By Jacob Winton

In 2004, the Wall Street Journal published an article titled U.S. Senators’ Stock Picks Outperform the Pros, reporting on an academic study that detailed the uncanny success of stock portfolios owned by United States Senators.[1]  “Politicians may have done a poor job improving the government’s bottom line,” the opening line quipped, “but they seem to be doing quite well with their own.”[2]  Financial disclosure forms from 1993 to 1998 showed not only that members of the US Senate saw higher returns than average Americans, but that they beat the market by an average of twelve percent per year, outperforming professional money managers by a factor of two.[3]

These Senators “appeared to know exactly when to buy or sell their holdings” in anticipation of fluctuations in the market.[4]  One of the study’s four authors, Professor Alan Ziobrowski, stated the obvious: “I don’t think you need much of an imagination to realize that they’re in the know.”[5]  Indeed, our elected officials are often privy to nonpublic information bound to trigger shifts in the market upon public release,[6] and studies like this one indicate that, for decades, legislators have been routinely converting their confidential access into personal financial gain.[7]

In 2010, the Wall Street Journal published another article, this time focusing on suspicious trades by congressional staffers with “ringside seats on the making of laws that affect American business.”[8]  An analysis of over 3,000 disclosure forms covering trading by Capitol Hill staffers in 2008 and 2009 showed that “[a]t least 72 aides on both sides of the aisle traded shares of companies that their bosses help oversee.”[9]  Importantly, the article also stated that existing insider trading laws did not apply to Congress, a claim that “set the blogosphere and mainstream media on fire.”[10]

Although the idea that Congress had exempted itself from insider trading laws came to be treated as conventional wisdom,[11] it was a falsehood.  For one thing, Congress could not have immunized itself from insider trading laws because “Congress ha[d] never enacted a federal securities law that explicitly prohibits anyone from insider trading.”[12]  Instead, Congress allowed insider trading to be prosecuted under SEC Rule 10b-5, promulgated pursuant to section 10(b) of the Securities Exchange Act of 1934,[13] which generally prohibits fraud or deception in connection with the purchase or sale of any security.[14]

Violations of Rule 10b-5 may be prosecuted as a civil offense by the SEC or as a crime by the Department of Justice.[15]  As a result, “U.S. insider trading law [was] almost entirely judge-made.”[16]  Nevertheless, it did not exempt Congress.  The Supreme Court had recognized two theories under which insider trading violates Rule 10b-5.[17]  The classical theory prohibits trades on nonpublic, corporate information because “the relationship between a corporate insider and the stockholders of his corporation gives rise to a disclosure obligation.”[18]  On the other hand, the misappropriation theory premises liability upon a duty to the informational source, prohibiting any “self-serving use of a principal’s information to purchase or sell securities, in breach of a duty of loyalty and confidentiality, [which] defrauds the principal of the exclusive use of that information.”[19]

Professor Donna Nagy has outlined a persuasive argument that these two theories of liability cover congressional insider trading because of the “fiduciary-like” duties that members of Congress and legislative staffers owe to the public, to the federal government, and to other government officials.[20]  Nevertheless, in 2012, Congress passed the Stop Trading on Congressional Knowledge (“STOCK”) Act, placing explicit restrictions on trading by legislators and congressional staffers.[21]  The bill was introduced in its initial form by U.S. Representatives Brian Baird (D-Wash.) and Louise M. Slaughter (D-N.Y.) in 2006, at which time Representative Slaughter released a statement announcing the legislation and illustrating its general purpose:

“Congressman B learns that the Chairman of the Appropriations Committee has decided to provide a multi-million dollar defense contract for Company A in the Defense Appropriations bill.  This information has not been released to the public, but will almost certainly drive Company A’s stock price up when it becomes public knowledge.  Congressman B buys stock in Company A.  THIS IS NOT ILLEGAL UNDER CURRENT INSIDER TRADING LAWS, AND IS WHAT THE LEGISLATION ADDRESSES.[22]

As enacted, the STOCK Act provides in no uncertain terms that “Members of Congress and employees of Congress are not exempt from the insider trading prohibitions arising under [Rule 10b-5]” and explicitly affirms “a duty arising from a relationship of trust and confidence owed by each Member of Congress and each employee of Congress.”[23]  At the signing ceremony, President Obama conveyed the importance of the new law:

“The STOCK Act makes it clear that if members of Congress use nonpublic information to gain an unfair advantage in the market, then they are breaking the law.  It creates new disclosure requirements and new measures of accountability and transparency for thousands of federal employees.  That is a good and necessary thing.  We were sent here to serve the American people and look out for their interests—not to look out for our own interests.”[24]

Yet, reports indicate that public officials have continued to grow and protect their personal wealth by trading on information unavailable to the investing public.[25]  Indeed, the early days of the COVID-19 pandemic shed new light on this form of corruption.[26]

Senate Intelligence Committee Chairman Richard Burr (R-N.C.), for example, co-authored an op-ed on February 7, 2020 in which he publicly reassured the American people that “the United States today is better prepared than ever before to face emerging public health threats, like the coronavirus.”[27]  At a private luncheon around that same time, however, Senator Burr warned attendees that the coronavirus “is much more aggressive in transmission than anything that we have seen in recent history . . . . It is probably more akin to the 1918 pandemic.”[28]  Acting on the beliefs expressed privately, the Senator picked up between $628,000 and $1.72 million in cash by dumping a large share of his personal holdings on February 13, the week before financial markets began to tank in response to worsening news about the spread of COVID-19.[29]

In addition, the Department of Justice opened probes into the propriety of trades made by Senators Dianne Feinstein (D-Ca.), Kelly Loeffler (R-Ga.), and James Inhofe (R-Ok.), all of whom transferred hundreds of thousands of dollars’ worth of assets after being briefed by public health officials on the nature and scope of the emerging pandemic.[30]  At least 75 members of Congress or their spouses “bought or sold stock in companies that make COVID-19 vaccines, treatments, and tests in the weeks before and after the pandemic gripped the US.”[31]  The same trend has emerged around the current Russian invasion of Ukraine.[32]

Recent events underscore the apparent prevalence of corrupt trading in Congress and the impotence of current insider trading laws.[33]  Violations of the STOCK Act are punishable by fine, but the penalty is negligible and is often waived by House or Senate ethics officials.[34]  In response to calls from ethics watchdogs and lawmakers to tighten restrictions and increase penalties, a serious debate has emerged on Capitol Hill over an outright ban on federal lawmakers’ ability to trade stocks.[35]

That debate is important because even the “simple perception that officials might have prioritized their own financial well-being over the well-being of American households is damaging enough, even if the trades were innocuous.”[36]  A recent poll found that seventy-six percent of voters believe that lawmakers have an “unfair advantage” in the stock market and only five percent of respondents thought legislators should be able to trade stocks.[37]  When House Speaker Nancy Pelosi (D-Ca.) was asked in December of 2021 whether members of Congress should be banned from trading stocks, she responded simply, “no,” adding that “we are a free market economy.  They should be able to participate in that.”[38]  However, after opposing the effort for months, she relented due to growing pressure coming from within the Democratic party.[39]  In response, “there has been a push by both parties, in both houses of Congress, to establish stronger guardrails on congressional stock ownership.”[40]

“The fix is simple and obvious,” writes The Atlantic’s Annie Lowrey.[41] “Just don’t let public officials be active investors.”[42]  Senators Jon Ossoff (D-Ga.) and Mark Kelly (D-Az.) introduced legislation to that end on January 12, 2022.[43]  That law would require members of Congress and their families to place their stock portfolios into blind trusts for the duration of their term in office (allowing them to benefit from participation in the market while disallowing the abuse of nonpublic information) and would punish violations with a fine equal to the member’s entire congressional salary.[44]  The Ossoff-Kelly bill is one of many.[45]  Encouragingly, in the wake of the first House hearing on congressional insider trading on April 7, 2022, a bipartisan group of lawmakers has called on House leadership to swiftly bring a trading ban bill to the floor.[46]

Predictably, however, these efforts have been met with opposition.[47]  House Majority Leader Steny Hoyer (D-Md.) came out against a trading ban, declaring that “members ought not to be in a different situation that they would otherwise be if they weren’t members of Congress.”[48]  But that argument is a nonstarter. Members of Congress are not free to prioritize their own interests in the same way as civilians.  Their situation is inherently different because they are vested with the trust and confidence of both the federal government and the American electorate; they occupy a unique position of power and there is every reason to guard against the abuse of that power.  It should be uncontroversial to state that all forms of profiteering by public officials are unacceptable and should be disallowed.  If one accepts that basic premise, then banning members of Congress from trading stocks is a small and obvious step in the right direction.

[1] Jane J. Kim, U.S. Senators’ Stock Picks Outperform the Pros’, Wall St. J. (Oct. 26, 2004, 12:01 AM),  

[2] Id.

[3] Id. (During the “boom years of the 1990s” senators outperformed the market by 12%, money managers outperformed the market by 6%, and U.S. households underperformed the market by 1.4%.).

[4] Id.

[5] Id.

[6] “Examples of this kind of information include classified briefings about national security issues, advance knowledge of regulatory actions, and nonpublic details about legislation, appropriations and tax policy.”  Ylan Mui & Christina Wilkie, Congress Moves to Ban Members from Trading Stocks as Pelosi Drops Opposition, CNBC (Feb. 9, 2022, 9:41 AM),

[7] See, e.g., Annie Lowrey, An Invitation to Corruption, The Atlantic (Mar. 20, 2020), (“One analysis of 61,998 stock trades made from 2004 to 2010, for instance, showed that politicians outperformed the market by 20 percent, with the portfolios of high-ranking Republicans beating the market by a whopping 35 percent.”).

[8] Brody Mullins et al., Congressional Staffers Gain from Trading in Stocks, Wall St. J. (Oct. 11, 2010, 12:01 AM),

[9] Id.

[10] Donna M. Nagy, Insider Trading, Congressional Officials, and Duties of Entrustment, 91 Bos. U. L. Rev. 1105, 1107 (2011).

[11] Id. at 1108.  For example, Former SEC Commission Chairman Arthur Levitt proclaimed in a Bloomberg radio broadcast that “members of Congress and their staffs … benefit from an exemption that the average investor doesn’t benefit from.  They’re immune from insider trading laws.”  Id.

[12] Id. at 1109 (emphasis in the original).

[13] 15 U.S.C. § 78j(b).

[14] Nagy, supra note 10, at 1109; see 17 C.F.R. § 240.10b-5.

[15] Nagy, supra note 10, at 1109.

[16] Id. at 1110.

[17] See generally Chiarella v. United States, 455 U.S. 222 (1980) (classical theory); United States v. O’Hagan, 521 U.S. 642 (1997) (misappropriation theory).

[18] Chiarella, 455 U.S. at 227 (highlighting “the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure”); see also Nagy, supra note 10, at 1110 (“Pursuant to this ‘classical theory,’ persons who owe duties of trust and confidence to an issuer’s shareholders must either disclose all material nonpublic information in their possession or abstain from trading in the issuer’s shares.”).

[19] O’Hagan, 521 U.S. at 652.

[20] Nagy, supra note 10, at 1109–11 (“almost all instances of real or hypothesized congressional insider trading can fit squarely within either the classical or misappropriation theory paradigms under Rule 10b-5”).

[21] Stop Trading on Congressional Knowledge (“STOCK”) Act of 2012, Pub. L. No. 112-105, 126 Stat. 291.

[22] Nagy, supra note 10, at 1130.

[23] STOCK Act § 4.

[24] Matt Compton, President Obama Signs the STOCK Act, The White House Blog (April 4, 2012 5:16 PM),

[25] See generally Dave Levinthal, 59 Members of Congress Have Violated a Law Designed to Stop Insider Trading and Prevent Conflicts-of-Interest, Bus. Insider (Mar. 23, 2022, 1:18 PM),; Congressional Trading in 2021, Unusual Whales (Jan. 10, 2022),; see also Valera Voce, Congressmen Used Insider Knowledge to Profit from War in Ukraine, The Mountain (Mar. 11, 2022),

[26] See, e.g., Robert Faturechi & Derek Willis, Senator Dumped Up to $1.7 Million of Stock After Reassuring Public About Coronavirus Preparedness, ProPublica (Mar. 19, 2020, 5:01 PM),; Jack Kelly, Senators Accused of Insider Trading, Dumping Stocks After Coronavirus Briefing, Forbes (Mar. 20, 2020 12:41 PM),

[27] Senator Lamar Alexander & Senator Richard Burr, Coronavirus Prevention Steps the U.S. Government Is Taking to Protect You, Fox News (Feb. 7, 2020, 12:25 PM),

[28] Faturechi & Willis, supra note 26.

[29] Lowrey, supra note 7.

[30] Ryan Lucas, Justice Department Closes Investigations of 3 Senators; Burr Inquiry Continues, NPR (May 26, 2020, 5:31 PM),

[31] Dave Levinthal, Ban Federal Lawmakers and their Family Members from Trading Stocks, 37 Former Lawmakers tell Congress, Bus. Insider (Apr. 6, 2022, 11:00 AM),

[32] Id.

[33] See Insider Trading, Congress and COVID-19: A Renewed Focus on the STOCK Act, Foley Hoag LLP (April 15, 2020),

[34] Levinthal, supra note 25.

[35] Id.

[36] Lowrey, supra note 7 (emphasis in the original).

[37] Karl Evers-Hillstrom, Three in Four Voters Support Banning Lawmakers from Trading Stocks: Poll, The Hill (Jan. 6, 2022, 4:05 PM),

[38] Press Release, Speaker of the House Nancy Pelosi, Transcript of Speaker Pelosi’s Remarks at Weekly Press Conference (December 15, 2021),

[39] See Steven T. Dennis et al., Stock-Trading Ban for Congress Hits Pushback from Right and Left, Bloomberg (Feb. 9, 2022, 5:36 PM),

[40] The Editorial Board, Members of Congress Should Not be Trading Stocks, Ever, N.Y. Times (Feb. 18, 2022),

[41] Lowrey, supra note 7.

[42] Id.

[43] Press Release, Senator Jon Ossoff, Sens. Ossoff, Kelly Introduce Bill Banning Stock Trading by Members of Congress.

[44] Id.

[45] Bryan Metzger, A Bipartisan Group of 19 Lawmakers Is Laying Out 3 Key Parameters for a Stock Trading Ban Following the House’s First Hearing on the Issue, Bus. Insider (Apr. 13, 2022, 11:09 AM), (“At least 20 bills have been introduced that address some of these issues.”).

[46] Id.; Kimberly Leonard & Dave Levinthal, Here Are 6 Things to Watch as Congress Considers Banning Lawmakers from Trading Stocks, Bus. Insider (Apr. 6, 2022, 3:07 PM),

[47] See Dennis, supra note 39.

[48] Mike Lillis, Joining Pelosi, Hoyer Says Lawmakers Should Be Free to Trade Stocks, The Hill (Jan. 19, 2022, 1:57 PM),

By: Joseph C. Johnson

The child tax credit, found in § 24 of the Internal Revenue Code, normally provides taxpayers with a credit that reduces their overall tax liability for a given taxable year.[1] This credit is applied per qualified child.[2] The amount of credit to be applied to the taxpayer’s tax liability is subject to a “phase-out” based on income—the value of the credit is reduced depending on how much the taxpayer’s income exceeds a certain threshold amount for that taxable year.[3]

The American Rescue Plan created significant, albeit temporary, changes to the child tax credit.[4] Beginning in July of 2021, the child tax credit became the means by which millions of American families received monthly payments to ease some of the financial pressure created by the COVID-19 pandemic.[5] These were advance monthly payments—as opposed to a lump sum upon filing taxes—that amounted to half of the total value due to the families under the child tax credit.[6]  These families must now claim the remaining half when filing taxes for 2021 to receive the entire amount to which they are due.[7]  In total, families can receive up to $3,600.00 for each child under the age of six years and up to $3,000.00 for each child between the ages of six years and seventeen years.[8] 

The first payment alone from this expansion of the child tax credit kept approximately three million children from poverty in the month of July in 2021.[9]  The July 2021 payment reached over fifty-nine million children, and reduced monthly child poverty from 15.8 percent to 11.9 percent.[10]  The number of children that benefited from the American Rescue Plan’s expanded child tax credit increased to sixty-one million in August of 2021.[11]  It is estimated that an additional two to three million children live in households that qualify to receive the child tax credit but for whom the Internal Revenue Service do not have relevant information to determine eligibility; thus, these households did not receive the payment.[12]  Households that received the child tax credit payments most often spent the funds “on basic household needs such as food and utilities.”[13] 

Notwithstanding the plummeting child poverty rates and the expansive number of families that benefitted from the advance payments, the final payment was sent in December of 2021.[14]  The child tax credit will return to $2,000.00 per child for the 2022 taxable year without additional intervention from Congress.[15]  Congress rejected to extend the increased child tax credit, and refused to extend the monthly payments as the means of delivering the credit to taxpayers, thereby limiting the number of payments to only six.[16]  Accordingly, many families are struggling to accommodate a smaller monthly budget,[17] and monthly child poverty is “expected to be at its highest level since Biden took office.”[18]

President Biden’s “Build Back Better” agenda, which was not passed by Congress in December of 2021, proposed extending the expanded child tax credit system that was in use from July through December of 2021.[19]  However, despite opposition from Republicans and Democratic Senator Joe Manchin of West Virginia,[20] several Democratic lawmakers have voiced continuing dedication to the agenda.[21]  President Biden has suggested that separating the agenda into smaller chunks of legislation may prove to be more successful,[22] and House of Representatives Ways and Means Chair Richard Neal has conceded that there is “room here to negotiate,”[23] so all hope need not be lost in once again seeing advance child tax credit payments. 

The vast number of taxpayers who were eligible to receive the expanded child tax credit in the second half of 2021 illustrates the widespread need for additional support while the COVID-19 pandemic continues.  However, the failure to extend the payments into 2022 raises a concerning question: if keeping millions of children out of poverty while they suffer through a pandemic is not enough to motivate Congress to maintain the expanded payments, what will be?

[1] 26 U.S.C. § 24(a).

[2] Id.

[3] 26 U.S.C. § 24(b)(1).

[4] The American Rescue Plan, The White House, (last visited Jan. 24, 2022).

[5] Scott Horsely, How Biden’s Plan Could Help Reshape The Finances Of American Families, NPR (Mar. 13, 2021, 5:00 AM),

[6] Advance Child Tax Credit Payments in 2021, IRS, (last updated Jan. 11, 2022).

[7] Id.

[8] See 26 U.S.C. § 24(i)(3).  Section 24(i)(3) reflects the 2021 amounts, which are increased from the initial $1,000.00 value seen in 26 U.S.C. § 24(a), and further increased above the amount of $2,000.00 found in 26 U.S.C. § 24(h)(2) as a special rule for years 2018 through 2025.

[9] Zachary Parolin et al., Monthly Poverty Rates among Children after the Expansion of the Child Tax Credit, Poverty & Soc. Pol’y Brief, Aug. 20, 2021 at 1, 1.

[10] Id.

[11] Greg Iacurci, Child tax credit lifted 3 million kids from poverty in July, CNBC (Aug. 25, 2021 1:35 PM),

[12] Id.

[13] Catherine Rampell, A eulogy for Biden’s expanded child tax credit. Maybe., Wash. Post (Jan. 20, 2022, 6:01 PM),

[14] Katie Teague & Peter Butler, Child tax credit: How to get your remaining money in 2022, CNET (Jan. 21, 2022, 1:15 PM),

[15] Lance Lambert, The monthly child tax credit payments are done—here’s what will replace it, Fortune (Jan. 18, 2022, 7:00 AM),

[16] Id.

[17] Deepa Shivaram, Families are in distress after the first month without the expanded child tax credit, NPR (Jan. 21, 2022, 5:01 AM),

[18] Rampell, supra note 13.

[19] Shivaram, supra note 17.

[20] Id.

[21] Brian Faler, Some Democrats not ready to give up on child credit, Politico (Jan. 20, 2022, 2:16 PM),

[22] Shivaram, supra note 17.

[23] Faler, supra note 21.

By Rachel L. Golden

To mitigate the spread of COVID-19, millions of students have been forced to move from in-person to distance learning. The success of distance learning hinges on a student’s ability to access the virtual classroom.[1] For two girls in East Salinas, California, distance learning meant having to sit in a Taco Bell parking lot to complete their homework.[2] In August 2020, a photo of these two young girls sitting in the Taco Bell parking lot went viral on Twitter because the parking lot provided something that their home environment could not: access to the internet.[3]

For many Americans, access to online services is not a given.[4] A 2018 Federal Communications Commission (“FCC”) study found that “there are more than 14 million people without any internet access and 25 million without faster and more reliable broadband access.”[5] The COVID-19 pandemic has further illuminated this digital divide.[6] The digital divide “refers to the growing gap between the underprivileged members of society . . . who do not have access to computers or the internet” and the more affluent Americans who do have access to computers and the internet.[7] This divide stems from not only not having access to the internet, but also lacking access to a device that can connect to the internet.[8]

The digital divide does not exclusively affect school-aged children, but the consequences of the digital divide are clear when examining these children.[9] Even prior to the current public health crisis, a 2018 Pew Research Center analysis showed that due to a lack of broadband internet access, poor school-aged children were less likely to finish their homework than more affluent students with access to the internet.[10] This problem has been exacerbated during the COVID-19 pandemic when the primary mode of teaching, at all levels, has switched to virtual learning.[11] Moreover, to complete remote work, students may be forced “to go outside and ignore quarantine or shelter-in-place guidelines” to find internet access—actions contrary to the original health and safety purposes of distance learning.[12]

However, COVID-19’s illumination of the digital divide has “produced new political will to reduce inequality in the global digital economy.”[13] Congress, in the most recent COVID-19 response and relief package, acknowledges the need for broadband funding and access.[14] The Consolidated Appropriations Act of 2021[15] (“Act”) establishes an Emergency Broadband Connectivity Fund (“Fund”) of 3.2 billion dollars.[16] The Act directs the FCC to use the Fund “to establish an Emergency Broadband Benefit Program, under which eligible households may receive a discount off the cost of broadband service and certain connected devices . . . relating to the COVID-19 pandemic.”[17]

Broadband providers’ participation in the Emergency Broadband Benefit Program (“Benefit Program”) is entirely voluntary.[18] However, if the provider chooses to participate, it must be designated as an eligible telecommunications carrier or be approved by the FCC.[19] Once approved to participate in the Benefit Program, the broadband provider will give monthly discounts “off the standard rate for an Internet service offering and associated equipment” to eligible households of up to $50 per month.[20] The broadband providers are then entitled to reimbursement from the Benefit Program for the discounts they have provided.[21] Moreover, the Benefit Program not only enables discounted internet services, but also encourages broadband providers to supply eligible households with a connected device, such as a laptop, desktop computer, or tablet.[22] The Benefit Program, however, is not without its limitations. For example, an eligible household that seeks a connected device is only eligible to receive one supported device.[23]

The Act directs the FCC to provide a public comment period and public reply comment period, each of twenty days, before the rules of the Benefit Program are established.[24] The FCC seeks comment on a variety of provisions.[25] Examples include seeking comment on “the eligibility and election process for participating providers” and what the definition of household is in reference to the Act’s requirement that the discounts and connected devices be provided to “eligible households.”[26] The public comment twenty-day window closed on Jan. 25, 2021, but the public reply comments window closes on Feb.16, 2021, so the scope of the rules of the Benefit Program are yet to be determined.[27]

The true aim behind the Benefit Program is to provide broadband internet access to low income households at affordable rates—especially those households with school-aged children.[28] Whether or not the Benefit Program will be effective in fulfilling this goal remains to be seen. However, it is clear that the Benefit Program is “an important Band-Aid that [will help] Americans [stay] connected,” even if solving the nation’s digital divide requires stitches.[29] Ultimately, the hope is that with increased access to internet services and connected devices, Taco Bell parking lots will remain parking lots and not double as schools.  

[1] Strengths and Weaknesses of Online Learning, Univ. Ill. Springfield, (last visited Feb. 9, 2021).

[2] Lizzy Francis, Viral Photo Shows Kids with No Internet Using Taco Bell Wifi To Do Homework, Yahoo! News (Sept. 2, 2020),

[3] Id.

[4] See Emmanuel Martinez, How Many Americans Lack High-Speed Internet?, The Markup (Mar. 26, 2020),,census%20blocks%20and%20not%20households.

[5] Id.

[6] Id.

[7] Digital Divide, Stan. Univ. (last visited Feb. 9, 2021).

[8] Id.

[9] See Martinez, supra note 4.

[10] Id.

[11] See id.

[12] Id.

