South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

In a May 5 post Assistant Attorney General for the Navajo Nation Department of Justice Paul Spruhan argued that Indian tribes should have authority to restrict movement through their territories in order to stem the tide of the COVID-19 epidemic. Those very principles are now being put to the test in South Dakota, where Gov. Kristi Noem has demanded that Oglala Sioux tribal leaders remove the checkpoints set up to regulate traffic through the reservation. Gov. Noem has previously come…

Read More Read More

Sorry, Not Sorry: Temporary Practice in a Pandemic

Sorry, Not Sorry: Temporary Practice in a Pandemic

The American Bar Association (ABA) Board of Governors has issued a policy resolution urging states to adopt emergency rules that would authorize recent law graduates to engage in supervised law practice until the COVID-19 pandemic allows administration of the next bar exam. The ABA’s guidance encourages states to terminate these limited licenses if an applicant does not take or pass a bar examination by the end of 2021. This resolution sends a mixed message: On the one hand, emergency licensing…

Read More Read More

Zoom Justice: When Constitutional Rights Collide in Cyberspace

Zoom Justice: When Constitutional Rights Collide in Cyberspace

Criminal courts throughout the United States have relied upon Zoom and other videoconferencing technologies to help maintain a functioning criminal justice system amid the COVID-19 pandemic. However, such technology, in place of in-person trials, potentially violates several constitutional rights afforded to the accused, and might force them to choose to exercise one right guaranteed to them by the Sixth Amendment at the expense of another. Specifically, the accused might now confront two critical constitutional choices: (1) the right to a…

Read More Read More

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people with pre-existing health problems, the lack of easy access to health care, and the significant number of families without running…

Read More Read More

Protecting Our Health Care Providers from Liability in a Pandemic

Protecting Our Health Care Providers from Liability in a Pandemic

While COVID-19 creates profound medical concerns for health care providers, it also creates fear of potential lawsuits. Clinicians are forced to ration scarce resources, such as ventilators, when there is an inadequate supply. Medical professionals describe chaos in hospitals that makes it extremely difficult to treat all patients appropriately. Patients have had elective surgeries postponed indefinitely. Worse yet, some, including cancer patients, have had essential operations cancelled. All of these circumstances could lead to serious patient harm and subsequent litigation….

Read More Read More

Essential but Excluded: Vending in the Time of Corona

Essential but Excluded: Vending in the Time of Corona

Immigrants, those with legal status and those without, individuals returning from incarceration, and individuals with time-consuming childcare and other family obligations often look to start microenterprises like street vending to provide for themselves and their families. However, many municipalities in the United States apply a penal approach to street vending, criminalizing it as a form of vagrancy. Even Los Angeles, a city known for its street vending culture, criminalized the practice outright until 2019. Other cities have permitted vendors to…

Read More Read More

Vote-by-Mail Can Save Our Democracy, But Reforms Are Needed

Vote-by-Mail Can Save Our Democracy, But Reforms Are Needed

As the world turns to strategies to stave off the worst effects of the novel coronavirus, now is the time to double down on our commitment to democracy. States around the country are pushing back primary and runoff elections in the hope that, if held at a later time, election procedures can return to the “old normal.” While states can postpone their primaries, they cannot postpone the November 2020 general election. As COVID-19 becomes a leading cause of death in…

Read More Read More

Closed for Business – Open for Litigation?

Closed for Business – Open for Litigation?

Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

Read More Read More

Surveillance Intrusiveness in a Pandemic

Surveillance Intrusiveness in a Pandemic

Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis. Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using…

Read More Read More

Protests During the Pandemic

Protests During the Pandemic

As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in…

Read More Read More