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COVID-19 & the Law Conference

Virtual Conference

June 11 — 12, 2020

The Federalist Society announces a major conference on COVID-19 & the Law to take place virtually on June 11-12. The conference will consist of six panels covering a range of legal issues related to the COVID-19 pandemic. Each panel will be available to watch as a webinar and as a live stream. Register now to take part in the webinars!

THURSDAY, JUNE 11

Government vs. Private Decisionmaking
10:00 AM EST

  • Prof. Ian Ayres, William K. Townsend Professor of Law, Yale Law School
  • Prof. David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
  • Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law; Armistead M. Dobie Professor of Law; and Director, John M. Olin Program in Law and Economics, University of Virginia School of Law
  • Prof. Anup Malani, Lee and Brena Freeman Professor of Law, University of Chicago Law School
  • Moderator: Eugene Meyer, President and CEO, The Federalist Society

Address
11:30 AM EST

  • Hon. Ajit Pai, Chairman, U.S. Federal Communications Commission

Federalism and COVID-19
1:30 PM EST

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
  • Prof. Daniel Farber, Sho Sato Professor of Law; Faculty Director, Center for Law, Energy, & the Environment, University of California, Berkeley
  • Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
  • Prof. Roderick M. Hills, William T. Comfort, III Professor of Law, New York University School of Law
  • Moderator: Kay James, President, The Heritage Foundation

Federal Executive Power and COVID-19
3:30 PM EST

  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
  • Prof. Daniel B. Rodriguez, Harold Washington Professor of Law, Northwestern University Pritzker School of Law
  • Prof. Lisa Grow Sun, Professor of Law, BYU J. Reuben Clark Law School
  • Moderator: Prof. Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law

FRIDAY, JUNE 12

COVID-19 and the 2020 Elections
10:00 AM EST

  • Dr. Rachel Kleinfeld, Senior Fellow, Democracy, Conflict, and Governance Program, Carnegie Endowment for International Peace
  • Prof. Michael T. Morley, Assistant Professor, Florida State University College of Law
  • Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Hon. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School
  • Moderator: Hon. R. Patrick DeWine, Associate Justice, Supreme Court of Ohio

Regulation or “Don’t Let a Good Crisis Go to Waste”
1:30 PM EST

  • Prof. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
  • Dr. Roger D. Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law, Arizona State University
  • Prof. Erika Lietzan, Associate Professor of Law, Center for Intellectual Property and Entrepreneurship, University of Missouri School of Law
  • Prof. Paul G. Mahoney, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Cass Sunstein, Robert Walmsley University Professor, Harvard Law School
  • Moderator: Prof. Susan E. Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, The George Washington University

Civil Liberties and COVID-19
3:45 PM EST

  • Prof. Julia Mahoney, John S. Battle Professor of Law; Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low, University of Virginia School of Law
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School; Former President, American Civil Liberties Union, 1991-2008
  • Prof. Mila Versteeg, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law; Director, Human Rights Program; Senior Fellow, Miller Center, University of Virginia School of Law
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
  • Moderator: Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute
 
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10:00 a.m. - 11:30 a.m.
Government vs. Private Decisionmaking

COVID-19 & the Law Conference

Topics: Federalism • Healthcare • Separation of Powers • State Governments
Webinar & Live Stream

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The Federalist Society's COVID-19 & the Law Conference began with a panel discussion on "Government vs. Private Decisionmaking". The panel took place via teleconference on Thursday, June 11, 2020.

How should societies respond to pandemic crises, and to what extent has the American response tracked ideal models?  The key questions are the extent to which public and private actors take responsibility for actions and how those actors coordinate with each other.  What considerations should govern the allocation of public/private decision making in confronting COVID-19?  What are the risks and benefits of decisions being made by the government (at all of the different levels of government), businesses, and individuals?  What, in the response thus far,has worked and what hasn’t?  Do government decisions about what to close down and when to reopen them create serious crony capitalism and public choice problems or in such an emergency will politicians rise above those temptations?  What, if anything, does COVID-19 tell us about Medicare for All?

Featuring:

  • Prof. Ian Ayres, William K. Townsend Professor of Law, Yale Law School
  • Prof. David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
  • Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law; Armistead M. Dobie Professor of Law; and Director, John M. Olin Program in Law and Economics, University of Virginia School of Law
  • Prof. Anup Malani, Lee and Brena Freeman Professor of Law, University of Chicago Law School
  • Moderator: Eugene Meyer, President and CEO, The Federalist Society

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Speakers

11:30 a.m. - 12:00 p.m.
Address by Ajit Pai

COVID-19 & the Law Conference

Topics: First Amendment • Telecommunications & Electronic Media • Free Speech & Election Law
Webinar & Live Stream

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Ajit Pai, Chairman of the U.S. Federal Communications Commission, gave an address at the Federalist Society's COVID-19 & the Law Conference. The address took place via teleconference on Thursday, June 11, 2020.

