumulate knowledge regarding legal regulations or governmental messages that effectively affect public behavior. In the process, we should embrace the basic principles of constitutional democracy, such as the democratic legitimacy and accountability of government decisions and the principle of the rule of law. Simultaneously, we must remember that infectious disease control is a matter of human rights and discrimination, especially considering the unfortunate history of infectious disease control in Japan.
Kahl, Wolfgang and Konstantina-Antigoni Poulou, ‘The Rule of Law and Fundamental Rights in the Coronavirus Pandemic in Germany’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer International Publishing, 2022) 125–146 Abstract: The coronavirus pandemic has been a great challenge for most constitutional states in many aspects. This will be illustrated in this contribution taking Germany as an example, with the focus lying mainly on the rule of law principle and fundamental rights, examined in light of the case law developed so far. Notably during the first lockdown, a lot of fundamental rights in Germany were massively curtailed. This is why this unprecedented situation was sometimes qualified as a ‘state of emergency’ or a ‘corona-dictatorship’, given that the breadth, depth and duration of the encroachments on fundamental rights were, and in some cases still are, exceptionally great. Nevertheless, the following contribution demonstrates that such an approach is misplaced. The German Basic Law (‘Grundgesetz’) does not provide for a state of emergency or any other exceptional provisions regarding the interventions in fundamental rights in times of crisis. The traditional model of the separation of powers has proven to be sufficiently flexible to meet the needs for even far-reaching encroachments on fundamental rights on the one hand, and to adequately control and react to these encroachments in accordance with the rule of law on the other.
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.
Kasimbazi, Emmanuel, ‘Legal and Regulatory Measures and Responses to Prevent and Control COVID-19 in Uganda’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 67–84 Abstract: Uganda adopted different legal and regulatory approaches to prevent and control the COVID-19 pandemic. Measures included Presidential Directives, Ministry of Health rules, guidelines and the responses, establishment of institutions such as the National Task Force (NTF) and District Task Forces (DTF) Force, and allocation of funds. These measures are included indifferent instruments such as statutory instruments, which empower government institutions to contain the COVID-19 situation in Uganda. They also set out conditions to be complied with by individuals and institutions. This article aims at mapping out the legal and institutions’ approaches and assesses their effectiveness in preventing and controlling COVID-19 in Uganda.
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, ‘The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability’ _Harvard National Security Journal Online_ On June 23, 2020, the Senate Judiciary Committee held a hearing on “The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability. This series of works by Professor Keitner memorializes Professor Keitner’s prepared written testimony and detailed responses to 39 Questions for the Record (QFRs).
- Part I: ‘Written Testimony’ (23 February 2021).
- Part II: ‘Questions for the Record—Benefits to the United States from Foreign Sovereign Immunity’ (30 March 2021)
- Part III: ‘Questions for the Record—Private Litigation Will Likely Fail to Secure Relief for U.S. Victims’ (20 October 2021)
- Part IV: ‘Questions for the Record—Federal Government Response to Coronavirus and U.S. Public Health Leadership Role’ (30 March 2022)
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)
Ken-Dror Feldman, Dalit and Emanuel Gross, ‘The Struggles of Democracy against the “New Terrorist” - The COVID-19 Pandemic: Separation of Powers - The Israeli Experience’ (2020) 2 Hong Kong Journal of Law and Public Affairs 106–115 Abstract: The Coronavirus disease 2019 (COVID-19) caught the world by surprise. The World Health Organization (WHO) declared the COVID-19 on 30th January 2020 as ‘Public Health Emergency of International Concern (PHEIC)’ and as pandemic on 11th March 2020.Suddenly, governments around the world had to stop their daily routine and to deal with a new and worldwide pandemic. Every country dealt with the new situation in a different way. However, most of the countries used tracing apps or other surveillance technology to follow the chains of infections and to stop them as soon as possible. These tracking techniques raised questions about the ability of democratic countries to trace their residents without reasonable suspicion of any criminal or terrorist offense. The COVID-19 caught Israel after 3 rounds of elections in which no certain, clear decision was made by the public. The pandemic was what had forced the politicians to establish a new government with a Prime Minister and a Substitute Prime Minister who will replace him after one year and a half. In addition, the current Israel Prime Minister is facing criminal procedures. True as of May 2020, Israel has a large government that most of them are also part of the legislative authority. There is also a coalition discipline principle that forces the opinion of the government on its members of the parliament. In light of these circumstances, there is almost no separation of powers between the legislative authority (the Knesset, the Israeli Parliament) and the executive authority (theGovernment). Moreover, the status of the Judiciary authority is being demoralized and public faith in courts is reduced. In this article, we discuss Israel’s experience during the COVID-19 pandemic and the need to trace the chains of infections as soon as possible, within the democratic frame. We show that even though the pandemic caught Israel in a delicate situation to its democracy, the basic principles of a democratic state – the separation of powers and checks and balances – are still present in the way Israel handled a certain aspect of the pandemic so far – the tracking of chains of infections. We focus on the question of checks and balances. We review the democratic process of legislation concerning the use of mobile tracking to find the potential chain of infection of verified patients. We show that despite all the obstacles the democratic game is preserved more or less, at least on paper. We show the importance of the separation of powers and mutual supervision. We call to preserve this basic and important principle especially in times when democracy needs to defend itself not only against terrorism but against a complicated, invisible enemy.
Kendrick, Thomas A, ‘Rebuttal: Alabama’s Gubernatorial and Legislative Responses to the COVID-19 Pandemic Were Valid, Constitutional, and Appropriate’ (2022) 83(6) Alabama Lawyer 404–414 Abstract: As a lawyer who defends healthcare providers that continued to care for patients during the COVID-19 pandemic, I take a different view from my opposing counsel who published an article in the September edition of The Alabama Lawyer.
Kecső, Gábor, Boldizsár Szentgáli-Tóth and Bettina BOR, ‘Emergency Regulations Entailing a Special Case of Norm Collision Revisiting the Constitutional Review of Special Legal Order in the Wake of the COVID-19 Pandemic’ (2024) 14(1) Juridical Tribune / Tribuna Juridica 5–26 Abstract: This contribution will interpret conflict between an emergency order and an ordinary law as a special case of norm collision and will revisit the constitutional review of such cases through this lens. First, the theoretical framework of emergencies will be taken into account, and then, based on the relevant constitutional case law of Austria, Germany, Hungary, Romania and Slovenia delivered during the recent public health emergency, a comparative analysis will investigate the most popular techniques to outline the scope of emergency regulation. Finally, based on this research, a three-step analysis will be proposed for constitutional courts to approach such issues by taking into account either the theoretical, the formal and the substantial aspects of the case. Apart from highlighting the role of constitutional review to establish the objective limits of emergency regulations, we also aim at giving additional weight on the formal and the theoretical prongs of the assessment of extraordinary state interferences, which have been consistently underestimated in our sense.
Keyes, John Mark, ‘Judicial Review of COVID-19 Legislation: How Have the Courts Performed?’ (2023) 30(2) Australian Journal of Administrative Law 115 [pre-published version available on SSRN] Abstract: This paper considers judicial responses to challenges to legislative action taken to address the COVID-19 pandemic, how these responses were affected by emergency conditions and the implications for judicial review generally and its role in society. The paper begins by outlining the types of legislative measures taken and then considers in very general terms the rule of law and judicial review, including hurdles to judicial review arising in many of the challenges to COVID-19 legislation, which in turn go some distance towards explaining the failure of most challenges. The paper looks next at the principal grounds advanced for challenging COVID-19 legislation in terms of the matters it addressed and the bases for the challenges. The bases for challenge are grouped under three headings: 1. constitutional law limits on law-making authority, 2. administrative law limits on delegated authority, 3. fundamental human rights and rights of Indigenous peoples. This survey is by no means exhaustive. Its aim is to add to the growing body of commentary on emergency legislation by focusing on a limited number of cases, mainly from Canada with a few from the UK, New Zealand and Australia.
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.
Khabrieva, TY and NN Chernogor, ‘Law and the Pandemic: The Lessons of the Crisis’ (2022) 92(4) Herald of the Russian Academy of Sciences 531–535 Abstract: The COVID-19 pandemic is exerting pressure on law and order, testing the strength of their basic elements and subsystems. It is transforming positive law and system-forming processes in the legal sphere, which ensure the functioning of the legal organization of society developed in the prepandemic period. The pandemic affects it indirectly, having a transformative effect on the mechanisms for exercising public power, law formation, and law implementation, including law enforcement. During the pandemic, human rights, which were not previously positioned in this capacity, have acquired absolute importance. Among them is the right to health protection and proper medical care. Along with this, special legal regimes and many legal institutions of both public and private law have been modernized, and new legal models and practices have been tested that are suitable not only for regulating social relations in extraordinary conditions but also for creating law and order in postpandemic society. Some of them have already been implemented into ordinary legislation. The doctrine recorded a growing multifunctionality of some legal means, as well as the emergence of new legal phenomena, in particular, antipandemic legislation. According to the authors of this article, to respond effectively to emergency situations, it is necessary to expand the existing variable scenarios of legal regulation and create appropriate regulatory templates, algorithms, and procedures for the activities of public authorities, as well as the scopes of their competence in the event of such situations. For Russian law and order, it is relevant in this context to systematize the legal basis of special legal regimes designed for crisis situations with account for the correction made, as well as to develop scientific criteria for differentiating the corresponding regimes.
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.
Khamim, Mohamad and Moh Taufik, ‘Discretion of Covid 19 Prevention in the Perspective of State Administrative Law’ (2022) 22(1) Jurnal Dinamika Hukum 187–196 Jurisdiction: Indonesia
Abstract: Strategic steps in handling the Covid 19 pandemic have been made by the Regional government to accelerate the handling of Covid-19. This study aims to look at the position of discretion as an instrument of administrative law in the formation of public policy, and analyze the extent to which discretion is used by regional heads as an effort to make effective policies in preventing covid 19 in their regions as part of the bureaucratic agility paradigm. This research uses an empirical juridical approach, with the data analysis method being carried out by collecting data through the study of library materials or secondary data which includes primary legal materials, secondary legal materials and tertiary legal materials, both in the form of documents and applicable laws and regulations relating to normative juridical analysis of the synchronization of the Government Administration Law. The policy of handling covid 19 carried out by several regions has succeeded in reducing the mortality rate through discretion, with a more flexible and flexible policy character in carrying out the role of responsive bureaucratic agility. The approach of State Administration law provides more legal certainty and avoids clashes of constitutional issues in realizing public welfare and justice.
Khisa, Moses and Sabastiano Rwengabo, ‘Militarism and the Politics of Covid-19 Response in Uganda’ (2024) 50(4) Armed Forces & Society 1118–1149 Abstract: Within the broader context of securitized responses to Covid-19 globally, Uganda experienced an oversized military role, ranging from law-and-order and lockdown enforcement, to managing food-relief supplies, medical operations, and partisan political repression. What explains this excessive militarization? To address this poser, the article draws on secondary sources and key-informant interviews to test the hypothesis that military involvement in pandemic responses depends on pre-pandemic militarism. The findings reveal direct links between pre-crisis militarism and Covid-19 responses, contrary to the view that exceptionality and novelty of Covid-19 informed overly militarized responses. Through pandemic framing and institutional morphing, pre-pandemic militarism foregrounded military roles because Covid-19 provided Uganda’s ruling elites with a public health pretext to heighten militaristic rule, clutch the political arena in the context of elections, and deepen military presence in civilian public health realms. This excessive militarization of public health seriously impacts civil–military relations, specifically command and control, reporting and accountability, and resources management.
