The Virus and the Law
Newton N. Minow
Daniel B. Rodriguez
The COVID-19 pandemic presents us with extraordinary challenges. And, as a vaccine remains in the distance, we cannot yet fully absorb the challenges of rebuilding our economy, businesses, and communal trust. But whatever these uncertainties, the key to our future is the rule of law. The strength, fairness, and trust in our legal institutions as they address COVID-19-related issues will be crucial.
We come to this conclusion from different places. We are lawyers from different generations and professional backgrounds. One of us has always been a full-time legal academic teaching hundreds of law students; the other is a lawyer with seven decades of experience advising business, individuals, non-profits and pro bono clients. One usually votes Republican and the other usually Democratic. Together, we have over one hundred years in the law. Despite these different perspectives, we converge around the idea that law and the fair administration of justice will defeat the pandemic and save our country.
Unfortunately, two branches of the federal government have been letting us down. From the White House, we have erratic decision making, resistance to the guidance of science and public health experts, and a troubling lack of compassion. From Congress, we have bitter partisanship, delay in forging compromises necessary to assist Americans facing gruesome economic suffering, and constant gamesmanship without decisive action.
What the country needs is for all of its political officials to display equal commitment to the civil liberties of each individual while implementing urgent protective actions for our citizenry. Balancing rights and authority is an obligation at the core of our constitutional democracy; this is what lawyers and judges do every day.
Our judicial branch is doing better. Courts have retained independence and adapted remarkably well to the coronavirus crisis, through remote proceedings, modifying processes and rules to the reality of health risks, and operating to administer our civil and criminal justice systems at a high level. This is a reminder that our justice system is made of sturdy stuff.
Here lies the promise of law for our time — its enduring capacity to win and guide the voluntary actions of individuals and communities, a capacity earned through years of providing effective dispute resolution and ordered liberty. Law works best when there is voluntary compliance and broad appreciation for the imperatives that these obligations reflect. And the commitments of so many Americans to keeping us safe and healthy are deeply encouraging.
The law will continue to be essential as the pandemic evolves and has continuing impact. The legal issues raised by the coronavirus are complex. One of us has spent time in recent weeks teaching a course on “Law in the time of COVID-19,” first at Northwestern Law School and then an open-access format class for hundreds of enrollees around the world. Among the issues covered by this class are federalism, doctoring across state borders, drug and treatment approval, contractual obligations, tort immunity, employment law, criminal justice, and many more. Each passing week brings to the fore new issues and legal controversies. What unites these myriad issues is a confidence that law is now and will remain front and center in our society’s approach to handling the impact of the coronavirus on our welfare and our ways of life. In this time when speedy suspension of rent, mortgage and tax payments are needed, the law must be supple and adaptive, constructive and dependable. We urge our state and federal courts to play a critical role in this effort, by developing mechanisms for ensuring timely and accessible justice, while maintaining its important commitment to deliberation and to precedent. If our judiciary can adapt well to this emergency, we can be hopeful that our other main governance institutions can do the same.
The coronavirus has felled nearly 100,000 of our fellow citizens, with no end in sight. In this terrible period, respect for law is paramount. So is the use of law to get past the partisanship and confusion that plagues us. A century (and counting!) of experience in the law gives us confidence that the rule of law will see us through. As President John F. Kennedy said: “Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept the responsibility for the future.”
Newton N. Minow is senior counsel at Sidley Austin LLP and former Chair of the FCC. He is a recipient of the Presidential Medal of Freedom
Daniel B. Rodriguez is a Professor and former Dean of Northwestern University Pritzker School of Law
