Digital Commons @ UM Law

Van Alstine, Michael

MARYLAND CAREY LAW MAGAZINE Fall 202029
THE COVID-19  pandemic has brought economic devastation on a scale scarcely imaginable only a 
few months ago. In the process, 
it also has undermined the rights 
and obligations under innumerable 
contracts. Tenants now struggle 
to make lease payments and 
homeowners to keep current on 
mortgage obligations. Businesses 
small and large have seen their 
revenues evaporate, but grapple 
with continuing payments under 
long-term loans. And whole 
industries—airlines, restaurants, 
hotels—are facing an existential 
crisis. 
As a general proposition, however, 
contract liability is strict liability. 
That is, a person is obligated to 
fulfill contractual promises—to 
make rental payments, repay loans, 
pay for ordered supplies—“even 
if circumstances have made the 
contract more burdensome or 
less desirable” than anticipated 
(as stated by the Maryland Court 
of Appeals, quoting the Second 
Restatement of Contracts). The 
COVID pandemic nonetheless has 
brought to the fore two relatively 
obscure doctrines of contract 
law that may be relevant in such 
circumstances: impracticability 
of performance and frustration of 
purpose. 
Essentially flip sides of the same 
conceptual coin, these twin 
“excuses” proceed from the 
same premise: A person is not 
liable for breach of contract if an 
unforeseeable event fundamentally 
undermines the parties’ shared 
expectations at the time the 
contract was formed. 
“Impracticability” applies if the 
event is an impediment to a party’s 
performance under the contract. 
“Frustration” applies if the event 
destroys a party’s purpose for 
entering into the contract in 
the first place. To prevail under 
either excuse, the affected party 
also must show that it was not at 
fault for causing the event and 
that the event was not reasonably 
foreseeable at the time of contract 
formation.
The doctrines are obscure for the 
simple reason that they almost 
never succeed. Most often, a 
claimant fails because a court 
concludes that the event in fact 
was reasonably foreseeable (or 
in other words, that the affected 
party assumed the risk that it 
would occur). They have reasoned 
in this vein that a party should 
not be able to escape freely 
assumed obligations if it could 
have protected itself—through 
an appropriate contractual 
provision—from the effects of the 
foreseeable event. 
The COVID-19 pandemic, 
however, may be different. For 
many recent contracts, courts 
quite likely will conclude that the 
occurrence of the pandemic was 
contrary to the shared expectations 
of parties, that the event has had 
a fundamental effect on a party’s 
performance or purpose under 
the contract, and (obviously) 
that neither party was at fault for 
causing it. And, unusually, the 
courts very well may conclude that 
the pandemic was not “reasonably” 
foreseeable for contracts concluded 
before early this year (except for 
specialist epidemiologists). 
By Prof. Michael Van Alstine
IMPRACTICABILITY &
FRUSTRATION IN A
TIME OF COVID-19
Even if that is the case, the remedy 
may not be all that appealing. 
Some parties may well have a right 
to cancel contracts for the future. 
Otherwise, however, the courts 
have substantial discretion to 
grant relief “as justice requires”—
and this certainly involves 
consideration of the interests 
of the other party. Thus, even if 
they apply, the excuses likely 
will not extinguish, for example, 
the obligation of an occupying 
tenant to pay accrued rent, or of a 
homeowner to become current on 
overdue mortgage payments, or of 
a restaurant to pay for delivered 
supplies. 
In any event, the doctrines are 
certain to rise from obscurity in 
the weeks and months to come. 
Indeed, it is quite probable that 
notions of “impracticability of 
performance” and “frustration of 
purpose” will take center stage as 
our society continues to grapple 
with the economic impacts of the 
most significant public health crisis 
in modern history. ■
PERSPECTIVE:
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Van Alstine: Impracticability and Frustration
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English

Perspective: Impracticability and Frustration in a Time of COVID-19

Ram, Natalie

MARYLAND CAREY LAW MAGAZINEFall 2020 28
PRIVACY AND THE
PANDEMIC
AS THE UNITED States struggles to contain the spread of COVID-19, epidemiological 
surveillance programs like digital 
contact tracing have been touted as 
a critical tool to enable states not 
only to reopen their economies, 
but also to do so without a 
resurgence of infections. During 
May and June 2020, members 
of Congress introduced multiple 
bills to regulate data collection, 
processing, and use in connection 
with the COVID-19 pandemic, 
including for digital contact tracing. 
 