[13]Closing Digital Divide in the Covid Era: Four Big Data Strategies, Digit. Divide Inst. (last visited Feb. 9, 2021).

[14] See Kelcee Griffis, COVID Bill Includes Broadcaster Loans, Broadband Funds, L.360 (Dec. 21, 2020)

[15] Consolidated Appropriations Act, 2021, Pub. L. No. 116-260. (2020), available at (Consolidated Appropriations Act) (enrolled bill).

[16] FCC Seeks Public Input on New $3.2 Billion Emergency Broadband Benefit Program, Fed. Commc’ns Comm’n (Jan. 4, 2021),

[17] Id.

[18] Id. The discount on Tribal lands may be up to $75 per month, as opposed to $50 per month. Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Creating (Finally) an Emergency Broadband Benefit, Benton Inst. for Broadband & Soc’y (Jan. 5, 2021),the%20Emergency%20Broadband%20Benefit%20Program.&text=Broadband%20providers%20will%20be%20reimbursed,household%20is%20on%20Tribal%20land.

[29] Griffis, supra note 14.  

Post image: Two girls in East Salinas, California, rely on wifi from a Taco Bell restaurant to complete homework in a viral photo from August 2020. Via Luis Alejo on Twitter.

christianity, cross, gold, heritage, orthodox, building, architecture, religion, outdoors, church

Blake Davis

The COVID-19 pandemic has upended the way Americans engage in their weekly religious practices.[1]  As with every other area of American life, religious organizations have become accustomed to providing socially distanced services and complying with both federal and state guidelines for safe worship experiences.[2]  As churches, synagogues, and mosques have transitioned to servicing their parishioners in the COVID-19 era, some religious organizations have faced restrictions that they allege are inconsistent with restrictions imposed on their non-religious counterparts down the street.[3]  These alleged inconsistent applications of law have led religious organizations to file lawsuits, challenging the alleged inconsistencies as improper violations of the Free Exercise Clause.[4]  The United States Supreme Court has become more open to these claims the longer the pandemic has gone on.  Both the Court’s initial government-friendly approach to addressing these cases and the Court’s recent religious organization-friendly approach to addressing these cases are each addressed, in turn, below.

Towards the beginning of the pandemic, the Supreme Court seemed to ascribe great weight to the extraordinary circumstances caused by the COVID-19 crisis and thus imposed a more restrictive standard on religious organizations, who sought to challenge COVID-related restrictions.  For example, in the May 2020 decision of South Bay United Pentecostal Church v. Newsom,[5] the Supreme Court denied an application for injunctive relief, arising from a COVID-related restriction on houses of worship in California.[6]  Four Justices noted their dissent from the case, meaning that South Bay was decided on a narrow 5-4 basis.[7]  In a solo concurrence, Chief Justice John Roberts provided the only recorded commentary supporting the majority’s decision.[8]

Chief Justice Roberts explained that California’s COVID restrictions “appear consistent with the Free Exercise Clause of the First Amendment” because California’s restrictions “treat[] more leniently only dissimilar activities . . . in which people neither congregate in large groups nor remain in close proximity for extended periods.”[9]  Because the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter,” Chief Justice Roberts concluded that the discretion afforded to state officials should be “especially broad.”[10] 

The dissenting Justices disagreed with the Chief Justice’s analysis.[11]  Justice Brett Kavanaugh, in a dissent joined by Justice Clarence Thomas and Justice Neil Gorsuch, argued that an injunction should have been granted because “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.”[12]  The dissenting Justices argued that California failed the balancing test for Free Exercise cases articulated in Church of Lukumi Babalu Aye, Inc. v. Hialeah,[13] which provides that the government must establish a “compelling government interest” for a regulation, treating religious organizations in a discriminatory manner, and that the government must ensure that such a regulation is “narrowly tailored to advance that interest.”[14]  According to the dissenting Justices, California’s imposition of an occupancy cap on religious services discriminated against religious organizations because California imposed no such occupancy cap on a “litany of other secular businesses.”[15] As such, the dissenting Justices determined that the religious organization merited injunctive relief.[16]

The Court continued to apply its more government-friendly approach to COVID-19 related restrictions on religious organizations in Calvary Chapel Dayton Valley v. Sisolak.[17]  In Calvary Chapel, the Court denied injunctive relief to a church, which alleged that Nevada’s COVI-19 related occupancy requirements unconstitutionally discriminated against religious organizations, like Calvary Chapel, in favor of non-religious organizations, like casinos.[18]  The denial of the application for injunctive relief featured no concurrences or commentary, explaining the majority’s position.[19]

However, the same four Justices who dissented in South Bay also dissented in Calvary Chapel.[20]  In a solo dissent, Justice Gorsuch argued that Nevada’s regulations permitting casinos to admit “hundreds at once” while “churches, synagogues, and mosques are banned from admitting more than 50 worshippers” unconstitutionally violated the Free Exercise Clause.[21]  While acknowledging that the “world we inhabit today, with a pandemic upon us, poses unusual challenges,” Justice Gorsuch summarized his argument by stating “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”[22]  Justice Samuel Alito dissented separately in an opinion joined by Justice Thomas and Justice Kavanaugh.[23]  These three Justices reached the same conclusion that the dissenters had reached in South Bay.  In the dissenting Justices’ view, the restrictions failed the Lukumi balancing test for Free Exercise Clause cases.[24]  The dissenters acknowledged that “[i]n times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations” and that “the opening days of the COVID–19 outbreak plainly qualify” as an exigency, entitling public officials to significant discretion in crafting regulations.[25]  However, since the Calvary Chapel case was being considered more than four months after Nevada declared a state of emergency, the dissenting Justices concluded that “the problem is no longer one of exigency, but of considered yet discriminatory treatment of places of worship.”[26]

In a notable shift from the South Bay and Calvary Chapel decisions, the Court adopted its more religious organization-friendly approach to these COVID-related restriction claims, when the Court granted injunctive relief for a church and a synagogue in Roman Catholic Diocese of Brooklyn v. Cuomo.[27]  In Roman Catholic Diocese, the Court had its first chance to address a religious organization’s application for injunctive relief from a COVID-related restriction since Justice Amy Coney Barrett joined the Court.[28]  Both a synagogue and a church challenged New York’s COVID-related business capacity requirements, which allowed some businesses to admit “as many people as they wish” while prohibiting the synagogue and church from “admit[ting] more than 10 persons” to their worship services.[29]  Five Justices—the four dissenting Justices from South Bay and Calvary Chapel along with Justice Barrett—adopted the position taken by the dissenters in South Bay and Calvary Chapel.[30]  These Justices held that the plaintiffs were entitled to injunctive relief because New York had failed to pass the Lukumi balancing test.[31]

Three dissenting Justices—Justice Stephen Breyer, Justice Elena Kagan, and Justice Sonia Sotomayor—argued that the plaintiffs in Roman Catholic Diocese no more merited injunctive relief than the plaintiffs in South Bay and Calvary Chapel, who had previously not merited injunctive relief.[32]  These three Justices argued that the plaintiffs had failed to establish that New York’s business occupancy requirements unconstitutionally discriminated against religious organizations in violation of the Free Exercise Clause.[33]  As such, the dissenting Justices argued that the injunction should not have been granted.[34]  Chief Justice Roberts also dissented on separate grounds, arguing that the case should have been dismissed as moot because the challenged regulations had been rescinded by New York during the case’s appeal.[35]

In the wake of Roman Catholic Diocese, the federal circuit courts have begun applying the Supreme Court’s less restrictive approach to analyzing COVID regulations that impact religious organizations.  For example, the Ninth Circuit, addressing the merits of the Calvary Chapel case rather than the request for injunctive relief pending appeal that was previously addressed by the Supreme Court, applied the Supreme Court’s analysis in the Roman Catholic Diocese decision to the facts of Calvary Chapel.[36]  A unanimous panel for the Ninth Circuit held that the Lukumi balancing test should be applied to the facts of the Calvary Chapel case.[37]  The Court further held that Nevada failed the Lukumi balancing test because the regulations were not narrowly tailored.[38]  The panel thus reversed the decision of the district court and remanded the case with instructions for the district court to issue a preliminary injunction, prohibiting Nevada from enforcing the occupancy regulations against the church or other religious organization.[39]

Because the Supreme Court has applied this more religious organization-friendly approach to COVID-19 related regulations, the lower federal courts are beginning to follow suit, as the panel opinion in Calvary Chapel demonstrates.  As the COVID-19 pandemic continues and vaccine distribution becomes more widespread, it is quite possible that this religious organization-friendly approach to COVID-19 related regulations will become even more commonplace across the federal courts.



[1] Frank Newport, Religion and the COVID-19 Virus in the U.S., (Apr. 6, 2020),

[2] See, e.g., Considerations for Communities of Faith, CDC, (Dec. 30, 2020). 

[3] See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020). 

[4] See, e.g., Calvary Chapel, 140 S. Ct. at 2603; S. Bay United Pentecostal Church, 140 S. Ct. at 1613. 

[5] 140 S. Ct. 1613 (2020). 

[6] Id. 

[7] Id. 

[8] Id. (Roberts, C.J., concurring). 

[9] Id. 

[10] Id. at 1613–14 (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)) (internal quotation mark omitted). 

[11] Id. at 1614 (Kavanaugh, J., dissenting).  

[12] Id. 

[13] 508 U.S. 520 (1993). 

[14] S. Bay United Pentecostal Church, 140 S. Ct. at 1614–15 (Kavanaugh, J., dissenting) (quoting Lukumi, 508 U.S. at 531–32).  

[15] Id. at 1615.  

[16] Id. at 1614. 

[17] 140 S. Ct. 2603 (2020). 

[18] Id. at 2604–05 (Alito, J., dissenting) (describing the facts of the case). 

[19] Id. at 2603 (opinion of the Court). 

[20] Id. at 2603 (Alito, J., dissenting); id. at 2609 (Gorsuch, J., dissenting). 

[21] Id. at 2609 (Gorsuch, J., dissenting). 

[22] Id. 

[23] Id. at 2603 (Alito, J., dissenting). 

[24] Id. at 2605–07 (Alito, J., dissenting).  

[25] Id. at 2605. 

[26] Id. 

[27] 141 S. Ct. 63, 65 (2020). 

[28] Jess Bravin, Supreme Court Blocks Covid-19 Restrictions on Religious Services in New York, Wall Street Journal, (Nov. 26, 2020, 9:04 PM)

[29] Roman Catholic Diocese, 141 S. Ct. at 66 (per curiam opinion). 

[30] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[31] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[32] Id. at 76–78 (Breyer, J., dissenting). 

[33] Id. at 77. 

[34] Id. 

[35] Id. at 75 (Roberts, C.J., dissenting). 

[36] Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169, 2020 WL 7350247, at *1, *3–4 (9th Cir. Dec. 15, 2020). 

[37] Id. at *4.  

[38] Id. 

[39] Id. at *4–5. 

Warning against basing equitable COVID-19 vaccine distribution on static  county-level social & economic data | Harvard Center for Population and  Development Studies | Harvard T.H. Chan School of Public Health

Shannon Porterfield

Due to the recent outbreak of SARS-CoV-2 (“COVID-19”), colleges and universities across the United States (“U.S.”) are requiring students to get vaccinated against the flu and submit documentation of such immunization to return to campus for the coming spring semester.[1] As the rates of flu immunizations among Americans are typically low without mandates, the rationale for enacting such policies is based in public health ideals, with a strong basis in public health law dating back to the twentieth century.[2]

Without mandates, the vaccination rates for Americans who voluntarily received a flu vaccination in the 2019-2020 season was 63.8% for children between the age of six months to seventeen years of age, and 48.4% for adults over the age of eighteen.[3] While these numbers are less than ideal in times of general societal health, in a pandemic these numbers leave the U.S. susceptible to overwhelming consumptions of health care resources.[4] The Centers for Disease Control and Prevention estimate that there are between nine to forty-five million seasonal cases of the flu each year leading to between 140,000 to 810,000 hospitalizations and 12,000 to 61,000 deaths in the U.S. alone.[5] These statistics, coupled with rising hospitalizations and near capacity intensive care units as a result of COVID-19 cases have created the dire need to reduce flu outbreaks this year.[6] In the past, school vaccination mandates have been a very effective way of minimizing outbreaks and increasing vaccination rates.[7]  

Enacting mandatory vaccinations is an issue of state law, as state governments have “the absolute right” to require vaccinations.[8] As such, some states, like Massachusetts, are choosing to implement these mandates on a statewide level with all schools in the state enforcing such policies, while others have left the decision up to individual universities.[9] Colleges and universities implementing such policies seek to do so to avoid a massive flu outbreak amid a COVID-19 pandemic.[10]

Despite backlash from many who oppose the implementation of such policies, the legal basis for implementing mandatory immunizations in times of public health crises is well-rooted in case law, beginning with Jacobsen v. Massachusetts.[11] In Jacobsen, the Supreme Court held that a state can mandate vaccinations through the exercise of their police powers when doing so is necessary to protect the public health or safety.[12] This power also extends to states in allowing them to mandate vaccinations for school enrollment.[13] Thus, there is established precedent that individual freedoms are not absolute when those freedoms risk the public health and safety.[14]

This precedent still has standing today.[15] In 2019, Brooklyn, New York experienced a measles outbreak that the state of New York ultimately declared a public health emergency.[16] The state responded with a mandatory measles vaccination policy in the affected areas.[17] Here, the state vaccination mandate was upheld as a valid exercise of New York’s police powers in requiring that children be vaccinated before attending school.[18] Since its initial outbreak, COVID-19 has taken the lives of over 1.5 million people and infected over 65 million worldwide; it is indisputably a public health crisis, like those aforementioned.[19] In following precedent, the mandatory vaccination policies emerging on college campuses are aimed to protect the public health and safety and as such are legally supported in nature.[20]

Despite the legal basis and anticipated benefits of enacting such vaccination policies, these policies are being met with intense backlash and hesitation.[21] Many have sentiments of fear and distrust that mandating flu vaccines is the first step to mandating other vaccines on a statewide level, including COVID-19 vaccines when they become available.[22] While flu vaccinations are proven to be relatively safe,[23] COVID-19 vaccines have undergone an accelerated process that many are skeptical of, especially given concerns that a vaccine will be approved before there is a complete understanding of the vaccine’s safety and effectiveness.[24] Even devout supporters of vaccinations are leery of receiving the COVID-19 vaccination when it becomes available.[25] Thus, mandating flu vaccinations, and potentially COVID-19 vaccinations on a statewide level, may have significantly detrimental implications on the reception of future vaccinations if people are forced to obtain a vaccination they are uncomfortable receiving.[26] With many already opposed to vaccines, this heightened distrust could significantly stifle vaccination rates going forward.[27]

Given these implications, the decision to mandate COVID-19 vaccinations is one that should be met with more discussion and reservation than the decision to mandate flu immunizations on college campuses.[28] While vaccinations are crucial to achieving herd immunity and protecting the public health and safety, [29] with the already present general resistance to vaccinations, future decisions must be made with caution so that voluntary vaccinations will not be stifled moving forward.[30]

[1] See, e.g., Mandatory Flu Vaccinations, Wake Forest Univ., (last visited Dec. 3, 2020); New Flu Vaccination Requirement for UC Students, Faculty and Staff, Univ. of Cal. (Aug. 7, 2020),,at%20any%20UC%20location%20to.

[2] See General Population Vaccination Coverage, Ctrs. For Disease Control and Prevention, (last visited Dec. 3, 2020); Jacobsen v. Massachusetts, 197 U.S. 11 (1905).

[3] General Population Vaccination Coverage, supra note 2.

[4] See Tanya Albert Henry, How to Boost Vaccination Rates During the COVID-19 Pandemic, Am. Med. Ass’n (July 8, 2020),  

[5] Burden of Influenza, Ctrs. for Disease Control and Prevention,,61%2C000%20deaths%20annually%20since%202010 (last visited Dec. 3, 2020).

[6] See Will Stone, COVID-19 Hospitalizations Hit Record Highs. Where are Hospitals Reaching Capacity?, Nat’l Pub. Radio (Nov. 10, 2020, 6:03 AM),; Henry, supra note 4.

[7] Dorit R. Reiss & Arthur L. Caplan, Considerations in Mandating a New Covid-19 Vaccine in the USA for Children and Adults, 7 J. L. & Biosciences 1, 4 (2020), (citing Nina R. Blank et al., Exempting Schoolchildren from Immunizations: States with Few Barriers Had Highest Rates of Nonmedical Exemptions, 32 Health Aff. 1282, 1289 (2013)).

[8] Juan Perez Jr., ‘Twindemic’ test: Massachusetts, Many Colleges Mandate Winter Flu Shots, Politico (Oct. 9, 2020, 4:54 PM),

[9] Id. Flu Vaccine Now Required for All Massachusetts Students, USA Today (Aug. 20, 2020, 10:27 AM),; Mandatory Flu Vaccinations, supra note 1.

[10] Maya Goldman, More Colleges Require Flu Shots of Students and Employees, Wall St. J. (Oct. 19, 2020, 10:02 AM),

[11] 197 U.S. 11 (1905).

[12] Id. at 12–13, 35.

[13] See Zucht v. King, 260 U.S. 174, 177 (1922).  

[14] Jacobsen, 197 U.S. at 35.

[15] See F.F. on behalf of Y.F. v. State of New York, 65 Misc.3d 616 (N.Y. 2019).

[16] Tyler Pager & Jeffery C. Mays, New York Declares Measles Emergency, Requiring Vaccinations in Parts of Brooklyn, N.Y. Times (Apr. 9, 2019),

[17] Id. Francesca Paris, Judge Upholds Mandatory Measles Vaccinations as New York Closes More Schools, Nat’l Pub. Radio (Apr. 19, 2019, 1:38 AM),

[18] Id. See also F.F. on behalf of Y.F., 65 Misc.3d at 634.

[19] Ctr. for Sys. Sci. and Eng’g, COVID-19 Dashboard, Johns Hopkins Univ., (last visited Dec. 4, 2020).

[20] See Jacobsen v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922); Flu Vaccine Now Required for All Massachusetts Students, supra note 9.

[21] See, e.g., Meredith Deliso, Hundreds of Protesters Gather Against New Flu Vaccine Mandate in Massachusetts, ABC News (Aug. 30, 2020, 8:35 PM),

[22] Perez Jr., supra note 8.   

[23] See Flu Vaccine Safety, Ctrs. For Disease Control and Prevention, (last visited Dec. 3, 2020).

[24] See Helen Branswell, The Covid-19 Vaccines are a Marvel of Science. Here’s How We Can Make the Best Use of Them, STAT (Dec. 2, 2020),; Chris Dall, Americans Increasingly Skeptical of COVID Vaccine, Poll Finds, Univ. of Minn. (Sept. 18, 2020),; Reiss & Caplan, supra note 7, at 4–5.

[25] Jan Hoffman, Mistrust of a Coronavirus Vaccine Could Imperil Widespread Immunity, N.Y. Times (July 18, 2020), (last updated Sept. 1, 2020).

[26] See id. See also Perez Jr., supra note 8.

[27] Perez Jr., supra note 8.

[28] See Hoffman, supra note 25.   

[29] See Branswell, supra note 24.  

[30] See Perez Jr., supra note 8.

10 Wake Forest L. Rev. Online 149 (Opens PDF in new tab)

Ilhyung Lee*

The COVID-19 pandemic drastically affected the operations and daily routines of the university and college town that have been my home for the past twenty-two years.  In mid-March 2020, the University of Missouri (“MU”),[1] in Columbia, Missouri, suspended all in-person classes for the remainder of the semester, with classes to be taught remotely,[2] and also prohibited employees from working on campus, with rare exceptions, for a three-week period,[3] later extended.[4]  The City of Columbia issued a general stay at home order for a one-month period,[5] which was also extended.[6]  Intercollegiate athletic contests of the Missouri Tigers were cancelled for the remainder of the academic year.[7]  This appears to have been the norm for many universities across the country as a result of COVID-19.[8]

An event that occurred at MU that was not seen in all other institutions involved an action by the university’s faculty council.  The Missouri faculty council, similar to those of other universities, is “the elected representative organization of the [university] Faculty,” which “develops policies that affect academic life.”[9]  During the council’s meeting on April 9, 2020, it issued an “Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination” (“Open Letter”).[10]  “[I]t is with sadness,” the Open Letter states, “that we note that some members of the Chinese, Korean, and other Asian communities on our campus and in our community have experienced incidents of discomfort and discrimination in their dealings with others because of the pandemic.”[11]  The council urged the university community and elected officials to refer to the disease by its scientific name and “to reject and push back against any xenophobia triggered by racist descriptions of COVID-19.”[12] 

I imagine that different readers will have different reactions to the 362-word Open Letter, and I encourage those interested to voice their views.  For me, the document prompts a discussion of various issues relating to the field of Asian American jurisprudence. 

By way of necessary background, in 1993, Professor Robert S. Chang announced an “Asian American Moment,” and with it called for an Asian American Legal Scholarship.[13]  He noted that the new field was necessary because neither traditional civil rights methodology nor critical race theory adequately addressed the Asian American experience.[14]  In the twenty-seven years since Professor Chang’s call to action, the movement has seen significant scholarship in the field[15] (including criticism from one author that the movement has failed, with Asian American law scholars to blame),[16] symposia exploring legal issues affecting Asian Americans,[17] and efforts to include Asian American jurisprudence in the law school curriculum.[18] 

One characteristic of Asian American Legal Scholarship, as well as other forms of “outsider jurisprudence,”[19] is the personal narrative (or the less professorial label of “storytelling”), in which authors incorporate their personal experiences in their work.  For example, in Professor Chang’s opening text, he recounted the times he was refused service at a gas station,[20] stopped by the police for suspicion of possessing a stolen vehicle,[21] and mistaken for a copy boy by a faculty colleague at his law school.[22]  Professor Margaret (H.R.) Chon recalled the experience of a nine-year-old boy chanting a fake Asian language at her and her two kids when she picked them up from school.[23]  Professor Chris Iijima began his article: “My six-year-old half-Asian son has just had his first ‘Ching Chong Chinaman’ taunting in school.  I was expecting it, but it threw me off-balance nevertheless.”[24] 

There is considerable commentary on the use of the narrative in legal scholarship, indicating a polarized debate on the subject.[25]  Criticisms against the narrative form range from the view that personal experiences are not relevant and do not contribute much to the development of law,[26] to the more dyspeptic statement that some who “forswear[] analysis in favor of storytelling . . . come across as labile and intellectually limited.”[27]  Another observer has noted that in the “victim talk world” that we live in, some stories might sound of “testimonials of pain in a contest over who suffered more.”[28]  For their part, Professors Daniel A. Farber and Suzanna Sherry conclude that stories can legitimately and significantly contribute to legal scholarship and our understanding of the law, if they are accurate, typical, and legally relevant.[29]

It seems to me that the Open Letter was motivated by the same type of individual personal experiences seen in much of Asian American Legal Scholarship.  Members of the faculty council learned of incidents where persons of Asian descent experienced racism on campus or in the surrounding area.  These experiences were the basis for action that led to the drafting and approval of the letter.  But here lurk Farber and Sherry’s warnings on reliance of “stories from the bottom.”[30]  I hasten to add that Farber and Sherry’s demand for truth and typicality was designed for legal scholarship, and not action by a university faculty council.  Still, the faculty council at the University of Missouri “serves as a reflection of faculty thought.  It is the public face of MU faculty members to university officials, stakeholders, and media.”[31]  Moreover, the actions of a body at a public university might evoke thoughts of “state action” and public accountability.  Although the Open Letter does not have the force of law, the basis for the council’s actions should be concrete and bona fide. 