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, Josephat Muuo, ‘Addressing Covid-19: A Test of Kenya’s Constitutional and Democratic Resilience’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 111–144 Abstract: Kenya confirmed its first case of Covid-19 in March 2020. In a bid to control the spread of the virus, the executive issued directives that, inter alia, discontinued learning in all educational institutions, suspended travel into Kenya, imposed a dusk-to-dawn curfew, curtailed movement in and out of selected regions and closed places of worship and entertainment. The government then proceeded to issue legislative and executive directives that reduced taxes in order to mitigate the economic losses occasioned by the containment measures. The judiciary closed down courts, resorting instead to electronic management of cases. This chapter discusses Kenya’s responses to the Covid-19 pandemic with the aim of understanding whether they meet its constitutional and human rights obligations and what they mean for the country’s constitutional and democratic resilience.
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.
King, Katiuska and Philipp Altmann, ‘Between Justice and Money: How the Covid-19 Crisis Was Used to De-Differentiate Legality in Ecuador’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1039–1057 Abstract: Legality in the Global South suffers from problems of application by convenience. Some rules are applied, and some are not, depending on certain actors, such as the State, the stakeholders, or others. This undermines legitimation as constructed by legality and due process. These problems are connected to a wider complex formed by coloniality, internal colonialism, and a form of functional differentiation that limits autonomy of the different social systems. This complex of structural properties allows States and other actors to systematically use one system against the other or—within a given system—one level of rules against the other. This was the case in Ecuador: in the initial months of quarantine due to Covid-19, the government took decisions about external state bonds following international legislation—and quite contrary ones related to local work contracts. Once again, legality followed different paths in diverse cases. Ecuadorian economic authorities accept and respect conditions on external public bonds which are protected by some complex and specific clauses to secure the payment. The same authorities have different practices towards international and national legislation that were organized in the sense of legal subsidiarity. This text will explore reasons and effects of legal de-differentiation in the Global South in times of crisis. The Ecuadorian case in time of Covid-19 helps to understand how structural problems related to the lack of autonomy of the legal system are perpetuated and lead to effects of convenient political action.
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 COVID-19: Lessons from the Pandemic’ (2022) 73(1) Hastings Law Journal 49–104 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.
Korenica, Fisnik and Bardhyl Hasanpapaj, ‘Limitation of Rights in the Times of the COVID-19 Pandemic: A View from Kosovo’s Constitutional Court’s “Shaky” Jurisprudence’ (2023) 27(5) The International Journal of Human Rights 872–895 Abstract: The COVID-19 pandemic has forced governments across the globe to take infection-control actions by and large unforeseen and unforeseeable in their constitutional frameworks. Several measures forcing restrictions on travel, business operations, labour, healthcare and/or the education system have characterised public policy in most of them. A fair number of those restrictions adopted in the form of government or legislature decisions are labelled as ‘lockdown measures’. This article examines two recent cases ruled upon by the Constitutional Court of Kosovo (CCK or Court), whose primary aim was to pronounce on whether the Kosovo government’s lockdown measures were compatible with the criteria authorising a limitation of fundamental rights. These two cases present an outstandingly activist attitude of the Court in controlling government behaviour in times of a pandemic outbreak, by primarily questioning the state’s negative obligations in the face of freedom of movement, right to private and family life, and freedom of assembly; whereas positive obligations of the state with regard to the right to life and its associated right, the right to health, were neglected altogether. The article concludes that the mechanical interpretation which the two Court cases drew neither contributes to a richer substantive human rights protection, nor functionally elevates the concept of human rights in times of pandemic.
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. ‘Abuse of Power and Self-entrenchment as a State Response to the COVID-19 Outbreak: The Role of Parliaments, Courts and the People’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 33-46 [OPEN ACCESS BOOK] Extract from Introduction: This chapter considers the way COVID-19 35has been used and might be used as an opportunity for political self-entrenchment especially from the executive. In doing so, it will first examine political self-entrenchment both during ordinary conditions and during times of emergency, such as in the case of the pandemic. The second part will focus on the available means to face political self-entrenchment and in particular, it will focus on both political and legal means. By examining the role of the judiciary, the legislature, the media and the people, this chapter will argue that during the pandemic, when the legislatures are suspended or under functioned, the ground is more fertile for abuse of power for self-entrenchment purposes on behalf of the executive. The main conclusion is that democracies are left vulnerable in times of emergencies with less safeguards to secure their orderly function and proper protection against acts of self-entrenchment.
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.
Kovács, Kriszta, ‘The COVID-19 Pandemic: A Pretext for Expanding Power in Hungary’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 259 Abstract: The COVID-19 pandemic triggered unforeseen social and legal problems in the democratic world. In some countries, the challenges were even more significant because pre-existing political and legal problems were aggravated by the pandemic. In Hungary, where the state of human rights, democracy and the rule of law was already grave in 2019, the pandemic only deepened and exacerbated the problems the country had before. Prime Minister Viktor Orbán strategically capitalised on the opportunity the COVID-19 situation provided to gain more unchecked power. A permanent state of emergency replaced rational discourse and a state operating within the bounds of fundamental rights, democracy and the rule of law. In order to prevent further erosion of the rule of law, domestic democratic resistance and supranational legal actions would be necessary; however, both have limited and ever-narrowing capacity to respond. As doubts arose concerning the meaningful support from the European institutions, no guarantee is within sight against the continuing autocratisation.
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, ‘Legislation During the COVID-19 Pandemic: Revolution, Patholegislation or Continuation?’ in Edyta Hadrowicz (ed), Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 63–79 Abstract: The article presents some observations on the reality of law-making during the COVID-19 pandemic and the state of epidemic legislation. On the one hand, it confronts the contemporary experience of the changing legal system with the Enlightenment ideals of good law (such as, among others, rationality, hierarchy, consistency, predictability, clarity of regulations), and on the other hand, it justifies the thesis that these ideals have long been only an imagination not reflected in the legislative practice of continental European countries and Anglo-Saxon countries. Contrary to the belief that the challenges of COVID-19 led to the ‘state of emergency’, an ‘exception’ to the rule of law and good law-making—it is argued that for at least several decades, phenomena such as inflation of law, juridization of socio-economic life, and even postmodernization of the legal system or after the crisis of the law was a reality well known by lawyers, entrepreneurs, citizens and commentators. As a result, epidemic legislation is rather the culmination, continuation or intensification of previously observed negative trends, rather than a breakthrough or a new quality. According to the author, this state of affairs leads to the need to search for new instruments of description and understanding of the law in force—including innovative methods of interpreting provisions, legal reasoning and methods of argumentation.
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.
Krumbein, Frederic, ‘The Protection of Human Rights by Taiwan’s Legislative Yuan during Taiwan’s Crisis Management of the COVID-19 Pandemic’ (SSRN Scholarly Paper No 4325837, 16 January 2023) Abstract: Taiwan is a success story compared to other countries in terms of the number of COVID-19 infections and deaths. Taiwan’s achievement has relied on effective institutions, crisis management, and cooperation between state and society. While the success factors of Taiwan’s crisis management of COVID-19 have been analyzed, less research has been conducted about the protection of human rights during Taiwan’s fight against the COVID-19 pandemic, in particular the role of Taiwan’s Legislative Yuan. The paper analyzes Taiwan’s COVID-19 policies, their impact on human rights, and the role of Taiwan’s parliament in safeguarding human rights in Taiwan’s pandemic management. Overall, Taiwan’s government and parliament tried to protect human rights by avoiding serious infringements on personal liberty, such as lockdowns and curfews, and by including provisions for protecting human rights in the pandemic prevention policies and measures, such as regulations for protection of personal data. However, not all measures were proportional or necessary, and overall, the parliament has been reluctant in exercising its powers of oversight and control over the government’s COVID-19 policies.
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.
Krznarich, Courtney, ‘The Pitfalls of Judicial Activism During COVID-19: An Analysis of Wisconsin Legislature v. Palm, 55 UIC L. Rev. 94 (2022)’ (2022) 55(1) UIC Law Review 94-119 Abstract: This Note will illuminate how the Wisconsin Supreme Court erred in its decision in Wisconsin Legislature v. Palm.12 Part II of this Note will cover the background of the DHS in Wisconsin and what led to the erroneous decision in Palm. Part III will explain why the court’s evaluation of Secretary-elect Andrea Palm’s issuance of Emergency Order 28 was flawed. It will also explain how the Wisconsin Supreme Court Justices’ personal disfavor for the broad discretion granted through Wisconsin Statute Section 252.02 (‘Chapter 252’) influenced them to evaluate its powers in a narrow way. This part will also highlight what led the court to unjustly strike Order 28 in its entirety and leave Wisconsinites with no guidance on how to avoid contracting COVID-19. Finally, this Note will offer a personal analysis of Palm, offering a more effective statutory analysis and logical outcome to the issues presented in the case.
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.
Kurniawan, R Firdaus, Mutia Evi Kristhy and Feriza Winanda Lubis, ‘Duties of Government and the Supreme of Law in Emergency: Coronavirus Disaster Outbreak in Indonesia’ (2022) 6(2) International Journal of Health Sciences 931–941 Abstract: The purpose of this research is to evaluate and assess (1) the government’s actions and policies in an emergency crisis that occurred in Indonesia; and (2) the rule of law in Indonesia in emergencies. This study is a descriptive qualitative study that describes government policy and the rule of law in Indonesia during an emergency. This article is based on secondary legal materials, such as books, journals, essays, and other written works from both print and digital media, as well as field occurrences. The study’s findings indicate that (1) the coronavirus illness outbreak is a non-natural disaster, including a pandemic, in which case the government established several strategies throughout the COVID-19 pandemic emergency response period; It is noted that 1 Perppu (Government Regulation in Lieu of Law), 1 PP (Government regulations), 1 Perpres (Presidential Regulation), 1 Inpres (Presidential Instruction), 4 Keppres (Presidential decree), 15 Permen (Ministerial regulation), 19 Kepmen (Ministerial decree), and dozens of decrees and circulars have been issued, which were specifically formed in response to the COVID-19 pandemic situation as a rule of law.
La Viña, Antonio GM, ‘Change and Continuity: COVID-19 and the Philippine Legal System’ in Suresh Nanwani and William Loxley (eds), Social Structure Adaptation to COVID-19: Impact on Humanity (Taylor & Francis, 2024) 140-148 [OPEN ACCESS E-BOOK] Abstract: The Philippine government under the Duterte administration fit squarely into the “strong man” category. Thus, it was no surprise and exactly as expected when its approach during the pandemic was of the same kind. The government “fought” the pandemic the same way it fought the drug war – through brute force. However, looking now with a retrospective gaze at the government’s response, we can see that the strongman approach may not have been the best. Through the lens of the law, we must review what was attempted, what was experienced, and what lingers on in Filipino society. Was the law used efficiently, effectively, and empathetically? Was the government’s hard stance effective or a failure?
Labuschaigne, Melodie, ‘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.
Labuschaigne, Melodie and Ciara Staunton, ‘The Rationality of South Africa’s State of Disaster During COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 347 Abstract: As a deeply unequal society with a poorly-resourced public health system and a significant tuberculosis and HIV infection burden, the South African government’s response to the COVID-19 pandemic has been the focus of close scrutiny. Opting for a state of national disaster instead of a state of emergency, the government promulgated a series of restrictions linked to a five-tiered risk adjusted strategy aimed at limiting the spread of the virus. The rationality of the government’s approach of opting for ministerial expert advisory committees and limiting Parliament’s oversight role in managing the disaster were contested in a series of legal challenges. This demonstrated the need for clear, justifiable and reasonable decisions, as well as the vital role of courts in protecting against potentially arbitrary decisions and providing for accountability mechanisms. The government’s negative response to experts’ criticism of its handling of the pandemic fails to recognise the importance of public debate in a functioning democracy and particularly during a public health crisis. With courts remaining the only check on decisions being made, it has become clear that Parliament should play a role in decision-making during this and future pandemics.