Contact tracing has long been a 
central component of public health 
response to infectious disease. 
Traditionally, a contact tracer 
interviews infected individuals 
to identify all other individuals 
with whom they may have been 
in contact. A contact tracer 
then notifies these contacts that 
they may be infected, assists in 
monitoring for symptoms, and may 
instruct contacts to quarantine. 
Traditional contact tracing 
thus relies on skilled workers. 
Done well, contact tracing, in 
combination with widespread 
testing and quarantining of 
contacts, can short circuit 
pathways of infection. As of June 
2020, more than 1,400 contact 
tracers were already at work 
throughout the state of Maryland.  
Many jurisdictions have also 
expressed interest in utilizing 
digital data to assist the work 
of human contact tracers, if not 
replace it. Should the United 
States—or any individual state—
embrace digital contact tracing, 
and how might such a program 
be structured to maximize its 
asserted benefits while limiting 
its harms? In a recent paper, my 
Maryland Carey Law colleague 
David Gray and I argue that the 
Fourth Amendment of the U.S. 
Constitution supplies an answer.  
 
The Fourth Amendment 
guarantees that “[t]he right of 
the people to be secure in their 
persons, houses, papers, and 
effects against unreasonable 
searches and seizures shall not be 
violated.” This protection likely 
regulates the use of location data 
for epidemiological purposes, 
as private app developers are 
likely to be deemed state agents 
for purposes of the Fourth 
Amendment. Policymakers 
nonetheless have substantial 
latitude to develop these 
epidemiological programs 
within the broad constraints of 
the “special needs” doctrine. 
Significantly, special needs 
searches generally do not require a 
warrant. 
 
But the special doctrine does 
not sign a constitutional blank 
check, permitting unregulated and 
mass digital location tracking. 
The Fourth Amendment requires 
prospective constraints on 
searches and the discretionary 
authority of agents to conduct 
them. Policymakers must ask hard 
questions about efficacy, including 
the comparative advantages of 
digital location tracking versus 
more traditional contact tracing 
methods. There are good reasons 
to be skeptical. Current consumer 
location tracking tools—
whether GPS or Bluetooth—are 
insufficiently precise to capture 
only close contacts, and they 
cannot account for beneficial 
features like mask wearing. 
Moreover, a lack of robust social 
supports may make quarantine 
economically infeasible for many. 
Without appropriate technological 
and social infrastructure, digital 
contact tracing is likely to sacrifice 
substantial privacy for only a myth 
of public health benefit.  
 
Even if the public health 
benefits of digital contact 
tracing can be established, the 
Fourth Amendment requires 
that policymakers take threats 
to privacy seriously. Robust 
programmatic safeguards must be 
put in place to secure both privacy 
and liberty, including limitations 
on data gathering, aggregation, 
storage, access, analysis, and 
use. In particular, data gathered 
and stored for contact tracing 
must not be used beyond its 
justified purpose. Permitting 
law enforcement or immigration 
officials to access this data would 
both undermine public trust 
(and hence the efficacy of any 
program) and make such searches 
constitutionally unjustified. 
 
Finally, policymakers must set 
clear plans for decommissioning 
surveillance programs. Under 
such a framework, we may yet 
achieve legitimate public health 
goals as we face COVID-19 while 
also living up to our constitutional 
commitments. ■
By Prof. Natalie Ram
PERSPECTIVE:
1
Ram: Perspective: Privacy and the Pandemic
Published by DigitalCommons@UM Carey Law, 2020


Perspective: Privacy and the Pandemic

MARYLAND CAREY LAW MAGAZINE Fall 202023
CONSTITUTIONAL  democracies around the world and, indeed, in the United States, are 
showing signs of weakening, 
indicating a possible global crisis 
with worrying implications for 
American and world politics. In 
response, Maryland Carey Law 
launched a special opportunity 
for students to engage with new 
thinking on this topic. The course, 
Comparative Constitutional 
Democracy Colloquium, offered 
for the first time in spring 
2020, brings together Maryland 
Carey Law students and faculty, 
and prominent comparative 
constitutional law scholars from 
the United States and Europe.
 