I think it is entirely fair for readers of the Open Letter to ask, civilly and constructively, elaborating questions about the referenced incidents.  I prefer to think that my colleagues in academia, engaged and interested, wish to understand and be informed about the underlying setting.  To this end, what were the “incidents of discomfort and discrimination” that members of this Missouri community experienced?[32]  I would press for clarification on the reference to “discomfort and discrimination.”  Individual discomfort seems subjective and leaves open the possibility of a hypersensitive victim, perhaps one with an “eggshell psyche.”[33]  In discrimination, was the council using the term in the lay or legal sense?  As one court has noted, the term “has a specialized meaning in the law and in lay use the term has a distinctly less precise meaning.”[34]

Toward due diligence, I contacted a member of the MU faculty council to get more details.[35]  My source on the council was not at liberty to discuss the particulars of the referenced incidents, but graciously responded to my queries.  In sum: In the spring of 2020, approximately eight persons, mostly nationals of China or South Korea who are graduate students or pre-tenured faculty at the university, approached members of the council’s Inclusion, Diversity & Equity Committee.  These persons related their experiences of discriminatory comments and actions directed at them, on campus and in the surrounding area, which made them feel unwelcome, unsafe, or threatened.[36] 

One wonders if these stories would satisfy Farber and Sherry’s test for truth.  As they explain,

We can distinguish three different statements about the perception of an event:

(1) “If you had been watching, this is what you would have seen”;

(2) “The situation might not have looked this way if you had been watching, but this is how it felt to me”; and

(3) “The situation didn’t feel this way to me at the time, but this is how it seems to me now.”[37]

To Farber and Sherry, only “[t]he first standard is the customary test for the truth of a description of events,” “the ordinary understanding of truth.”[38]  Practically, other readers might react to stories of discrimination with skepticism and doubt.  Professor Chang acknowledged this possibility in his own work: 

I usually keep these stories to myself because when I tell them to people, I often hear doubt in their voices and their questions.  How do you know it was racism?  How do you know that the same thing would not have happened to anyone else?  They question the details. . . .  As the questions keep coming, I realize that people do not want to believe me. . . .  From their perspective, since Asian Americans do not suffer from discrimination, I must be mistaken, deluded, or lying.[39]

If, assuming for purposes of discussion only, that the incidents referenced in the Open Letter did occur and any reasonable person would describe them as “incidents of discomfort or discrimination,” it is also a fair question to ask if they are merely isolated incidents,[40] which returns us to Farber and Sherry’s call for typicality.  They explain that, in legal scholarship, “if the story is being used as the basis for recommending policy changes, it should be typical of the experiences of those affected by the policy.”[41]  Readers can decide for themselves whether due to the COVID-19 pandemic, racially motivated acts against persons of Asian descent in America are isolated and atypical, or are instead, if not common, at least not uncommon, and of sufficient frequency to require some public action.  The major American media outlets have reported a number of such incidents of racial bias, including violence, in the several States.[42]  In the early months of 2020, there were reports of Asian Americans being stabbed,[43] kicked,[44] punched,[45] spat on,[46] sprayed with an air freshener,[47] verbally assaulted.[48]  One person was attacked allegedly for wearing a mask,[49] another, for not wearing one.[50]  Importantly, a New York Times report, whose title includes “Chinese-Americans Fear for Their Safety,” also notes that “[o]ther Asian-Americans—with families from Korea, Vietnam, the Philippines, Myanmar and other places—are facing threats, too, lumped together with Chinese-Americans by a bigotry that does not know the difference.”[51]  That is, perpetrators are discriminating, but not that discriminating.[52]

A brutally simple syllogism appears to be at work here: The virus that led to a pandemic that caused death, illness, mass unemployment, and profound disruption of everyday life in America and many other countries originated in ChinaTherefore, blame, displeasure, assault, or violence against those stateside who appear Chinese (“enough”) is warranted.  That would seem to qualify as nativistic racism, however defined.[53]

It was racism that the Missouri faculty council’s letter sought to address, hence the unambiguous title, “Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination.”[54]  Thus, the council emphatically urged all to reject “any xenophobia triggered by racist descriptions of COVID-19.”[55]  In its capacity as “the elected representative organization of the MU Faculty” and “the public face of MU faculty members,”[56] the council took decisive action to issue the letter. 

The Open Letter was well-intentioned.  Yet I have questions, which relate to lessons and teachings of Asian American jurisprudence.  Note the phrasing to identify the persons in the referenced group: “[S]ome members of the Chinese, Korean, and other Asian communities on our campus and in our community”; “our Chinese, Korean or other Asian friends and colleagues”; “our Asian friends and colleagues”; “the Chinese, Korean, and other Asian friends and colleagues.”[57]  With the chosen phrasing, was the faculty council referring to (1) nationals of countries in Asia who are on campus or in the area as international students or visiting scholars (and their families), whose stay in the university community is temporary, inclusive of their terms of study; or (2) U.S. nationals—with permanent residence or citizenship—of Asian descent; or (3) both?  Although persons in the first two subgroups are both of Asian descent, those in the first might see themselves as transients in America.  Those in the second, for whom America is their domicile or permanent home, are persons whom I would approximate as comprising of “Asian Americans.”[58]  Given the letter’s later reference to the university’s International Student and Scholar Services office, which is “available to help students and scholars navigate their responses and cope with such incidents,”[59] the focus of the council’s attention seemed to be on the first subgroup above, Asians temporarily in America.  My contact on the faculty council confirmed to me that persons who reported the incidents were mostly nationals of China or South Korea.[60]  But if this is the case, the letter would inexplicably fail to include Asian Americans.[61]  Indeed, the “Asian American” description does not appear at all in the letter, nor “American citizens of Asian descent.”  The media reports provide ample examples that regardless of their national origin, immigration status, or time stateside, persons who appear Asian are subject to incidents of bias and violence.[62]  Moreover, in a letter whose purported goal was to reject racism, xenophobia, discrimination, and bias, it is puzzling to leave out U.S. nationals who are of Asian descent.

The Open Letter reminds of otheringMerriam-Webster has explicitly raised the question of whether other is a verb.[63]  The well-known dictionary source notes that although the word has served as an adjective, adverb, noun, and pronoun over the past few centuries, “[i]n recent decades, other has increased its part-of-speech portfolio to include verb use, having acquired the meaning ‘to treat or consider (a person or a group of people) as alien to oneself or one’s group (as because of different racial, sexual, or cultural characteristics).’”[64]  Thus, in mid-Missouri in the spring of 2020, those whose actions led to “the incidents of discomfort and discrimination” were othering, and those who were targeted were othered (or otherized).  This is classic othering, when the otherers view the othered as aliens from other countries.  Arguably, there was another form of othering, when U.S. nationals—permanent residents and citizens—also of Asian descent, some of whom were born stateside (and some in Boone County, Missouri, and lived all their lives there), were omitted. 

The Open Letter re-invites a discussion of what it means to be “Asian American.”[65]  The term includes persons from twenty different countries, and “[e]ach group has its own national identity with accompanying differences in language, culture, ethnicity, religious beliefs, and socioeconomic conditions.  In addition to the vast diversity among Asian groups, there are numerous subgroups within each national group.”[66]  There is also a history of tension and conflict between and among some Asian countries,[67] and sometimes within each country.[68]  Despite these differences and the complexity of the collective, there appears to be an emergence of a pan-Asian identity among persons of Asian descent.[69] 

In the Open Letter, the faculty council took the additional next step of calling on elected officials “to refer to [the disease] by its scientific name” and not “racist descriptions of COVID-19.”[70]  This was likely in response to reports of various politicians’ use of “Chinese virus” or “Chinese flu”[71] for COVID-19.  Just twelve days after the council issued its letter, the Attorney General of the State of Missouri filed a complaint in the United States district court in St. Louis against the People’s Republic of China and others, alleging that “defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians.”[72]  The complaint avers that Chinese authorities engaged in a “sinister”[73] and “appalling campaign of deceit, concealment, misfeasance, and inaction”[74] that allowed the virus to spread,[75] and then a cover up.[76]  The Show Me State was the first to commence such an action,[77] and perhaps there is substance to some of the charges.[78]  Commentators have offered their opinions on whether the action can overcome the sovereign immunity defense.[79]  Also of interest is what the Missouri lawsuit might say about local politics and what resonates with the electorate.[80]  These appear to be times when anti-Chinese sentiment is high nationwide, such that those seeking re-election in closely contested elections are employing an “attack China” message.[81]

Senator Josh Hawley of Missouri has argued that this message has “long resonated with voters at home.”  He stated, “The typical, ordinary, normal everyday voter in my state at least, in Missouri—if you ask them what they think about China, they’d say they think they’re a threat, they’re an opponent.  Working voters have been concerned for years about China cheating on trade, taking their jobs, and the military threat.”[82]  I must hasten to add that I am not qualified to assess the merits of the criticisms against China for its actions in contemporary geopolitics.  Rather, my question for the moment is whether policymakers should take into account the impact that anti-China rhetoric might have on the approximately 2.4 percent of the population of my home state, that is, Missourians of Asian descent.[83] 

In all events, Senator Hawley’s reference to the view that China is cheating on trade and taking Missourians’ jobs should be a chilling reminder of the infamous case of Vincent Chin.  A Chinese American, Chin was beaten to death with a baseball bat by two Detroit autoworkers, one of whom apparently believed that Chin was Japanese and was quoted as saying, “[I]t’s because of you little mother fuckers that we’re out of work.”[84]  As one commentator noted,

Even if one presumes that [defendants Ronald Ebens and his stepson Michael Nitz’s] unemployment was caused by unjust trade practices of the Japanese government, when Ebens and Nitz brained Vincent Chin, they transferred blame not only from the Japanese government to the Japanese people, not only from the Japanese people to United States citizens of Japanese descent, but finally from Japanese Americans to anyone unlucky enough to bear Asian features.[85] 

As discussed above, the personal narrative is an element of Asian American Legal Scholarship, as well as other fields, albeit with some controversy.  Perhaps I would be remiss in not offering some of my own personal experiences.  I will share one. 

For the first two and a half years of my life in the States, I lived in Iowa, when my father was a graduate student.  Beginning from the spring of my third-grade year, to the end of fifth grade, after which I moved to the East Coast, I attended elementary school in the Hawkeye State.  I remain in touch with a few of my Iowa classmates, my first friends in a new country, some fifty years later.  One—incidentally, the only Black student in my elementary school classes in Iowa—related to me a conversation that he had had with one of our other classmates when they reached the eighth or ninth grade.  In my friend’s conversation with John (not his real name), my friend mentioned that he was still in touch with me.  John responded, “He was one of them rich Japs.”[86] 

First, is the story, as I relate it, true?  Per Farber and Sherry, would a disinterested third party have seen and heard what I have described had she been present?[87]  That seems simple enough, as there is a binary character to my narrative.  Either my friend told me what he told me with the quoted words, or he did not.  Next, I acknowledge that my story sounds of hearsay, in that I am relating “something heard from another.”[88]  More accurately, it is hearsay within hearsay,[89] because I am offering that my friend told me what John told him.  For purposes of discussion, even if this Essay were considered a form of a “trial or hearing” under the formal rules of evidence,[90] I would argue that John’s statement to my friend is not hearsay, because although the declarant (John) is not making the statement here, it is not being offered “in evidence to prove the truth of the matter asserted in the statement,”[91] to wit, that I was a wealthy person of Japanese descent.  Rather, as seen herein, I urge that the matter asserted was false.  But that is not the end of the hearsay analysis, because the assertion from my friend that John said what he said is hearsay.  To evidence experts, I ask if one of the exceptions to the rule against hearsay[92] or the residual exception[93] might apply.  To everyone, I ask for a little leeway.

My parents’ tax returns from those two years of my life when John and I were classmates would confirm that my family was far from wealthy.  During that time, my family lived in the temporary barracks that my father’s university built after World War II, for married student housing.[94]  Although both of my parents were graduates of the top university in South Korea[95] and began careers as elementary school teachers there, my father was the first in his family to attend college, and my mother worked minimum wage jobs in Iowa to support the family, before re-directing to a new professional career in computer programming.  With respect to my national origin, John apparently did not know of my father’s bitterly resentful recollections of growing up under Japanese colonial rule, a period of “forced assimilation,” in which Koreans were to be made Japanese.[96] 

Then why offer in this record a false statement, by an adolescent, from the previous millennium.  Here, could I be accused of resorting to storytelling merely and unnecessarily for emotive appeal[97] or gratuitous “victim talk”?[98]  I would argue that there is much in John’s terse statement, the elements of which are seen in Asian American Legal Scholarship.  Perhaps my classmate from that Iowa school many years ago saw me as a foreigner from Asia, specifically a Japanese person, or perhaps he described everyone of Asian descent that way (“them . . . Japs”).  Perhaps he believed that persons of Asian descent stateside are all well-to-do (“rich”).  Over the years, scholars in the field have elaborated on my classmate’s simple statement and emphasized the societal perception of Asian Americans as perpetual foreigners,[99] regardless of their citizenship, place of birth, or length of years stateside, who are othered[100] and will always be viewed, not as Americans, but as Asian Americans,[101] and who, as members of the “model minority,” do not suffer from discrimination.[102] 

In 1993, the same year of Professor Chang’s landmark work, Professor Jerry Kang’s student note also examined racial violence against Asian Americans, and asserted that such violence “is not only brutalizing Asian American individuals, but also casting terroristic fear over their communities.”[103]  Twenty-seven years later, the COVID-19 pandemic has shown that microaggressions to slights to verbal assaults to physical violence against this demographic of the U.S. population continue.  Thus, Chang’s hope that Asian American Legal Scholarship would “speak our oppression into and out of existence”[104] has not yet been realized, in a country that is still struggling to resolve the most intractable problem of race.[105] 

The work of Asian American Legal Scholarship must continue.  Chiefly, if it is true that anti-Asian harassment is “surging” nationwide but with “little action from the federal government,”[106] then what policy or institutional changes could be implemented to address racial discrimination against Asian Americans?[107]  Some scholars may choose to further explore the interplay between electoral politics, Asia-related measures, and their impact on Asian Americans.[108]  The sudden increase in sales of firearms to Asian Americans[109] invites an ethnographic study on the support of the Second Amendment by this growing group of gun owners.  Building on the previous commentary regarding Asian Americans’ place in the traditional Black-White approach to race,[110] the time is ripe for a fresh look at the question of what role Asian Americans play in the Black Lives Matter movement.  Fully aware that others may disagree, I believe personal experiences, narratives, and stories (and open letters too) are relevant in this scholarship, toward an understanding of the tenets of Asian American jurisprudence. 

After some twenty years in academia, I have settled into my principal fields of (i) dispute resolution, with a special interest in the impact of culture on the dispute resolution process and (ii) law and society in East Asia, with a focus on Korea.  It is my license to note that the field of Asian American jurisprudence lies smartly in between.  Within the boundaries of the East Asia discipline is the subject of the societal diaspora.  Relocation stateside has given rise to legal issues affecting Asian immigrants, for the first and subsequent generations, resulting in disputes and opportunities for settlement.  Culture is the common denominator in all three fields.  For Asian American jurisprudence, culture appears on both sides of the U.S. dynamic.  On one is the societal and legal culture that allows for, among others, the exclusion of immigrants from a particular country;[111] the internment of American citizens based on their national ancestry,[112] while drafting some of them for U.S. military service;[113] the Vincent Chin case, whose defendants did not serve time as part of their sentence.[114]  On the other is an emerging culture of a demographic group comprising approximately 6 percent of the national population,[115] which includes persons of diverse national origins, seeking acceptance by the mainstream.  I readily concede that the notion of an “Asian American culture”—somewhat diffusive, amorphous—is contested.[116]  Yet somewhere between Eric Liu’s description of Asian American culture as “anything that Asian Americans are doing”[117] and his wry observation that “[w]hat’s missing from Asian American culture is culture”[118] lies the foundations for the work of a continuing Asian American Legal Scholarship.  At a minimum, this scholarship must continue to join the issue, of the comparative presence and role of Asian Americans, under law.

       *.   Edward W. Hinton Professor of Law & Director, Center for the Study of Dispute Resolution, University of Missouri.  I thank Kathy Cerminara, Susan Kuo, and Fred Yen for their comments and suggestions on a previous version of this Essay.  In the interest of full disclosure: I was a member of the University of Missouri Faculty Council, referenced herein, from 2011 to 2014; U.S. Senator Josh Hawley, also referenced herein, was a faculty colleague, from 2011 to 2016; while at work on this text, I received a message from the university system president informing me that I would not be selected for a faculty award for which I was nominated. 

      [1].   In the fall of 2015, the University of Missouri campus in Columbia was the site of racial tensions, which saw demonstrations, a student’s hunger strike, a boycott by the football team, and subsequent resignations of both the then university system president and campus chancellor.  See John Eligon & Richard Pérez-Peña, University of Missouri Protests Spur a Day of Change, N.Y. Times (Nov. 12, 2015),  For a discussion and analysis, by a faculty colleague, see Ben Trachtenberg, The 2015 University of Missouri Protests and Their Lessons for Higher Education Policy and Administration, 107 Ky. L.J. 61 (2018–2019).

      [2].   UM System Universities Suspend In-person Classes for Spring Semester, Univ. Mo. Sys. (Mar. 14, 2020),

      [3].   Presidential Directive To Reduce In-person Work, Effective Mar. 23, Univ. Mo. Sys. (Mar. 19, 2020),

      [4].   Work from Home Directive Continues, Univ. Mo. (Apr. 28, 2020),

      [5].   Dir. of Pub. Health & Hum. Servs., City of Columbia, Order No. 2020-03, Stay at Home Order (2020),

      [6].   Dir. of Pub. Health & Hum. Servs., City of Columbia, Order No. 2020-04, Renewal of Stay at Home Order (2020),

      [7].   The University of Missouri is a member of the Southeastern Conference, which announced the cancellation of all regular-season conference and non-conference competitions “for the remainder of the 2019–20 athletic year.”  SEC Statement on Remaining 2020 Competition, Se. Conf. (Mar. 17, 2020),

      [8].   See The Coronavirus Is Upending Higher Ed. Here Are the Latest Developments., Chron. Higher Educ. (Mar. 25, 2020),

      [9].   About, MU Faculty Council on University Policy, Univ. Mo., (last visited Nov. 16, 2020).

     [10].   Open Letter Regarding the COVID-19 Pandemic and Racial Discrimination from the Univ. Mo. Fac. Council (Apr. 9, 2020) [hereinafter Open Letter],

     [11].   Id.

     [12].   Id. 

     [13].   Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1241, 1245–46, 1314 (1993).

     [14].   Id. at 1247–48. 

     [15].   A partial list includes: Robert S. Chang, Disoriented: Asian Americans, Law, and the Nation-State (1999); Neil Gotanda, New Directions in Asian American Jurisprudence, 17 Asian Am. L.J. 5 (2010); Frank H. Wu, The Arrival of Asian Americans: An Agenda for Legal Scholarship, 10 Asian L.J. 1 (2003).  Other works are cited herein. 

     [16].   Elbert Lin, Identifying Asian America, 33 Sw. U. L. Rev. 217, 218, 256 (2004).

     [17].   Symposium, In Honor of Neil Gotanda, 4 Asian L.J. 1 (1997); Symposium, Reigniting Community: Strengthening the Asian Pacific American Identity, 3 U.C. Irvine L. Rev. 801 (2013); Symposium, The Long Shadow of Korematsu, 40 B.C. L. Rev. 1 (1998).  The Asian American Law Journal, formerly, the Asian Law Journal, holds an annual spring symposium and lecture.  About This Journal, Asian Am. L.J., (last visited Nov. 16, 2020).

     [18].   E.g., John Hayakawa Torok, Asian American Jurisprudence: On Curriculum, 2005 Mich. St. L. Rev. 635, 636–37; Leti Volpp, Rethinking Asian American Jurisprudence, 10 Asian L.J. 51, 53–56 (2003).  Teachers of a course devoted to the subject have shared their syllabi and reading lists.  E.g., Robert S. Chang, Syllabus: Asian Americans and the Law, 10 Asian L.J. 105 (2003); Gabriel J. Chin, Syllabus: Asian Pacific Americans and the Law, 10 Asian L.J. 115 (2003); Leti Volpp, Syllabus: Asian Pacific Americans and the Law, 10 Asian L.J. 97 (2003).

     [19].   Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2323–26 (1989); Steven H. Shiffrin, Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 Cornell L. Rev. 43, 44–45 (1994).

     [20].   Chang, supra note 13, at 1244.

     [21].   Id. at 1244, 1299.

     [22].   Id. at 1299.

     [23].   Margaret (H.R.) Chon, On the Need for Asian American Narratives in Law: Ethnic Specimens, Native Informants, Storytelling and Silences, 3 UCLA Asian Pac. Am. L.J. 4, 21 (1995).  “[T]he boy was on the same little league baseball team that my son had been on—and that my husband had coached.”  Id

     [24].   Chris K. Iijima, The Era of We-construction: Reclaiming the Politics of Asian Pacific American Identity and Reflections on the Critique of the Black/White Paradigm, 29 Colum. Hum. Rts. L. Rev. 47, 47 (1997).

     [25].   See, e.g., Daniel A. Farber & Suzanna Sherry, Telling Stories out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807, 808 (1993); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1745 (1989); Mark Tushnet, The Degradation of Constitutional Discourse, 81 Geo. L.J. 251, 251 (1992); see also infra note 29.

     [26].   By way of one notable example, Professor Susan Estrich begins her article with the following narrative:

Eleven years ago, a man held an ice pick to my throat and said: “Push over, shut up, or I’ll kill you.” . . . 

I ended up in the back seat of a police car.  I told the two officers I had been raped by a man who came up to the car door as I was getting out in my own parking lot (and trying to balance two bags of groceries and kick the car door open).  He took the car, too.

Susan Estrich, Rape, 95 Yale L.J. 1087, 1087 (1986).  In a law review colloquy entitled “Human Voice in Legal Discourse,” Professor Mark Yudof describes Estrich’s article as “an excellent and moving work on rape.”  Mark G. Yudof, ‘Tea at the Palaz of Hoon’: The Human Voice in Legal Rules, 66 Tex. L. Rev. 589, 590 (1988).  But regarding Estrich’s experience of being raped, he asks, “In what sense, if any, is her personal story relevant to her legal scholarship?” Id. at 598.  Yudof concludes, “Estrich’s diverse uses of the human voice do not contribute much to her elaboration of what the law of rape should be.”  Id. at 599.

     [27].   Richard A. Posner, The Skin Trade, New Republic, Oct. 13, 1997, at 40, 43 (reviewing Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (1997)).

     [28].   Martha Minow, Surviving Victim Talk, 40 UCLA L. Rev. 1411, 1430 (1993).

     [29].   Farber & Sherry, supra note 25, at 808, 809, 830–31.  In addition, they counsel that storytellers also need “to include an analytic dimension in their work.”  Id. at 809.  The two authors further elaborated on their views, in Daniel A. Farber & Suzanna Sherry, The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and Truth, 46 Stan. L. Rev. 647 (1994), and Farber & Sherry, supra note 27.  Farber and Sherry’s approach is not without critics.  E.g., Kathryn Abrams, How to Have a Culture War, 65 U. Chi. L. Rev. 1091, 1092 (1998) (reviewing Farber & Sherry, supra note 27); Jane B. Baron, Resistance to Stories, 67 S. Cal. L. Rev. 255, 256 (1994); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665, 667 (1993); William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607, 609–10 (1994); Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 Geo. L.J. 1845, 1845 (1994); Alex M. Johnson, Jr., Defending the Use of Narrative and Giving Content to the Voice of Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 Iowa L. Rev. 803, 806 (1994).

     [30].   Farber & Sherry, supra note 25, at 808, 819, 822, 824, 827, 838.

     [31].   About, MU Faculty Council on University Policy, supra note 9.

     [32].   For my part also, I was interested in the details, as a university employee, especially one who might be categorized as a member of the so-called “Chinese, Korean, and other Asian communities,” and as a parent of a university student.

     [33].   Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1285 (Me. 1987) (“We do not provide compensation for the hurt feelings of the supersensitive plaintiff—the eggshell psyche.”); see also Frank S. Ravitch, Hostile Work Environment and the Objective Reasonableness Conundrum: Deriving a Workable Framework from Tort Law for Addressing Knowing Harassment of Hypersensitive Employees, 36 B.C. L. Rev. 257, 273–77 (1995) (discussing the “eggshell skull” rule in cases involving the harassment of hypersensitive employees in the workplace).

     [34].   Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir. 1985).

     [35].   I also tried to view the minutes of the faculty council meeting when the Open Letter was approved.  Although minutes of most faculty council meetings are posted on the university’s internet site, minutes of the April 9, 2020 meeting are not, as of this writing.  See Meetings and Minutes 2019–2020, Univ. Mo., (navigate to “April 9, 3:30 pm”) (last visited Nov. 16, 2020).  I exchanged emails with a staff member in the provost’s office about gaining access to the meeting’s minutes and a recording of the meeting, but without success.  A media report describing the meeting and the letter does not address the details that I sought.   Laura Evans, MU Faculty Council Puts out Letter About COVID-19 and Racism, Columbia Missourian (Apr. 10, 2020),

     [36].   Zoom Interview with Member, Univ. Mo. Fac. Council on Univ. Pol’y (July 28, 2020). 

     [37].   Farber & Sherry, supra note 25, at 833.

     [38].   Id.

     [39].   Chang, supra note 13, at 1274 (footnotes omitted). 

     [40].   See id. (“[E]ven if they believe my stories, they discount them as isolated incidents.”). 

