“When state law bans an at-home test for coronavirus before it’s even approved, maybe it’s time to be less aggressive.” My new Cato Podcast with Caleb Brown on how some states wound up pre-emptively banning one of the most convenient modes of testing. I wrote about the issue here.
- “Unthinkable”: Cuomo executive order protects New York medical professionals from liability for much care extended during the emergency [Robert Gavin, Albany Times-Union] Will liability capsize the nursing home business? [AP/WBFF, Maggie Flynn/Skilled Nursing News; Lydia Wheeler and Valerie Bauman, Bloomberg]
- To raise hospital capacity, flatten certificate-of-need laws [Matthew D. Mitchell, Thomas Stratmann, and James Bailey, Mercatus, earlier]
- Cato Daily Podcasts with Will Rinehart on regime uncertainty for developers of COVID-19 tests and Jeffrey Singer on telemedicine, hosted by Caleb Brown;
- As virus cut swath through nursing home population, states like Virginia and Maryland cited health privacy laws as reason not to release data breakdowns [Kate Masters, Virginia Mercury] “And, despite not knowing what threat the [info would be used] for, the group had pre-emptive ethical clearance to immediately gather samples from patients – something which would take weeks or months in other countries.” Seems to have served Australians well [Tyler Cowen]
- From early in crisis: ways in which feds relaxed hospital rules [Valerie Bauman and Lydia Wheeler, Bloomberg Law]
- Some pre-crisis links: “Must an employer pay for medical marijuana? Apparently yes – at least in New Jersey.” [Alexander Castelli, LexBlog] “The ACA Expanded Insurance Coverage of Contraceptives. Prices Soared.” [Michael Cannon, Cato at Liberty] Vaccines, birth control, Accutane: as plaintiff’s lawyers kept winning, the public kept losing [Beck]
Because low blood oxygen may be an early symptom of serious COVID-19 disease, interest has quickly amounted among consumers and medical professionals in enabling wider access to the decades-old technology. Ordinarily inexpensive and widely available, the small finger-clasp devices are now back ordered on long delays in online commerce. And now for the regulatory rub: “The Apple Watch actually contains hardware to measure blood-oxygen level, but under current FDA regulation, the function is disabled.” And while the old finger-clasp technology is luckily grandfathered in, technologies updating the idea face an onerous path to market under the Medical Device Regulation Act of 1976, which mandates FDA review. “Samsung’s Galaxy phones possessed the capacity to read blood oxygen as well as pulse through its built-in Samsung Health app — until the most recent version, the S20, which suspended the function, likely due to regulatory and legal concerns.” [James Copland, City Journal]
One you won’t want to miss if you’re following the constitutional issues arising from the COVID-19 pandemic. From the Cato description:
Seven weeks into nationwide shutdowns, people are feeling restless. Have some governors and mayors gone too far, as a constitutional matter, in telling people to leave public parks, roping off “nonessential” goods in big-box stores, and other examples that have gotten national attention? What about prohibiting gatherings that exceed some maximum number of people but enforce social-distancing norms? Now that the debate has shifted to “opening up,” what legal considerations should state officials be taking into account? Can we be required to wear masks in public? For that matter, even if the president doesn’t have total authority to decide when to reopen, does the federal government have a role to play beyond pushing the Centers for Disease Control and Prevention and the Food and Drug Administration on the development of tests and vaccines? Should there be different treatment of people in or from hot spots such as New York City, either by other states or the federal government? Please join constitutional scholar Randy Barnett, in conversation with Ilya Shapiro, for an online forum to discuss these and other issues.
I’ve got a legal explainer up at ArcDigital, my first appearance there. My answer is “Mostly, yes.” You can read it here. From its conclusion:
After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a “hot” emergency of deadly contagion.
It can be tempting to spin tales of constitutional law as we might like it to have been, and pass that off as the actual state of the law. We who believe in law as law should especially resist that temptation.
P.S. More sources on quarantine and related public health powers: Mark Miller, Pacific Legal Foundation; Al Tompkins, Poynter; Rebecca Katz et al., Journal of Public Health Management Practice 2018.
A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.