Lachmayer, Konrad, ‘Constitutional Compliance or Governmental Mismanagement? Rights Limitation in Austria from Lockdowns to Compulsory Vaccination’ in Arianna Vedaschi (ed), Government Policies to Fight Pandemics: Defining the Boundaries of Legitimate Limitations on Fundamental Freedoms (Intersentia, 2023) (forthcoming) Abstract: This paper traces back the legal COVID-19 responses by the Austrian government. In the first part of the paper legal and institutional issues are raised. The rejection of the state of emergency, the concept of legal responses, the role of Parliament and the multilevel system will be examined. The second part focuses on the limitation of fundamental rights and the case law of the Austrian Constitutional Court.
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.
Landau, David, ‘The COVID-19 Emergency and Instability in Latin America’ (SSRN Scholarly Paper No 4577079, 1 September 2023) Abstract: The standard story is that emergencies are dangerous because they centralize power in the executive, undermining checks on power, allow for abuses of rights, and potentially erode the democratic order. Scholars have long wrestled with how to design emergency powers so as to avoid these pitfalls, and Latin Americanists have a deep historical familiarity with the abuses posed under the guise of suppressing emergencies. Yet the experience of many Latin American countries during the COVID pandemic belies the standard story. While presidents in a few countries (such as Mexico and Venezuela) did indeed seem to use the pandemic to centralize power in anti-democratic ways, in many countries presidential governance was extremely difficult, with weak, embattled presidents contending with waves of instability. Rather than accruing power, in other words, presidents in a number of countries across the region were merely trying to hold on to it. Consider, for example, that Peru saw two pandemic-era impeachments and a resignation, Ecuador a narrowly-survived impeachment attempt in the midst of mass protests, Chile a failed attempt to rewrite a constitution, and Colombia a series of escalating protests that forced the incumbent president to make a u-turn on austere economic policy. Why has experience across the region been so discordant with theoretical expectations about political behavior during emergencies? First, many countries in the region were facing instability before the pandemic occurred, so COVID added governance challenges during already-difficult periods. Second, as Versteeg and Ginsburg have pointed out, emergencies come in different flavors, and the last round of theorizing (which was based largely on the post-9/11 context) may be less applicable to the distinct patterns of politics caused by the pandemic. And third, as emphasized in this brief chapter, the pandemic itself, and the many restrictions imposed by governments in response to it, had devastating economic effects on already-fragile and patchy economies and social safety nets. Inflation spiked, while GDP contracted and unemployment and poverty rates increased sharply. In Europe and the United States, governments responded to these challenges in unprecedented ways, creating new temporary or permanent programs and expanding new ones. But across most of Latin America, the response was much less adequate. Governments across the region were not able to figure out adequate responses to the economic side of the emergency, and this in turn fed many of the protests and other forms of instability seen throughout the region.
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’ (2023) 14(1) European Journal of Risk Regulation 141–164 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, Ho Trung Hieu, ‘Why Does the Government of Vietnam Become Successful in the Fight Against the Covid-19 Pandemic from Legal Perspectives?’ (2022) 1(1) Conference Proceedings of the International Conference on COVID-19 Pandemic and Public Health System 25–42 Abstract: In the hope of limiting the adverse impacts of the COVID-19 pandemic and protecting human health rights, state governments currently endeavor to implement regulations and grant feasible policies to both people and organizations. By contrast to countries failing to prevent this pandemic, there were successful role models in this fight all around the world in 2020, one of which in Asia is Vietnam. The reality indicates that the ratio of reported casualties and infected cases in Vietnam was relatively low in 2020 in spite of the limited medical systems and the high population rate. A question is raised what Vietnam performed a miracle to prevent the COVID-19 pandemic effectively over the time. Currently, Vietnam encounters the fourth phase of the COVID-19 outbreak after the success achieved in the previous three phases. Therefore, the upcoming missions and strategies should be recommended for the Government of Vietnam to overcome current difficulties and maintain success in this fight. To clarify these issues, this study will use a mixed-methodology of qualitative and quantitative approaches to evaluate both past and current policies and measures implemented by the Government of Vietnam as well as public awareness in the fight against the COVID-19 pandemic.
Le, Tuyet-Anh T et al, ‘Policy Responses to the COVID-19 Pandemic in Vietnam’ (2021) 18(2) International Journal of Environmental Research and Public Health 559 Abstract: The COVID-19 pandemic has become one of the most serious health crises in human history, spreading rapidly across the globe from January 2020 to the present. With prompt and drastic measures, Vietnam is one of the few countries that has largely succeeded in controlling the outbreak. This result is derived from a harmonious combination of many factors, with the policy system playing a key role. This study assessed the policy responses to the COVID-19 pandemic in Vietnam from the early days of the outbreak in January 2020 to 24 July 2020 (with a total of 413 cases confirmed and 99 days of no new cases infected from the local community) by synthesizing and evaluating 959 relevant policy documents in different classifications. The findings show that the Vietnamese policy system responded promptly, proactively, and effectively at multiple authority levels (33 different agencies from the national to provincial governments), using a range of policy tools and measures. Parallel to the daily occurrence of 2.24 new cases, 5.13 new policy documents were issued on average per day over the study period. The pandemic policy response over the first six months in Vietnam were divided into four periods, I (23 January–5 March), II (6–19 March), III (20 March–21 April), and IV (22 April–24 July). This paper synthesizes eight solution groups for these four anti-pandemic phases, including outbreak announcements and steering documents, medical measures, blockade of the schools, emergency responses, border and entry control measures, social isolation and nationwide social isolation measures, financial supports, and other measures. By emphasizing diversification of the policy responses, from the agencies to the tools and measures, the case study reviews and shares lessons from the successful COVID-19 prevention and control in Vietnam that could be useful for other nations.
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.
LeClercq, Desiree, ‘Judicial Review of Emergency Administration’ (2022) 72(1) American University Law Review 143–214 Abstract: This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies – what I refer to as ‘emergency administration.’ That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration’s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor helpful during crises. As a result, bipartisan members of Congress are introducing new legislation to take control over emergency oversight.Efforts to rebalance emergency powers are mistaken. Using a unique dataset of the APA cases that arose during the first two years of the COVID-19 pandemic, I show how federal judges invalidated emergency administration that unjustifiably violated the APA in over half of the cases. Agencies carried out much of their emergency administration under presidential control and not, necessarily, their expertise. The trajectory of judicial review during emergencies suggests that judges are becoming increasingly aware of presidential control and its harmful effects on vulnerable populations. Judges’ willingness to uphold the APA’s standards and protections during emergencies has significant implications for current legislative efforts and the balance of emergency powers.
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, Edward, ‘Informal Governance of the United States’ (SSRN Scholarly Paper ID 4032053, 9 February 2022) Abstract: The United States faces vexing problems. Yet many people—indeed, a majority of Americans—think the government is broken. The prospect that the federal government can tackle the many challenges the country faces, from attacks on election administration to faltering infrastructure and a deadly pandemic, seem dim. In the face of these profound challenges, policymakers may have to turn to more innovative approaches. Informal governance, which lacks written or formal authorization, organization, and rules, may become the last best hope for solving intractable problems and breaking the gridlock and polarization in Washington. Although the United States prizes a written Constitution and the formal rule of law, informal governance of the United States dates back to President George Washington’s creation of and reliance on a cabinet, an institution nowhere mentioned in the Constitution or then-existing federal law, to deal with national crises facing the early United States. This Article examines two more recent examples of informal governance of the United States—an informal group of physicians known as the Wolverines who orchestrated the strategy of social interventions in the United States during the pandemic and an informal group of Republicans and Democrats, business and labor groups, who joined to promote election integrity during the 2020 U.S. elections, including respect for the final election results. By studying these case studies, this Article identifies the promises and perils of informal governance of the United States. The Article sets forth a constitutional theory based on the Tenth Amendment to justify the general practice of informal governance, but also identifies valid concerns about the lack of transparency and accountability, and potential for abuses and even illegality that informal governance may foster. The Article closes by offering several reforms or safeguards to prevent informal governance from devolving into rogue operations or a shadow government.
Lee, Francis LF, ‘The Struggle to Remember Tiananmen Under COVID-19 and the National Security Law in Hong Kong’ in Orli Fridman and Sarah Gensburger (eds), The COVID-19 Pandemic and Memory: Remembrance, Commemoration, and Archiving in Crisis (Springer, 2024) 153–174 Abstract: This chapter examines Hong Kong people’s struggle to continue to commemorate the 1989 Tiananmen crackdown after the establishment of the National Security Law in 2020, which coincided with the COVID-19 outbreak. Under the new legal and political environment, a process of memory erasure has begun, reversing the achievements of memory institutionalization in the previous decades. Yet the state has not yet explicitly declared Tiananmen commemoration illegal. Between 2020 and 2022, the state utilized the group gathering prohibition under COVID-19 to ban the annual June 4 vigil. More broadly, it relied on the inducement of self-censorship to eliminate references to Tiananmen in the public arena. I argue that COVID-19 has helped sustain the condition of ambiguity that is central to the state’s attempt to suppress Tiananmen commemoration through societal self-censorship. Nevertheless, some Hong Kong citizens continued to contest the right to commemorate by engaging in improvisatory, individualized, and digitalized actions.
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’ (22) 23(1) Minnesota Journal of Law, Science & Technology 1–76 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.
Liljeblad, Jonathan and Ama Doe, ‘Virulent Pandemic and Fragile Democracy in Myanmar: Complications of Covid-19 Policies and the 2020 National Elections’ (2022) 22(2) Australian Journal of Asian Law 59–73 Abstract: The spread of the Covid-19 pandemic to Myanmar posed particular problems for the country, which had an elevated level of vulnerability due to the country’s weak health system, high poverty rates, low levels of development, and weak government capacities. The country struggled to address the pandemic, with public health measures enacted in the midst of a growing surge in positive Covid-19 cases that accelerated in August and September 2020. The arrival of the pandemic coincided with national elections in November 2020. The requirement for political campaigns, voting, and polling stations occurred simultaneously with the imposition of stay-at-home orders, social distancing, business shutdowns, and travel restrictions. Studying events up to January 2021, the paper reviews and compares Myanmar’s concurrent efforts to deal with the Covid-19 pandemic and the national elections, and investigates the legal issues raised by Covid-19 strategies for the state’s management of the 2020 national elections. The analysis then assesses the significance of the Covid-19 pandemic for Myanmar’s election laws and draws implications for the country’s politics. The scope of analysis addresses events up to January 2021 and so does not encompass the 1 February 2021 military coup, but the paper offers some comments for future directions in research to address events in Myanmar after the coup.
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.