     [41].   Farber & Sherry, supra note 25, at 838–39.  They continue:

Studies by cognitive psychologists demonstrate that humans tend to overrely on atypical examples.  Because individuals assume that dramatic or easily remembered events are typical, they often overestimate the likelihood of such events.  Even when they correctly appraise a trait as typical, they overestimate its prevalence, assuming that more members of the group possess the trait than really do.  In other words, people frequently engage in what we commonly call stereotyping.  Finally, people are too quick to assume the presence of a pattern from a small number of cases.

Id. at 839 (footnotes omitted).

     [42].   E.g., Peter Aitken, Asian Americans Reported Hundreds of Racist Acts in Last Week, Data Shows, Fox News (Mar. 27, 2020), (“Asian Americans reported more than 650 racist acts over the last week in the wake of coronavirus, according to new data.”); Alex Ellerbeck, Over 30 Percent of Americans Have Witnessed COVID-19 Bias Against Asians, Poll Says, NBC News (Apr. 28, 2020), (“More than 30 percent of Americans have witnessed someone blaming Asian people for the coronavirus pandemic . . . .  Sixty percent of Asian Americans, who made up about 6 percent of the survey’s respondents, told [the survey] they’ve seen the same behavior.”); Tiffany Hsu, Anti-Asian Harassment Is Surging.  Can Ads and Hashtags Help?, N.Y. Times (July 21, 2020), (“A coalition of civil rights groups recorded more than 2,100 incidents in 15 weeks . . . .”).

     [43].   Danielle Wallace, Texas Man Accused of Stabbing Asian Family over Coronavirus Could Face FBI Hate Crime Charge, Fox News (Apr. 2, 2020), (“A man who allegedly tried to kill an Asian family [including a 2- and 6-year-old] inside a Texas supermarket last month to prevent them from spreading the coronavirus could be charged by the FBI for a hate crime, according to reports.”). 

     [44].   Ewan Palmer, New York Police Investigating Two Alleged Coronavirus-Inspired Hate Crimes Occurring on Same Day, Newsweek (Mar. 13, 2020),

     [45].   Id.

     [46].   Sabrina Tavernise & Richard A. Oppel Jr., Spit on, Yelled at, Attacked: Chinese-Americans Fear for Their Safety, N.Y. Times (June 2, 2020),

     [47].   Kashmira Gander, Suspected New York Coronavirus Hate Crime Investigated After Man Sprays Air Freshener at Asian Passenger, Newsweek (Mar. 6, 2020),

     [48].   Tavernise & Oppel, supra note 46.  Asian American health care workers have not been spared.  Tracy Jan, Asian American Doctors and Nurses Are Fighting Racism and the Coronavirus, Wash. Post (May 19, 2020),

     [49].   Ewan Palmer, Asian Woman Allegedly Attacked in New York Subway Station for Wearing Protective Mask, Newsweek (Feb. 5, 2020),

     [50].   Jacob Henry & Olivia Bensimon, Victim of Possible Coronavirus Hate Crime in Queens Speaks Out, N.Y. Post (Mar. 14, 2020),; Palmer, supra note 44.

     [51].   Tavernise & Oppel, supra note 46.

     [52].   Perhaps perpetrators in Asia proper are more discriminating.  See List of Incidents of Xenophobia and Racism Related to the COVID-19 Pandemic, Wikipedia, (last visited Nov. 16, 2020) (reporting that natives of Wuhan, where the virus originated, were turned away from hotels in China, and establishments in Japan and Korea displayed signs saying, “No Chinese Allowed”).

     [53].   See Chang, supra note 13, at 1288–1303 (discussing “formal expressions of nativistic racism” in U.S. immigration, naturalization, and voting rights laws).

     [54].   Open Letter, supra note 10 (emphasis added).

     [55].   Id. (emphasis added).

     [56].   About, MU Faculty Council on University Policy, supra note 9.

     [57].   Open Letter, supra note 10 (emphasis added). 

     [58].   Highlighting the distinction between the two subgroups is the presence at some university campuses of separate organizations for both (i) international students from an Asian country and (ii) American students of that national origin.  For example, at The Ohio State University, contrast OSU KISO (Korean Int’l Student Organization / 한인학생회), Facebook,, with Korean Student Association at The Ohio State University, Facebook,

     [59].   Open Letter, supra note 10.

     [60].   Zoom Interview, supra note 36.  For a few of the persons, my contact did not know of their nationality or immigration status.

     [61].   One wonders if the “Chinese, Korean, and other Asian communities on our campus and in our community” and “Chinese, Korean or other Asian friends and colleagues” phrasing would include the president of the university system and then interim chancellor of the campus, whose curriculum vitae notes his immigration from South Korea, United States citizenship, and top secret security clearance, Mun Young Choi, (last visited Nov. 16, 2020), or the campus provost, who one media report describes as “Indian-American,” Indian-American Appointed Provost at University of Missouri, News India (July 23, 2018),

     [62].   I would opine that perpetrators whose actions lead to what could accurately be described as “incidents of discomfort and discrimination” do not stop to first confirm distinctions between nationals of countries in Asia who are stateside and U.S. nationals of Asian descent. 

     [63].   Other, Merriam-Webster, (navigate to “Is other a verb?”) (last visited Nov. 16, 2020).

     [64].   Id.

     [65].   See Robert S. Chang, Passion and the Asian American Legal Scholar, 3 Asian L.J. 105, 107 (1996) (“Do ‘we’ exist only as an ‘imagined community’?”);Torok, supra note 18, at 649 (“Defining this category is not simple.  But it is perhaps also not impossible.  ‘Asian American’ self-definition involves racial, national, and geographic categories, as well as gender, sexual, migration, and class categories.”). 

     [66].   K.G. Jan Pillai, Affirmative Action: In Search of a National Policy, 2 Temp. Pol. & Civ. Rts. L. Rev. 1, 31 (1992) (citing Harry H.L. Kitano, Asian-Americans: The Chinese, Japanese, Koreans, Pilipinos, and Southeast Asians, 454 Annals Am. Acad. Pol. & Soc. Sci. 125, 127, 137 (1981)).

     [67].   See, e.g., Sofia Lotto Persio, South Korea Angers Japan with “Unacceptable” Military Drills near Disputed Islands, Newsweek (Dec. 18, 2017, 8:05 AM), (reporting “a history of distrust” between Japan and South Korea).

     [68].   See, e.g., Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement (with Japan and the United States in Mind), 27 Mich. J. Int’l L. 1, 2526 (2005) (discussing confrontation between social classes and conflict between the provincial regions, in South Korea).

     [69].   See Susan Taing, Comment, Lost in the Shuffle: The Failure of the Pan-Asian Coalition To Advance the Interests of Southeast Asian Americans, 16 Berkeley La Raza L.J. 23, 31 (2005) (discussing pan-Asian unity, identity, and collective).  Another part of the complexity is that of self-identification.  As two commentators note,

Do individuals from different Asian groups view themselves as “Asian Americans”? . . . American-born Japanese and Chinese Americans are the most likely to think of themselves as Asian Americans, while recent immigrant groups greet pan-Asian movements with indifference or hostility.  Recent Chinese immigrants tend not to see themselves as Asian Americans—or indeed, as Americans at all—but as Chinese.

Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 Stan. L. Rev. 855, 895 (1995).

     [70].   Open Letter, supra note 10. 

     [71].   Chief among them was the President.  See Barnini Chakraborty, Trump Doubles Down on ‘China Virus,’ Demands To Know Who in White House Used Phrase ‘Kung Flu, Fox News (Mar. 18, 2020), (“President Trump on Wednesday continued to call COVID-19, the ‘China virus,’ and said he doesn’t think labeling the novel coronavirus is racist or puts Asian-Americans at risk.”); Tavernise & Oppel, supra note 46 (“Mr. Trump and his Republican allies are intent on calling the coronavirus ‘the Chinese virus,’ . . . .”). 

     [72].   Complaint at 2, Missouri ex rel. Schmitt v. China, No. 1:20-cv-00099 (E.D. Mo. Apr. 21, 2020). 

     [73].   Id. at 3. 

     [74].   Id. at 2. 

     [75].   Id. at 17–18. 

     [76].   Id. at 18–29. 

     [77].   Frank Morris, Missouri Sues China, Communist Party over the Coronavirus Pandemic, NPR (Apr. 21, 2020, 8:30 PM),

     [78].   With respect to the culpability of Chinese officials in the spreading of the pandemic and the global crisis, there appears to be a “more nuanced and complex finding of what Chinese officials did wrong in January [2020].”  Edward Wong et al., Local Officials in China Hid Coronavirus Dangers from Beijing, U.S. Agencies Find, N.Y. Times (Sept. 17, 2020),  According to U.S. intelligence agencies:

Officials in Beijing were kept in the dark for weeks about the potential devastation of the virus by local officials in central China . . . .

. . . . 

[A new U.S. intelligence report] does not contradict the Trump administration’s criticism of China, but adds perspective and context to actions—and inactions—that created the global crisis.  

. . . . 

. . . [The report] still supports the overall notion that Communist Party officials hid important information from the world, U.S. officials said. . . .  


     [79].   See John B. Bellinger III, Opinion, Suing China over the Coronavirus Won’t Help.  Here’s What Can Work., Wash. Post (Apr. 23, 2020, 7:51 PM), (“These suits are likely to be dismissed because foreign governments enjoy immunity from suit in U.S. courts under the Foreign Sovereign Immunities Act.”); Morris, supra note 77 (“‘A sovereign is not supposed to sue a sovereign, and that’s what’s going on here,’ says Lea Brilmayer, professor of international law at Yale Law School.”).

     [80].   See Benjamin Fearnow, Missouri Files Lawsuit Against China over Coronavirus, GOP Lawmakers Lead First State ‘Negligence’ Claims, Newsweek (Apr. 21, 2020, 4:56 PM), (referring to speculation that “the GOP-led move is an election year stunt”).  Appointed as Missouri’s Attorney General to fill a vacancy in 2018, Eric Schmitt won election in his own right on November 3, 2020.  Dori Olmos, Republican Eric Schmitt Wins Missouri Attorney General Race, KSDK-TV (Nov. 4, 2020, 6:32 AM),  Schmitt defeated his Democratic opponent by over 20 percentage points, carrying all but four of the state’s 114 counties and one independent city.  2020 Missouri Attorney General Election Results, Springfield News-Leader (Nov. 7, 2020),

     [81].   See Catie Edmonson, Faced with Crisis and Re-election, Senate Republicans Blame China, N.Y. Times (July 9, 2020), (“Fighting for their political lives amid twin domestic crises—a pandemic that has battered the economy—vulnerable Republican senators running for re-election are working to divert voters’ gazes half a world away and make their races a referendum on China.”).

     [82].   Id.

     [83].   According to census estimates, persons identified as “Asian alone” comprise 2.2 percent of Missouri’s population, and “Native Hawaiian and Other Pacific Islander alone” comprise 0.2 percent.  Missouri, U.S. Census Bureau, (last visited Nov. 16, 2020).  If indeed the anti-Chinese message resonates with people in Missouri, then Missourians of Asian descent are on notice.  The “incidents of discomfort and discrimination” that occurred in mid-Missouri fueled by COVID-19 may be only the beginning.  In the years to come, continuing tension with China, or open conflict with North Korea, would make some Missourians more vulnerable to anti-Asian American actions.

     [84].   United States v. Ebens, 800 F.2d 1422, 1427 (6th Cir. 1986).

     [85].   Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1928 (1993) (emphasis added).

     [86].   Over the years, my friend and I have discussed this story a few times.  Most recently, I asked him to confirm the details.

     [87].   See Farber & Sherry, supra note 25, at 833 (“(1) If you had been watching, this is what you would have seen . . . .  The first standard is the customary test for the truth of a description of events.”). 

     [88].   Hearsay, Webster’s Third New International Dictionary of the English Language Unabridged (2002).

     [89].   Fed. R. Evid. 805. 

     [90].   Id. 801(c)(1).

     [91].   Id. 801. 

     [92].   Id. 803. 

     [93].   Id. 807. 

     [94].   See David McCartney, Temporary Housing: Not Much, But It’s Home, Spectator (Jan. 2010),

     [95].   Richard Halloran, Seoul Students Clash with Police As AntiPark Protests Mount, N.Y. Times (Nov. 16, 1973),

     [96].   Carter J. Eckert et al., Korea Old and New: A History 317 (1990); see Andrew C. Nahm, Introduction to Korean History and Culture 177-78 (1993) (stating that during the Japanese occupation, Koreans were “put under a harsh, military rule” and “humiliated and mistreated”).  Professor Chon related a part of her father’s recollections of the experience:

[M]y father told me how his mother had been tortured by the equivalent of intelligence agents in Japan-occupied Korea in the 1930’s. My grandfather had been hiding from the Japanese authorities. One night, my father woke up to find his mother gone and a Japanese soldier looking down at him.

Chon, supra note 23, at 26 n. 122.

     [97].   Farber & Sherry, supra note 25, at 849 (“[T]he emotive force of the stories is seen as [the storytellers’] primary appeal.  In our view, however, emotive appeal is not enough to qualify as good scholarship.”). 

     [98].   Minow, supra note 28, at 1413. 

     [99].   E.g., Frank H. Wu, Yellow: Race in America Beyond Black and White 79 (2002) (“[E]veryone with an Asian face who lives in America is afflicted by the perpetual foreigner syndrome.”); see Neil Gotanda, Asian American Rights and the “Miss Saigon Syndrome,” in Asian Americans and the Supreme Court: A Documentary History 1087, 1096 (Hyung-Chan Kim ed., 1992) (“[T]here is the . . . presumption that [Asian Americans] are foreigners; or, if they are U.S. citizens, then their racial identity includes a foreign component.”).

   [100].   E.g., Terri Yuh-lin Chen, Comment, Hate Violence As Border Patrol: An Asian American Theory of Hate Violence, 7 Asian L.J. 69, 82 (2000); Kelsey Inouye, Note, Asian Americans: Identity and the Stance on Affirmative Action, 23 Asian Am. L.J. 145, 165 (2016).

   [101].   E.g., Chang, supra note 13, at 1318 n.403 (“I know that my future children, and their children, will never be Americans.  They will always be Asian Americans.”); Kevin Shawn Hsu, Note, Empowerment, Discrimination, and the Façade of Leadership: Asian American Political Elites’ Failed Assimilationist Strategy, 14 Asian Am. L.J. 85, 105 (2007) (referring to “the societal belief that Asian Americans are culturally alien and will never be ‘real Americans’”); see Leti Volpp, Impossible Subjects: Illegal Aliens and Alien Citizens, 103 Mich. L. Rev. 1595, 1625 (2005) (reviewing Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004)) (discussing the suggestion that “Asian Americans, as defined as antithetical to American citizenship, can never be fully assimilated into the American nation”).

   [102].   E.g., Chang, supra note 13, at 1259 & n.78, 1275; Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 24, 55 (1994); Miranda Oshige McGowan & James Lindgren, Testing the “Model Minority Myth, 100 Nw. U.L. Rev. 331, 359–60 (2006); Note, supra note 85, at 1931.

   [103].   Note, supra note 85, at 1943.

   [104].   Chang, supra note 13, at 1312. 

   [105].   See Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 Yale L.J. 923, 923 (1988) (reviewing Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1987)) (describing race as America’s “oldest and most intractable  problem”).

   [106].   Hsu, supra note 42.

   [107].   In the spring of 2020, both houses of Congress introduced a resolution “[c]ondemning all forms of anti-Asian sentiment as related to COVID-19.”  S. Res. 580, 116th Cong. (2020); H.R. Res. 908, 116th Cong. (2020).  As of this writing, the Senate resolution is pending in its Committee on the Judiciary.  S. Res. 580,  The House passed its resolution by a vote of 243 Yeas, 164 Nays, 1 Present, and 23 Not Voting.  H.R. Res. 908,  The approved House resolution:

(1) calls on all public officials to condemn and denounce any and all anti-Asian sentiment in any form;

. . . .

(3) condemns all manifestations of expressions of racism, xenophobia, discrimination, anti-Asian sentiment, scapegoating, and ethnic or religious intolerance;

(4) calls on Federal law enforcement officials, working with State and local officials –

(A) to expeditiously investigate and document all credible reports of hate crimes and incidents and threats against the Asian-American community in the United States;

. . . .

(C) to hold the perpetrators of those crimes, incidents, or threats accountable and bring such perpetrators to justice . . . .

H.R. Res. 908, Senate version of the resolution is virtually identical to that of the House.  S. Res. 580,

   [108].   See supra text accompanying notes 72–83.

   [109].   See Tavernise & Oppel, supra note 46.

   [110].   See, e.g., Cynthia Kwei Yung Lee, Beyond Black and White: Racializing Asian Americans in a Society Obsessed with O.J., 6 Hastings Women’s L.J. 165, 170–71 (1995); Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 229 (1995); Janine Young Kim, Note, Are Asians Black?: The Asian-American Civil Rights Agenda and the Contemporary Significance of the Black/White Paradigm, 108 Yale L.J. 2385, 2385–86 (1999).

   [111].   See Chang, supra note 13, at 1296–98 (discussing the Chinese Exclusion Acts); Recent Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889), 3 Harv. L. Rev. 136, 136 (1889) (discussing the Supreme Court’s decision upholding the constitutionality of the Exclusion Act of 1888); see also Recent Case, United States v. Ju Toy, 198 U.S. 253 (1905), 19 Harv. L. Rev. 60, 60-61 (1905) (discussing the Court’s holding in Ju Toy that under the Chinese Exclusion Act of 1894, as amended, the executive branch’s decision denying admission to “a Chinaman who alleged that he was a native-born citizen of the United States returning after a temporary absence” was not reviewable by the federal courts).

   [112].   See, e.g., Eric L. Muller, American Inquisition: The Hunt for Japanese American Disloyalty in World War II (2007).

   [113].   See, e.g., Eric L. Muller, Free To Die for Their Country: The Story of the Japanese American Draft Resisters in World War II (2001).

   [114].   Both defendants, Ebens and Nitz, pled guilty to manslaughter, and the trial judge sentenced each to three years’ probation, a $3,000 fine, and court costs.  The Asian American community expressed outrage.  Federal charges were brought against the two.  Nitz was acquitted; Ebens was convicted and sentenced to twenty-five years in prison.  See Denny Chin & Kathy Hirata Chin, Asian Americans and the Law, 11 Jud. Notice 6, 18 (2016).  On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed and remanded.  United States v. Ebens, 800 F.2d 1422, 1442 (6th Cir. 1986).  The case was moved from Detroit to Cincinnati for retrial.  “In voir dire, the vast majority of the prospective jurors answered that they had never met an Asian American person.  This time, Ebens was acquitted, as the jury was not persuaded that race was a motivating factor.”  Chin & Chin, supra, at 18.

   [115].   See United States, U.S. Census Bureau, (last visited Nov. 16, 2020) (indicating population estimates of persons identified as “Asian alone” at 5.9 percent of the U.S. total population, and “Native Hawaiian and Other Pacific Islander alone” at 0.2 percent). 

   [116].   Neil Gotanda, Chen the Chosen: Reflections on Unloving, 81 Iowa L. Rev. 1585, 1592 (1996) (stating that “Asian American culture may defy definition”); Hsu, supra note 101, at 94 (stating that the Asian American community in the late 1960s to the early 1980s “lacked the racial and ethnic cohesion of a homogenous ‘Asian American culture’ necessary to successfully execute a cultural nationalist project”).

   [117].   Eric Liu, The Accidental Asian: Notes of a Native Speaker 79 (1998) (quoting an unnamed Asian American activist).

   [118].   Id.

13 Ways Coronavirus Will Change How Families Travel | Out & About with Kids

10 Wake Forest L. Rev. Online 124

Betsy J. Grey*

I. Introduction

Business owners and politicians have raised the specter of a flood of civil lawsuits arising out of the pandemic.[1]  Most of these suits will likely be commercial in nature, and very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States.[2]  Even so, calls have come for immunity shields for industries that could potentially face personal injury lawsuits.[3]  But are those requests for immunity well-founded?  Strong hurdles to bringing personal injury suits already exist to discourage plaintiffs’ lawyers from suing.[4]  The most significant roadblock is causal proof, which demands that plaintiffs prove both that the source of their infection was viral exposure at a defendant’s business and that the exposure was due to the defendant’s negligence.

In Covid-19 exposure cases, meeting the burden of proof on the element of causation will be insurmountable in most cases given the highly contagious nature of the virus, the multiple sources of exposure plaintiffs may experience, and the developing state of the art on effective mitigation measures to prevent viral spread.  This Article explores these issues, examining the difficulty of causal proof in different business environments and comparing causal proof submitted in other tort cases involving clusters of injury, such as toxic exposure and food poisoning cases.  It concludes by examining whether federal legislation enacting an alternative compensation scheme for claims brought by essential workers against businesses, with lower causal proof requirements, is a better way to address the problem of causal proof, at least for those workers.

Part II reviews the state of knowledge on how the virus is transmitted.  Science continues to increase our knowledge on viral spread, but it is clear that significant spread comes from airborne particles, both smaller (aerosols) and larger (droplets).[5]  It can also spread through a variety of surfaces, known as fomites, which may retain the virus for several days.[6]  The virus spreads more easily indoors than outdoors.[7]  Confined spaces seem to pose the highest risk.[8]  Length of exposure is also a significant factor for contracting the virus.[9]  Some spreaders are asymptomatic and expose others unknowingly.

In Covid-19 personal injury suits against businesses, plaintiffs would need to prove that they contracted the illness in a given setting and the contraction was due to the defendant’s negligent failure to implement appropriate mitigation measures.[10]  Part III briefly overviews the primary mitigation measures that businesses currently use to reduce exposure to the virus.  Many of these measures are based on federal and state governments’ guidelines to businesses.[11]  These mitigation measures include ensuring social distancing, mandating mask usage, conducting symptom screening, upgrading ventilation systems, limiting numbers of patrons and employees on premises, undertaking deep cleaning measures, and providing hand-sanitizing dispensers.[12]

Part IV explores different types of business premises in which negligent exposure lawsuits can arise, and the challenges for proving causation in those settings.  The strength of causal proof is a sliding scale, depending on factors such as the nature of the environment and the length of exposure.  Causal proof will be stronger in contained environments with sustained close contact, like cruise ships and nursing homes, and weaker in highly public settings with short-term usage, like grocery stores.  Contained environments also differ because some environments are completely contained, like prisons, while others are contained for periods of time, like meatpacking plants.

Part V examines other challenging exposure cases, like toxic torts and foodborne illnesses, to see how plaintiffs meet their burden on causal proof in those settings. These settings often involve identifying outbreaks and clusters of illness and applying probabilistic proof to show causation for specific individuals.  Although important differences exist between those cases and the Covid-19 cases, they offer a starting point for approaching some of the complicated causal proof for Covid-19 cases.

Finally, Part VI explores the possibility of creating a federal alternative compensation fund for essential, frontline workers.  Like other compensation funds, it would lower the burden on causal proof and create presumptions of exposure.  The strong public policy reasons to support essential workers argue in favor of creating the causal presumptions and making it easier to receive compensation.  One approach could include creating the equivalent of a federal workers’ compensation program for essential workers, applying presumptions that the virus was contracted in the course of employment.  A workers’ compensation-like framework will help ensure that these essential workers are not left without recourse or compensation for their injuries.

