Columbia Law School Scholarship Archive Books Faculty Publications 4-2020 Law in the Time of COVID-19 Katharina Pistor Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/books Part of the Bankruptcy Law Commons, Business Organizations Law Commons, Civil Rights and Discrimination Commons, Commercial Law Commons, Contracts Commons, Criminal Law Commons, Criminal Procedure Commons, Disability Law Commons, Disaster Law Commons, Dispute Resolution and Arbitration Commons, Education Law Commons, Election Law Commons, Environmental Law Commons, Family Law Commons, Health Law and Policy Commons, Housing Law Commons, Human Rights Law Commons, Immigration Law Commons, Juvenile Law Commons, Labor and Employment Law Commons, Law and Economics Commons, Law and Society Commons, Privacy Law Commons, Public Law and Legal Theory Commons, Sexuality and the Law Commons, and the Social Welfare Law Commons Recommended Citation Pistor, Katharina, "Law in the Time of COVID-19" (2020). Books. 240. https://scholarship.law.columbia.edu/books/240 This Book is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Books by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. L AW IN THE TIME OF COVID -19 i This is a free ebook published by Columbia Law School. The author or co-authors of each chapter reserve all copyright rights in that chapter. ii iii iv Law in the Time of COVID-19 - Foreword Gillian Lester - Introduction Katharina Pistor Human Rights Under Strain - Covid-19 and Prisoners’ Rights Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, and Anita N.H. Yandle, with Alexis Hoag and Bernard E. Harcourt - Linked Fate: Justice and the Criminal Legal System During the COVID-19 Pandemic Susan Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick - Immigration in the Time of COVID-19 Shoba Sivaprasad Wadhia Public Life and Social Welfare - Covid-19 and the Law: Elections Richard Briffault - The New “Essential”: Rethinking Social Goods in the Wake of Covid-19 Olatunde Johnson - Public Health Law Tools: A Brief Guide Kristen Underhill - Child Welfare and Covid-19: An Unexpected Opportunity for Systemic Change Jane Spinak - Emergency Exemptions from Environmental Laws Michael Gerrard Private Life - Privacy and Pandemics Clarisa Long v - COVID-19 and LGBT Rights Suzanne Goldberg The Economy Under Lock-down - How to Help Small Businesses Survive COVID-19 Todd Baker and Kathryn Judge - Bankruptcy’s Role in the COVID-19 Crisis Edward R. Morrison and Andrea C. Saavedra - COVID-19 as a Force Majeure in Corporate Transactions Matthew Jennejohn, Julian Nyarko, Eric Talley - A Comparative Perspective on Commercial Contracts and the Impact of Covid-19 - Change of Circumstances, Force Majeure, or What? Christian Twigg-Flesner - Dispute Resolution in Pandemic Circumstances George Bermann - Driver for Contactless Payments Ronald Mann Appendix - Appendix 1: COVID Legal Alerts From Top 20 Law Firms & CPRBLOG organized by TOC Links provided by Professor Michael Gerrard; Compiled by topic by Dana Neacsu and Michael Paul McParlane - Appendix 2: New York-Based Legal Information Compiled by topic by Dana Neacsu - Appendix 3: Rules Regarding Medical Labs Running COVID-19 tests Links provided by Professor Michael Gerrard; Compiled by topic by Dana Neacsu - Appendix 4: Additional Resources Links provided by contributors; Compiled by Michael Paul McParlane Legal Issues for Workers & COVID-19 Martials and Resources AFL-CIO slides and resources in link above, made available by Mark Barenberg vi vii viii Foreword The spread of the new coronavirus in the spring of 2020 upended nearly every aspect of life as we know it. On March 11, as contagion traversed the globe with shocking speed, scale, and severity, the World Health Organization declared COVID-19 a pandemic. That same day, Columbia Law School began moving our entire curriculum online—more than 300 courses—for the first time in our history. Not only did we transform our teaching, but our faculty also turned its gaze outward, to the plight of individuals and communities in the United States and elsewhere facing new and urgent challenges wrought by the pandemic. Against this backdrop, a group of colleagues joined forces to publish an e-book addressing myriad legal questions the coronavirus pandemic would introduce. Scholars across the faculty drew on their deep expertise to identify and examine a range of vital legal issues implicated by COVID-19. They were joined in this effort by a few academics from other schools. What’s more, Columbia Law students jumped at the opportunity to participate. Mindful of the need to match the fast-moving impact of the virus, our professors worked at record speed to turn their analyses and insights into the essays that make up this collection. After just one month, we