Lipowicz, Irena, Grażyna Szpor and Aleksandra Syrt (eds), Instruments of Public Law: Digital Transformation during the Pandemic (Routledge, 2022)Link to book details on publisher website
Book summary: The Covid 19 pandemic has revealed the need to verify the existing principles of functioning of public authorities, in relation to various decision-making processes, both at the conceptual level and at law implementation. The action of the legislator and public administration towards the society and the economy is conducted using peculiar instruments to control the public administration system. These instruments are likely to be of a public or private law nature. This book takes a comparative approach to examine the issues related to digital transformation in the times of a pandemic regarding the use of public-law instruments in Poland and the wider European context. In particular, the research aims to identify what stage the development of digital solutions in the state’s organization and its authorities has reached, including the organization of public administration; what the has pandemic changed. Exploring the concepts of digital transformation, pandemic and public-law instruments, it provides an analysis of European and national public-law instruments using digital solutions, security and cybersecurity during a pandemic, and concrete issues such as public administration, health protection and social security, economic activity and the system of public finances, and education during the pandemic is performed. Establishing whether particular solutions are durable and to what extent they create a certain standard of response to a threat, it makes recommendations for determining which of the existing solutions is useful for the functioning of the state and its organs and facilitates the performance of their tasks.
Liu, Qian, ‘“Kill the Chicken to Scare the Monkey”: Heavy Penalties, Excessive COVID-19 Control Mechanisms, and Legal Consciousness in China’ (2023) 45(3) Law & Policy 292–310 Abstract: This study analyses the legal consciousness of Chinese citizens during the COVID-19 pandemic when the authoritarian state invoked heavy penalties to deter noncompliance with its excessive COVID-19 restrictions. China used the approach of ‘killing the chicken to scare the monkey,’ publicly punishing those who violated restrictions in order to deter noncompliance. This article explains why ordinary citizens supported this selective application of the law, as well as how the possibility of being the ‘chicken’ contributed to their compliance (or noncompliance) with excessive COVID-19 restrictions. It suggests that the uncertainty and unpredictability of law in the authoritarian state bred fear, which then led to compliance, regardless of the lack of procedural fairness. People’s dissatisfaction with the rules, however, led them to tolerate and even support the noncompliance of people they trusted.
Lock, Daniella, Fiona de Londras and Pablo Grez Hidalgo, ‘Delegated Legislation in the Pandemic: Further Limits of a Constitutional Bargain Revealed’ [2023] Legal Studies (advance article, published online 5 October 2023) Abstract: The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the ‘constitutional bargain of delegated law-making’. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority; and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the Covid-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic.
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.
Loo, Jane and Mark Findlay, ‘Rule of Law, Legitimacy, and Effective COVID-19 Control Technologies: Arbitrary Powers and Its Influence on Citizens’ Compliance’ (SMU Centre for AI & Data Governance Research Paper No 03/2022, 1 June 2022) Abstract: The project seeks to empirically demonstrate through the interrogation of selected use cases how the legitimacy of the State (measured in part through citizens’ perception of its legitimacy) may have an influence on citizens’ compliance and reception towards State-imposed COVID control measures. State legitimacy, where it relies on differing degrees of representative democracy for authority is demonstrated to be positively influenced by the Rule of Law (RoL) and other normative frames such as ethics. The paper also analyses the role and prevalence of trust and distrust and its interplay with principles of the RoL as both tempering the arbitrary exercises of power and enhancing procedural justice. The paper argues that the enhancement of both State legitimacy and citizens’ trust through RoL compliance have a positive influence on the overall efficacy of COVID control measures leading to more positive health and social outcomes for society. The purpose of the research is not to advance one style of governance or authority over another for successful pandemic control. Rather, working from an underlying global appreciation of ethics to regulate AI-assisted technologies such as those exhibited in contemporary COVID control, the research endeavours, by contextually analysing power, authority, and legitimacy, to question whether Rule of Law compliance has an additional positive influence on COVID control and citizen-perceived legitimacy in those governance settings where trust and confidence, and not just utilitarian satisfaction, complement the State’s control potential and success.
López, Carlos Garrido, ‘The Rule of Law in Response to the Covid Emergency: A Comparative Analysis’ (2023) (66) Revista Catalana de Dret Públic 188–203 Abstract: This work presents an analysis of the measures adopted by the main democratic countries in response to the covid emergency and the compatibility problems that arose between these measures and the guarantees of the rule of law. The global and simultaneous scope of this very serious emergency facilitates comparative analysis and reveals its advantages and shortcomings. The aim of this article is to evaluate the various extra-constitutional methods that were used in response to the state of emergency and also the state of emergency model, starting from the regulation of extraordinary situations and the measures that had to adopt Finally, the analysis focuses on the contradictions that have arisen as a result of the application and non-application of the state of exception model in the response to covid in Europe.
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.
Mahadew, Roopanand, ‘The Constitutionality of Legal Measures Taken by the Government of Mauritius in the Context of the Covid-19 Pandemic’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 255–281 Abstract: The Covid-19 has had significant impact on Mauritius from a social, political and economic perspective. While the first and elementary actions taken by the government had been measures to contain and control the pandemic, subsequent legal amendments, post Covid-19, eventually followed which have affected socio-economic rights of Mauritians. The right to work has been the most severely affected arguably with the amendments brought to the Worker’s Rights Act 2019. While these amendments generated significant debate by workers, trade unions and political parties, there have been little movements to constitutionally challenge the legal measures taken in the employment sector. The right to health of Mauritians is arguably affected with the imposition of a consent form prior to vaccination which absolves the government of any responsibility for injuries or death caused by the vaccine. The parliamentary and judicial responses to these amendments have been almost non-existent. The reluctance and inaction of citizens in challenging decisions of the government reading vaccination and limitation of rights have also been found as causes of concern. Finally, the existing constitutional framework on derogation of rights in times of public emergency has also been found to be in dissonance with the Siracusa Principles.
Makarov, VO, ‘Experimental Legal Regimes of Mobilization Type as a Method of Legal Regulation in the Context of COVID-19 Spread’ (2022) 5(4) Pravoprimenenie / Law Enforcement 30–42 Abstract: The author’s classification is proposed, which involves the allocation of optimizing, progressive and mobilization experimental legal regimes for the purpose of experimental legislation. The relevance of the restrictive measures established in order to prevent the spread of the COVID-19 virus infection to the experimental legal regimes of the mobilization type is substantiated. The directions of development of experimental legislation are singled out, suggesting their legitimation and increasing legality. It is proved that the constitutionality of experimental legislation arises when the principle of legal certainty is limited only in the presence of legal guarantees, which are proposed to include the goals of a legal experiment and an assessment of their consequences.
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.
Mangold, Anna Katharina, ‘Germany and COVID-19: Expertise and Public Political Deliberation’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 336 Abstract: In January 2020, information about a highly contagious virus in Wuhan started to get public attention in Germany. The debate in Germany has mainly focused on questions of vertical and horizontal separation of powers, the role of expertise in the COVID-19 response and restrictions of fundamental rights as adjudicated by courts. As the meetings between federal and Lander governments continued, there was also growing criticism over their closed-door nature, which set them apart from public deliberation in Parliament. At the end of March 2020, the first Act on the Protection of the Population in the Event of an Epidemic Situation of National Significance introduced a new § 5 into the Infection Protection Act, providing the federal health ministry with far reaching powers to announce COVID-19 measures by decree. With several Länder elections and the federal general elections in September 2021, the political situation in Germany is, at the time of writing, volatile.
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, ‘A Law unto Themselves: On the Relatively Autonomous Operation of Protest Policing during the COVID-19 Pandemic’ (2022) 5(1–2) Justice, Power and Resistance 28–45 Abstract: A central argument of this article is that the exercise of police power in respect of protests is relatively autonomous of judicial pronouncements affirming or upholding rights of free speech and peaceful public assembly. Using mostly Australian examples, but also drawing on UK material and some American references, the article shows how protests have gone ahead regardless of prohibitions on mass gatherings during the COVID-19 pandemic. In New South Wales, courts have sometimes allowed protests to proceed when public health experts have assessed the risk to community transmission of coronavirus to be sufficiently low. Notwithstanding that, as they did prior to the pandemic, police have moved to prevent protests and repress protestors. Accordingly, the article takes issue with the ‘negotiated management’ model of protest policing, which perpetuates a fiction of police-protestor cooperation. Indeed, protest policing has often been conflictual and heavy-handed, even militaristic, which, paradoxically, has sometimes led to potential breaches of COVID-19-safe protocols. The article concludes by highlighting analogies between the COVID-19 crisis and the ‘war on terror’ following 9/11, including the role played by courts in attempting to limit the concentration of executive power, government overreach, and intensification of police powers under a paradigm of security.
Martin, Greg, ‘Protest, Policing and Law during COVID-19: On the Legality of Mass Gatherings in a Health Crisis’ (2021) 46(4) Alternative Law Journal 275–281 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.
Martin, Nicole and Steven Huefner, ‘State Legislative Vetoes: An Unwelcome Resurgence’ (2023) 61(2) Harvard Journal on Legislation 379–419 Abstract: Legislatures are having their moment. From the independent state legislature theory, to the major questions doctrine, to the potential scrapping of the Chevron doctrine, to efforts to constrain popular initiatives, legislative power today seems to be, or at least seeks to be, ascendant. At the state level, one example of the expansion of legislative power is the reinvigoration of legislative veto mechanisms. Legislative vetoes allow legislative branch actors to nullify duly authorized executive branch actions without enacting new laws. Forty years ago, the U.S. Supreme Court’s decision in INS v. Chadha invalidated the federal legislative veto as an unconstitutional end-run around the lawmaking requirements of Article I of the U.S. Constitution. But this decision had no binding effect on state legislative veto mechanisms. Today, legislative vetoes persist in many states, and efforts to enhance these mechanisms have surfaced specifically in response to the COVID-19 pandemic. During the COVID-19 pandemic, state legislatures sought heightened legislative veto authority on matters of public health. The pandemic presented public health authorities throughout the country with unprecedented challenges. But little did public health officials anticipate that one challenge would come in the form of legislative pushback against the deployment of public health expertise, as state legislators in many states objected to mask mandates, vaccination campaigns, and other public health measures undertaken by state agencies. Legislatures in several states either stripped public health agencies of some of their discretionary powers or imposed additional hurdles on the exercise of these powers. Many other states have contemplated similar retrenchments. In inviting closer examination of state legislative veto mechanisms, this Article argues that these mechanisms suffer from several anti-democratic defects. Specifically, these mechanisms erode the legitimacy of legislative power, inhibit transparency in governance, prevent formation of customized administrative policies, and threaten to skew the balance of the separation of powers beyond traditional constitutional parameters. Legislation during the COVID-19 pandemic provides a dramatic example of these democratic flaws inherent to the legislative veto, but state legislative vetoes could also hobble other public policy areas. It thus is time for additional attention to the place of the legislative veto in state government.
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.
Matic, Andreea Elena and Mihaela Agheniței, ‘Brief Considerations Regarding the Concept of Rule of Law in the Context of the Covid-19 Global Crisis’ (2022) 18(3) Acta Universitatis Danubius. Juridica (advance article, published online 29 November 2022) Abstract: In the present paper we aim to analyse some aspects in which the COVID-19 pandemic generated a crisis regarding the application of the rule of law. First, we will refer to some general aspects regarding the content and importance of rule of law concept in democratic societies. Then, taking into account the fact that the law regulates situations that occur in real life, in society, we will discuss the fact that the COVIC 19 pandemic situation generated circumstances which had not been foreseen by the democratic states authorities and this generated an actual global crisis. This crisis affected the rules regarding the good governance. As the pandemic is approaching its end, our societies are not yet prepared to enforce new necessary aspects of the rule of law. Also, we will refer to the fact that the year 2021 was the third year in a row in which WJP Rule of Law® reported that the rule of law scores of several countries have declined rather than improved.
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.