II. Covid-19 Transmission

Covid-19 is highly contagious.  It is a type of coronavirus similar to SARS-CoV (“SARS”) and MERS-CoV (“MERS”)[13] and can spread when an infected person coughs, sneezes, talks, or breathes, producing respiratory droplets and aerosols.[14]  Bigger viral particles, called droplets, fall to the ground or nearby surfaces.[15]  Smaller viral particles evaporate in the form of aerosols, and can linger in the air.[16]  Experts estimate droplets and aerosols from a sneeze can travel up to six meters.[17]  Droplets from an exhale or cough can travel between one and three meters respectively.[18]  Aerosols, however, can potentially travel farther depending on the airflow pattern.[19]  Covid-19 only remains viable in aerosols for three hours, but in the form of droplets, it can infect others for up to eighty-four hours.[20]  Thus, while there is controversy among experts regarding the role of aerosols in spreading Covid-19, experts believe that the larger droplets predominantly spread the virus.[21]

Although Covid-19 can potentially spread through a variety of surfaces, experts believe fomites such as door and drawer handles, elevator buttons, and faucets are predominant carriers.[22]  This potential is likely because Covid-19 can remain viable on plastic and stainless steel for up to seventy-two hours.[23]  Other surfaces, such as cardboard, food, and water, however, have significantly lower viability spans, and thus are less likely to carry the virus.[24]

Coronaviruses are more likely to spread indoors.  While there are still limited data on the effects of different environments on Covid-19 viability, studies show that SARS retains its viability best in temperatures ranging from 71 to 77 degrees Fahrenheit, and relative humidity of 40 to 50 percent, which is typical of air-conditioned environments.[25]  However, the virus tends to lose viability at temperatures above 100 degrees Fahrenheit and relative humidity above 95 percent.[26]  Given Covid-19’s similarities to SARS, this is likely the case for Covid-19 as well.[27]  Notably, in a preprint Chinese study of 318 coronavirus outbreaks, all but one occurred indoors.[28]

Experts warn that even outdoor environments will not prevent infection among groups of people in close contact—the largest risk factor for spreading Covid-19.[29]  The worst clusters of coronavirus in the U.S. have been tied to spaces with many people in close proximity  at the same time.[30]  The length of exposure is also a critical factor—sustained interactions carry a larger risk of infection than limited interactions.[31]  Thus, the more people one interacts with, and the longer that interaction, the greater the risk of contracting Covid-19.[32]

Although there is a risk of contracting Covid-19 at nearly any location, confined spaces pose an elevated risk.[33]  Some examples of high-risk confined spaces include flights, car rides, public transportation, homeless shelters, and healthcare centers.[34]  One U.S. study analyzed Covid-19 infection potential in airplanes, cars, and healthcare centers.[35]  In airplanes, the study reported that an infected person without a mask can infect between five to ten people through one cough.[36]  This number decreases to approximately three people if the infected person wears a mask.[37]  In a car, an infected person can potentially infect every person within the car through a cough, whether or not masks are worn.[38]  While opening car windows and travelling at higher speeds slightly reduces the risk of transmission, Covid-19 droplets and aerosols can still infect every person in the car.[39]  In healthcare centers (or any other indoor environment where people gather in clusters), an infected person’s cough can spread Covid-19 droplets up to one meter.[40]  Thus, the infection risk from droplets is limited to those in close contact with the infected person, or who touch an infected fomite.[41]  However, Covid-19 aerosols from the cough may follow the airflow stream of the air conditioning and potentially infect others several meters away.[42]  While improved airflow and masks can decrease the risk of long-range transmission, some risk of infection remains.[43]

Once infected, the average person will show symptoms in five to six days.[44]  However, it is possible to show symptoms up to fourteen days after exposure.[45]  In a study of infected persons in the Hubei province of China, one of the original hotspots of the virus, 97.5 percent of people exhibited symptoms by 11.5 days.[46]  Given that the time it takes a person to develop symptoms varies, it may be difficult to determine which point of exposure caused the infection.  Equally challenging to tracing the source of infection is that some spreaders never develop symptoms at all.[47]

Our developing knowledge on viral spread and infection demonstrates how difficult it will be to prove that an individual contracted the virus at a specific exposure point.

III. Mitigation Measures for Businesses

For causal proof, plaintiffs must prove not only that the exposure to the virus occurred in the defendant’s premises; they must also prove that defendant’s failure to take appropriate mitigation measures—or a breach of its duty of due care—caused the contraction of the virus.  In other words, plaintiff must show that defendant’s negligence caused the plaintiff to contract the virus.  Most of the mitigation measures implemented by businesses originate from guidelines issued by the federal and state governments, but businesses are free to go beyond these measures in the interest of safety and the changing state of the art.  Accordingly, an important dynamic in addressing the standard of care is what mitigation efforts others in the industry have implemented.[48]  Custom in the industry will be a significant factor—if many others in the same industry have taken preventative steps that the defendant has not taken, this may suggest negligence.[49]  The effectiveness of mitigation measures undoubtedly will be disputed by experts,[50] especially given the changing state of science and the lack of peer reviewed studies and literature in the area.

In general, businesses have a duty to promote the health of employees and patrons. The Centers for Disease Control and Prevention (“CDC”) has issued general guidelines for businesses to mitigate the spread of Covid-19 in the workplace.[51]  Under these guidelines, businesses, first and foremost, should encourage those employees who are sick, have tested positive for Covid-19, or have recently come in close contact with a person who tested positive to stay home.[52]  These guidelines direct businesses to conduct symptom checks for all employees, sending home those who do not pass.[53]  If an employee tests positive for Covid-19, business owners should instruct them, as well as any potentially exposed employees, to stay home for fourteen days, telework if possible, and self-monitor for symptoms.[54]  All areas used by the sick person should be closed off and disinfected after twenty-four hours.[55] The guidelines also encourage employers to promote workplace behaviors that reduce the spread of Covid-19.[56]

Businesses should implement practices to minimize close contact.[57]  As noted, the more people with whom one interacts, and the longer that interaction, the higher the risk of Covid-19 spread.[58]  Accordingly, the CDC recommends teleworking and non-contact services when possible.[59]  In addition, businesses should modify the layout and procedures of their stores to ensure social distancing,[60] such as moving tables or barstools in restaurants,[61] spreading out gym equipment,[62] and establishing a clear path of travel for customers.[63]  In spaces where it is hard to physically distance, businesses should install physical barriers and require employees to wear cloth face coverings to prevent the spread of infection.[64]  The CDC recommends closing communal spaces, staggering employee shifts, and limiting the number of people allowed in the establishment.[65]  Businesses should also post signs and messages in highly visible locations to remind employees and customers to socially distance.[66]

The guidelines recommend other strategies to maintain a healthy business environment, including regular cleaning of all surfaces,[67] increasing ventilation rates and controlling the temperature and humidity of their building,[68] and opening windows and doors to improve air circulation.[69]  Because Covid-19 likely thrives best in low humidity, maintaining humidity levels of 40 to 60 percent may help prevent its spread.[70]  Additional guidelines for restaurants include avoiding self-serve food and drink stations, and prioritizing outdoor seating. [71]

Under these guidelines, businesses should implement flexible leave policies that do not punish employees for taking time off when they are sick.[72]  They should also offer high-risk employees, such as older adults and those with underlying medical conditions, alternative opportunities that limit their exposure risk.[73]

Importantly, the guidelines encourage businesses to follow all state and local Covid-19 regulations.[74]  Some examples of common regulations include mask mandates, travel restrictions, mass gathering restrictions, and mandatory business closures.[75]  Requirements may differ by state and industry; however, most regulations model the CDC guidance described above.[76] Currently, forty-one states require masks in public.[77]  Most states have restricted mass gatherings in some capacity and restricted travel from certain hotspots.[78]

IV. A Sliding Scale of Causal Proof Factors

As the number of Covid-19 cases in the United States continues to rise, so does the potential for Covid-19 related personal injury lawsuits against businesses and employers.  Employees, patrons, and patients could bring lawsuits against employers, businesses, and healthcare centers seeking compensation for personal injury damages resulting from their Covid-19 infection.  Some of these lawsuits will be shielded by workers’ compensation and other strong immunities.[79]  Even if they get beyond these shields, plaintiffs must prove that they more likely than not contracted the virus on the defendant’s premises due to the defendant’s negligence.  Because the virus is highly contagious and can be contracted anywhere, proving causation in these cases will be extremely difficult.  The strength of causal proof will reflect a sliding scale of factors like settings, mitigation efforts, and length of exposure.

Some settings will lend themselves to stronger causal proof than others.  Given our knowledge about exposure, asymptomatic spreaders, and incubation periods, showing a temporal relationship between visiting the premises and the onset of the virus alone will not suffice.  The best-case scenario for proving causation would likely involve an outbreak in a contained environment, like a cruise ship or nursing home.[80]  Studies have shown that the likelihood of contracting Covid-19 in a confined space is higher than the likelihood of contracting it in other environments.[81]  Moreover, a cluster of cases on the same cruise or nursing home will help prove that the outbreak is the most likely cause of the plaintiff contracting the disease.  While an outbreak is not a requirement, it will bolster causal proof.[82]

In a recent district court case, plaintiffs sought damages for personal injury, including one death, from Covid-19, which they allegedly contracted while on a cruise due to the ship’s negligence in handling an outbreak of the virus.[83]  The court dismissed the complaint, holding that although plaintiffs’ allegations of an outbreak on the ship and the defendant’s failure to quarantine or notify any of the passengers of the outbreak were sufficient to allege exposure, they had not sufficiently pled that they had contracted the virus from the exposure.[84]  Significantly, though, the court granted plaintiffs leave to amend the complaint, to give them the opportunity to allege the amount of time between the exposure and the date the plaintiffs started experiencing Covid-19 symptoms or received a positive test.[85]  The court explained that this timing regarding the incubation period is “a key fact necessary to render the causation allegations plausible, not merely possible.”[86]  This suggests that allegations of an outbreak, negligent handling of the outbreak, extended exposure, and a temporal relationship between exposure and contract may be enough to get to a jury on causation.

Alternative causes will always be an area of dispute. While the plaintiff has to rule in the cause by a preponderance of the evidence and does not need to rule out alternative causes in her case in chief, the issue will inevitably arise.[87]  Through investigation and discovery, defendants will attempt to develop potential sources of alternative exposures.  Plaintiffs who have been taking public transportation, failing to wear a facemask, joining large gatherings, or not maintaining social distancing will have a harder time proving that they contracted the virus on the business premises.  Alternative causes are harder to suggest in a nursing home where the plaintiff will likely have no other exposures other than the home itself, since most residents do not leave the building and outside visitors were curtailed very quickly after the pandemic started in March.  A plaintiff who allegedly contracts Covid-19 on a cruise ship will also have fewer alternative scenarios to explain. Although proving the plaintiff contracted the virus on the cruise ship, and not one of the stops along the way, will still be at issue, a cluster of cases onboard, and a contained environment strengthens the causal proof.

Other potentially stronger causal cases include buildings where people gather in clusters for prolonged periods of time, such as homeless shelters, factories, or certain workplaces.  These settings will not provide as strong a causal link as those that involve a nursing home or a cruise ship, since people who frequent those settings will be more mobile.  Plaintiffs will likely need to present additional evidence, such as a Covid-19 outbreak in the facility, to strengthen their causal proof.  Workplaces, like meatpacking plants, which cannot accommodate certain mitigation efforts such as social distancing may also prove to be stronger causal cases.

It will be especially difficult for plaintiffs to prove they contracted Covid-19 in uncontained environments, such as grocery stores, restaurants, gyms, and retail stores.  Given that asymptomatic individuals spread many infections, it may be very difficult to identify precisely when the infection was contracted.  Even if plaintiffs can prove they were socially isolated when they contracted the virus or that an outbreak occurred at that particular location, that proof may be insufficient.  Defendants will challenge the plaintiff on other likely places of exposure, such as their home, car, or from any other person outside of the establishment.[88]  Alternatively, the plaintiff could attempt to prove that the business was the epicenter of an outbreak.  Contact tracing may reveal that a group of people visited a particular location within the same time period and later contracted Covid-19.  But as Covid-19 cases in the United States continue to strain the healthcare system, state health departments struggle (or do not even try) to conduct effective contact tracing.[89]  Thus, this option may not be viable.

Potentially, plaintiffs may also try to trace their Covid-19 case to a particular contact through DNA sequencing.[90]  Scientists have used DNA sequencing to track the geographic spread of Covid-19.[91]  This may allow identification of a particular strain of the virus on the business premises.  This science is still developing, and it is unclear whether it can work with sufficient specificity to track a case to a single contact.

V. Causal Proof in Other Settings

Two other types of tort claims that often involve clusters of illnesses may provide useful precedent in proving causation in the Covid-19 context: food poisoning cases and toxic exposure cases.  Both settings rely on circumstantial evidence and statistical proof to strengthen causal claims.

A.     Food Poisoning

Food poisoning may have numerous potential sources of infection, which makes causal proof challenging.  Because food poisoning spreads through contaminated foods,[92] a plaintiff may be exposed to multiple potential sources in every meal.  Some kinds of food poisoning can take several days or even weeks to present.[93]  In addition to creating uncertainty as to where an infection was contracted, this delay also minimizes a plaintiff’s ability to gather physical evidence because contaminated food may have been thrown away or unsanitary surfaces may have been sanitized.  These challenges may explain the low rates of success food poisoning plaintiffs have had in suits.[94]

The success of a food poisoning claim is highly fact dependent.  The cases where food poisoning plaintiffs have had the greatest success involve a large number of people developing the same symptoms and a quick investigation linking the contaminant in the plaintiff’s food to the contaminant found on the defendant’s premises.[95]  Some bacteria that cause food poisoning have a unique “DNA fingerprint,” which have been used to track outbreaks and identify the source.[96]  Even without scientific evidence directly linking the bacteria to the defendant, plaintiffs have successfully used circumstantial evidence to establish causation.[97]  Food poisoning plaintiffs have relied on outbreaks and clusters to bolster their causal proof.  For example, courts have considered whether others who consumed the food became ill and the time frame of the illness in relation to the consumption.[98]  Although generally plaintiffs have not been required to rule out every conceivable source of causation,[99] courts have required them to do more than demonstrate they developed food poisoning shortly after eating the defendant’s food.[100]

The food poisoning cases indicate some of the challenges Covid-19 plaintiffs will face.  As discussed earlier, Covid-19 plaintiffs likely face even more sources of infection because the virus can be spread through contact with an infected (and potentially asymptomatic) person or from infected surfaces.[101]  Delays in the emergence of symptoms further increase the potential sources of infection.[102]

Although food poisoning and Covid-19 infections have substantial overlap, proving causation in a Covid-19 case may present additional challenges.  While a food poisoning outbreak likely originates from a single (often static) source, the Covid-19 outbreak is so widespread that the potential sources are arguably any of the millions of infected individuals.[103]  Importantly, food poisoning is not contagious, unlike the Covid-19 virus, which accounts for the continued increase in potential sources of the virus.  In a food poisoning case, a plaintiff can use other people, such as family members, to demonstrate that they all became sick after eating at a restaurant.  In a Covid-19 case, even if a family develops the disease after visiting a defendant’s premises together, the defendant may still be able to argue that one person contracted the disease somewhere else and spread it to the rest of the family.  In limited circumstances, however, a Covid-19 plaintiff may actually have fewer potential sources of illness than the alleged food poisoning victim.  For example, a plaintiff who quarantined or remained in a confined location will likely be able to demonstrate few alternative sources of exposure, whereas food poisoning plaintiffs are unlikely to have abstained from eating (i.e., other sources of exposure) during the potential exposure period.  Even so, this may not remove the challenge of proving that it was the defendant’s negligence that caused the plaintiff’s harm.

B.     Toxic Torts and Statistical Proof

In toxic tort, medical device, and drug cases, courts typically divide the causal inquiry into two questions: (1) general causation (whether the chemical, device or drug is capable of causing the injury); and (2) specific causation (whether the agent caused the injury to the individual plaintiff).[104]  Although proof for both of those inquiries may be based on probabilities,[105] courts generally are more likely to allow probabilistic evidence through epidemiological studies to prove general causation but may not accept it to prove specific causation.[106]

With Covid-19 exposure cases, plaintiffs often will only be able to show that the defendant’s failure to take appropriate mitigation measures increased the likelihood that they were exposed to the virus (general causation) but not that the defendant’s negligence specifically caused them to contract the virus (specific causation).  As discussed earlier, outside of a completely contained environment for a prolonged period, like a nursing home or cruise ship, the probability of a particular exposure and contraction will be lower.  Plaintiffs will have difficulty showing that, absent the defendant’s conduct, they would not have contracted the virus when they did, which would fail to meet the traditional “but for” test for actual causation.[107]  As science improves, through greater knowledge of Covid-19 and personalized medicine and advances in genetics, scientists may be able to designate which plaintiffs contracted the virus due to defendant’s activities, and which suffered injury due to other exposures.  Science may one day permit us to distinguish where and when a plaintiff contracted the virus, but it is not yet at that point, and the best available evidence may be using probabilities and statistics to determine exposure in Covid-19 cases.[108]  Much of the causal proof may rely on clusters of cases in a given environment, but in any specific case, an alternative cause may have been responsible for the plaintiff’s injury.

Since specific causation is inherently individual, defendants in Covid-19 cases will likely be successful in defeating claims of causation on a one-on-one basis.   Courts and scholars have struggled with how to address situations in which some group of plaintiffs very likely have been injured by a defendant’s activity but cannot prove which individuals were harmed because of lack of specific causal proof.  These population exposure cases often occur in mass torts such as toxic tort, medical device, and drug exposure cases.[109]  Professor Levmore calls this problem “recurring misses,” which result in a defendant escaping liability even when it has clearly caused injury to someone.[110]  Scholars have proposed “proportional liability” based on the probability of causation to address this problem.[111]  This solution would adjust damages to the probability of causation, so that plaintiffs who can prove that there is, say, a 40 percent likelihood of injury due to the defendant’s activity should receive 40 percent of their damages from that defendant.[112]  Other scholars reject this approach as allowing courts to impose liability without enough proof of responsibility. [113]

Courts have adopted this proportional liability approach in limited toxic tort cases, such as imposing market share liability.[114]  Moreover, mass tort class actions settlements often appear to apply probabilistic causation in the settlement terms.[115]  As Professor Lahav observes, “[a]s a practical matter, . . . mass torts are routinely resolved collectively through global settlements that provide more or less proportional recovery to plaintiffs.”[116]  In other words, to address large scale injury from tortious behavior, litigants and courts may be adjusting traditional causal proof standards and turning to probabilities to achieve resolution of mass torts.  If we view an extensive viral outbreak that is linked to a large-scale event sponsored without adequate mitigation measures—say a motorcycle rally or a campaign rally—as a mass tort, it may make sense to resolve causal proof problems through proportional recovery methods.

Courts sometimes lower traditional causal proof standards for policy reasons.  Asbestos provides an interesting example.[117]  Following prolonged exposure, asbestos-related diseases can take twenty to fifty years to develop.[118]  Thus, it can be difficult to determine which asbestos exposure, if any, caused the disease, even though the defendant’s activities increased the likelihood of injury from asbestos exposure to a worker.[119]  As a result, some states have lowered the causation standard for asbestos cases.[120]  Without the lower causation standard, it would be nearly impossible for plaintiffs to recover.[121]

In asbestos cases, courts typically adopt one of two alternative causation standards to address the problem of causal uncertainty: the “substantial factor” test or the “frequency, regularity, proximity” test.[122]  Under the substantial factor test, plaintiffs can prove causation by demonstrating that, to a reasonable medical probability, their exposure was a substantial factor in contributing to the aggregate dose of asbestos that led to the plaintiff’s disease.[123]  The “frequency, regularity, proximity” test requires plaintiffs to identify a specific product as the probable cause of their injuries.[124]  The substantial factor test, which courts apply when multiple defendants are responsible for an injury,[125] is less useful in the Covid-19 context since the virus is contracted through a single exposure.  The “frequency, regularity, proximity” test, which requires plaintiffs to identify a specific product as the probable cause of their injuries, may be more useful. [126]  Under the test, the plaintiff must have worked in close proximity to the product “on a regular basis over some extended period of time.”[127]

Under the “frequency, regularity, proximity” test, Covid-19 plaintiffs could attempt to show causation by presenting evidence of the length of time spent at the defendant’s place of employment or business, their proximity to others, and the property’s environment, along with evidence of cluster outbreaks on the same property.  Applying the test would help overcome the almost insurmountable hurdle presented by the “but for” test in this context by allowing consideration of the probability of exposure to show specific causation.

In recent literature, scholars continue to argue that causal proof, in certain circumstances, should be attributed probabilistically[128] and on a collective basis.[129]  Professor Campos challenges the need to prove individual causation in a mass production case, often a roadblock to class action certification, to ensure a greater impact on unlawful behavior.[130]  As he states, after a finding of total liability, “one could relax specific causation requirements completely and simply choose a simple, rational way to distribute funds.”[131]

 Professor Lahav argues that in an important subset of cases, where a binary determination of cause is virtually impossible but certain behavior has a tendency to cause harm, the causal question should be untied from a strictly scientific question of fact (the “but-for” inquiry), and introduce a normative element.[132]  In these limited circumstances, she would apply a more value-laden test: “Should there be liability for this conduct?”[133]  According to her, where courts must rely on probabilistic evidence for both general and specific causation, and repeated behavior has an increased likelihood of causing injury in the future, the causal inquiry should be influenced by the policy outcome the decision maker finds would be more beneficial to society and not just physical law.[134]

Applying Lahav’s and Campos’s approaches to the causal difficulty imposed by Covid-19 personal injury cases may make sense.  Businesses face tremendous financial pressure to cut corners in safety measures in maintaining their workplaces and businesses during the pandemic, and those businesses may not be appropriately weighing the public health costs of their actions.  This risk is compounded by the likelihood that businesses can defeat tort claims based on the failure of causal proof.  Assuming that negligent behaviors by businesses and employers increase the likelihood of contraction of the virus, but that it is virtually impossible to prove with regard to individual cases, it is arguable that courts should be influenced by normative choices in determining liability.  If hotspots, superspreader events, and clusters arise on certain premises, policy reasons may argue in favor of using statistical proof for both general and specific causation.  This view of causation will have a greater impact on a potential defendant’s conduct and will create incentives to take appropriate safety measures to protect workers and consumers from contracting the virus.

 Introducing normative considerations into the element of causation may also argue in favor of legislatively creating a special compensation fund with lowered causal proof requirements.  Such a scheme may be particularly warranted for selected victims, like essential workers, as discussed below.

VI. Creating an Alternative Compensation Fund for Essential Workers

The difficulty of proving specific causation may be the undoing of most Covid-19 personal injury lawsuits against businesses.  Driven by policy reasons in specific settings, legislatures have created alternative compensation systems that lower causal proof.  Examples include compensating victims of vaccine injury to encourage use of vaccines while protecting vaccine manufacturers from personal injury lawsuits,[135] compensating veterans who may have been exposed to Agent Orange during the Vietnam War,[136] or compensating  innocent victims, including clean-up workers, of the 9/11 attacks while protecting the airline industry from lawsuits.[137]  Some state workers’ compensation systems have lowered the causal proof standard for showing that the disease or injury to the worker from Covid-19 resulted from an activity within the scope of employment.[138]  These alternatives may serve as models for creating a federal compensation system and lowering causal proof for the essential, frontline workers who likely experienced increased exposure to the virus at their workplace. [139] 

A.     Federal Compensation Systems

Congress has formed at least three compensation systems that create a presumption of causation.[140]  All of the settings involved challenging causation issues.  In these schemes, causation is presumed when people develop specific injuries or illnesses after receiving certain vaccines, being exposed to Agent Orange, or being injured or killed in the 9/11 attacks or its aftermath.[141]

The Vaccine Injury Compensation Program[142] creates a no-fault compensation system for people injured by certain vaccines, especially childhood vaccines.[143] The program was created to encourage vaccinations and limit lawsuits that could hinder vaccine manufacturers or the supply of vaccines.[144]  Individuals filing a claim must demonstrate they were injured by the vaccine.[145]  Proving injury from a childhood vaccine can be quite difficult, but the Vaccine Injury Table[146] creates a presumption of causation for certain injuries.[147]  To receive the presumption, an injured party only needs to demonstrate that he or she received a covered vaccine and experienced an illness, disability, injury, or condition listed in the table within a specific time period.[148]  If an injury is not listed in the table, the injured party does not receive the presumption and must prove causation-in-fact.[149]

Federal legislation permits creation of a similar scheme for injuries from vaccines and other countermeasures used in a public health emergency.  The Public Readiness and Emergency Preparedness Act (“PREP Act”) creates a compensation fund for individuals injured by countermeasures,[150] and the Secretary of Health and Human Services is authorized to create a list of injuries that will be presumed to be caused by a countermeasure.[151]  In the Covid-19 context, countermeasures includes vaccines.[152]  The policy behind creation of this fund is obvious: to encourage widespread use of vaccines and other countermeasures during a health emergency while protecting those who administer or create the countermeasures from liability.[153]

Veterans potentially exposed to Agent Orange during the Vietnam War also received a presumption of causation to receive compensation for certain diseases.  Proving a causal link between exposure to the defoliant used during the war and subsequent delayed illness was extremely difficult, and the veterans of the controversial war were a sympathetic group of plaintiffs.[154]  The Agent Orange Act of 1991[155] created a list of “presumptive diseases.”[156] In order to receive the presumption, a veteran must have developed a presumptive disease and have served in specific regions during certain time periods.[157]

Victims of the 9/11 terror attacks received compensation under the September 11th Victim Compensation Fund, which provides compensation to people substantially injured or to the families of people killed as a result of the terrorist attacks.[158]  Although the Fund initially only covered those who were injured or killed in the immediate aftermath of the attacks, it was extended to cover clean-up workers whose manifestations of injuries may have been delayed.[159]  To receive compensation, a claimant must demonstrate both a physical health condition and some exposure to the 9/11 crash site or clean-up efforts.[160]  There is a list of approved “WTC-related health conditions;”[161] however, the exposure must be determined to be “substantially likely to be a significant factor” in the health condition by a medical professional.[162]  This determination may be based on the length of exposure as well as the specifics of the exposure, such as actual involvement in clean-up efforts rather than only proximity.[163]  A claimant must have been present at a crash site, within a Victim Compensation Fund (“VCF”) NYC Exposure Zone, or near debris removal routes.[164]  Although it does not explicitly lower the burden of causation, the Fund’s list of qualifying health conditions and specific methods for determining exposure has a similar effect.