The colloquium builds on the 
leading work in comparative 
constitutional law of Prof. 
Mark Graber in his recent book, 
Constitutional Democracy in 
Crisis?, co-edited with Sanford 
Levinson and Mark Tushnet; 
and the recent work of Prof. 
Peter Danchin in international 
law in a new global research 
partnership with Australian 
National University and Indiana 
University on “Navigating the 
Backlash Against Global Law and 
Institutions.”
For the inaugural semester, 
co-leaders Danchin and Graber 
welcomed 14 students, several 
Maryland Carey Law faculty 
members, and seven featured 
speakers. Each presentation was 
followed by commentary from one 
faculty member and one student, 
after which an open discussion 
ensued.  
Maryland Carey Law 
professors took turns providing 
a first commentary after the 
presentations, and the students 
rotated to present their critiques. 
Besides Danchin and Graber, 
faculty commentators included 
Professors Richard Boldt, Paula 
Monopoli, Max Stearns, and 
Marley Weiss. 
continued on next page . . . 
COMPARATIVE 
CONSTITUTIONAL 
DEMOCRACY 
COLLOQUIUM
New con-law colloquium gives students a 
seat at the table with top scholars
Featured Spring 2020 
Presenters
Peter Quint
Maryland Carey Law
Jacob A. France Professor 
Emeritus of Constitutional Law
Topic: Development of Judicial 
Review in Europe 
Oran Doyle
Trinity College Dublin
Professor in Law
Topic: How to Establish National 
Boundaries 
Fernanda Nicola
American University Washington 
College of Law
Professor of Law and Director, 
International Organizations, Law 
and Development
Topic: The Increasing Influence 
of Courts on Foreign Policy 
Aziz Huq
University of Chicago Law 
School
Frank and Bernice J. Greenberg 
Professor of Law, Mark Claster 
Mamolen Teaching Scholar
Topic: Comparative 
Impeachment Law 
1
et al.: Comparative Constitutional Democracy Colloquium
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“The idea is to get students in the 
habit of thinking of themselves 
as professionals,” says Graber, 
explaining how the format 
prepares students to speak up in 
boardrooms and courtrooms alike. 
Instead of discussing a scholarly 
work guided by a professor, 
students are equal participants in 
a conversation with the scholars 
themselves. Visiting scholars 
included Prof. Oran Doyle from 
Trinity College in Ireland, Prof. 
Fernanda Nicola from American 
University in D.C., and Prof. 
Aziz Huq from the University 
of Chicago, with discussion 
topics ranging from comparative 
impeachment law to the influence 
of courts on foreign policy to 
establishing national boundaries.
 
Chukwukpee Nzegwu ’20 was one 
of the advanced law students in the 
colloquium. He and his classmates 
were required to read the visiting 
scholars’ work, sometimes still in 
process, write a reflection paper, 
and be prepared to speak up either 
as a commentator or during the 
discussion. Having the chance to 
engage as equals with top scholars 
from around the world, says 
Nzegwu, was “a really unique and 
valuable experience.” 
When Huq, whose new book 
How to Save a Constitutional 
Democracy won the International 
Society of Public Law ICON-S 
Book Prize, was the class’s 
featured scholar in February, 
the entire law school was also 
treated to a program in which 
Huq presented on his book, 
followed by a panel of faculty 
commentators. Nzegwu, who 
has experience presenting at 
international conferences and 
was a star on the Maryland Carey 
Law National Trial Team, also 
presented a student commentary, 
which received high praise from 
attendees. Nzegwu’s performance 
in the class was a factor in his 
selection by faculty for the 
Elizabeth Maxwell Carroll 
Chesnut Prize for scholarship at 
graduation. 
Slated for the final two meetings 
were Assoc. Prof. Yvonne Tew 
from Georgetown Law and 
Distinguished Visiting Prof. 
Penelope Andrews from New 
York Law School. Their sessions 
were replaced with presentations 
by Danchin and Graber when 
Maryland Carey Law School 
classes went online because of the 
coronavirus pandemic. 
Though meeting in person is 
preferable, now that they have 
experience delivering an online 
seminar, Graber and Danchin 
are confident they could easily 
incorporate distant scholars 
back into the class and see the 
advantage of a remote format in 
alleviating the burden of travel 
on scholars. “Whatever the 
format,” Graber says, “we are 
looking forward to a rich array of 
distinguished presenters and an 
even richer conversation among 
students committed to exploring 
the state of constitutional 
democracy throughout 
the world.” ■ 
Featured Spring 2020 
Presenters Continued
Ioanna Tourkochoriti
NUI Galway
Visiting Fellow
Topic: Government Ability, 
Freedom of Speech, and 
Combatting Prejudice 
Mark Graber 
Maryland Carey Law
University of Maryland Regents 
Professor
Topic: Is There a Global 
Constitutionalism Crisis?
Peter Danchin 
Maryland Carey Law
Associate Dean for Research and 
Faculty Development, Professor 
of Law, Director, International 
and Comparative Law Program
Topic: The Nature of a Written 
and Unwritten Constitution
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Maryland Carey Law, Vol. 2020 [2020], Art. 16
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Comparative Constitutional Democracy Colloquium

