Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

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Back on January 1st we thought that 2020 would bring clarity of vision and foresight. Since then the world has turned upside down; however, long-standing legal precedent of what states can do in times of epidemics and pandemics has not. Many are claiming that it is unlawful for any governmental entity or official, in an effort to reduce COVID-19 infections and deaths, to impose restrictions upon travel, either across state borders or in large crowds within a state. I disagree….

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Hively v. Ivy Tech

Hively v. Ivy Tech

In the summer of 2015, same-sex couples celebrated a civil rights victory following the Supreme Court’s monumental decision in Obergefell v. Hodges. The Court recognized same-sex couples have the constitutional right to marriage, protected by the Due Process and Equal Protection Clauses. While the right to marriage was immediate, this decision did not mark the end of discrimination based on sexual orientation. Rather, the holding created a “legal landscape in which a person can be married on Saturday and then…

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Who Among Us Is the Reasonable Person?

Who Among Us Is the Reasonable Person?

Our cultural understanding of “criminal” heavily influences how the elements of a criminal defense are defined and applied. Kansas Supreme Court case State v. Stewart was no exception to this rule. The defendant in this case, a victim of a long-term domestic abuse by her husband, Mike, was charged with first-degree murder of her husband. After suffering years of emotional and physical abuse toward herself and her two daughters, on the morning of the murder, Stewart found her only escape…

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Korematsu, COVID-19, and The Question of Executive Deference

Korematsu, COVID-19, and The Question of Executive Deference

“Wrong the day it was decided” is a judgment that the Supreme Court reserves for overturning its most egregious prior decisions. One of the cases that most recently received that declaration is Korematsu v. United States, a decision that infamously sanctioned the World War II internment of individuals of Japanese ancestry. The Court’s repudiation of that decision, equal parts laudable and belated, offers hope that the logic of this decision is a relic of the past, but such hope may…

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Experimental Drug Could Curb Emerging COVID Mental Health Crisis

Experimental Drug Could Curb Emerging COVID Mental Health Crisis

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As the COVID-19 pandemic evolves, experts warn it is triggering a national mental health crisis. Some say it could cause up to 75,000 U.S. deaths by suicide and drug overdose. Millions may experience lasting grief from losing loved ones, depression due to unemployment, and post-traumatic stress disorder (PTSD) from working on the frontlines as healthcare providers and other essential workers.  Traditional medications for mental illness, such as the antidepressants fluoxetine and paroxetine, are ineffective in about half of those who try them….

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Federalism and Communicative Confusion in the Time of COVID-19

Federalism and Communicative Confusion in the Time of COVID-19

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The states, rather than the federal government, have taken the lead in responding to COVID-19. This is in part because states have broad police powers that allow them to enact measures like stay-at-home orders. It is also because the federal government has avoided issuing guidance, even suppressing a recent CDC report, which has left the states without central coordination. Some praise this strategy as a prudent invocation of federalism. But any evaluation of the federalism benefits must account for the…

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Constitutional Constraints on Lawyer Licensing in the Age of COVID-19

Constitutional Constraints on Lawyer Licensing in the Age of COVID-19

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The COVID-19 pandemic has profoundly disrupted the courts and the legal profession, just when access to justice is most needed. The public health crisis has generated a host of legal issues in areas as diverse as disaster relief, health law, disability issues, insurance, employment law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great, but courts are struggling to license new lawyers due to the serious health consequences of administering the bar…

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Custody and Visitation in a Pandemic

Custody and Visitation in a Pandemic

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Either voluntarily or through court order, most separated and divorced parents have established parenting plans that outline custody and visitation obligations. But what happens to these orders when a global pandemic rages through our communities?  Can parents unilaterally  refuse to engage in custodial transfers or keep the other parent from visiting while a government shelter-in-place order is in place? Anecdotally, family law attorneys report that the single biggest issue for their clients right now seems to be whether the regular…

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True Causes of Racial Disparities in the COVID-19 Pandemic

True Causes of Racial Disparities in the COVID-19 Pandemic

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To the shock of those unfamiliar with racial health disparities in the United States, African Americans (and other racial minorities) have been infected with, and died from, COVID-19 at a much higher rate than white Americans. The explanation given by Dr. Anthony Fauci (Director of the National Institute of Allergy and Infectious Diseases and high profile member of the White House Coronavirus Task Force), Dr. Jerome M. Adams (United States Surgeon General), and other health professionals is that African Americans…

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COVID Lays Bare the Need for Attending to Second Amendment Theory

COVID Lays Bare the Need for Attending to Second Amendment Theory

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As angry protesters, some clad in tactical gear and armed with semi-automatic rifles, storm state capitols to decry COVID-related orders, it’s worth asking why the Second Amendment resides in our Bill of Rights. In District of Columbia v. Heller, the Court held that it was there because the founding fathers wanted to protect the existence of citizen militias. But the reason for codifying the right, said the five-Justice majority, did not confine its substantive scope—of law-abiding citizens “to keep and…

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