B.     State Compensation Systems

States have lowered causal proof requirements in compensation systems.  State workers’ compensation schemes generally require a worker to show that a disease or injury resulted from an activity within the course or scope of employment.[165]  This showing could be very difficult for Covid-19 victims because of the many alternative sources of exposure, as discussed above.   Some states, such as Alaska, Minnesota, and Wisconsin, have enacted legislation creating a presumption of causation that first responders contracted Covid-19 in the course of their employment.[166]  In California, even non-essential workers receive the presumption. [167]

C.     A Compensation Scheme for Essential Workers

The strong public policy interest in protecting essential workers from injury during the pandemic, and the difficulty of proving specific causation, argue in favor of creating a federal compensation fund for essential workers with a lower causal standard.  Otherwise, given the barriers to proving causation (including under most state workers’ compensation schemes), few front line employees would be able to recover for their injuries from negligent defendants.  These victims are serving in critical positions for society but face prolonged periods of exposure in risky environments.  Similar to the 9/11 first responders, the symbolic nature of ensuring compensation for these victims is significant.  The risks borne by these workers should be perceived of as commonly shared risks, which would justify the use of a federal compensation system.  Modeled on state workers’ compensation programs, Congress could create a national program that creates a presumption of causation for essential workers who contract Covid-19, which would make them eligible for personal injury damages resulting from the virus. [168]

Compensation funds can ensure efficient dispensation of victim compensation.  Any time a legislature goes outside the tort system and creates an alternative compensation system, however, it comes at a cost.  In particular, it removes incentives provided by the tort system to engage in reasonably safe behavior.[169]  One concern is that providing compensation to essential workers would create a disincentive to individuals from refraining from risky behaviors outside of work, like attending large public events or failing to socially distance.  Although such behaviors will inevitably occur, on balance the arguments in favor of creating a compensation scheme for this limited group of workers who provide enormous benefit to society outweigh the risk of the workers engaging in risky behaviors outside of work.  The anecdotal evidence of essential workers taking extreme measures to protect their families suggest that the risks of this behavior are minimal.[170] 

Similarly, a federal compensation scheme may remove an incentive for businesses to take reasonable safety measures to protect their workers.[171]  Like state workers’ compensation systems, the Fund would protect essential businesses from liability for claims brought by their employees, a form of tort immunity.  Removing the specter of tort liability could create disincentives from prioritizing the implementation of sufficient safety measures, especially given the enormous financial pressures businesses face in the pandemic.  Theoretically, regulators like the Occupational Safety and Health Administration (“OSHA”) fill in the gap left by no-fault workers’ compensation schemes.[172]  Regulation of Covid-19 safety measures may need to be increased in this area to countermand the risk of unsafe business practices.[173]  Even without increased regulation, the strong societal pressures to take appropriate mitigation measures, as well as the obvious need to create a healthy atmosphere for workers, should counteract the potential for reduced safety measures.  Furthermore, the scheme would be limited in scope and only apply to workplaces of essential workers.  Although a few states have already created presumptions to achieve the same result through state workers compensation funds,[174] most have not.

VII. Conclusion

Causation will be a significant barrier to personal injury lawsuits on business premises.  There will likely be no direct evidence attributing contraction of Covid-19 to a specific source available in the near future.  Although plaintiffs may be able to prove general causation by alleging that defendants’ negligent implementation of mitigation measures increased the likelihood of exposure to the virus generally, specific causation will be much more challenging.  Alternative sources of exposure will always be an issue.  The highly contagious nature of the virus and the lengthy incubation period make proof especially difficult.  Plaintiffs’ conduct will play a central role in the causal proof.

This does not mean that the causal element must always be fatal to plaintiffs’ personal injury suits.  Causal proof will be stronger when the premises involve contained environments over a lengthy period.  Evidence of cluster “hot spots” will also strengthen the inference that the plaintiff contracted the virus on the premises.  Plaintiffs may look to other precedent, such as food poisoning and toxic tort cases, where cases of clusters and statistical proof have been used, to bolster causation.

Finally, we should consider alternative methods of compensation for certain victims.  In particular, essential frontline workers, serving in critical positions to promote social interests, but facing prolonged periods of exposure in risky environments, may warrant special protection.  A federal compensation scheme would more equitably absorb the risk of no compensatory recourse due to failure of causal proof for these workers.  Federal and state no-fault compensation schemes, which create presumptions of causation, offer models to create a special compensation fund for essential workers.

* Jack E. Brown Chair in Law, Sandra Day O’Connor College of Law at Arizona State University. I thank Brie Alford and Samantha Orwoll for their excellent research assistance for this Article.

[1].     Jim Tankersley & Charlie Savage, Businesses Seek Sweeping Shield from Pandemic Liability Before They Reopen, N.Y. Times (June 12, 2020), (quoting Senator Mitch McConnell who stated that businesses will be “set up for an avalanche of lawsuits” if Congress doesn’t act).

[2]. See Covid-19 Case Tracking Research, Perkins Coie LLP 1 (September 2020),  The largest number of suits filed this far have been against insurance companies for disputes over business interruption coverage.  Id.; see also COVID-19 Complaint Tracker, Hunton Andrews Kurth, (last visited Oct. 30, 2020) (tracking relatively few tort claims).

[3].         See Betsy J. Grey & Samantha Orwoll, Tort Immunity in the Pandemic, 96 Ind. L. J. Supp. 66, 66–67 (2020),

[4].   See id. at 3–4.

[5].       Renyi Zhang et al., Identifying Airborne Transmission as the Dominant Route for the Spread of COVID-19, 117 Proc. Nat’l Acad. Sci. U.S. 14857, 14857 (2020),

[6].   Mahesh Jayaweera et al., Transmission of COVID-19 Virus by Droplets and Aerosols: A Critical Review on the Unresolved Dichotomy, 188 Elsevier Env’t. Res. 1, 1 (2020).

[7].   Deciding to Go Out, Ctrs. for Disease Control & Prevention (Sept. 11, 2020),

[8].   Jayaweera et al., supra note 6, at 8.

[9].        Public Health Guidance for Community-Related Exposure, Ctrs. for Disease Control & Prevention (July 31, 2020),

[10].   Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30).

[11].        See, e.g., Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, Ctrs. for Disease Control & Prevention (May 6, 2020),,%2C%20pick%2Dup [hereinafter Interim Guidance].

[12].        See id.

[13].  Nicola Petrosillo et al., COVID-19, SARS and MERS: Are They Closely Related?, 26 Clinical Microbiology & Infection 729, 731–32 (2020).

[14].   Zhang et al., supra note 5, at 14,857.

[15]. Jayaweera et al., supra note 6, at 1.

[16]       Id.

[17].        Id. at 6.

[18].        Id.

[19].        Id. at 13–14.

[20].        Id. at 4.

[21].        Id. at 2.

[22].        Id. at 3.

[23].        Id. at 4.

[24].        William F. Marshall, Can COVID-19 (Coronavirus) Spread Through Food, Water, Surfaces and Pets?, Mayo Clinic (June 5, 2020),

[25].        K.H. Chan et al., The Effects of Temperature and Relative Humidity on the Viability of the SARS Coronavirus, 2011 Advances Virology 1, 2 (2011).

[26].        Id. at 2–3.

[26].       Petrosillo et al., supra note 13, at 731–32.

[28].        Hua Qian et al., Indoor Transmission of SARS-CoV-2, medRxiv (forthcoming 2020) (preprint at 5) (on file with medRxiv and bioRxiv),

[29].       Aylin Woodward, You’re Less Likely to Catch the Coronavirus Outdoors, But the Amount of Time You Spend Near Other People Matters Most, Bus. Insider (May 17, 2020, 9:02 AM),

[30].        Id.

[31].        People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Oct. 16, 2020), Patients with a higher viral load, or dose, of the virus may suffer from more severe symptoms of Covid-19.  Elisabet Pujadas et al., SARS-CoV-2 Viral Load Predicts COVID-19 Mortality, 8 Correspondence e70, e70 (2020),

[32].        People with Certain Medical Conditions, supra note 31.

[33].        Jayaweera et al., supra note 6, at 8.

[34].        Id.

[35].        Id.

[36].        Id.

[37].        Id. at 9.

[38].        Id. at 12.

[39].        Id.

[40].        Id. at 13.

[41].        Id. at 13–14.

[42].        Id.

[43].        Id. at 14–15.

[44].        Stephen A. Lauer, et al., The Incubation Period of Coronavirus Disease 2019 (COVID-19) from Publicly Reported Confirmed Cases: Estimation and Application, Annals Internal Med. 1, 1, 3 (2020),

[45].        Id. at 4–5.

[46].        Id. at 3.

[47].        Seungjae Lee, et. al, Clinical Course and Molecular Viral Shedding Among Asymptomatic and Symptomatic Patients with SARS-CoV-2 Infection in a Community Treatment Center in the Republic of Korea, JAMA Internal Med. (Aug. 6, 2020),

[48].        Dan B. Dobbs, et al., Hornbook on Torts § 12.6 (2d ed. 2000).

[49].        Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 13 (Am. L. Inst. 2010).

[50].        See Danielle Conway-Jones, Factual Causation in Toxic Tort Litigation, 35 U. Rich. L. Rev. 875, 918 (2002) (“Because the issue of factual causation in toxic tort cases is complex, expert testimony is crucial, especially to those courts that rely heavily on the ontological approach.”).

[51].        Interim Guidance, supra note 11. For example, all businesses should designate a point of contact for Covid-related concerns. Id.

[52].        Id.

[53].        Id.

[54].        Id.

[55].        Id.

[56].        Id. Examples include teaching employees proper etiquette for coughing, sneezing, and handwashing, and providing tissues, no-touch trashcans, soap and water, and hand sanitizer with at least 60 percent alcohol.  Id.  Restaurant and bar owners should monitor employee compliance with hand-washing protocol. Considerations for Restaurants and Bars, Ctrs. for Disease Control & Prevention (June 30, 2020), [hereinafter Considerations for Restaurants and Bars].

     [57].   Interim Guidance, supra note 11.

     [58].   Operating Schools During COVID-19: CDC’s Considerations, Ctrs. for Disease Control & Prevention (May 19, 2020),

     [59].   Considerations for Restaurants and Bars, supra note 56.

     [60].   Interim Guidance, supra note 11.

     [61].   Considerations for Restaurants and Bars, supra note 56.

     [62].   Personal and Social Activities, Ctrs. for Disease Control & Prevention (Sept. 11, 2020),

     [63].   Interim Guidance, supra note 11.

     [64].   Id.

     [65].   Id.

     [66].   Id.

     [67].   Id. Soap and water is sufficient for most surfaces; however, frequently touched surfaces, such as light switches, doorknobs, and handles, should be disinfected.  Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes, Ctrs. for Disease Control & Prevention (May 7, 2020), [hereinafter Reopening Guidance]. Businesses should consult CDC guidelines to ensure they use the correct cleaner or disinfectant for the particular surface.  Id.  To reduce the cleaning burden, businesses may consider removing unnecessary items and replacing hard to clean surfaces, such as carpets and rugs.  Id.

     [68].   Businesses should run their ventilation 24/7 if possible, to increase ventilation rates. Interim Guidance, supra note 11. The American Society of Heating, Refrigeration, and air-Conditioning Engineers (“ASHRAE”) recommends single-space high ventilation to reduce concentrations of infectious aerosols.  See Erica J. Stewart et al., ASHRAE Position on Infectious Aerosols, ASHRAE (Apr. 14, 2020),

     [69].   Interim Guidance, supra note 11.

[70].        See Stewart et al., supra note 68.

[71].        Considerations for Restaurants and Bars, supra note 56.

[72].        Id.

[73].        Id.

[74].        Interim Guidance, supra note 11.

[75].        COVID-19 State and Local Policy Dashboard, Multistate, (last visited Oct. 30, 2020).

[76].        See id.

[77].        Id.

[78].        Id.

[79].        See Pa. Exec. Order No. 2020-05 (2020), Notably, this legislation only protects individuals and not the healthcare entities. See Grey & Orwoll, supra note 3, at 69–75.

[80].        See Benedict Carey & James Glanz, Aboard the Diamond Princess, a Case Study in Aerosol Transmission, N.Y. Times (July 30, 2020), (discussing evidence that small, airborne droplets may play a large role in the transmission of Covid-19 and may have “accounted for about 60 percent of new infections over all” on a cruise ship).

[81].       Jayaweera et al., supra note 6, at 8.

[82].        See Foster v. AFC Enters., 896 So. 2d 293, 297 (La. Ct. App. 2005) (finding that evidence of a cluster of food poisoning cases was not necessary to prove causation).  But cf. Hairston v. Burger King Corp., 764 So. 2d 176, 178 (La. Ct. App. 2000) (noting that clusters of food poisoning cases help establish causation).

[83].        Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 6–8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30) (allegations of Covid-19 outbreak on cruise ship, without quarantining passengers, sufficiently allege plaintiffs were exposed to virus while onboard; complaint dismissed with leave to amend to allege amount of time between alleged exposure and experiencing symptoms or receiving positive test to allege causation). 

[84].        Id.

[85].        Id. at 7–8, 12.

[86].        Id. at 7.

[87].        See Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 28, cmt. b (Am. L. Inst. 2010) (“The civil burden of proof merely requires a preponderance of the evidence, and the existence of other, plausible causal sets that cannot be ruled out does not, by itself, preclude the plaintiff from satisfying the burden of proof on causation.”).

[88].        Plaintiffs may have expressly or impliedly assumed the risk of contracting Covid-19 in a particular location.  Assumption of the risk may act as a complete bar to recovery.  Plaintiffs may have expressly assumed the risk if they signed a waiver releasing a business or organization from liability for contracting Covid-19 in their establishment.  Alternatively, a plaintiff who knowingly and voluntarily patronized a business that was not exercising appropriate precautions may have impliedly accepted the risk of contracting Covid-19.

[89].        Tracking Coronavirus Cases Proves Difficult Amid New Surge, Mod. Healthcare (June 29, 2020, 1:19 PM),

[90].        Claire Jarvis, How Genomic Epidemiology is Tracking the Spread of COVID-19 Locally and Globally, Chem. & Eng’g News (Apr. 23, 2020),

[91].        Id.

[92].        Abigail Shew, Are You Sure It Wasn’t Food Poisoning, U.S. Dep’t Agric. (May 7, 2019),

[93].        See, e.g., Listeria (Listeriosis), Ctrs. for Disease Control & Prevention (June 17, 2019),; Salmonella and Food, Ctrs. for Disease Control & Prevention (July 9, 2020),

[94].        One study found that only one third of plaintiffs receive compensation in foodborne illness cases tried before a jury.  Jean C. Buzby et al., U.S. Food & Drug Admin., Product Liability and Microbial Foodborne Illness, Agricultural Economics Reports No. 799, 25 (2001),  The USDA has identified additional challenges facing food poisoning plaintiffs. Id. at 24.

[95].        Louis R. Frumer, Products Liability § 48.06 Medico-Legal Aspects of Food Poisoning (2020), LEXIS.

[96].        Pulsed-field Gel Electrophoresis (PFGE), Ctrs. for Disease Control & Prevention (Feb. 16, 2016),  Whether a similar tool will be developed for Covid-19 remains to be seen, although it would be unlikely to help those already infected.

[97].        See, e.g., Craten v. Foster Poultry Farms Inc., 305 F. Supp. 3d 1051, 1061 (D. Ariz. 2018) (finding “sufficient circumstantial evidence to permit a jury to reasonably infer that [the plaintiff] more likely than not contracted his infection from raw chicken associated with the outbreak”).

[98].        See, e.g., Patterson v. Kevon, LLC., 818 S.E.2d 575, 579 (Ga. 2018) (“[The plaintiff showed that a] large number of persons who ate the food prepared by [the defendant] became ill; that some of those who became ill did not consume leftovers or other food at the rehearsal dinner or wedding; and that most fell ill within the same time frame as the [plaintiffs].”); Lohse v. Coffey, 32 A.2d 258, 260 (D.C. 1943) (affirming a jury verdict when the plaintiff “proved that another person who consumed the same foods at the same time (though with a different beverage) also became ill”).

[99].        See, e.g., Greenup v. Roosevelt, 267 So. 3d 138, 142 (La. Ct. App. 2019) (“[Plaintiff] need not negate every conceivable cause.”); Gardyjan v. Tatone, 528 P.2d 1332, 1334 (Or. 1974) (“The fact that there was another possible cause of the plaintiff’s illness is not fatal to his case.”).

[100].      See, e.g., China Doll Restaurants, Inc. v. MacDonald, 180 A.2d 503, 505 (D.C. 1962) (holding that a plaintiff who became ill shortly after eating at a restaurant, but whose only causal evidence was her own testimony the food did not taste good, did not establish causation); Landry v. Joey’s Inc., 261 So. 3d 112, 118–20 (La. Ct. App. 2018) (finding an “absence of evidence presented demonstrating any positive causal connection” when the plaintiff had demonstrated that she developed food poisoning after allegedly eating one of the defendant’s sandwiches).

[101].      How COVID-19 Spreads, Ctrs. for Disease Control & Prevention Control (Oct. 5, 2020),

[102].      Current science indicates that Covid-19 symptoms may manifest between two and fourteen days after exposure.  Symptoms of Coronavirus, Ctrs. for Disease Control & Prevention (May 13, 2020),

[103].      As of October 13, 2020, the CDC reported over 7.7 million cases of Covid-19. CDC COVID Data Tracker, Ctrs. for Disease Control & Prevention (Oct. 13, 2020),

[104].      Sergio J. Campos, The Commonality of Causation, 46 Ohio N. U. L. Rev. 229, 253 (2020); Alexandra D. Lahav, Chancy Causation in Tort 14 (May 15, 2020) (unpublished manuscript),

[105].      Campos, supra note 104, at 253.

[106].      Lahav, supra note 104, at 17.

[107].      Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 26 (Am. L. Inst. 2010) (“Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”).

[108].      Even the causal link between an individual’s contraction of lung cancer and smoking remains probabilistic.  Lahav, supra note 104, at 9.

[109].      Id. at 14.

[110].      Saul Levmore, Probabilistic Recoveries, Restitution, and Recurring Wrongs, 19 J. Legal Stud. 691, 692 (1990).

[111].      David Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law Vision” of the Tort System, 97 Harv. L. Rev. 851, 859 (1984).

[112].      Id. See generally Levmore, supra note 110, at 719; Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. Legal Stud. 463 (1980) (discussing the role of probability in apportioning tort liability).

[113].      Michael Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics 4–5 (2009); Jane Stapleton, Two Causal Fictions at the Heart of U.S. Asbestos Doctrine, 122 L.Q. Rev. 189, 192 (2006).

[114].      Courts developed market share liability under the cases brought against DES manufacturers.  DES, a drug administered during pregnancy, caused injury to the offspring after a long latency period.  The plaintiffs often were unable to identify which manufacturer’s drug their mother had ingested.  Courts developed the market share liability concept to address the causal proof problem, under which liability was assigned to a defendant based on its share of the DES market. See Sindell v. Abbott Labs., 607 P.2d 924, 937–38 (Cal. 1980); Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y. 1989). 

[115].      See In re NFL Players Concussion Injury Litig., 821 F.3d 410, 439, 448 (3d Cir. 2016) (approving class certification and settlement); Lahav, supra note 104, at 19–21.

[116].      Lahav, supra note 104, at 20.

[117].     Asbestos is a mineral often used in building materials, vehicle brakes and clutches, and tile.  Asbestos, U.S. Dep’t Labor (July 31, 2020),  Consistent exposure can lead to a myriad of diseases including lung cancer, asbestosis, colon cancer, and mesothelioma.  Id.  Factory workers, construction workers, and automotive mechanics are among those at risk given their constant exposure.  Id.

[118].      Karen Selby, Mesothelioma Statistics, Mesothelioma Ctr. (Aug. 19, 2020),

[119].      William L. Anderson & Kieran Tuckley, How Much is Enough? A Judicial Roadmap to Low Dose Causation Testimony in Asbestos and Tort Litigation, 42 Am. J. Trial Advoc. 39, 48–49 (2018) (“There . . . appears to be no way at present to trace any specific fibers in the lung back to an actual source of exposure.”); Myra Paiewonksy Mulcahy, Note, Proving Causation in Toxic Torts Litigation, 11 Hofstra L. Rev. 1299, 1301–02 (1983).

[120].      See Holcomb v. Georgia Pac., LLC, 289 P.3d 188, 195–96 (Nev. 2012).

[121].      See Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Cap. U. L. Rev. 735, 738–41 (1995) (“The many types of asbestos products, the many possible places of exposure, the lack of direct evidence of particular product exposure, and the possibility of contributing factors have forced the courts to develop various standards of causation that are either separate from the two traditional tests or are variations of the same.”)

[122].      See Holcomb, 289 P.3d at 193–95.

[123].      Id. at 193–94.

[124].      Id. at 195.

[125].      Id. at 194.

[126].      Id. at 195.

[127].      Id.

[128].      Lahav, supra note 104, at 1, 14. 

[129].     Campos, supra note 104, at 234 (arguing that the relevant inquiry is whether the defendant’s conduct caused the population harm as a whole in unlawful “mass production” cases).

[130].      Id.

[131].      Id. at 264.  He noted that statistical proof supporting general causation was admitted to prove specific causation in the pesticide Roundup MDL. Id. at 259–60.

[132].      Lahav, supra note 104 (arguing that “the but-for test should be jettisoned” in tort cases where causation is based on probabilities).

[133].      Id. at 21.

[134].      Id. at 23.

[135].      U.S.C. §§ 300aa-14–34.

[136].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[137].      Victim Comp. Fund, September 11th Victim Compensation Fund 4 (2020),

[138].      See Grey & Orwoll, supra note 3, at 77–78.

[139].      See, e.g., Ariz. Exec. Order No. 2020-12 (Mar. 23, 2020), (deeming grocery stores, media, hardware stores, educational institutions, laundry services, restaurants, day care centers, hotels, and other businesses to be essential businesses); Vt. Exec. Order. No 01-20 add. 6 (Mar. 24, 2020), (deeming businesses engaged in health care operations, law enforcement and public safety, critical infrastructure and manufacturing, retail services for human needs, fuel products, transportation, trash collection, agriculture, mail, banking, and other services as “critical to public health and safety”).

[140].      See infra notes 135–37 and accompanying text. 

[141].      See infra notes 135–37 and accompanying text.

[142].      42 U.S.C. §§ 300aa-14–34.

[143].      National Vaccine Injury Compensation Program, Health Res. & Servs. Admin. (Jan. 2020),

[144].      See id.

[145].      42 U.S.C. § 300aa-11(c).

[146].      42 U.S.C. § 300aa-14.

[147].      National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6,294, 6,295 (Jan. 19, 2017) (to be codified at 42 C.F.R. 100).

[148].      Id.

[149].      Id.

[150].      42 U.S.C. § 247d-6e.  For claims for injuries that may be caused by coronavirus vaccines, compensation will be distributed under the Countermeasures Injury Compensation Program, which is part of the PREP Act.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 et seq. (March 17, 2020), amending 42 C.F.R. § 110.100.

[151].      42 U.S.C. § 247d-6e(b)(5).

[152].      In the context of Covid-19, countermeasures can include antivirals, drugs, biologics, diagnostics, devices, or vaccines.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. at 15,202.

[153].      See Kevin J. Hickey, Cong. Rsch. Serv., LSB10443, The PREP Act and COVID-19: Limiting Liability for Medical Countermeasures 1 (2020) (“[The PREP Act serves to] encourage the expeditious development and deployment of medical countermeasures during a public health emergency.”).

[154].      See Ralph Blumenthal, How Judge Helped Shape Agent Orange Pact, N.Y. Times (May 11, 1984), (describing the judge’s warnings “that the veterans’ case had big problems” but that “a Brooklyn jury [would] be sympathetic to the veterans”).

[155].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[156].      38 U.S.C. 1116(a)(2); see also Agent Orange Exposure and VA Disability Compensation, U.S. Dep’t. Veterans Affs. (Sept. 18, 2020),

[157].      38 U.S.C. 1116(a)(1). The VA states that the presumption applies to veterans who served in Vietnam between January 9, 1962 and May 7, 1975 or in the Korean Demilitarized Zone between September 1, 1967 and August 31, 1971. Agent Orange Exposure and VA Disability Compensation, supra note 156.