  • Hon. Ajit Pai, Chairman, U.S. Federal Communications Commission
  • Introduction: Eugene Meyer, President and CEO, The Federalist Society

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Speakers

1:30 p.m. - 3:00 p.m.
Federalism and COVID-19

COVID-19 & the Law Conference

Topics: Constitution • Federalism • Healthcare • Federalism & Separation of Powers
Webinar & Live Stream

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The second panel at the Federalist Society's COVID-19 & the Law Conference discussed "Federalism and COVID-19". The panel took place via teleconference on Thursday, June 11, 2020.

Is a more centralized federal government needed in times of emergency, or is federalism able to provide a strong response?  Is this a context in which a uniform response – treating Wyoming the same as New York – makes sense?  Do states work even better as laboratories not so much of democracy as of solutions?  Does it depend on the nature of the crisis and the probable length of it?  On which state and who is the governor of that state?  How about in this crisis?  Are there aspects that are best handled at the national level and others at the State or local level?  If so which?  To what extent is a collaborative response called for?  What opportunities and risks arise from our federal system?  What is to be learned from other countries on these questions?

Featuring:

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
  • Prof. Daniel Farber, Sho Sato Professor of Law; Faculty Director, Center for Law, Energy, & the Environment, University of California, Berkeley
  • Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
  • Prof. Roderick M. Hills, William T. Comfort, III Professor of Law, New York University School of Law
  • Moderator: Kay James, President, The Heritage Foundation

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

3:30 p.m. - 5:00 p.m.
Federal Executive Power and COVID-19

COVID-19 & the Law Conference

Topics: Constitution • Federalism • Healthcare • Separation of Powers • Federalism & Separation of Powers
Webinar & Live Stream

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Description

The first day of the Federalist Society's COVID-19 & the Law Conference finished with a panel discussion on "Federal Executive Power and COVID-19". The panel took place via teleconference on Thursday, June 11, 2020.

Has the federal executive branch overreacted or underreacted to the Covid-19 threat? To what extent is the proper federal role legislative rather than executive?  Within the executive, what is the appropriate role of the White House and the agencies?  Which aspects of the response call for political judgment and which call for technical judgment – and to what extent are the relevant agencies technical rather than political actors?  What tools are legally available to the President and the rest of the federal executive branch to respond to COVID-19?  How should they be used?  What is the proper role of guidelines, like the various CDC guidelines, that are not legally binding as a regulatory matter but likely have liability implications and seem to have had considerable practical impact on decisions by State and private actors?

Featuring:

  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
  • Prof. Daniel B. Rodriguez, Harold Washington Professor of Law, Northwestern University Pritzker School of Law
  • Prof. Lisa Grow Sun, Professor of Law, BYU J. Reuben Clark Law School
  • Moderator: Prof. Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

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10:00 a.m. - 11:30 a.m.
COVID-19 and the 2020 Elections

COVID-19 & the Law Conference

Topics: Constitution • Election Law • Federalism • Healthcare • State Governments • Free Speech & Election Law
Webinar & Live Stream

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Description

The second day of the Federalist Society's COVID-19 & the Law Conference commenced with a panel discussion on "COVID-19 and the 2020 Elections". The panel took place via teleconference on Friday, June 12, 2020.

The onset of the COVID-19 epidemic in the midst of an election year has presented election officials with an array of unprecedented challenges. Some states hurriedly cancelled or delayed primary elections while others forged ahead. It is widely assumed that the remaining primaries and likely the November general election will include a substantial increase in vote-by-mail options, and possibly occur with all mail ballots. Who should make such decisions about timing and means of voting: legislatures? Governors and other executive branch officials? Courts? Elections in the U.S. are conducted by states, but Congress has the authority to regulate the “time, place, and manner” of congressional elections, and the “time” for choosing presidential electors and the day of their votes: Should Congress get involved, and if so, how far does its power under the “time, place, and manner” clause reach?

It has long been accepted that absentee balloting and voting-by-mail have potential for voter fraud not present in in-person voting. And tools that make it easier to vote--such as "ballot harvesting"--also increase opportunities for fraud. What policies should states adopt to ensure that people can vote without endangering their personal or the public health, while assuring that the fraud is minimized and the results retain integrity? Are states ready to handle a substantial increase in mail voting? What steps need to be taken before November to get ready?   And what are the pluses or minuses to such changes.   Are permanent changes necessary, or should any changes in voting procedures be temporary, for this election only?