Mazzi, Davide, ‘The Irish Public Discourse on Covid-19 at the Intersection of Legislation, Fake News and Judicial Argumentation’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1233–1252 Abstract: This paper aims to perform a multi-level analysis of the Irish public discourse on Covid-19. Despite widespread agreement that Ireland’s response was rapid and effective, the country’s journey through the pandemic has been no easy ride. In order to contain the virus, the Government’s emergency legislation imposed draconian measures including the detention and isolation of people deemed to be even ‘a potential source of infection’ and a significant extension of An Garda Síochána’s power of arrest. In April 2020, journalists John Waters and Gemma O’Doherty initiated judicial review proceedings before the High Court to challenge such legislation, which they defined as unconstitutional, ‘disproportionate’ and based on ‘fraudulent science’. The proceedings attracted widespread media coverage in what soon became a debate on the legitimacy of emergency legislation and the notion of ‘fake news’ itself. After a brief survey of the legislative background to Ireland’s Covid response, the argumentative strategy is analysed through which the High Court eventually dismissed Mr Waters and Ms O’Doherty’s challenge. Focusing on the process of justification of the judicial decision, the paper provides a descriptive account of the argument structure of the Court’s decision. This sheds light on the pattern of multiple argumentation through which the Court interpreted relevant norms in the Constitution and at once re-established the primacy of ‘facts’ informing political decision-making at a time of national emergency.
McBride, Nicholas, ‘Ill Fares the Land: Has COVID-19 Killed the Principle of Legality?’ (SSRN Scholarly Paper ID 4023242, 1 February 2022) Abstract: This paper is part of a larger project, arguing that the COVID-19 pandemic has exposed public law as being unprincipled and ineffectual in virtually all common law jurisdictions. This paper focuses on the treatment of the ‘principle of legality’ in judicial review proceedings in England, Australia and New Zealand, seeking to challenge the lawfulness of various governmental actions to tackle the pandemic. While up until 2020, the principle of legality was employed to declare unlawful governmental actions in a number of very important cases - most notably, the UK Supreme Court’s decision in Miller 2 - in cases involving challenges to the lawfulness of government attempts to deal with COVID-19, the principle of legality has been consistently sidelined and ignored, using various techniques described in this paper.
McLeod, Matthew, ‘Distancing from Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic’ (2022) 50(1) Federal Law Review 3–19 Abstract: This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.
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 et al, ‘Legal Infrastructure for Pandemic Response: Lessons Not Learnt in the US’ (2024) 384 BMJ Article e076269 Abstract: Covid-19 related mortality in the US was higher than in every western European country. Compared with its closest neighbour, Canada, also a federated country with a decentralised health system, the US fared far worse. With over 1.1 million dead at the end of 2023,3 leaders and academics have begun a painful postmortem. What went wrong, and what can be done to make authorities in the US better equipped for the next pandemic?
Mello, Michelle M and Lawrence O Gostin, ‘Public Health Law Modernization 2.0: Rebalancing Public Health Powers And Individual Liberty In The Age Of COVID-19: Analysis Examines the Need to Rebalance Public Health Powers and Individual Liberty in the COVID-19 Era’ (2023) 42(3) Health Affairs 318–327 Abstract: Public health emergency powers laws in the US underwent a profound stress test during the COVID-19 pandemic. Designed with bioterrorism in mind, they struggled to meet the challenges of a multiyear pandemic. Public health legal powers in the US are both too limited, in that they don’t clearly permit officials to implement measures necessary to combat epidemics, and too broad, in that their accountability mechanisms fall short of public expectations. Recently, some courts and state legislatures have cut deeply into emergency powers, jeopardizing future emergency response. Instead of this curtailment of essential powers, the states and Congress should modernize emergency powers laws to balance powers and individual rights in more productive ways. In this analysis we propose reforms including meaningful legislative checks on executive power, stronger substantive standards for executive orders, mechanisms for public and legislative input, and clearer authority to issue orders affecting groups of people.
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.
Menon, Anon, ‘Legislative Failure in the Management of the Covid-19 Crisis: Identifying and Addressing the Lacune in the Extant Law’ (2022) 5(1) International Journal of Law Management & Humanities 2231–2247 Abstract: Legislation that is aimed at tackling a global pandemic such as Covid-19 should be equipped with a proper legal framework that empowers a government to take swift action in the name of the most cardinal function of all, protecting human life. However, this can be a tricky tool to devise. The empowering of the State to manage and control dire circumstances such as a raging pandemic would, in all likelihood, require superseding or suspending some of the basic rights of individuals in a society. Despite this, such laws are necessary for saving mankind in chaotic situations and are in the greater interest of society. India was not in the least prepared for a catastrophic event like COVID-19. The fact that the best recourse that we had to such a calamitous epidemic was a 123-year-old archaic law is frightening and indicative of the reasons the pandemic has wreaked such havoc in our country. The focus of this paper is to analyze the existing legal framework in India for dealing with a health care emergency like Covid-19 to identify the shortfalls therein. The research paper will also strive to provide recommendations on various provisions that an ideal law dealing with pandemics should provide for.
Mercescu, Alexandra, ‘The COVID-19 Crisis in Romania: A Hypothesis around Penal Populism and Legal Culture’ (Working Paper, Forum Transregionale Studien No 6/2022, 2022) 47–58 Abstract: In this paper I seek to present a working hypothesis to be eventually developed in a future contribution, namely that the COVID-19 crisis exposed some problematic behaviours evocative of an authoritarian ethos on the part of both public authorities and citizens which suggest that a penal populist attitude might now be part or even embedded in the Romanian legal culture. Specifically, I will organize this contribution as follows: in the first part, I will briefly describe Romania’s reaction (as evidenced both in the official measures taken and the attitude of citizens) to the first wave of the pandemic focusing on the role of penal and military means; I shall qualify this reaction as containing some traces of penal populism. In the second part I shall offer a tentative mapping of the factors that can explain this problematic cultural reaction. Importantly, among these I include the successful fight against corruption with the consequence that what appears to have very much consolidated the rule of law in post-1989 Romania could be shown to have had the unintended and paradoxical effect of undermining the very same ideal.
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.
Merten, Heike, ‘Parliamentarism in the Pandemic: Contemporary Challenges’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 61–75 Abstract: Parliamentary democracy has been stress-tested in the COVID-19 pandemic. The Parliament, as the representation of the people, must be able to work and make unpopular decisions to protect society. Only in a transparent and legitimate decision-making process is it possible to win the support of the people. Parliamentarism in the pandemic must function effectively and safely. Also important is a legally secure election of the parliament in times of crisis to have a legislator legitimised by the people. In times of crisis, a functioning parliamentary system is particularly important for a democracy.
Mezzetti, Luca, ‘Health State of Emergency and Management of the Pandemic: The Italian Experience’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 187–194 Abstract: The Italian Constitution does not contain a section or title specifically dedicated to the regulation of states of emergency or institutional crisis, internal or external, unlike what happens in the cases of the German or Spanish Constitution.
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) 27(2) Australian Journal of Administrative Law 66-69 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.
Mishra, Abhisek et al, ‘Covid-19: Catalyst for a Comprehensive Law to Combat Potential Pandemics in India’ (2022) Indian Journal of Medical Ethics (advance article, published online 4 June 2022) Abstract: Despite the relative decline in communicable diseases, India witnesses hundreds of outbreaks every year. Including the current Covid-19 pandemic, India has suffered through several major pandemics and large-scale epidemics since 1900s. However, the response to most of the epidemics has been inadequate. The Epidemic Diseases Act, enacted in 1897 (EDA 1897), has been in action since and is based on the science and the socio-political environment of the country in the nineteenth century. India has several legal mechanisms to help contain and control the spread of epidemics, but on different platforms. There has been a paradigm shift in the socio-political milieu as well as scientific advancements in the prevention and control of epidemics. The century-old EDA 1897 has not been effective in containing and controlling such epidemics/pandemics, as has been witnessed during the ongoing Covid-19 pandemic. Hence, it needs to be revised to define an appropriate structural scalar chain, provide clear-cut and unambiguous terms/definitions and guidelines, delineate ethics and human rights, determine the duties and responsibilities of the affected population/community, determine the role of the private health sector, and provide for appropriate punitive measures to deter repeated violations.
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.
Mittiga, Ross, ‘Political Legitimacy, Authoritarianism, and Climate Change’ (2022) 116(3) American Political Science Review 998–1011 Abstract: Is authoritarian power ever legitimate? The contemporary political theory literature—which largely conceptualizes legitimacy in terms of democracy or basic rights—would seem to suggest not. I argue, however, that there exists another, overlooked aspect of legitimacy concerning a government’s ability to ensure safety and security. While, under normal conditions, maintaining democracy and rights is typically compatible with guaranteeing safety, in emergency situations, conflicts between these two aspects of legitimacy can and often do arise. A salient example of this is the COVID-19 pandemic, during which severe limitations on free movement and association have become legitimate techniques of government. Climate change poses an even graver threat to public safety. Consequently, I argue, legitimacy may require a similarly authoritarian approach. While unsettling, this suggests the political importance of climate action. For if we wish to avoid legitimating authoritarian power, we must act to prevent crises from arising that can only be resolved by such means.
Mizrahi, Shlomo, Eran Vigoda‐Gadot and Nissim Cohen, ‘How Well Do They Manage a Crisis? The Government’s Effectiveness During the COVID‐19 Pandemic’ (2021) 81(6) Public Administration Review 1120–1130 Abstract: The COVID‐19 pandemic clearly highlighted the importance of effective crisis management and its relationship with citizens’ willingness to cooperate with the government in such turbulent times. We develop a theory and hypotheses about the impact of citizens’ experiences on their perceptions of the government’s effectiveness during times of crisis. We do so with data collected at two points in time: in late March 2020 during the first peak of the COVID‐19 crisis in Israel, and in October 2020 when Israel was exiting from a second lockdown. The findings demonstrate that during crises citizens focus on the short term and seek immediate results in terms of readiness and preparedness. During such times, the government’s responsiveness and transparency, as well as the public’s participation in decisions, seem even more important than their trust in the government. Implications and practical recommendations follow.
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.
Moosavian, Rebecca, Clive Walker and Andrew Blick, ‘Coronavirus Legislative Responses in the UK: Regression to Panic and Disdain of Constitutionalism’ (2021) 72(S1: Supplementary Issue on COVID-19) Northern Ireland Legal Quarterly 1–36 Abstract: The United Kingdom has considerable prowess in handling emergencies, not just in counterterrorism but also in a wide range of other real or imagined disasters, including public health risks. Core legislation has been installed, including the all-encompassing Civil Contingencies Act (CCA) 2004 and the more specialist Public Health (Control of Disease) Act (PHA) 1984. Despite these finely honed models, the UK state regressed to panic mode when faced with the COVID-19 pandemic. Rather than turning to the laws already in place, Parliament fast-tracked the Coronavirus Act 2020, with scant debate of its shabbily drafted contents. In addition, the UK Government has relied heavily, with minimal scrutiny, on regulations under the PHA 1984. The article analyses the competing legal codes and how they have been deployed to deal with COVID-19. It then draws out the strengths and weaknesses of the choices in terms of the key themes of: the choice of sectoral versus general emergency legislation; levels of oversight and accountability; effectiveness; and the protection of individual rights. Following this survey, it will be suggested that the selection of legal instruments and the design of their contents has been ill-judged. In short, the emergency code which is the most suitably engineered for the purpose, the CCA 2004, has been the least used for reasons which should not be tolerated.