[158].      Victim Comp. Fund, supra note 137, at 1, 4.

[159].      James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 124 Stat. 3623 (2011); Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act, Pub. L. No. 116-34, 133 Stat. 1040 (2019).

[160].      Victim Comp. Fund, supra note 137, at 7.

[161].      42 U.S.C. § 300mm-22(a).

[162].      Id.

[163].      Scott D. Szymendera, Cong. Rsch. Serv., R45969, The September 11th Victim Compensation Fund (VCF) 3 (2019).

[164].      Victim Comp. Fund, supra note 137, at 7.

[165].      Jim Pocius, Workers Compensation and Course of Employment, Int’l Risk Mgmt. Inst., Inc. (Feb. 2001),

[166].      See S.B. 241, 31st Leg., 2d Reg. Sess. (Alaska 2020); H.F. 4537, 91st Leg., Reg. Sess. (Minn. 2020); Wis. Stat. § 102.03(6) (2020).

[167].      Cal. Exec. Order N-62-20 (May 6, 2020),  Governor Newsom’s executive order created a rebuttable presumption that an employee who tests positive for Covid-19 within fourteen days of working at the employee’s place of employment caught the disease in the course of employment.  This presumption is “disputable” and does not apply if the employee’s place of employment is his own residence.  Id.

[168].      See Jon L. Gelman, Lessons from Asbestos Litigation Apply to Covid Claims 1, 8 (Aug. 4, 2020) (unpublished manuscript), (calling for creation of federal fund to indemnify employers and workers’ compensation insurance companies for Covid-19 claims to maintain solvency).

[169].      See Elizabeth Chambee Burch, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation 32 (2019) (The values that accompany civil litigation include “deterrence, compensation, information production, victim empowerment, public participation in democratic trials, and equity before the law.”).

[170].     Emma Grey Ellis, How Health Care Workers Avoid Bringing Covid-19 Home, WIRED (Apr. 4, 2020, 8:00 AM), (describing how some healthcare workers “have moved into hotel rooms or sleep in their cars,” work “24-hour shifts to reduce the number of times they move between the hospital and home,” or “sent their children and families to stay with friends or grandparents rather than risk exposing them to the virus”).

[171].      See generally Andrew F. Popper, In Defense of Deterrence, 75 Alb. L. Rev. 181 (2012) (discussing the role of deterrence in tort law and tort reform).

[172].      See Jason R. Bent, An Incentive-Based Approach to Regulating Workplace Chemicals, 73 Ohio St. L.J. 1389, 1394–95 (2012) (“[T]he current workers’ compensation and OSHA systems are inadequate to correct the market[’s] failure[]” to take proper precautions.).

[173].      Why is OSHA AWOL?, N.Y. Times (June 21, 2020), (“[T]he federal agency meant to protect America’s workers continues to sit on the sidelines.”). 

[174].   See supra note 166. 

By Adrian E. Simioni

The continued closure of international borders in response to the COVID-19 pandemic has had devasting economic effects on trade, tourism, and service industries across the globe.[1] However, one overlooked, entirely human effect has been the profound impact of border closures on unmarried couples and families residing in different countries. Their designation as “non-essential” tourists, blanket entry bans, and inconsistent and rapidly changing travel restrictions have left numerous couples and families separated from the very beginning of the COVID-19 outbreak, and current infection trends do not bode well for timely reunions.[2]

This is an issue near and dear to me.  I have been in a long-distance relationship with a French national and permanent resident of the Czech Republic since the beginning of 2019. We met when I was teaching English in Prague, while she worked at a hotel in the city.  She has been seeking a visa to live in the United States (“U.S.”) since I left the Czech Republic to attend the Wake Forest University School of Law. Long-distance relationships are difficult to manage and maintain at the best of times, but the pandemic has shattered any certainty we had. We were on a trip to Canada in March when the European Union (“E.U.”)-U.S. border abruptly shut due to the onset of the COVID-19 pandemic; she was forced to return to the E.U. while I had to fly back to the U.S.  We were suddenly confronted with the prospect of being unable to reunite for an indeterminate amount of time. As the months rolled by, our hope waned. A reunion in May was cancelled, ideas for August were scrapped, and the U.S.’s announcement that it was suspending the consideration of routine visas for most applicants destroyed our plans for a permanent reunion.[3] We were left clinging onto any hope we could find.  Similar problems persist for other couples and families around the world.[4]

In response to these grim circumstances, an internet movement has been gathering steam. Love is Not Tourism is an organization formed for the express purpose of reuniting these separated couples and families while still acknowledging that general restrictions on tourism are necessary.[5] Love is Not Tourism’s argument is simple. “The closure of international borders in the wake of the COVID-19 pandemic was – and still is – sensible and even necessary. . . . [b]ut love is not tourism. This is not just about a summer holiday, it is about mental health and the future of people all around the world.”[6] Through their work, and the efforts of thousands of supporters filing petitions and contacting government officials around the world, as of October 27, 2020, twelve European countries and Canada have relaxed their entry restrictions on unmarried people and family members traveling to reunite with their loved ones,[7] with intergovernmental bodies like the European Commission explicitly encouraging other states to follow suit.[8]

My partner and I caught a very lucky break at the end of September when, through petitions supported by Love is not Tourism, the Czech Republic became one of the few countries that permit entry for unmarried partners of E.U. citizens residing in-country.[9] My application was approved within a week, and on October4, I arrived in Prague, where I am blogging from now. While we have been fortunate, when I am inevitably forced to return to the U.S., my French companion will be barred from visiting me.  The U.S. maintains strict travel restrictions and entry bans,[10] and the government has shown little interest in reunions.[11]

But how can countries facilitate the reunion of couples and families without jeopardizing the health of their citizens? The vast majority of countries continue to deal with the COVID-19 outbreak with total or partial border closures, though the trend has been shifting as countries slowly ease travel restrictions.[12] As case totals rise rapidly across the globe, however, governments have indicated that harsh travel restrictions can be reintroduced at any time, making reunions subject to both rapidly changing circumstances and differing immigration procedures.[13] Beyond measures imposed on foreign nationals, couples and families are becoming increasingly affected by measures imposed by their own country, such as two-week mandatory quarantines upon return, which makes travel to countries that also have mandatory quarantines unfeasible except for those in exceptional circumstances, like myself.[14] Some countries have even imposed strict exit bans, effectively stranding their own citizens within their country and preventing eligible couples and families from taking advantage of travel to countries which have allowed reunion.[15]

To facilitate the reunion of couples and families, Love is Not Tourism advocates for countries to implement a “self-paid test upon arrival and quarantine until a negative result is received or a 14 day strict quarantine” instead of arbitrary entry bans, and the inclusion of unmarried couples and family members as a part of countries’ “essential travelers” lists.[16] Studies indicate that total and partial travel bans are most effective at the very start of an outbreak, but are unsustainable in the long term as the outbreak spreads globally, making travel bans a delay strategy and not preventative.[17] On the other hand, testing travelers upon arrival and isolating for fourteen days reduces case importation numbers by an average of 91.7 percent, relative to allowing all travelers in unchecked, which would reduce infection risks from imported cases to a level that would permit necessary business and leisure travel.[18] This is similar to the procedure adopted by the Czech Republic prior to my arrival.[19] Even if countries refuse to remove hard entry barriers, the tiny number of people affected by unmarried couple and family travel ban exemptions would pose negligible risks, especially when compared to the risks ignored by entry policies that arbitrarily discriminate between places of origin.[20] Finally, the risk of abuse by those masquerading as a couple or family member is also low; countries which have implemented Love is not Tourism exemptions require strictly vetted applications with clear document requirements.[21] The risks of implementing these policies are low, while the benefits for families and couples are quite high.

Europe is in the grip of a second wave of outbreaks, and the U.S. has recently broken case count records last set in July.[22] The hope that countries will relax their hard entry bans is fading. The mental health and well-being of couples and families around the world is at risk. As put by one affected person, “I wish authorities understood that these travel bans are having immense mental health consequences for those of us who can’t be with our loved ones during these troubling times. I want them to know that we exist.”[23] Petitions targeting governments around the world and situation updates can be found on Love is Not Tourism’s website.[24] Every signature helps, and brings families and couples one step closer to a temporary reunion and an end to the months of isolation from their loved ones.

[1] See Nicolas Guzman et al., Coronavirus’ Impact on Service Organizations: Weathering the Storm, McKinsey & Co. (Apr. 29, 2020),; U.N. World Tourism Org., International Tourism and COVID-19 (Sept. 15, 2020),; Press Release, World Trade Org., Trade Shows Signs of Rebound from COVID-19, Recovery Still Uncertain, Press/862 Press Release (Oct. 6, 2020),

[2] See Natalie B. Compton, Coronavirus Cases Set Records in Europe This Week.  What Does That Mean for the Return of U.S. Travelers?, Wash. Post (Oct. 15, 2020),; see also ‘It is terrifying’: Europe Braces for Lengthy Battle with COVID, Reuters (Oct 26, 2020), (“Europe’s daily infections have more than doubled in the past 10 days, reaching a total of 7.8 million cases and about 247,000 deaths, as a second wave right before winter has crushed economic revival hopes.”); Holly Yan & Madeline Holcombe, The US had More Daily Covid-19 Cases in the Past Week than Ever Before. And No, it’s Not Just Due to More Testing, CNN (Oct. 26, 2020), (reporting that the seven-day average of daily new cases reached an all-time high of 68,767 on Sunday, October 25, with the previous record of 67,293 being set on July 22).

[3] See Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, U.S. Dep’t of State (June 17, 2020),

[4] See Natacha Larnaud, “A Part of Me Is Missing”: COVID-19 Travel Bans Continue to Separate Families and Couples, CBS News (Oct. 8, 2020, 6:42 PM),

[5] See Love is Not Tourism, (last visited Oct. 27, 2020); see also Love is Essential, (last visited Oct. 27, 2020) (advocating for the reunion of non-E.U.-citizens in an “international” partnership).

[6] Love is Not Tourism, supra note 5.

[7] Id.

[8] See Alice Tidey, ‘Love Is Not Tourism’: EU Bids to Reunite Couples Split by Coronavirus Restrictions, Euronews (Aug. 7, 2020),

[9] Czech Republic Rearranges Entry Procedures for Unmarried Partners of Czech & EU Citizens, SchengenVisaInfo (Sept. 21, 2020),

[10] Travelers Prohibited from Entry to the United States, CDC (Sept. 14, 2020),

[11] See Larnaud, supra note 4.

[12] U.N. World Tourism Org., COVID-19 Related Travel Restrictions: A Global Review for Tourism 12 (2020),

[13] Id. at 24; see also Sophia Harris, Canada-U.S. Border Closure Extended but Trump, Trudeau Far Apart on Next Steps, CBC (Oct. 18, 2020, 4:00 AM), (due to persistently high infection rates, the border between Canada and the U.S. will remain closed for an indeterminate amount of time); Hungary Amends Travel Restrictions for V4 Countries, SchengenVisaInfo (Oct. 7, 2020), (“On September 1, authorities in Hungary decided to reclose their borders for all international arrivals, becoming the first Schengen country to take such a decision, as part of efforts to stop the further spread of the deadly virus.”); Kat Lonsdorf, Europe Imposes New Restrictions as COVID-19 Cases Soar, NPR (Oct. 25, 2020), (surging COVID-19 cases across the E.U. has led to the reintroduction of significant domestic restrictions).

[14] See U.N. World Tourism Org., supra note 12, at 12.

[15] See Josh Dye, Is Australia’s Ban on International Travel Legal? Experts Weigh In, Traveler (Oct. 17, 2020),

[16] Love is Not Tourism, supra note 5.

[17] Borame L. Dickens et al., Strategies at Points of Entry to Reduce Importation Risk of COVID-19 Cases and Reopen Travel, J. Travel Med., Aug. 25, 2020, at 1–2,; see also Matteo Chinazzi et al., The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak, 368 Sci. Mag. 395, 400 (2020), (“. . . although the Wuhan travel ban was initially effective at reducing international case importations, the number of imported cases outside mainland China will continue to grow after 2 to 3 weeks. . . . additional travel limitations (up to 90% of traffic) have only a modest effect unless paired with public health interventions and behavioral changes.”); Ana L.P. Mateus et al., Effectiveness of Travel Restrictions in the Rapid Containment of Human Influenza: A Systematic Review, 92 Bulletin World Health Org. 868, 873 (2014), (“Only extensive travel restrictions – i.e. over 90% – had any meaningful effect on reducing the magnitude of epidemics.  In isolation, travel restrictions might delay the spread and peak of pandemics by a few weeks or months but we found no evidence that they would contain influenza within a defined geographical area.”).

[18] Dickens et al., supra note 17, at 5.

[19] See Coronavirus – Information of MoI, Ministry of the Interior of the Czech Republic, (last visited Oct. 27, 2020).

[20] See Tidey, supra note 8 (as of July 2020, there was an estimated 398,286 European flights for tourism with no quarantine or negative test requirement, compared to 9,000 E.U. citizens waiting to be reunited with partners, family, and children that are not exempt from E.U. travel ban).  See generally COVID-19 Impact on the European Air Traffic Network, EUROCONTROL (2020), (publishing regular air traffic scenarios and comprehensive assessments of latest air traffic situations in Europe).

[21] See, e.g., Sebastian Powell, Immigration Canada has Updated their Entry Requirements, Allowing More Foreigners to Enter and Reunite with Family Members, LoyaltyLobby (Oct. 9, 2020), (requirements for entry involve a notarized affidavit describing at least a one year relationship with a Canadian permanent resident or citizen with whom you have spent physical time together, a declaration signed by said citizen or permanent resident, a demonstration of an intent to enter for a period of at least fifteen days, and an assessment of the relationship by Canada’s immigration service); About the Corona Situation: Citizens of Countries Outside the EU/EEA: Residing in Countries Outside the EU/EEA, The Norwegian Directorate of Immigr., (last visited Oct. 27, 2020) (restricting entry to a girlfriend or boyfriend that you have been with at least nine months and whom you have met physically at least once with a relationship you can document and a place to live to carry out the quarantine).

[22] See Lonsdorf, supra note 13;Yan & Holcombe, supra note 2.  See generally Covid in the U.S.: Latest Map and Case Count, N.Y. Times, (last visited Oct. 27, 2020) (tracking COVID-19 cases in the U.S.); COVID-19 Situation Update for the EU/EEA and the UK, Eur. Ctr. for Disease Prevention & Control, (last visited Oct. 27, 2020) (tracking COVID-19 cases in the E.U., European Economic Area, and the United Kingdom).

[23] Larnaud, supra note 4 (internal quotation marks omitted). In response to suspended routine visa service in the U.S.: “I look at my engagement ring every day and I don’t know when I’ll hold my fiancé again. . . . [n]ot being able to see the finish line is the hardest, most painful part.  We’re feeling hopeless.  Our whole lives have been put on hold.”  Id.  In response to Peru’s border closure: “It’s been seven months since I’ve been able to hug my daughter.  I never dreamed of one day having to be without her for so long.”  Id.  In response to U.S. restrictions targeting non-Green Card visa holders: “Foreign nationals work, pay taxes, contribute to the economy.  We’re not citizens, but we’re not tourists either, and yet, we suffer the same restrictions as tourists.  Our whole life is here, so we should have a right to come back home.  It’s like we’re being taken hostage.”  Id.

[24] Love is Not Tourism, supra note 5; see also Love is Essential, supra note 5.

By Megan M. Neal

As the public tracks the development of a viable SARS-CoV-2 (“COVID-19”) vaccine, there has been rampant proliferation of fake COVID-19 cures. Indeed, the Food and Drug Administration (“FDA”) has identified a host of products fraudulently marketed to diagnose, treat, or cure COVID-19.[1] Many of these products are faulty, but relatively harmless: fake antibody testing kits and ineffective hand sanitizer, for instance.[2] However, some scientists, frustrated with the lengthy process of testing and approving vaccines, have sought to develop and administer their own COVID-19 vaccines.[3]

Three projects in particular have garnered public attention. The Rapid Deployment Vaccine Collaborative (“RaDVaC”) has “designed, produced, and self-administered several progressive generations of nasal vaccines against SARS-CoV-2.”[4] Its collaborators are publicly listed, as are instructions for making the vaccine.[5] RaDVaC aims to publicize how to make this vaccine, but does not intend to sell the vaccine.[6] So far, collaborators have administered the vaccine to themselves, family, and friends.[7]

Another collaboration, CoroNope, seeks funding to develop a vaccine for eventual public availability.[8] CoroNope collaborators are anonymous, citing fears of repercussions from employer and the FDA.[9] The group acknowledges that any treatment it creates will likely not “be adopted by the medical community in any official sense.”[10]

Finally, an individual, Johnny T. Stine, developed, sold, and administered a vaccine purporting to (1) immunize uninfected recipients against COVID-19 and (2) cure recipients infected with COVID-19.[11] Stine has a background in antibodies through his company, North Coast Biologics, LLC, which focuses on antibody research.[12] Stine’s COVID-19 vaccine development process was dubious. He “tested the product only on himself and potential[ly] a family member.”[13] After doing so, he deemed the vaccine effective and advertised it—at a cost of $400 per person—on Facebook and LinkedIn.[14] Despite some negative responses, these social media advertisements did generate customers for Stine: he inoculated about thirty individuals living in Washington, Montana, Arizona, and Texas.[15]

The manufacture and distribution of homemade or unapproved drugs is not entirely without precedent. For instance, in 2017 a Chicago pediatrician voluntarily surrendered his medical license after altering allergy shots with cat saliva and vodka.[16] Additionally, courts have held against drug manufacturers that distributed unapproved new drugs.[17] In United States v. X-Otag Plus Tablets,[18] a federal district court held that a new drug could be seized, and the manufacturer could be enjoined from further producing the drug, which had not been approved by the FDA prior to distribution.[19] Ultimately, the court accepted the government’s expert testimony that the drug was not “safe and effective” over testimony from the manufacturer’s experts.[20]

Accordingly, RaDVaC, CoroNope, and Stine’s vaccine present a host of legal issues. In fact, Stine has already faced legal action. The Attorney General of Washington sent him a cease and desist letter in April,[21] and the FDA and the Federal Trade Commission sent him a warning letter in May.[22] In June, the Washington Attorney General pressed charges against Stine under Washington’s unfair and deceptive trade practices statute.[23] The parties ultimately reached a settlement in which Stine agreed to offer restitution to all vaccine recipients by refunding the $400 charge.[24] Additionally, the Consent Decree enjoined Stine from further producing or distributing the vaccine[25] and required him to make a monetary payment.[26]

RaDVaC and CoroNope, on the other hand, have not yet faced disciplinary or legal action.[27] Nonetheless, RaDVaC has sought some legal protection. The group consulted an attorney,[28] and the group lists disclaimers on the document detailing how to develop and administer its vaccine.[29]

These projects are not necessarily immune from liability, though. In March, the Department of Health and Human Services published a Notice of Declaration shielding COVID-19 drug manufacturers from potential liability in some circumstances.[30] However, manufacturers that engage in “willful misconduct” are not shielded from liability.[31] As used in the Notice of Declaration, “willful misconduct” means “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”[32] Notably, neither the Notice of Declaration nor the relevant statutory guidelines define “wrongful purpose,” likely leaving the definition to judicial interpretation. Given the exigent need for a COVID-19 vaccine, however, a court may determine that RaDVaC and CoroNope’s decisions to fast-track a their vaccines does not constitute a “wrongful purpose.”

The Federal Food, Drug, and Cosmetic Act (“FD&C Act”) may also pose an issue for homemade vaccine developers. The FD&C Act restricts misbranded and unapproved drugs.[33] It further prohibits introducing such drugs into interstate commerce.[34] Critically for consumers, the FD&C Act does not allow a private right of action.[35]

Additionally, under the Public Health Service Act (“PHS Act”), unlicensed biological products may not be marketed.[36] The PHS Act also bans the use of unlicensed biological products in humans without proper licensing.[37]

Accordingly, the aforementioned collaborations’ actions may result in legal liability. For instance, one RaDVaC collaborator stated that approximately 30 individuals in the United States and other countries have been inoculated with RaDVaC’s vaccine.[38] However, as the collaboration simply publishes instructions for making its vaccine, but does not actually make and distribute it, it remains unclear whether the vaccine has been introduced into interstate commerce. And, as of now, neither RaDVaC nor CoroNope’s products are licensed biological products as required for use in humans by the PHS Act.

Furthermore, should any recipients be injured as a result of these homemade vaccines, these collaborations may face liability for participants’ injuries, depending on whether the collaborations’ actions are deemed “willful misconduct.”

Liability may also depend on the scale of these projects. One RaDVaC project collaborator posits that the group has not yet faced legal or disciplinary proceedings because the project is relatively small. RaDVaC collaborators have not sold or advertised the vaccine beyond friends and family, and the project has received minimal media attention.[39] Accordingly, should these projects expand or change—perhaps by making and selling the vaccines they have designed—their legal situation may change as well.

[1] Fraudulent Coronavirus Disease 2019 (COVID-19) Products, FDA, (last updated Sep. 21, 2020).

[2] See id.

[3] Heather Murphy, These Scientists Are Giving Themselves D.I.Y. Coronavirus Vaccines, N.Y. Times (Sept. 1, 2020),

[4] RaDVaC Mission, Rapid Deployment Vaccine Collaborative, (last visited Sept. 22, 2020).  

[5] Rapid Deployment Vaccine Collaborative, SARS-CoV-2 (2019-nCoV) Vaccine (2020),

[6] Murphy, supra note 3.

[7] Antonio Regalado, Some Scientists Are Taking a DIY Coronavirus Vaccine, and Nobody Knows If It’s Legal or If It Works, MIT Tech. Rev. (July 29, 2020),

[8] CoroNope, CoroNope: A Crowdsourced SARS-CoV-2 Vaccine (2020),

[9] Murphy, supra note 3.

[10] CoroNope, supra note 8, at 1.

[11] Complaint, State v. Stine, No. 20-2-09935-0 SEA (Wash. Super. Ct. June 12, 2020),

[12] Id. at 2. Additionally, the Complaint notes that it appears North Coast Biologics was administratively dissolved in 2012, but Stine may have continued to operate under the name of the company. Stine marketed his vaccine through North Coast Biologics’ Facebook page. Id. at 7.

[13] Id. at 8.

[14] Id. at 5.

[15] Id. at 9.

[16] Vikki Ortiz, Doctor Could Lose License After Giving Vaccines Made with Cat Saliva, Vodka, Chi. Trib. (Oct. 20, 2016),; Search for a License, Ill. Dep’t of Fin. & Pro. Regul., (select “Medical Board” License Type and search First Name “Ming” and Last Name “Lin,” from the results select the listing for “Ming Te Lin MD”).

[17] See, e.g., United States v. Pro-Ag, Inc., 968 F.2d 681, 682 (8th Cir. 1992) (holding that products intended for animal use qualified as drugs because they were “intended to alter the structure or function of the body of animals,” and that “the products have never been approved as animal drugs and, therefore, they may not be sold interstate without such approval under section 331(a) of the Federal Food, Drug, and Cosmetic Act”); United States v. Undetermined Qualities of Articles of Drug, 145 F. Supp. 2d 692, 704 (D. Md. 2001) (holding that injunctive relief was proper to bar defendants from manufacturing and distributing misbranded, unapproved new drugs because the government “establish[ed] that the Defendants violated the FDCA and that there exists ‘some cognizable danger of recurrent violation . . . .’” (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953))); United States v. Richlyn Labs., Inc., 822 F. Supp. 268, 274 (E.D. Pa. 1993) (holding that “[t]he issuance of a permanent injunction enjoining the Defendants from manufacturing, processing, packaging and distributing their drug products until such time as they are in full compliance with Current Good Manufacturing Practices and the Federal Food, Drug, and Cosmetic Act is the only appropriate remedy available to safeguard and protect the public health, safety and welfare”).

[18] 441 F. Supp. 105 (D. Colo. 1977).

[19] Id. at 107.

[20] Id. at 114.

[21] Cease and Desist Letter from Bob Ferguson, Att’y Gen. of Wash., to Johnny T. Stine, North Coast Biologics (Apr. 23, 2020),

[22] Warning Letter from Center for Biologics Evaluation and Research, FDA, to Johnny T. Stine, North Coast Biologics (May 21, 2020),

[23] Complaint, State v. Stine, supra note 11, at 9–10.

