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Lindsay Wiley Profile picture
@ProfLWiley
Jun 10, 2020 • 4 tweets • 2 min read • Read on X
#JacobsonWatch: CT Citizens Def. League opinion discusses Jacobson at length & quotes its standard, but argues courts have a role in crisis. Cites CJ Roberts's concurrence in South Bay for the principle that covid orders merit deferential review.
ctnewsjunkie.com/upload/2020/06…
Court also cites my @HarvLRev Forum essay w/ @steve_vladeck, Coronavirus, Civil
Liberties, and the Courts: The Case Against ‘Suspending’ Judicial Review, (which is obviously the real reason I keep up the #JacobsonWatch thing, right?) papers.ssrn.com/sol3/papers.cf…
"Even granting deference & the wisdom of the decision to initially suspend all fingerprinting [for firearm sales] at the outset of the pandemic," the state hasn't shown "there continues to be a *substantial* fit b/w protecting people from COVID-19 & suspension of fingerprinting."
Court declines to decide whether strict or intermediate scrutiny applies b/c suspension of fingerprinting fails intermediate scrutiny. Does not apply lower, rational-basis review that some courts have said Jacobson dictates.

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More from @ProfLWiley

Lindsay Wiley Profile picture
Jul 9, 2023
I’d missed this one. Of interest to torts profs as well as public health folks. A bit more context on the California Supreme Court’s decision earlier this month…
A federal court certified two questions of state tort law to the state supreme court: does CA common law recognize claims by an employee’s family members against an employer for covid brought home from the workplace & if so, are those claims preempted by the workers comp law?
The tort law question focused on the duty element of the negligence cause of action: do employers owe employees’ family members a duty to take reasonable measures to avoid workplace transmission?
Read 11 tweets
Lindsay Wiley Profile picture
Jan 30, 2023
The WH has informed Congress it will decline to renew the s. 319 public health emergency declaration for Covid, allowing it to expire May 11, & will terminate the s. 201 national emergency declaration on the same date. apnews.com/article/biden-…
These are just two of several federal declarations that provide flexibility re: funding & removing regulatory barriers for Covid response. The s. 564 EUA declaration and s. 319F-3 PREP Act declarations are unaffected
The main potential impact of the 319 PHE declaration expiring would have been termination of the provision requiring states to keep people continuously enrolled in Medicaid, but Congress passed legislation to phase out that program from Mar 31 to Dec 2023 kff.org/medicaid/issue…
Read 9 tweets
Lindsay Wiley Profile picture
Apr 20, 2022
One reason to be concerned about rogue judges who aggrandize their independent analysis above precedent/briefing/leg history/deference to experts is litigants don’t have the opportunity to raise counter arguments re: whatever pops into the judge’s head during opinion drafting.
A major theme of covid cases has been judges thinking for themselves about things like whether temp checks might have worked as well as universal masking, whether gyms are more or less risky than grocery stores, whether there are good reasons to keep liquor stores open, etc. etc
Public health officials didn’t always get these choices right, but judges spitballing public health policy on their own accord is not the way.
Read 4 tweets
Lindsay Wiley Profile picture
Jan 25, 2022
Minimizing severe illness/deaths & ensuring equitable access to safer in-person services/interactions for people who remain highly vulnerable in spite of vaxxed status depends on our ability to dial up mandates & restrictions during times when they’re most needed.
Keeping the most disruptive restrictions in place too long in too many places in late spring 2020 made it harder to dial up mitigation when & where it’s been needed most in the months that followed.
Rebuilding trust, transparency, consensus & cooperation is extremely difficult. It demands better, more honest, more humble communication.
Read 8 tweets
Lindsay Wiley Profile picture
Dec 20, 2021
Reasons for not adopting recommended behaviors vary. Effective responses do, too. But shame is ineffective across the board.
For the firmly recalcitrant, shame from the covid-cautious reinforces “us vs. them” mentality, adding more fuel to their opposition. Off-ramps that let them change their approach going forward w/o accepting the narrative that they’ve been stupid & selfish are more productive.
For the hesitant who have questions, shame shuts down dialogue in a way that arouses further suspicion. “If they have to resort to name-calling, they must not have good answers to my questions.” Better to create opportunities for engagement with trusted advisors.
Read 4 tweets
Lindsay Wiley Profile picture
Oct 18, 2021
Thinking about Colin Powell. Reminder that when we talk about endemicity, we have to talk about legal rights & social supports for people who cannot be safely/effectively vaccinated, especially those who are also at increased risk of severe illness & death.
Accessibility for people who remain highly vulnerable to covid in spite of vaccination requires that people around them who *can* be safely/effectively vaccinated are.
Post-2020 discussions of herd immunity often miss a key point. Herd immunity is a strategy for providing indirect protection to people who can’t rely on direct protection alone.
Read 4 tweets

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