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Confusion in the Time of COVID: The Supreme Court’s Lack of Clarification in Balancing a Public Health Emergency and the Constitutional Right to Free Exercise
Get PDFThe case of Calvary Chapel Dayton Valley v. Sisolak demonstrates the breadth of a State’s authority during a public health crisis. The SAR-Co-V-2 (“COVID-19”) pandemic led to the declaration of emergency orders and most states creating guidelines for the public to follow to reduce the potential spread of the virus. These guidelines typically included bans on large gatherings, including gatherings in houses of worship, after research showed that large gatherings often turn into “superspreader” events. This led to numerous lawsuits claiming impediments in violation of the First Amendment Free Exercise Clause of the United States Constitution. The United States Supreme Court’s lack of clarification of how to balance constitutional analysis with a public health emergency is a cause for confusion and concern in how States should proceed during a public health emergency
The New MMPA Standard: One Step Forward or Two Steps Back?
Get PDFIn the summer of 2020, Missouri legislators passed a law that drastically reduced consumer protections in Missouri.1 SB-591 amended – and effectively gutted – the protections of the Missouri Merchandising Practices Act (MMPA). The MMPA was the primary method of relief for Missouri consumers who have fallen victim to fraudulent behavior. The freshly gutted MMPA has distinct parallels to the inadequacies of common law fraud. Wronged consumers now face higher burdens of proof, minimal awards, and an uphill battle to seek redress when they have been wronged. This article examines the law’s progression from inadequate remedies under common law fraud to the new version of Missouri’s consumer protection regime. Under the new version of Missouri’s consumer protection law, Missouri consumers now face similar inadequacies during a time when merchants are more sophisticated than ever. This article further speculates on the impacts SB-591 may have on both consumers and businesses
Supplemental Environmental Projects: DOJs March 2020 Policy showed the Downfalls of a Ban
Get PDFIn March of 2020, the Department of Justice (“DOJ”) adopted a policy that bars the use of supplemental environmental projects (“SEPs”) in settlements of environmental enforcement suits. A ban on SEPs can drastically impact both companies and the environment. The DOJ repeatedly rolled back the use of SEPs during the Trump Administration, but President Biden reversed the ban placed on SEPs in March 2020 under the previous administration. SEPs have long been used in environmental enforcement suits and have been extremely useful in the settlement process by giving companies more options when entering into settlement agreements, making settlements easier for both sides. The DOJ explained the rationale for this ban as a Constitutional issue, but this claim is unfounded. Over the years, the claim has been that SEPs were in violation of the Miscellaneous Receipts Act because Congress has not explicitly authorized SEPs, but Congress has gone as far as encouraging the use of them but has yet to pass a low regarding the use of SEPs. This means that with every change in administration, there could come a change in the policy regarding SEPs. This article explores the rationale behind this Constitutional issue, and why such a claim is unfounded. It also explores the detrimental impacts another ban could have on companies and the environment
Governing by Executive Order During the Covid-19 Pandemic: Preliminary Observations Concerning the Proper Balance Between Executive Orders and More Formal Rule Making
Get PDFAs the United States entered 2021, almost all fifty states were 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 continued 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 three 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
SIMULATIONS BASED ON ACTUAL CASES – WHY REINVENT THE WHEEL?
Get PDFThis post describes Debra Berman’s use of materials from actual cases for simulations in her negotiation and mediation courses. She provides litigation documents, including the complaint, motions, and other documents such as discovery requests, disclosures, and scheduling orders as well as a short settlement memo that she drafts. She observed dramatic improvements in her students’ performance. They were excited to work with real cases and were more prepared
STUDENT PAPER TOPICS
Get PDFStudents often have problems deciding what to write about for their course papers. This post collects blog posts with provocative ideas that students might elaborate or critique in their papers
Compromising Trust
Get PDFPublic distrust erodes the efficiency and productivity of our economy, government, and society. It accelerates and amplifies weaknesses in our democratic political infrastructure alongside business relationships and social interactions in mutually reinforcing ways. Determining how to cultivate public trust depends on definitions of “the public”: to whom the government and its officials are accountable. Given the history of the United States as a White settler colonial state, its dependence on African chattel slavery, and its continuing racist xenophobia, “the public” is a frustratingly elastic term. For marginalized populations, public trust might vary in intensity over the past centuries since the nation\u27s founding. In analyses and assessments of levels of trust in the strength or fragility of public institutions, Black, Indigenous and people of color (“BIPOC”) have often been excluded from the polls and surveys upon which public opinion or sentiment is based. A lack of public trust in government significantly impacts determinations of constitutional rot and renewal; however, in the absence of BIPOC responses and inclusion in “the public” over the centuries of U.S. history, constitutional rot for marginalized populations has been an ongoing emergency in their continual lack of or restricted access to constitutional rights and protections. This perpetual constitutional rot is far from an unusual condition