The Complaint alleges that Stine’s “unfair and deceptive conduct in trade or commerce” included: “misrepresenting the health benefits of the purported “vaccine” [Stine and North Coast Biologics] developed and marketed”; “representing that the product [Stine and North Coast Biologics] developed could vaccinate consumers against COVID-19 without adequate scientific substantiation for these representations”; “offering a product they represented to be a vaccine without adequately testing the product’s effectiveness or safety for use in humans”; “representing that Stine was immune from COVID-19 without adequate scientific administration”; and “offering to cure a human disease, ailment, or condition without a medical license.” Id. Washington’s unfair and deceptive trade practice statute reads in full: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Wash. Rev. Code § 19.86.020.

[24] Consent Decree, State of Washington v. Stine, NO. 20-2-09935-0 SEA, at 4–5 (Wash. King Cty. Super. Ct. 2020),

[25] Id. at 3–4.

[26] Id. at 5–6.

[27] Regalado, supra note 7.

[28] Id.

[29] Rapid Deployment Vaccine Collaborative, supra note 5, at 2–5.

[30] Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,198 (Mar. 17, 2020). The Public Readiness and Emergency Preparedness Act authorized this action. See 42 U.S.C. §§ 247d-6d, 6e.

[31] Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. at 15,198.

[32] 42 U.S.C. § 247d-6d.

[33] 21 U.S.C. §§ 321–399i.

[34] Id. § 331. The FDA noted these prohibitions in its Warning Letter to Stine.

[35] Id. § 327.

[36] 42 U.S.C. § 262.

[37] Id.; see also 21 U.S.C. § 355(i); 31 C.F.R. § 312 (governing “procedures and requirements governing the use of investigational new drugs, including procedures and requirements for the submission to, and review by, the Food and Drug Administration of investigational new drug applications”). The FDA noted these prohibitions in its Warning Letter to Stine.

[38] Murphy, supra note 3.

[39] Regalado, supra note 7.

Photo by Emiliano Bar on Unsplash

By Amanda Manzano

           The rapid spread of COVID-19 has disrupted business as usual across the globe and created a “new normal” for human social behavior; a normal that U.S. prisons and jails as we know them do not have the luxury, or ability, to implement. Physical distancing in public, self-isolation, and the use of face masks have all cemented themselves as routine practices in daily American life per CDC guidelines issued in the virus’s wake.[1] The CDC advises that avoiding exposure to the illness is the single best measure to prevent infection, and accordingly, recommends a minimum of six feet between person to person.[2] The Federal Bureau of Prisons (the “BOP”) has limited visitation, transfers, and staff training to limit the spread as much as possible, but what is happening within prison walls to manage internal spread and keep inmates safe?[3] The reality is, the infrastructure of American jails and prisons is such that managing disease is difficult during ordinary times, let alone in a pandemic of this magnitude, and the virus is taking its toll behind bars.

            The BOP notes modified operations in light of COVID-19 to maximize social distancing.[4] These efforts include “consideration of staggered meal times and staggered recreation times . . . to limit congregate gatherings.”[5] A cursory glance at infections throughout the BOP’s 122 facilities demonstrates this response is failing.[6] As of April 23, 620 federal inmates and 357 BOP staff have tested positive for COVID-19.[7] Twenty-four inmates have died.[8] Reports from state prisons are even more grim. The Marion Correctional Institution in Ohio is home to one of the most rampant outbreaks in the country.[9] There, 73 percent of inmates have tested positive for the virus.[10] The Ohio Department of Rehabilitation and Correction reports 3,816 inmates and 346 staff have tested positive in its twenty-eight facilities.[11] At Rikers Island, home to New York City’s largest jail complex, upwards of 1,000 inmates have contracted the virus.[12]

            Pandemic aside, the CDC acknowledges that health problems are more apparent in jails and prisons than in free communities.[13] The close proximity among inmates and staff, poor circulation, and limited sanitization resources create a breeding ground for contagious disease, and our ability to respond within the current framework is limited.[14] As it stands, the United States has nearly 2.3 million individuals in our jails, prisons, and juvenile correctional facilities.[15] By the numbers, following social distancing guidelines within these institutions would be impossible for the 10.6 million people going into jail each year and additional 600,000 checking into prisons.[16] The BOP’s modifications of staggered meal and recreation times cannot overcome crowded cells and intake rooms to prevent the spread of a virus of this contagion.

            For the time being, the best measure of precaution for the safety of inmates, staff, and the general public is to reduce jail and prison populations as much as possible. U.S. Attorney General William Barr released a memo on April 6 that addresses the heart of this remedy and contentious issue generally: pretrial detention.[17] The purpose of pretrial detention is to assure (a) the appearance of the defendant at trial and (b) the safety of others.[18] The Attorney General acknowledges the risk that every new intake poses to our jails and prisons and recommends an analysis weighing each defendant’s individual risk of flight and threat to the community against the benefits of preventing spread of COVID-19 in these vulnerable institutions.[19] Some cities have halted arrests and prosecutions for low level offenses to help control the flow of inmates.[20] Some have even begun to release low-level offenders from their sentences to clear even more space.[21] Additionally, some argue the elimination of cash bail would avoid undue risk to those who have not been convicted of a crime and free precious space in our jails.[22] A defendant’s inability to post bail during a pandemic broadens the threat from a person and a community to our entire society as each jail and prison becomes a hot spot for COVID-19.

            The infrastructure of our prison complexes and the ethics of incarceration in the United States present challenges every day. COVID-19 highlights some of our shortcomings in the most dramatic of fashions, demonstrating how the risks of crowded and unsanitary facilities extend far beyond those walls. These institutions achieve segregation but cannot, in even the best of circumstances, entirely insulate themselves from the greater public. Providing inmates and corrections staff with subpar facilities and operations will reflect on communities accordingly, and the spread of COVID-19 has shown exactly that.

[1] Coronavirus Disease 2019, CDC (Apr. 13, 2020),

[2] Id.

[3] BOP Implementing Modified Operations, Fed. Bureau of Prisons, (last visited Apr. 24, 2020).

[4] Id.

[5] Id.

[6] About Our Facilities, Fed. Bureau of Prisons, (last visited Apr. 24, 2020).

[7] COVID-19 Coronavirus, Fed. Bureau of Prisons, (last visited Apr. 24, 2020).

[8] Id.

[9] Bill Chappell, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020, 3:58 PM),

[10] Id.

[11] COVID-19 Inmate Testing, Ohio Department of Rehabilitation and Correction (Apr. 23, 2020),

[12] Deanna Paul & Ben Chapman, Rikers Island Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2020, 8:19 AM)

[13] Correctional Health: Behind the Wall, CDC, (last visited Apr. 24, 2020).

[14] Stir Crazy – Prisons Worldwide Risk Becoming Incubators of COVID-19, The Economist (Apr. 20, 2020), [hereinafter Stir Crazy]  

[15] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020),

[16] See Id (discussing current incarceration rates and annual trends in new incarcerations). See also Stir Crazy, supra note 14 (analyzing the role of prison population in increasing risk of COVID-19 spread amongst the incarcerated).

[17] Memorandum from the Office of the Attorney General for All Heads of Department Components and All United States Attorneys (Apr. 6, 2020), [hereinafter Attorney General’s Memorandum].  

[18] 18 U.S.C. § 3142(e)(1) (2018).

[19] Attorney General’s Memorandum, supra note 17.

[20] Chris W. Surprenant, COVID-19 and Pretrial Detention, Mercatus Ctr. (Mar. 30, 2020),

[21] Id.

[22] The Bail Project Urges Jail Releases Amid Coronavirus Spread, The Bail Project, (last visited Apr. 24, 2020).

By Alexander S. Boros

So far, 2020 has felt like an eternity and yet we are just four months in.  The spread of COVID-19 has turned the entire world upside down and has transformed the economy in a way we have never seen before.  One of the more interesting twists of fate in the midst of this global crisis was the end of sports in America.[1]  When COVID-19 struck, sports were in full swing: college basketball was entering its postseason, the NBA, MLS, and NHL were mid-season, and Major League Baseball was in the middle of Spring Training.[2]  By March 12, however, state and national social distancing guidelines created “The day the sports world stopped.”[3]  In the coming days, restaurants and bars would shut down and states across the country would shut down all non-essential businesses.[4] 

Millions of Americans would be shut in their homes to flatten the curve but were left without some unifying outlet of entertainment.  Online resources, available from the safety of our own homes, have become the only connection to the outside world.  Internationally, online poker tournaments set records for participation and prize pools, though such gambling is virtually illegal in the United States.[5]  Instead, American gamblers have increasingly wagered on sporting events as their chosen form of entertainment.[6]  When sports shut down, however, that multimillion-dollar gambling industry was also removed from the equation.  In North Carolina alone, sports gambling was expected to bring in $14 million to casinos and $1 million in tax revenues.[7]  Throughout the country, newly developed and well-established sportsbooks alike began facing a question suddenly on the lips of many small businesses owners: How will we stay in business?[8]

It turns out, there is no way to shut down American ingenuity.  In the beginning of April 2020, American sportsbooks FanDuel, DraftKings, and BetMGM each reached out to West Virginia’s Lottery for approval to accept bets in “political market[s].”[9]  Specifically, DraftKings hoped to accept bets on four markets: (1) Winner – Presidential Election; (2) Winning Party Overall; (3) Over/Under seats for each Party – Senate Over/Under for each Party – House Over/Under number of States won; (4) Over/Under Electoral College Votes Obtained and Turnout percentage.[10]  In these conversations, it was taken as a given that gambling on state and local elections was not allowed.[11]  On April 7, the state lottery approved each of the markets.[12]

Betting on elections is “nothing new” internationally.[13]  International gambling websites like InTrade and BetFair became popular in 2012, and the 2016 election brought in record numbers of bets and revenue.[14]  Opening political markets in the United States is a massive opportunity for states as well.[15]  Forecasts suggest that presidential election gambling would produce $1.1 million in new wagers and generating $150 thousand in new tax revenue for West Virginia alone.[16]  Those same projections expected nearly double the wagers on the Presidential election than were placed on Super Bowl LIV.[17]  That is because, although sports are hugely popular in the United States, they do not affect everyone.[18]  American democracy, on the other hand, affects everyone in this country.  Thus, political gambling is hugely popular with first time betters.[19]  In Europe, 12 percent of all wagers placed on the 2016 election were new betters.[20]  That number is nearly six times higher than the percentage of new betters across all other markets offered that year.[21]

Even though initial approval was given to West Virginia’s Sportsbooks, Mac Warner, West Virginia’s Secretary of State, quickly shut down the idea and revoked the approval.[22]  That’s because, in West Virginia, it is “unlawful to bet or wager money or other thing of value on any election held in [the] state.”[23]  It turns out that’s a common restriction across the fifty states.[24]  But should it be?

While direct wagering on elections is illegal,  predictive markets allowing “investing” in political outcomes have been operating within the United States since 1993.[25]  Two of the largest in the country, PredictIt and the University of Iowa’s Electronic Markets, limit the amount of money that can be invested at any time, and all data from the markets is used for research purposes.[26]  Although scholars are divided as to whether there is really a difference between these two markets, arguably the overall results are the same.[27]  At the end of the day, these markets include placing money on candidates based on their odds with either losses or gains that are realized.  Put simply, it is hard to see the distinction between the two forums.  This discussion may be the result of “being so preoccupied with whether or not they could [without stopping] to think if they should.”[28]  That may be a question for a different article.  If Sportsbooks can develop the appropriate, anti-corruption protections to ensure that unfettered gambling does not run amuck on our elections, the country’s next great sport spectacle may well be America’s democracy.

[1] See Mike Vaccaro, The Day Coronavirus Sent the Sports World Into Darkness, N.Y. Post (Mar. 12, 2020, 6:38 PM),

[2] Id.

[3] Id.

[4] See, e.g., Gabriella Borter, New York Governor Orders All Non-essential Businesses Closed, Says Everyone Must Stay Home, Reuters (Mar. 20, 2020, 11:51AM),

[5] David Purdum, Online Poker Tourney Sets Record Amid Pandemic, ESPN (Mar. 24, 2020), (noting online poker is legal in only a handful of U.S. states).

[6] See Alexander Boros, North Carolina is All-in on Sports Betting, Wake Forest L. Rev.: Current Issues Blog (Aug. 27, 2020),

[7] See Andrew Westney, NC House Approves Cherokee Sports Betting Bill, Law360 (July 16, 2019), (“The bill’s supporters expect sports betting to generate $14 million in annual revenue for the tribe and about $1 million a year for the state.”).

[8] David Purdum, Wynn Las Vegas Temporarily Closing Sportsbook Due to the Coronavirus, ESPN (Mar. 13, 2020),

[9] Adam Candee, Presidential Election Betting Asks In West Virginia Approved In An Hour, Emails Show, Legal Sports Rep. (Apr. 14, 2020, 1:23PM),; see also Emails Between WV Lottery and Sports Betting Companies Regarding Elections Betting, Legal Sports Rep. (Apr. 14, 2020), [hereinafter Lottery E-mails].

[10] Lottery E-mails, supra note 9, at 20; E-mail from Jacob List, DraftKings, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 1:50 PM) (on file with author) [hereinafter List E-mail].

[11] Lottery E-mails, supra note at 9, at 20; List E-mail, supra note 10.

[12] Lottery E-mails, supra note 9at 25; E-mail from David Bradley, West Virginia Lottery, to Jacob List, DraftKings (Apr. 7, 2020, 4:58 PM) (on file with author) [hereinafter Bradley E-mail].

[13] Sarah Zhang, You Can Bet Real Money on the US Election. It’s for Research, Wired (Mar. 1 2016, 7:00AM),

[14] Id.; see also Lottery E-mails, supra note 9, at 22 (“The biggest market in terms of volume matched in the history of the Exchange is the 2016 Next President market …”); E-mail from John Sheeran, PPB.Com, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 2:10 PM) (on file with author) [hereinafter Sheeran E-mail].

[15] Lottery E-mails, supra note 9, at 18; E-mail from Erich Zimny, Vice President of Racing & Sports Operations, Hollywood Casino at Charles Town Races, to David Bradley, West Virginia Lottery (Apr. 6, 2020, 3:56 PM) (on file with author) [hereinafter Zimny E-Mail].

[16] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[17] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[18] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[19] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[20] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[21] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[22] Press Release, Andrew “Mac” Warner, Secretary of State Warner Releases Statement on Wagering on Elections in West Virginia (Apr. 8, 2020),

[23] W. Va. Code § 3-9-22 (2019); see Press Release, supra note 22.

[24] Tamar Lapin, Political Betting Was Legal in West Virginia – For About an Hour, N.Y. Post (Apr. 8, 2020, 9:27 PM),  

[25] See Zeke Faux, PredictIt Owns the Market for 2020 Presidential Election Betting, BloomsBerg BusinessWeek (Aug. 1, 2019, 9:10 AM),; Theo Francis, Wanna Bet? The Market Has a View on the 2020 Election, Wall St. J. (Jan. 10, 2020, 1:11 PM),

[26] Research Opportunities, PredictIt, (last visited Apr. 20, 2020); About the IEM, U. Iowa, (last visited Apr. 20, 2020).

[27] Alexandra Lee Newman, Manipulation in Political Prediction Markets, 3 J. Bus. Entrepreneurship & L. 205, 208 n.25 (2010) (“Prediction market scholars disagree about whether the CFTC legally can regulate public prediction markets generally under the CEA, or whether state gambling laws should regulate these markets.”) (citing to disagreement in literature regarding the differences and likenesses of predictive markets and gambling).

[28] Jurassic Park (Universal Pictures 1993).

By Michael Johnston

           The COVID-19 pandemic has fundamentally reshaped American life.[1] As a result of the potentially high mortality rate of unchecked COVID-19 spread, many state and local governments have implemented orders shutting down various public activities, and 95 percent of Americans are under some form of lockdown as of April 7, 2020.[2] However, perhaps reflecting the partisan divide of our times, some Republican politicians have actively opposed taking those precautionary measures.[3] In North Carolina in particular, Republican Lieutenant Governor Dan Forest, who is challenging Democratic Governor Roy Cooper in the November 2020 elections, opposed Governor Cooper’s executive order banning dine-in service in restaurants in March 2020.[4] Lieutenant Governor Forest opposed the order on both procedural and substantive grounds, claiming that Governor Cooper’s action was taken without legal authority and would devastate the North Carolina economy.[5] Lieutenant Governor Forest claimed that Governor Cooper only had the authority to issue the restaurant order with the support of the Council of State, which opposed Governor’s Cooper restaurant order on partisan lines.[6] While Governor Cooper has since issued a stay-at-home order across North Carolina,[7] it is worth analyzing the legal basis of the order banning dine-in service at restaurants, especially because the legality of that order became a politicized issue.[8]

            On March 17, 2020, Governor Cooper issued Executive Order No. 118, which banned dine-in service in restaurants and permitted only take-out and delivery.[9] This action was taken to slow the spread of COVID-19,“flatten the curve” of infection, and reduce strain on the healthcare system.[10] The Governor cited several statutory provisions in support of his authority to issue the order.[11] Specifically, the Governor cited statutes authorizing executive action for the Governor’s Office, the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.[12]

            Regarding the Governor’s authority, Governor Cooper’s order[13] cited section 166A-19.10 of the North Carolina General Statutes, which provides the general authority of the Governor of North Carolina,[14] section 166A-19.30 of the North Carolina General Statutes, which provides the emergency authority of the Governor of North Carolina,[15] and section 166A-19.31 of the North Carolina General Statutes, which provides further emergency authority for the Governor if a state of emergency is declared pursuant to section 166A-19.30(c) of the North Carolina General Statutes.[16] Section 166A-19.10(b)(4) empowers the Governor to coordinate with the President of the United States during emergencies,[17] and Governor Cooper’s order cited President Trump’s March 16, 2020, guidelines to limit all social gatherings to ten people.[18] Section 166A-19.30(a)(1) empowers the Governor to declare a state of emergency and “utilize all available State resources as reasonably necessary to cope with an emergency.”[19] Section 166A-19.30(c) empowers the Governor to use municipal authority under section 166A-19.31 if the emergency is a statewide issue and local governments have not done enough to address the emergency.[20] Therefore, section 166A-19.31(b)(2) empowers the Governor, during times of statewide emergency, to order restrictions upon the operations of businesses statewide. Governor Cooper declared a state of emergency for COVID-19 on March 10, 2020,[21] and given the statewide threat posed by COVID-19,[22] it is likely that these statutes provide sufficient authority for Governor Cooper to order the closure of dine-in restaurant services.

            Regarding the State Health Director’s authority, Governor Cooper’s order[23] cited section 130A-145 of the North Carolina General Statutes, which provides the State Health Director with broad quarantine and isolation authority,[24] and section 130A-2 of the North Carolina General Statutes, which defines quarantine authority and isolation authority.[25] Section 130A-2(7a) defines quarantine authority as the authority to limit the freedom of movement of persons who have been exposed or are reasonably likely to have been exposed to a communicable disease, while section 130A-2(3a) defines isolation authority as the authority to limit the freedom of movement of persons who are infected or are reasonably likely to be infected with a communicable disease.[26] Section 130A-145(a) empowers the State Health Director to use both quarantine and isolation authority, which the Director used in Governor Cooper’s order to ban dine-in restaurant services.[27] Again, given the rapid spread of COVID-19 around the world[28] and that health officials had identified at least one case of COVID-19 within North Carolina at the time,[29] it was reasonably likely that large gatherings in dine-in restaurants would contribute to the spread of COVID-19. Therefore, the State Health Director used their statutory authority to ban dine-in services.

            Regarding the Emergency Management Division’s authority, Governor Cooper’s order[30] cited section 166A-19.12 of the North Carolina General Statutes.[31] This statute provides the Division with the authority to coordinate with the State Health Director to determine “[t]he appropriate conditions for quarantine and isolation in order to prevent further transmission of disease.”[32] After coordinating with the State Health Director, the Emergency Management Division concluded, per Governor Cooper’s order, that dine-in restaurant service should be banned due to COVID-19.[33]

            Regarding the authority of the North Carolina Secretary of Health and Human Services, Governor Cooper’s order[34] cited section 130A-20 of the North Carolina General Statutes, which provides the Secretary and local health directors with the authority to order the abatement of imminent hazards.[35] Section 130A-2(3) defines imminent hazard to include “a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, [or] an immediate threat of serious adverse health effects[.]”[36] Section 130A-20(a) empowers the Secretary and local health directors to take action to abate an imminent hazard on private property.[37] Given the rapid threat posed by COVID-19,[38] it is likely within the Secretary’s authority to order the closure of dine-in restaurant services.

            Collectively, the authority of the Governor, State Health Director, Emergency Management Division, and North Carolina Secretary of Health and Human Services justify Governor Cooper’s order closing dine-in restaurant services. It is true that section 166A-19.30(b) of the North Carolina General Statutes, which includes provisions about the regulation of food services and congregations in public places during emergencies, implies that the Governor must have the support of the Council of State to issue emergency regulations regarding restaurants and other public activities.[39] That is likely why Lieutenant Governor Forest argued that Governor Cooper lacked the authority to issue the executive order.[40] However, the other statutes provide more than sufficient authority for Governor Cooper’s order, especially when the order was issued at the recommendation of the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.   

           In short, during health emergencies, the Governor of North Carolina has broad unilateral authority, especially with the support of other emergency and health officials, and Governor Cooper’s executive order banning dine-in restaurant service was within his statutory authority.

[1] State Action on Coronavirus (COVID-19), Nat’l Conf. St. Legis., (last visited Apr. 13, 2020).

[2] Holly Secon & Aylin Woodward, About 95% of Americans Have Been Ordered to Stay at Home. This Map Shows Which Cities and States Are Under Lockdown., Bus. Insider (Apr. 7, 2020, 3:13 PM),; State Action on Coronavirus (COVID-19), supra note 1.

[3] Ronald Brownstein, Red and Blue America Aren’t Experiencing the Same Pandemic, Atlantic (Mar. 20, 2020),

[4] Editorial Bd., A COVID-19 Order Just for NC Lt. Gov. Dan Forest: Hush, Charlotte Observer (Mar. 18, 2020, 3:21 PM),; Lt. Governor Forest Questions Validity of Restaurant Ban, N.C. Lieutenant Governor Dan Forest (Mar. 17, 2020),

[5] Editorial Bd., supra note 4.

[6] Travis Fain, Lt. Governor Questions Validity of Governor’s NC Restaurant Ban, (Mar. 17, 2020),

[7] Governor Cooper Announces Statewide Stay at Home Order Until April 29, N.C. Dep’t Health & Hum. Servs. (Mar. 27, 2020),

[8] For the purposes of statutory interpretation in this blog post, I will adopt a plain meaning framework. This is because plain meaning analysis is frequently thought to be the best starting point when interpreting statutory text, especially in the absence of caselaw or substantial legislative history. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 626–29 (1990).

[9] N.C. Exec. Order No. 118 (Roy Cooper, Governor) (Mar. 17, 2020),

[10] Id.; Brandon Specktor, Coronavirus: What Is ‘Flattening the Curve,’ and Will It Work?, Live Science, (last visited Apr. 13, 2020).

[11] N.C. Exec. Order No. 118.

[12] Id.

[13] Id.

[14] N.C. Gen. Stat. § 166A-19.10 (2019).

[15] Id. § 166A-19.30.

[16] Id. § 166A-19.30(c); id. § 166A-19.31.

[17] Id. § 166A-19.10(b)(4).

[18] N.C. Exec. Order No. 118.

[19] N.C. Gen. Stat. § 166A-19.30(a)(1).

[20] Id. § 166A-19.30(c); id. § 166A-19.31.

[21] Governor Cooper Declares State Of Emergency to Respond to Coronavirus COVID-19, N.C. Governor Roy Cooper (Mar. 10, 2020),

[22] Julia Belluz, How Does the New Coronavirus Spread? These New Studies Offer Clues, Vox, (last updated Mar. 8, 2020).

[23] N.C. Exec. Order No. 118.

[24] N.C. Gen. Stat. § 130A-145.

[25] Id. § 130A-2.

[26] Id. § 130A-2(3a); id. § 130A-2(7a).

[27] Id. § 130A-145(a); N.C. Exec. Order No. 118.

[28] Belluz, supra note 22.

[29] North Carolina Identifies First Case of COVID-19, N.C. Dep’t Health & Hum. Servs. (Mar. 3, 2020),

[30] N.C. Exec. Order No. 118.

[31] N.C. Gen. Stat. § 166A-19.12.

[32] Id. § 166A-19.12(3)(e).

[33] N.C. Exec. Order No. 118.

[34] Id.

[35] N.C. Gen. Stat. § 130A-20.

[36] Id. § 130A-2(3).

[37] Id. § 130A-20(a).

[38] Belluz, supra note 22.

[39] N.C. Gen. Stat. § 166A-19.30(b).

[40] Editorial Bd., supra note 4.