Morag, Nadav (ed), Impacts of the Covid-19 Pandemic: International Laws, Policies, and Civil Liberties (Wiley, 2022) Contents:
- Wierenga, Adriaan J and Jorrit Westerhof, ‘The Netherlands: Dutch COVID-19 Policy Viewed from a Fundamental Rights Perspective’ 1–22
- Greene, Alan, ‘Emergencies, Executive Power, and Ireland’s Response to the Covid-19 Pandemic’ 23–40
- Uhlmann, Felix, ‘COVID-19: Legal Lessons Learned in Switzerland’ 41–57
- Halladay, Carolyn, ‘Not Dead Yet: Protest, Process, and Germany’s Constitutional Democracy Amid the Coronavirus Response’ 59–78
- Cormacain, Ronan and Duncan Fairgrieve, ‘The United Kingdom Legislative Response to Coronavirus: Shotgun or Machine Gun’ (Wiley, 2022) 79–97
- Malandrino, Anna, Margherita Paola Poto and Elena Demichelis, ‘The State of Exception and Its Effects on Civil Liberties in Italy During the COVID-19 Crisis’ 99–119
- Halladay, Carolyn, Florina C Matei and Andres de Castro, ‘Praise the Alarm: Spain’s Coronavirus Approach’ 121–140
- Matei, Florina C, ‘Pandemic Pangs and Fangs: Romania’s Public Safety and Civil Liberties in the COVID-19 Era’ 141–163
- Palle, Angelique et al, ‘Policymaking and Liberty Restrictions in the Covid-19 Crisis, the Case of France’ 165–180
- Lin, Cheryl et al, ‘Policy Measures, Information Technology, and People’s Collective Behavior in Taiwan’s COVID-19 Response’ 181–208
- Trung, Nguyen T and Nguyen Q Duong, ‘The Legislative and Political Responses of Viet Nam to the Covid-19 Pandemic: The Balancing of Public Health and Collective Civil Liberties’ 209–234
- Chen, Jacinta I-Pei et al, ‘Singapore United’ 235–300
- Cameron, Iain and Anna Jonsson Cornell, ‘Sweden and Covid-19: A (Mainly) Recommendary Approach’ 301–321
- Tsuji, Yuichiro, ‘Administrative Guidance in Coronavirus Special Measures Act in 2021 in Japan’ 323–338
- Syed, Iffath U, ‘Canada’s Fight Against COVID-19: Constitutionalism, Laws, and the Global Pandemic’ 339–357
- Abenheim, Donald and Carolyn Halladay, ‘Coronavirus and the Social State: Austria in the Pandemic’ 359–377
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 174–177Extract (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’.
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.
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.
Muñoz, Jaime Rodríguez-Arana, ‘Administrative Law and Human Dignity (on the Post-Pandemic Reconstruction of Administrative Law)’ (2022) 22(88) A&C: Administrative and Constitutional Law Review 11–33 Abstract: After the pandemic or, rather, still emerging from it, Administrative Law takes on a special significance as recently it has failed to fulfill the role entrusted to it—that of a public authorities law for the socially responsible freedom of the people, that of a law committed to human dignity. The article explores the role of Administrative Law in fulfilling human dignity.
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.
Nagy, Zoltán and Attila Horváth, Emergency Powers in Central and Eastern Europe : From Martial Law to COVID-19, (Central European Academic Publishing, 2022) [OPEN ACCESS BOOK] Book Summary: The basic goal of this volume is twofold: On the one hand, readers are provided with an in-depth analysis and comparison of the systems of emergency powers of eight Central and Eastern European countries, paying special attention to the states of exception declared in the previous decades; on the other hand, the book is devoted to discussing the constitutional law aspects of the responses for COVID-19 crisis, highlighting the relevant legal and political debates, dilemmas and viewpoints surrounding the pandemic up until June 2021. Although the viewpoint of the book is primarily based on constitutional law, we also deal with the COVID-19 pandemic as an economic crisis, comparing the fiscal and monetary measures of crisis management.
Contents:
- Trócsányi László, ‘The Theoretical Questions of Emergency Powers’ 19
- Béres Nóra, ‘International Aspects of the COVID-19 Health Crisis with Special Regard to Human Rights’ 33
- Marinkás György, ‘Dealing with the COVID‑19 Pandemic on the EU level: Introducing the “Web of Competencies” Theory’ 71
- Petar Bačić and Marko Ivkošić, ‘The Croatian “Emergency Constitution” on Test’ 97
- Hojnyák Dávid and Szinek Csütörtöki Hajnalka, ‘Dimensions of Emergency Powers in the Czech Republic’ 129
- Nagy Zoltán and Horváth Attila, ‘The (Too?) Complex Regulation of Emergency Powers in Hungary’ 149
- Katarzyna Zombory and Németh Zoltán, ‘To Introduce or Not to Introduce? Regulation of the State of Emergency Under the 1997 Polish Constitution vs the COVID-19 Pandemic’ 189
- Szentpáli-Gavallér Pál and Fegyveresi Zsolt, ‘Where is the “Special Legal Order” Heading in Romania?’221
- Slobodan Orlović and Ivan Milić, ‘Serbian Legal Disharmony During the COVID‑19 Pandemic’ 247
- Szinek János and Szinek Csütörtöki Hajnalka, ‘The Multi-Level Regulation of the Traditional and the Exceptional Emergency Powers in Slovakia’ 279
- Sibilla Buletsa, ‘Legal Regulation of the Special Legal Regimes in Ukraine’ 303
- Nagy Zoltán et al, ‘Summary: Pondering About Emergency Powers During COVID-19’ 343
Abstract: The announcement of a period of disaster under Uganda’s Public Health Act led to the adoption of various restrictions to curb the spread of Covid-19. The country’s youth were significantly affected, given that more than 75 per cent of the population of approximately 45 million are under the age of 30 and burdened with unemployment, poverty and lack of education. This chapter evaluates the response to the pandemic by Uganda’s executive, Parliament and judiciary, and analyses its implications for constitutionalism.
Narayan, Maya, ‘A Force of Last Resort?: A Critical Evaluation of the Use of the Australian Defence Force in the Context of Bushfires and Pandemics’ (2022) 33(3) Public Law Review 246 Abstract: In the last three years, Australia has experienced an unprecedented coalescence of threats posed to the health and safety of its population: the catastrophic 2019/2020 bushfire season; and the COVID-19 pandemic. In both contexts, the States and Territories have, consistently with the distribution of authority for emergency management within Australia's federal system, taken primary responsibility for responding to the relevant crisis. Forced to play a supporting role, the Commonwealth has increasingly relied on deployment of the Australian Defence Force (ADF) to provide assistance. The position advanced in this article is that the key justifications for use of the ADF in responding to domestic emergencies – particularly those constituted by threats of a not directly anthropogenic nature – do not adequately explain the value of the ADF and that significant functional and legal constraints on defence personnel in this context may, in fact, hinder state and territory emergency responses.
Nash, Michael, ‘Emergencies & Extraordinary Measures’ (2020) 170(7879) New Law Journal 7Jurisdiction: 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.
Nasution, Faisal Akbar and Bambang Antariksa, ‘A Comparison of Indonesia and Malaysia Legal Responses in Handling Covid-19’ (2023) 11(12) Journal of Law and Sustainable Development e2380–e2380 Abstract: This paper aims to know about COVID-19 pandemic has become a global threat and spread of the virus reaches Indonesia and Malaysia. The response to Covid-19 has been governed by Indonesia and Malaysia laws and legislation. This paper aimed at assessing why was the legal response of Malaysia more successful in handling COVID-19 than that of Indonesia?
Naumann, Anja, ‘EU Response to Fighting the Coronavirus – Coordination, Support, Action – Heeding its Citizens’ Calls?’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 243-262 [OPEN ACCESS BOOK] Extract from Introduction: In order to examine changes COVID-19 specifically made, or could make, to the EU’s decision-making powers in relation to health, this chapter will focus on two instruments which were proposed or adopted specifically in response 246to COVID-19: the proposed EU4Health Programme and the Emergency Support Instrument (ESI).
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.
Nguema, Ismaelline Eba, ‘The Rule of Law Tested by Covid-19: The Case of Gabon’ (2023) 12(1) Global Journal of Comparative Law 70–100 Abstract: In Gabon, the covid-19 crisis was accompanied by the adoption of emergency measures to respond to the health emergency caused by the pandemic. According to the texts in force, these measures should be necessary, non-discriminatory and strictly proportional to the health catastrophe. However, the governmental measures were accompanied by an infringement of fundamental rights and freedoms. Also, they have sometimes been taken outside of any legal framework. Thus, the objective of this article is to study the conformity of health emergency measures to the rule of law in Gabon. The method used to conduct this study is based on comparative law. It consisted mainly in comparing the legal responses to covid-19 in Gabon with those used in the country that seems to have inspired them, France. Similarly, an analysis was made of all the decisions rendered by the Gabonese constitutional court. This study shows that government measures have had a deleterious effect on the rule of law, further weakening its structure. The security response to the covid-19 crisis and the increase in inequality due mainly to government measures to combat covid-19 could have damaging effects that could extend well beyond the period of the pandemic.
Nguyen, Duc Tien, ‘“Authorized to Depart from the Law”: The Curious Case of Viet Nam in Times of COVID-19’ (2021) 44(1) Statute Law Review Article hmab022 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.
Nkrumah, Bright, ‘The (Il)Legality of Ghana’s Covid-19 Emergency Response: A Commentary’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 311–339 Abstract: The first quarter of 2020 will be remembered as a time when one virus redefined the norms of the human race. Like their global compatriots, Ghanaians have not been spared from the wrath of Covid-19. Confronted by the spread of the pandemic, the Ghanaian government declared a state of emergency and adopted a new framework, the Imposition of Restriction Act (IRA), to contain the rate of infection. This was despite the existence of three instruments that provide emergency powers for the President. Against this backdrop, this chapter surveys the steps the President took in declaring the state of emergency, the legal avenues that could have been used to manage social distancing, the threat the IRA poses to Ghana’s constitutional dispensation during and after the Covid-19 era, and how this threat could be averted.
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.
Nnawulezi, Uche and Salim Bashir Magashi, ‘Executive Orders and Fundamental Rights Regime in the Wake of COVID-19 Pandemic in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 151–171 Abstract: This paper is an exploratory study that focused on executive orders and fundamental rights regime in the wake of Covid-i9 Pandemic in Nigeria. The Nigerian fundamental rights regime is today bedeviled with series of challenges such as issues of suspension of laws and the introduction of several measures needed to deal with the spread of the virus that undermines human rights and rule of law. Other issues include powers given to the security forces to monitor and enforce the lockdown orders are not always understood or obeyed. The current discourse on this issue is in line with the incessant complaints by Nigerians that the stay at home restriction order have had deleterious consequences on the poor, the low income earners and the millions of Nigerians who rely on informal activities to eke a living for themselves. Thus, the emphasis here is on the emergence of the executive orders in Nigeria and the current challenges it has posed on fundamental rights regime in the wake of COVID-19 Pandemic. This paper adopts analytical and qualitative approach and builds its argument on existing literatures which is achieved by a synthesis of ideas. More importantly, necessary recommendations are made. This paper concludes that the essence of re-examining the executive orders is to ensure that it will be used in a manner that will not undermine the gains made in the last three decades in recognizing, protecting human rights and respect for the rule of law in Nigeria.