- “McConnell Demands Liability Protections in Next Coronavirus Bill” [Steven T. Dennis, Billy House, and Laura Litvan, Bloomberg; U.S. Chamber issue list] “Businesses Fear Lawsuits from Sick Employees, Patrons After Reopening” [Erik Larson, Edvard Pettersson and Christopher Yasiejko, Bloomberg] “Frivolous Litigators Bite the Hands That Care for Them” [Veronique de Rugy] “States pass lawsuit-protection measures as Pennsylvania resists” [Nicholas Malfitano, Legal Newsline]
- Retroactive workers’ comp coverage for the virus by state decree? Illinois commission beats hasty retreat after gesture in that direction [Susanne Sclafane (presumption of compensability) and Stephanie Jones/Insurance Journal, Angela Childers/Business Insurance (vote to pull back from idea was unanimous)
- White House executive order declaring emergency federal authority over meatpacking industry might have been welcomed by companies hoping for override of liability over worker illness [Liz Crampton and Gabby Orr, Politico, NBC News]
- “The Case That Could Change Product Liability” [Daniel Fisher, Chief Executive on Ford v. Bandemer at the U.S. Supreme Court] More personal jurisdiction cases bubbling up from Seventh, D.C. Circuits [Jim Beck] “Constitutional Limitations on Product Liability?” [Stephen McConnell]
- “Incorporating Catholicism: Dioceses are changing their secular legal forms to conform to canon law and insulate assets” [Stephen Bainbridge]
- “Taco Bell wins Chalupa price case after claiming plaintiffs ignored menu” [John O’Brien, Legal Newsline, earlier]
- As country eyes path to reopening, restart of non-COVID-19 medical care, including postponed surgeries, is desperately needed [Hans Bader, James Bacon (Virginia governor’s “statewide ban on elective surgery is a sledgehammer which may be appropriate for the hardest-hit parts of the state but is wildly inappropriate for others.”]
- Michigan’s Gov. Whitmer rolls back some of the more arbitrary and controversial restrictions in her stay-at-home order [Billy Binion, Reason]
- Tech firms among the first to respond when the virus appeared here: “So, the approximate order of events was: private sector response, then local government response in the west, then response in the east and by the Federal government.” [Arnold Kling]
- We previously linked our Cato online panel on the pandemic and the Constitution; now our friends at Competitive Enterprise Institute have written a very nice review and summary of it [Richard Morrison, CEI]
- Especially given its conduct during this outbreak, expenditures on the World Health Organization deserve top-to-bottom reevaluation [Lyman Stone, The Dispatch; Anish Koka]
- “COVID-19 Exposes the Shallowness of Our Privacy Theories” [Jane Bambauer, Truth on the Market]
Gift cards make a nice way to support your favorite business during the pandemic shutdown. They also make a compliance trap that can mire that same business in years of expensive hassle. My new piece at Reason explores the many legal exposures, from ADA lawsuits over lack of Braille translation to class actions over fine print and even exposure to money-laundering liability.
One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a drawer and never using it, as a kind of tip to an enterprise that’s brought you happiness over the years? Depending on what state you live in, you might actually be tipping your state tax authorities, and laying only future legal hassle on the merchant you wanted to help. I’ve covered state unclaimed-property law both here and at Cato. (More on its intersection with gift cards: Michael Waters, The Atlantic last fall.)
Delaware’s ambitious claims over unclaimed property have resulted in pitched courtroom battles for years, only a portion of which has been over gift cards specifically. Last year a jury awarded the state more than $7 million in a triple-damage unused gift card proceeding against just one national retailer, Overstock.com.
The Blue Hen State had to rewrite its unclaimed property law after a 2016 ruling by a federal court found its existing law a violation of due process and concluded that Delaware authorities had “engaged in a game of ‘gotcha’ that shocks the conscience.” The replacement law, which explicitly lays out a claim to gift cards rather than relying on older and more uncertain language, doesn’t have a long track record yet.
State authorities in New York, New Jersey, and California direct nursing homes to take in COVID-19 patients, even if they’ve otherwise managed to keep the virus out. Connecticut and Massachusetts instead designate some facilities as being for patients with the novel virus. At least one group of states, it would seem, is making a mistake [Kim Barker and Amy Julia Harris, New York Times; Bernadette Hogan and Bruce Golding, New York Post]