Advocacy Team Highlights

MARYLAND CAREY LAW MAGAZINE Fall 20205
T
R
A
N
S
I
T
I
O
N
S
is now associate dean for 
academic affairs, following Prof. 
Barbara Gontrum, who continues 
her role as senior associate dean. 
Eisenberg is also the Piper & 
Marbury Professor of Law and 
director of the Center for Dispute 
Resolution. As associate dean 
of academic affairs, Eisenberg 
oversees academic programs, 
including curriculum, teaching 
assignments, and scheduling.
assumed the role of associate 
dean for research and faculty 
development, following 
Prof. Mike Pappas who has 
returned to full-time teaching. 
Danchin is also the Jacob A. 
France Professor of Law and 
director of the International and 
Comparative Law Program. As 
associate dean for research and 
faculty development, Danchin 
oversees faculty research and 
programming.
DEBORAH
EISENBERG
PETER
DANCHIN
1
et al.: Transitions
Published by DigitalCommons@U  Carey Law, 20
MARYLAND CAREY LAW MAGAZINEFall 2020 6
has been promoted to professor 
of law. Ram teaches courses in 
the Law and Health Care Program 
and is a 2021 Greenwall Faculty 
Scholar in Bioethics. She came to 
the law school in 2019 from the 
University of Baltimore School 
of Law and formerly clerked for 
Associate Justice Stephen Breyer, 
U.S. Supreme Court. Ram is a 
graduate of Yale Law School.
has been promoted to associate 
professor of law. She is director 
of the Environmental Law Clinic. 
Kakade came to the law school in 
2017 after serving as an attorney 
with the Environmental Protection 
Agency (EPA) and Department 
of Energy. She is a graduate of 
George Washington University 
Law School.
NATALIE
RAM
SEEMA
KAKADE
is the new associate dean for 
admissions. Gavin comes to 
Maryland Carey Law from his 
former post as associate dean of 
admissions at Suffolk University 
Law School in Boston. He is a 
graduate of Suffolk Law with 
work experience in civil litigation.
MATTHEW
GAVIN
2
Maryland Carey Law, Vol. 2020 [2020], Art. 24
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Transitions