Noah, Lars, Law and the Public’s Health: Cases, Controversies, and Covid-19 (Carolina Academic Press, forthcoming May 2023) Abstract: The varied responses to our latest pandemic have embroiled all three branches of the U.S. government—as well as the private sector—in a dizzying range of legal disputes, colored by growing partisanship and deepening ideological divisions. This casebook includes 140 judicial decisions, more than one-third of which are less than three years old and almost one-quarter of which relate to Covid-19. Other included case law covers the likes of smallpox, influenza, HIV and other sexually transmitted infections, salmonella and other bacterial threats, smoking and vaping, obesity and diabetes, drug and alcohol abuse, gun violence, motor vehicle accidents, and lead contamination. Instead of focusing on either discrete issue areas (e.g., respiratory contagions) or clusters of legal rules (e.g., free exercise of religion), this casebook groups the excerpted opinions and affiliated discussion by reference to the various tools available for promoting the public’s health, broadly divided according to whether government intervention aims to manage (1) people, (2) places, (3) things, or (4) information. Obviously, these tools often overlap, and the final chapter attempts to recombine them in assessing the multifaceted nature of policy responses to a handful of modern problems. Designed for use in law school, Law and the Public’s Health focuses specifically on public law rather than health law and medical ethics, making it an accessible casebook for law students without a background in medicine.
Nocera, Laura Alessandra, ‘Facing the Pandemic: Emergency Legislation in the COVID-19 Era and the Hypothetical Erosion of Democracy’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 155–170 Abstract: This chapter aims to analyze the pandemic situation in a legal and political point of view, to find what measures have been adopted by States to face the spread of the contagion, and whether those measures have been determinant in the redefinition of democracy. Emergency dispositions were enacted when an ‘emergency state’ was declared, containing a series of dangerous elements for the correct application of the rule of law. This chapter doesn’t want to provide a mere chronicle of what happened during the COVID-19 situation, but it finds that in some peculiar cases emergency affected a degeneration of democratic institutions, and an acceptance of a new model of state, with hypertrophic executives, weak legislative bodies, not equilibrated balance of fundamental rights, and a rise of technocracy.
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.
Nurhayati, Siti and Fenolia Intan Saputri, ‘Legal Compliance of the Community in the Transition Period from Pandemic to Endemic Covid-19: A Study Analyzing the Effectiveness of PPKM Policies’ (2023) 1 Proceedings of the International Seminar on Sharia and Law 31–44 Abstract: This article aims to review the effectiveness of community activity restriction policies (PPKM) in preventing coronavirus disease 2019 (Covid-19) and analyze the legal compliance of the community with PPKM policies during the transition from pandemic to endemic. As a juridical-normative study, the approach used includes a conceptual approach. PPKM is claimed by various parties to have successfully suppressed the spread of Covid-19 cases in Indonesia, leading to the government’s announcement of the transition from the pandemic to the endemic phase of Covid-19. However, behind this success, there are factors influencing law enforcement. These factors include legal awareness, legal compliance, and legal culture. The relationship between these three factors is closely related to achieving legal goals. Legal culture cannot materialize without legal compliance, especially compliance with various policies in preventing and handling Covid-19. Ideally, compliance that arises is compliance without coercion. In other words, everything is based on legal awareness that ultimately becomes a habit.
Nys, Herman, ‘European Court of Justice’ (2024) 31(2) European Journal of Health Law 209–233 Abstract: This document discusses the case of Nordic Info BV v Belgische Staat, where a travel agency, Nordic Info, challenged Belgian legislation that restricted non-essential travel due to public health concerns. The European Court of Justice has referred questions to the Court of Justice to determine the interpretation of relevant directives and the justification of Belgium’s measures. The document emphasizes the importance of measures to prevent the spread of diseases, such as screening tests and quarantine requirements, while also highlighting the need for legal certainty, good administration, and the right to judicial remedy. It concludes that the specific measures should be assessed for their proportionality and effectiveness in achieving public health objectives. Additionally, the document discusses Belgium’s controls on entering and leaving the country during the COVID-19 pandemic, emphasizing the need for compliance with EU law and the Schengen Borders Code. It argues that Belgium’s control measures were justified on public health grounds and did not violate EU law.
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.
Oluduro, Olubayo, ‘Walking a Tightrope: Balancing Human Rights and Public Health Measures During the Covid-19 Pandemic in Nigeria’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 223–254 Abstract: As of 8 July 2021, there were 184,820,132 confirmed cases of Covid-19 globally and more than 4,002,209 deaths. In Nigeria, the government has instituted regulations and emergency measures to combat the pandemic, but some of them have grave implications for human rights. This chapter examines the pandemic’s impact on the human rights of vulnerable and marginalised groups in Nigeria, the nature of the measures taken, and their constitutionality and effectiveness (or otherwise). It argues for the need to adopt a rights-respecting approach in combating Covid-19 as well as other future public health emergencies.
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.
Oni, Samuel and -Dada Moyosoluwa Dele, ‘Legislative Oversight and Executive Aggrandisement in the Nigeria’s COVID-19 Emergency Governance’ (2022) 10(2) The Theory and Practice of Legislation 186–202 Abstract: The COVID-19 pandemic has compelled governments across nations of the world to devise and implement emergency measures for curtailing the spread of the lethal virus. A fundamental debate is the relevance of legislature’s involvement in the emergency decision-making and the extent to which this representative assembly is able to assert its oversight role by making the government accountable to the public in emergency governance. Nigeria, like many other nations across the globe, has called upon government emergency powers to deal with the pandemic. This paper examines the imperative of legislative oversight of emergency governance and interrogates the extent to which the legislature has been able to monitor, control and make government accountable to the public in the COVID-19 emergency response in Nigeria. The study which is qualitative, relied heavily on secondary data and adopted a systematic literature review for data collection and analysis. Findings revealed the limited legislative oversight of government’s emergency declarations for dealing with the pandemic which further perpetuated executive dominance in the governance process of Nigeria. The invocation of the ‘Quarantine Act 1929’ by the President instead of its state of emergency powers, the latter which constitutionally requires legislature’s oversight, and the subsequent issuing of COVID-19 regulations, portrays executive aggrandisement. The relegation of the legislative oversight in the use of emergency powers for responding to the COVID-19 pandemic enhances executive dominance and undermines the democratic principles of checks and balances with its concomitant implications for accountability, inclusivity and democratic legitimacy required in emergency governance.
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.
Orie, Erimma Gloria, ‘Climate Change, Sustainable Health and COVID-19 Pandemic in Nigeria: The Legal Issues in Perspective’ (2023) 19(1) Medical Sciences Forum 7 Abstract: The paper examined legal impediments to sustainable health in Nigeria due to the impact of climate change (CC) exacerbated by coronavirus (COVID-19). COVID-19 has presented the world with a crisis greatly accentuated by the urgency with which we need to fight the CC debacle, making the need for sustainable development (SD) more obviously acute than ever and requiring a response rooted in the principles of SD. On 29 September 2020, a total of 1 million COVID-19 deaths had occurred worldwide, while in Africa, there were about 35,954 cumulative fatalities. In Nigeria, the situation was similar. This paper found that despite the ravaging COVID-19 pandemic, health is still a low priority in Nigeria; 4.526 percent of the country’s budget was appropriated to the health sector in 2021 and 4.3 percent in 2022, contrary to the 2001 Abuja Declaration by African leaders and the 15 percent value stipulated by the WHO. The challenge is that Nigeria’s efforts in attaining sustainable health and eradication of COVID-19 are arbitrary and have been hampered by the absence of tested laws on CC andCOVID-19, thereby resulting in avoidable fatalities. Using analytical research methodology and drawing from global best practices to achieve sustainable health, this paper recommended the incorporation of legal and institutional frameworks to combat COVID-19 pandemic in Nigeria.
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.
Palmer, Geoffrey, ‘Peace, Order, and Demonstrations’ (Victoria University of Wellington Legal Research Paper No 39/2022, Social Science Research Network, 22 February 2022) Abstract: A journalistic piece originally published by Stuff on 22 February 2022. In the wake of the anti-mandate protests and occupation of New Zealand’s Parliament in early 2022, the article provides a guide to the key legal issues. It outlines the relevant legislative provisions governing the police response, explaining the importance of operational independence and the rule of law. It also touches on how the New Zealand Bill of Rights Act 1990 has been misunderstood throughout Covid-19 debates.
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.
Pamungkas, Bani and Maulana Yusuf, ‘Crowd Legislation in Post-Pandemic Era: Overview, Challenges, and Opportunities for Participatory Democracy’s Future’ (2nd International Conference on Democracy and Social Transformation (ICON-DEMOST 2023), Atlantis Press, 2024) 100–106 Abstract: This study will examine the constraints and prospects for using crowd law to promote post-pandemic participatory democracy. Digital platforms have made it possible to involve many people more effectively and efficiently in decision-making processes, or even influence law-making to make it more representative and meaningful. In an open government era, the crowdsourcing approach expands public participation in governance. Crowdsourcing platforms make it possible for anyone to participate online in gathering information and ideas for wider public solutions. This is an effort to address more complex issues in a variety of fields, including advancing the creation of transformative legislation solutions. Covid-19’s spread has accelerated the digitization of public life. The pandemic has become a game-changer for public policy and government administration. This study examines scientific papers using the Dimensions.ai research information system from Digital Science. With 98 articles between 2021 and 2023, dimension.ai bibliographic analysis shows that scholarly interest in mass legislation, post-pandemic, and participatory democracy has increased. Human society, legal studies and law, language, communication, and culture, and business, management, and tourism dominate mass legislation, post-pandemic, and participatory democracy study. According to article origin, the US and England contribute the most with 30 articles each. Then China and Germany rank second and third. Europe dominates the continents over Asia and America. Visualizing the co-authorship network indicates a correlation between crowd legislation, post-pandemic, and participatory democracy scholars. Crowdsourcing policies and laws can improve inclusivity, openness, accountability, dialogue, and community empowerment. Through crowdsourcing, the legislative process increases public participation and crowd capital by improving knowledge, access to new ideas, and public commitment. ideally it helps build more participatory policy making and improve democracy and products of law.
Panah, Nazanin, ‘Proceed with Caution: Complicating Artificial Intelligence as a Future Decision-Maker in Canadian Law’ (SSRN Scholarly Paper ID 4010199, 21 January 2021) Abstract: Artificial Intelligence [‘AI’] decision-making has been raised by practitioners, media, and even the Canadian government, as a solution to the many legal issues plaguing the legal system including costs, delays, and even bias. AI is increasingly being adapted by state organizations for decision-making purposes and in light of the COVID-19 pandemic, such use is anticipated to increase. However, I argue that in light of research discovering bias embedded in AI decision-making, such implementation is premature and could further deepen institutional inequalities. Furthermore, science is publicly perceived and branded by state actors as neutral and a marker of efficiency, thus identifying and eradicating such inequalities will be increasingly difficult as the layers of obscure AI decision-making and the legitimization of the neutrality of science compound. My paper uses recent changes in Canadian immigration law as a case study to demonstrate how a state can legitimize the use of technology with markers of efficiency and modernity while incorporating AI decision-making without transparency or in-depth consideration of the real risk and consequences of embedded bias. Immigration law is a fruitful example of the role that AI decision-making can play in entrenching inequality because it is a field of law that is directly engaged with maintaining borders and nation-building. Technology, and the manner in and purpose for which technology is used, reflects state values and state missions when it comes to race and society. My paper calls for a more cautious approach to AI decision-making that prioritizes transparency and accountability in order for AI decision-making to be a true investment in the future of the legal system.
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.