present, “Law in the Time of COVID-19”. Covering a host of timely topics, including prisoners’ rights, elections, privacy, public health law, force majeure in contracts, bankruptcy, and more, we believe this reference guide may be the first of its kind produced by a law school. Columbia Law School offers these insights to the legal community and the public as our contribution to understanding and confronting the profound disruption to our society and our legal system of COVID-19. ix I am grateful to my colleague, Katharina Pistor, for her foresight and fortitude in launching this e-book project, and deeply appreciative of all those who contributed to this important undertaking. We hope you will find it valuable. Gillian Lester Dean and the Lucy G. Moses Professor of Law Columbia Law School April 20, 2020 x Introduction Katharina Pistor, Edwin B. Parker Professor of Comparative Law; Director, Center on Global Legal Transformation, Columbia Law School The COVID-19 crisis has ended and upended lives around the globe. As of April 20, 2020, the virus has killed more than 160,000 people, more than 35,000 in the United States alone. The secondary effects have also been devastating. Borders have been closed, impeding the flow of goods, people, and services. Entire countries have been placed under lockdown, bringing economic life almost to a standstill; challenging electoral, legislative, and judicial processes; and limiting direct social interactions to the nuclear family. Electronic trading technology has allowed financial markets to remain open; without the lifelines from central banks, they would have crashed. The pandemic’s secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools. As academic lawyers we wanted to share our knowledge and insights about how law shapes responses to—and is itself shaped by—the unfolding crisis. This volume offers guidance for thinking about some the most pressing legal issues the pandemic has raised, especially (though not exclusively) for law in the United States: from the rights of prison inmates who live under conditions that make them exceptionally vulnerable to the highly contagious virus to the options for contracting parties who now face circumstances that make it impossible for them to live up to their past commitments. The book does not give legal advice. Instead, it identifies critical legal issues that affect many peoples’ lives, offers fresh perspectives for thinking about those issues, and provides guidance to legislatures and policy makers about the legal challenges ahead. xi Although written by professors, this volume is meant to be a reference book, not an academic treatise. The topics range widely and include issues related to human rights, public life and social welfare, private life, and the economy. The authors focused their knowledge on specific areas of the law. Many were joined by their students, who either helped draft a chapter or compiled further resources that are referenced in the chapters. The Appendices to the volume include links to additional resources including guidance about workers’ rights that the Lawyers Coordinating Committee of the AFL-CIO has put together1 as well as links to memoranda that law firms have written to their clients on COVID-19 relevant issues.2 This volume was put together quickly; it is a response to what we perceived to be an urgent need for more legal information and analysis in the midst of the COVID-19 pandemic. Many helped bring it to the finish line: The authors who volunteered to write individual chapters on short notice and with tight deadlines; my colleagues, Bert Huang and Lance Liebman, who copy-edited the contributions; Dana Neacsu, reference librarian and lecturer-in-law, together with faculty coordinator Michael McParlane, who compiled the additional resources in the Appendices and formatted the book; the team at Columbia Creative who produced the cover; Carole Steinfield, who ensured online publication on the law school’s research repository and Columbia University’s academic commons; and Dean Gillian Lester, who enthusiastically supported this endeavor. I owe all of them a big thank you—and hope that more lawyers in the United States and elsewhere will follow suit and share their thoughts and insights widely in these difficult times. New York City, April 20, 2020. 1 See https://lcc-aflcio.org/covid-19-legal-issues-webinar-materials/. We thank our colleague Mark Barenberg for alerting us to these materials. 2 See also http://covidmemo.law.stanford.edu/ for a related effort to make law firm memoranda more widely available. xii xiii COVID-19 and Prisoners’ Rights Gregory Bernstein, JD ’21, Stephanie Guzman, JD ’22, Maggie Hadley, JD ’22, Rosalyn M. Huff, CC ’20, Alison Hung, JD ’22, and Anita N.H.