Quirk, Chris

MARYLAND CAREY LAW MAGAZINE Fall 20203
MATIANGAI 
SIRLEAF
NEW FACULTY:
NATHAN PATZ PROFESSOR OF LAW
IN HER YOUTH,  Matiangai Sirleaf spent significant time in Liberia during the brutal civil war that began in 1989. “My 
childhood was informed and 
defined by what I saw there,” 
she says, “the breakdown of the 
rule of law and societal norms 
that protect human beings.” Not 
surprisingly, her early experiences 
are foundational to her work 
today—in areas including global 
public health law, international 
human rights law, post-conflict 
and transitional justice, and 
criminal law.
Transitional justice, one of 
Sirleaf’s research interests, is 
a burgeoning field of inquiry 
concerned with questions of 
how to remedy and heal abuses 
committed during conflicts or 
repressive regimes. Sirleaf’s 
work has examined the 
differing effectiveness of truth 
commissions in post-conflict 
versus post-authoritarian 
societies, environmental justice, 
and disparities in the way global 
public health emergencies are 
treated. 
Recent events in the U.S., from 
the COVID-19 pandemic to 
the uprising for racial justice, 
have compelled Sirleaf to apply 
her international expertise to 
domestic events. “One of the 
things I’m working on now, given 
the current moment, is a series 
exploring the use of transitional 
justice measures in the United 
States, and finding ways to foster 
greater racial justice in the United 
States,” Sirleaf says. 
“We are absolutely delighted 
that Matiangai Sirleaf is joining 
the faculty,” says Assoc. Dean 
Peter Danchin, who directs the 
International and Comparative 
Law Program. “Professor Sirleaf 
is a stellar scholar who is widely 
recognized for her work in 
international law, global health, 
human rights, and transitional 
justice. She is a pioneer in the 
literature on global health in 
international law and questions 
surrounding local, regional, 
and global transitional justice 
mechanisms in post-conflict 
societies. This is a truly exciting 
time for students interested in 
studying and gaining experience 
in our Health and International 
and Comparative Law programs.” 
Sirleaf will offer classes in global 
public health law, international 
human rights law, and criminal 
law.
A graduate of Yale Law School, 
Sirleaf joins the faculty full-
time after serving as a visiting 
professor last year. She has 
also taught at the University of 
Pittsburgh School of Law, the 
University of Baltimore School 
of Law, and at Penn Law as a 
Sharswood Fellow. Sirleaf has 
published widely, including recent 
work in Foundations of Global 
Health and Human Rights, Texas 
Law Review, and UCLA Law 
Review. 
“Matiangai is already well-known 
and very highly regarded here at 
Maryland Carey Law,” says Dean 
Donald Tobin. “It is a privilege 
to have her as part of our full-
time faculty. She brings unique 
and timely expertise that will add 
immeasurably to our institution.”
 
For Sirleaf’s part, Maryland 
Carey Law’s legacy has not 
escaped her notice. “While there 
are few women of color in law 
faculty generally, Maryland 
Carey Law has a phenomenal 
legacy of Black women legal 
scholars,” says Sirleaf. “They’re 
giants, and I’m not going to be 
filling anyone’s shoes, but I’m 
honored to be a part of that 
rich tradition.” ■
“She brings unique and timely expertise 
that will add 
immeasurably to our 
institution.”
- Dean Donald Tobin
By Chris Quirk
Photo courtesy of University of Pittsburgh School of Law
1
Quirk: Matiangai Sirleaf
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Matiangai Sirleaf

Doyle, Shane M.K.

The Unsoundness of Silence: Silent Concurrences and Their Use in Maryland

The case of People v. Croswell will forever stand for the spirited arguments by leading legal minds about the legality of using truth as a defense to criminal libel, establishing the common law, and determining the role of the jury. But it is the story of Harry Croswell, young firebrand Federalist editor of The Wasp, that provides an insightful view into the turbulent political scene that stormed fiercely across the United States at the turn of the nineteenth century

Schwartz, Samuel A

\u3cem\u3ePeople v. Croswell\u3c/em\u3e: Libelous Truth, the Common Law, and Battlefield of the Bloodless Revolution

Gifford, Donald G.

Calabresi, Guido

Singer, Jana B.

West, Robin L.

Rifkin, Alan M.

Huff, John L.

Green, Michael

Tributes to Professor Oscar S. Gray

Charo, R. Alta

Journal of Health Care Law and Policy 
Volume 22 Issue 2 Article 3 
A Tribute to Karen Rothenberg 
R. Alta Charo 
Follow this and additional works at: https://digitalcommons.law.umaryland.edu/jhclp 
Recommended Citation 
R. A. Charo, A Tribute to Karen Rothenberg, 22 J. Health Care L. & Pol'y 153 (2020). 
Available at: https://digitalcommons.law.umaryland.edu/jhclp/vol22/iss2/3 
This Tribute is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey 
Law. It has been accepted for inclusion in Journal of Health Care Law and Policy by an authorized editor of 
DigitalCommons@UM Carey Law. For more information, please contact smccarty@law.umaryland.edu. 
  