Park, Jihyun, Yayuk Whindari and Ramadhita Ramadhita, ‘Legal Dynamics in Asia During the Covid-19 Era: Focus on Korean Experience’ (4th International Conference on Law, Technology, Spirituality and Society (ICOLESS), 2021) 143–157 Abstract: The COVID-19 pandemic has had a significant impact on various aspects of human life. One of them is the change of law in many countries including South Korea. This article aims to describe the legal dynamics that occur in South Korea in handling the COVID-19 pandemic. This article is the result of doctrinal law research with a statutory and conceptual approach. The primary legal material of this study is various regulations that emerged during the pandemic. The results of this study indicate that the COVID-19 pandemic is an emergency condition that results in legal changes in South Korea. This change has been supported by the community. One of them is through an intensive communication process and information transparency.
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 568–569Jurisdiction: 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, ‘From Deference to Indifference: Judicial Review of the Scope of Public Health Authority During the COVID-19 Pandemic’ (SSRN Scholarly Paper No 4892248, 14 June 2024) Abstract: For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic cases that presaged its decline. Part IV looks at how state and federal courts analyzed challenges to officials’ scope of authority during the pandemic. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court under the guise of the major questions doctrine, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. Part V considers the implications of this development for the government’s capacity to respond to new health threats and argues, paradoxically, that the decline of deference to agency determinations of the scope of their authority may be more dangerous to health than the denial of deference to agency fact-finding in particular cases.
Parmet, Wendy E and Faith Khalik, ‘Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications’ (2023) 113(3) American Journal of Public Health 280–287 Abstract: During the COVID-19 pandemic, officials in the United States at all levels of government utilized their legal authorities to impose a wide range of measures designed to control the spread of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19), including shutting down businesses, limiting the size of gatherings, requiring masking, and mandating vaccination. These orders and regulations were challenged in court cases that resulted in more than 1000 judicial decisions. Common claims were based on alleged procedural and substantive due process violations, violations of religious liberty, and violations of officials’ scope of authority. In more than three fourths of the decisions, the court refused to grant the plaintiffs the relief sought. However, plaintiffs found success in several notable cases, especially in federal court. These recent decisions, as well as broader prepandemic trends, have important implications for public health officials’ exercise of their public health powers, especially when those exercises implicate religious liberty. In this legal environment, officials may need to rely more on the powers of persuasion than on their legal authority alone.
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.
Perini, Pietro de, Paolo De Stefani and Marco Mascia, ‘The Effects of COVID-19 on the EU Approach on the Rule of Law: Implications for the Commission and European Parliament’ in Gerd Oberleitner et al (eds), European Yearbook on Human Rights 2021 (Intersentia, 2021) 109–136 Abstract: The outbreak of COVID-19 in Europe has significantly affected European Union (EU, the Union) policy-making in a wealth of policy areas, partly altering the perception of policy priorities and the role of the EU in the scenario depicted by the crisis. This contribution aims to grasp the salience of COVID-19’s effects in the context of the EU commitment to developing tools and procedures to address the ongoing rule of law crisis in some Member States and prevent future violations. Based on a content analysis of a wealth of public documents adopted by EU institutions from the beginning of the crisis, this contribution argues that the spread of COVID-19, namely, the unprecedented way in which the crisis has exposed the fragility of all EU values, has produced two specific consequences on the overall EU effort to uphold the rule of law (RoL). The first was urging all EU institutions and the majority of Member States to eventually converge to deliver without delay or obstructionism on pledged measures. The second was the beginning of a shiftin the Commission’s overall strategy to enhance European resilience vis-à-vis this crisis: from the primacy of the RoL as an ‘umbrella principle’ related to, but eventually subsuming other key EU values, to a more balanced, cooperative and comprehensive approach, where diverse monitoring and protection initiatives on the RoL, democracy and fundamental rights mutually complement each other. Despite these changes, however, the Commission’s approach remains significantly distinct and distant from that proposed by the European Parliament (EP), weakening the potential of the newly adopted tools.
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.
Phymma, Marfin Timu Apy, Rina Shahriyani Shahrullah and Lu Sudirman, ‘Handling the Covid-19 Pandemic in Indonesia and India: A Critical Flashback in 2020’ (2022) 7(1) Journal of Law and Policy Transformation 28–43 Abstract: The Covid-19 pandemic is one of the most common pandemics in contemporary history. The preparedness of a country is also determined by how well it is able to reduce the rate of spread, the fatality rate, the ability to handle infected patients, as well as from the capacity to mobilize and manage resources appropriately to deal with crises and their impacts. This study attempts to compare the approaches of Indonesia and India in handling the Corona Virus Diseases (Covid-19) pandemic in 2020. This study adopts a qualitative research approach by using secondary data which are collected from the printed and electronic media related to Covid-19 in Indonesia and India. It was found that India implemented a total lockdown until September 2020 because the number of positive cases of COVID-19 in India reached more than 4.7 million with a death toll of more than 78 thousand people. Meanwhile, Indonesia did not implement a total lockdown. It adopted the Large-Scale Social Restrictions (LSSR). Although it succeeded in temporarily suppressing the spread of Covid, the LSSR was considered not effective enough. Similar challenges were faced by India which chose to lock down the country. Despite being able to temporarily suppress the rate of Covid-19, the sudden implementation of a regional quarantine and minimal preparation created a humanitarian crisis.
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.
Piotrowski, Ryszard, ‘Between Necessity and Constitutionality. Evaluating Covid-Related Legislation in Poland’ in Edyta Hadrowicz (ed), Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 21–34 Abstract: The pandemic encourages authoritarian arrangements that restrict basic rights. The Constitution of Poland allows for restricting the rights of the individual, both in normal times, when such restrictions come as ordinary constitutional measures, and, where these measures fail, also in state of emergency. The COVID-19 legislation provides an example of constitutional circumvention: while no state of natural disaster was actually imposed, the legal arrangements were being introduced which could only be acceptable under such state. The authorities introduced a peculiar state of pandemic which served as a vehicle to push for changes that otherwise would, probably, have not been adopted so easily and so effectively.
Podgorzanska, Renata, ‘Management of the COVID-19 Pandemic Crisis at the Local Level: The Case of Szczecin’ (2021) 24 (Special Issue 4) European Research Studies Journal 206–216 Abstract: The aim of this paper is to describe the case of pandemic crisis management on the basis of an analysis of plans and actions of the local government of the city of Szczecin during the first waves of the COVID-19 pandemic. The analysis was supplemented by a description of the context of functioning of the city in the political, social and economic dimension. Local authorities have played a significant role in efforts to impede and counteract the pandemic. Their activity brought support to actions carried out by the central government. However, as seen in the epidemic practice, measures intended to counteract and stop the spread of SARS-CoV-2 entailed restrictions that determined the functioning and the life of residents and required unprecedented actions.
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.
Powell, Catherine, ‘The “War” Against Covid and Our Post-Pandemic Future: Warfare and Its Discontents’ (Fordham Law Legal Studies Research Paper No 4074967, 4 April 2022) Abstract: This essay analyzes the wartime framing of ‘fighting’ a war on COVID-19—to ‘fight that invisible enemy,’ coronavirus. How might lawmakers address social crises, such as COVID, with the urgency of an emergency without reinforcing our overly-militarized, securitized, and policed state? The problem with a securitized approach is that the notion of security combines conceptual ambiguity with heightened urgency and this indeterminacy can shape and even distort legality in exceptional moments.I examine the use of the security framework in the context of war-related legal authority to address the pandemic and steps necessary for building a post-pandemic recovery. Importantly, this project fits within the body of scholarship that is redefining national security law studies—by questioning what is meant by ‘security,’ by ‘racing’ national security, and by interrogating what the concept of ‘security’ foregrounds and erases. This broader body of scholarship questions whether security is an inherently statist concept? What kinds of expertise it empowers and whose knowledge matters in identifying threats? What is the relationship of security to legality? Does security require exceptionalism? How do we cabin ‘emergency’ law?I draw on historical analogies, outline the benefits and shortcomings of a security law approach to COVID, and propose an alternative paradigm to meet the current moment with an ethics, politics, and law of care, rather than a framework of war, militarization and securitization, as these latter approaches often promote ‘law and order’ over justice.
Pozdnyshov, Alexey N et al, ‘Metamorphoses of the System of Sectoral and Institutional Principles of Administrative Law Through the Prism of Ecological Economics: Problems and Prospects of Their Solution in the Context of the COVID-19 Pandemic’ in Popkova Elena G, Natalia G Vovchenko and Olga V Andreeva (eds), Climate-Smart Innovation: Social Entrepreneurship and Sustainable Development in the Environmental Economy (World Scientific, 2022) 187–197 Abstract: The chapter focuses on the problems of administrative liability of legal entities in cases of administrative offenses in the field of transport. The authors explore the trend of increasing the number of principles of administrative responsibility and its individual institutions in the context of globalization and convergence of administrative law. The principles that are not fixed by law but exist due to doctrine and judicial practice are studied. The issue of the implementation of state policy in the field of passenger transportation in the context of the spread of coronavirus infection (COVID-19) is revealed. In this chapter, the constitutional right to judicial protection is considered through the prism of cases of administrative offenses. The aspect of providing high-quality passenger transportation services and fully meeting the population’s needs in this direction is investigated.
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?
Pranevičienė, Birutė, Violeta Vasiliauskienė and Harald Scheu, ‘COVID-19 Restrictions of Freedom of Movement in Czech Republic and Lithuania: Legal Basis and Proportionality’ (2021) 12 Czech Yearbook of Public and Private International Law 227–245 Abstract: The article analyzes the legal measures that were taken in connection with the COVID-19 pandemic and led to a massive restrictions of the freedom of movement in Lithuania and the Czech Republic. The authors focus on the legal basis of emergency measures in both states, the specific executive practice and the difficult role of the judiciary. Relevant Lithuanian and Czech legal measures, such as the closure of borders for different categories of persons, including citizens, quarantine measures restricting free movement between municipalities and districts or similar isolation measures, affected both the internal and the external dimensions of free movement.
Pranoto, Edi and M Riyanto, ‘Legal Politics of Community Participation in Handling the Impact of Covid 19 Through Jogo Tonggo’ (Proceedings of the International Conference on Law, Economics, and Health (ICLEH 2022), 2023) 554–560Jurisdiction: Indonesia
Abstract: The Covid-19 virus has become a non-natural disaster that paralyzes almost all aspects of life. The Indonesian government has declared the Covid-19 outbreak a National Disaster. So the President formed a Task Force for the Acceleration of Handling Covid-19 and asked officers to act quickly in dealing with Covid-19 . The Chair of the Task Force for the Acceleration of Handling Covid-19 in Central Java Province, who is also the Governor of Central Java, instructed community empowerment in accelerating the handling of Covid-19 through the formation of the Jogo Tonggo Task Force. This study intends to answer the question How is the Legal Politics of Community Participation in Handling Covid-19 through the Jogo Tonggo Task Force? The research method uses normative legal research. The research approach uses a combination of a state approach, a conceptual approach, and an analytical approach. Sources of data from secondary data. Data collection techniques through literature study. The analysis was conducted using a qualitative descriptive method. The legal politics of the formation of the Jogo Tonggo Task Force can be seen through 1) The process of establishing the law and 2) The process of implementing the law. In the formation of the law, the process of forming the Jogo Tonggo Task Force has met the legal requirements and has been following the local wisdom of the people of Central Java, so that it does not cause new conflicts, instead, it fosters the spirit of cooperation. In applying the law, the Jogo Tonggo Task Force is more humanitarian in orientation and leaves elements of SARA, so that it is following the goals and ideals of the state.
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 gover