Featuring:

  • Dr. Rachel Kleinfeld, Senior Fellow, Democracy, Conflict, and Governance Program, Carnegie Endowment for International Peace
  • Prof. Michael T. Morley, Assistant Professor, Florida State University College of Law
  • Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Hon. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School
  • Moderator: Hon. R. Patrick DeWine, Associate Justice, Supreme Court of Ohio

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

1:30 p.m. - 3:15 p.m.
Regulation or “Don’t Let a Good Crisis Go to Waste”

COVID-19 & the Law Conference

Topics: Administrative Law & Regulation • Constitution • Healthcare
Webinar & Live Stream

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The fifth panel of the Federalist Society's COVID-19 & the Law Conference discussed "Regulation or 'Don't Let a Good Crisis Go to Waste'". The panel took place via teleconference on Friday, June 12, 2020.

During this crisis government has assumed new powers that no one would claim it has except in an emergency.  Will government cease exercising all these powers when the emergency passes?  Historically government has almost always increased its power during crisis and then kept some of that power afterward.  Will people try to invoke COVID-19 powers to address other pressing issues, such as drugs, climate change, crime, terrorism etc, on the ground that these too are very serious problems? On the flip side, there are also regulations that have been lifted.  Should they remain lifted in some situations? FDA approvals:  tests (restricting to CDC), drugs, devices, PPE? Occupational licensing/Practice of medicine across state lines. Some government contracting rules?  What regulatory obstacles are still proving to be an issue?  (e.g. food supply questions) Would a new BRAC commission make sense for this purpose?  In general, to what extent does it make sense to reason – in either a pro-regulatory or deregulatory fashion -- from crisis situations to general notions of governmental role?

Featuring:

  • Prof. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
  • Dr. Roger D. Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law, Arizona State University
  • Prof. Erika Lietzan, Associate Professor of Law, Center for Intellectual Property and Entrepreneurship, University of Missouri School of Law
  • Prof. Paul G. Mahoney, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Cass Sunstein, Robert Walmsley University Professor, Harvard Law School
  • Moderator: Prof. Susan E. Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, The George Washington University

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

3:45 p.m. - 5:15 p.m.
Civil Liberties and COVID-19

COVID-19 & the Law Conference

Topics: Civil Rights • Constitution • Federalism • First Amendment • Healthcare • Security & Privacy • Separation of Powers • State Governments
Webinar & Live Stream

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Event Video

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The Federalist Society's COVID-19 & the Law Conference concluded with a panel on "Civil Liberties and COVID-19". The panel took place via teleconference on Friday, June 12, 2020.

Various governmental and private measures relating to COVID-19 are raising challenging civil liberties questions both in the US and around the world.  What are the limits on States and localities’ ability to restrict movement?  Should journalists be able to be sued for promoting approaches deemed insufficiently or overly aggressive? Do businesses shut down by government order have any legal recourse?  What kind of reason do police need to stop people on the street to enforce stay-at-home orders?  What about government redirection of medical resources away from abortions?  What about government redirection of goods and production capacity? Rationing of scarce medical resources on the basis of anticipated quality of life?  What about churches told not to hold in-person or drive-in services?  What about prisoners and detained unlawful entrants at heightened exposure risk?  What about landlords forbidden to evict tenants?  Nor are the challenges limited to the immediate emergency measures.  Potential public health steps intended to facilitate safer reopening also raise thorny problems.  Should the government be able to condition going back to work or getting on an airplane on a negative COVID-19 test?  Or a positive antibody test?  Should a company or an airline?  Should privacy laws including HIPAA and others be relaxed to permit more effective isolation of people who test positive, including using cell phone location information to send phone alerts to health officials about people who have tested positive and are not self-isolating?  Or their close contacts?  Or to help with contact tracing?  If not how will this affect the efficacy of stepped up testing efforts?  Even if in theory some of this makes sense, does the US really have the enforcement resources and bureaucratic capacity effectively to borrow/emulate some of these techniques that have been used in other countries? This panel will explore these questions.

Featuring:

  • Prof. Julia Mahoney, John S. Battle Professor of Law; Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low, University of Virginia School of Law
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School; Former President, American Civil Liberties Union, 1991-2008
  • Prof. Mila Versteeg, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law; Director, Human Rights Program; Senior Fellow, Miller Center, University of Virginia School of Law
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
  • Moderator: Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Speakers

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