 
 
153 
A TRIBUTE TO KAREN 
ROTHENBERG 
R. ALTA CHARO, J.D.* 
I have been the grateful subject of Karen Rothenberg’s mentorship.  Her 
generosity of spirit and wise advice helped set me on a path toward a satisfying 
career as a law professor and participant in the process of creating  public policy.  
I wish I knew the identities of all the other students and aspiring academics whom 
she helped this way.  We could start a little fan club. 
I first became aware of Karen’s work during my time in the mid-1980s at 
the now-defunct congressional Office of Technology Assessment.  It was a 
tumultuous time in the field of assisted reproduction.  Artificial insemination, 
though long practiced, was more openly discussed.  In vitro fertilization was still 
quite new, and was at the center of debates over its technological, theological 
and political acceptability. Surrogate motherhood was in the news, and 
increasingly in the courts.  The divisions of opinion did not follow predictable 
fault lines.  Social conservatives drawing their views from certain religious 
traditions that would argue for banning these innovations were often flummoxed 
because they also tended to favor markets over government regulation.  Liberals, 
whose views on abortion and non-traditional families would support use of these 
technologies, were often distrustful of the medical establishment’s management 
of women’s health needs, and fearful of reifying traditional stereotypes about the 
centrality of motherhood to the female experience.  Congress had requested a 
report describing the technical and social implications of these technologies, and 
offering a range of options for federal response.  As a legal analyst at this 
congressional agency, it was my task to untangle and explain this shifting and 
cross-cutting set of arguments, and spell out the legal status of the current 
situation in the fifty states. 
It was Karen’s sensible and sensitive approach to these debates that was the 
most helpful to me at the time.  I had attended many meetings at which 
diametrically opposing positions were presented, often by the same academics –
both men – who had developed a bit of a dog-and-pony road show with their 
repeated clashes.  Karen was different.  She would speak about the reality of 
women’s lives.  Rejecting the artificially clean analyses built upon a vision of 
 
© 2019 R. Alta Charo, J.D. 
* Warren P. Knowles Professor of Law and Bioethics, University of Wisconsin. 
  
154 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 22:153 
individuals as completely autonomous utility maximizers.  Karen incorporated a 
feminist critique that included the emotions and constraints that affect decision 
making.  At the same time, she avoided falling into the trap of beginning her 
analyses with any assumptions about women’s vulnerability or the medical 
establishment’s insensitivity.  Listening to her, one could see see more nuanced 
and balanced approaches that would avoid the most frequent or serious risks of 
exploitation, while also recognizing the moral agency of each person who wished 
to be a parent. 
It was this sensitivity to complexity that made it such a joy a few years later 
to co-author a piece on genetic testing with Karen.  Titled The Good Mother, it 
acknowledged the tension between praying for healthy children and loving the 
children one had, regardless of disease or disability.  It also noted the difference 
in how one must debate the morality of personal decisions versus the appropriate 
role of the government in shaping the options that would be available to people.  
Without ignoring the long history of eugenic abuses in this country and 
elsewhere, Karen looked at how this increasingly important technology was 
being used now and might be used in the future, with an eye to identifying a role 
for public policy that aimed to curb any trend toward abuse and any increasing 
stigma endured by those with disabilities.  
What was remarkable about Karen is that during these early years of my 
career, she consistently treated me as a colleague and an equal, despite the gulf 
in expertise and experience between us.  Already tenured at the time I first 
became an untenured assistant professor, Karen could have been parentalistic, 
dismissive, or inattentive when I ventured to voice my views.  Instead, she 
engaged with me in spirited debate and collaborative writing with no hint that 
her more senior position entitled her to claim superior wisdom or control of our 
project.  The joint writing effort was a joy, with drafts flying back and forth, and 
mutual acceptance of proposed changes in tone and substantive argumentation.  
It became a model of co-authorship to which I aspire today, and I thank her for 
teaching me how to collaborate with respect and generosity. 
If I have any critique of Karen, it is that her generosity was at times too 
great.  When I was coming up for tenure, the rules at my university allowed 
candidates to see the outside letters.  Karen’s was not only generous, it was 
effusive, and I learned later that this actually led a few people to somewhat 
discount its content.  It is not often that one can say that someone’s fundamental 
character flaw is that she is too good.  But that was Karen.  A good mentor, a 
good colleague and a good friend. 
 


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