Special Issue: Law and the COVID-19 Pandemic

As the novel coronavirus known as COVID-19 erupted and swept the globe in late 2019 and early 2020, a full-blown pandemic quickly and significantly affected the United States. As the public health crisis worsened in the winter and spring of 2020, it soon became clear that our national security institutions and processes were being tested, sometimes in new and unique ways.

A few JNSLP stalwarts commiserated with me about some of the legal and policy issues early on, and by April 2020 we had conceived this Special Issue of the Journal, focused on COVID-19. As the weeks and months passed, it became every more clear that the pandemic was continuing to pose challenges to government performance and national and global economies.

As editor, I realized that it would require recruiting guest editors who could help me recruit authors and then mentor their completion and editing through to the kind of excellent publication that we always demand. Editor in Chief emeritus Steve Dycus and long-time board member Gene Fidell quickly stepped into the guest editor roles, and the result is a stunningly good collection of short articles surveying and detailing many of the most vexing legal and policy problems associated with the pandemic. Steve and Gene deserve enormous credit for their dedication to the Special Issue and for their characteristic excellence as editors.

The articles have been written in short order by internationally recognized subject matter experts who have experience in government, the courts, the cyber domain, public health, human rights, international organizations, domestic military policy and policing, journalism, and several other disciplines. Some of the articles take a granular look at aspects of the pandemic, while others widen the lens to look at such issues as leadership.

As we expected, the authors assign blame where blame is due, and ask about accountability mechanisms for those officials and institutions who dropped the pandemic ball. We also include a comparative piece that helpfully contrasts the effectiveness of Canadian and U.S. institutions in dealing with the pandemic.

The goal of the Special Issue is not to keep score or assign blame. Rather, we hope that the articles illuminate a vast range of legal and policy issues that COVID-19 has spawned. We know that local, state, national, and international leaders will be grappling with this pandemic for some time. We also know that lessons learned from our experience with COVID-19 will be instrumental in how we manage the next crisis – whether it is another pandemic, or something entirely different but equally challenging.

Nor does the Special Issue purport to be an exhaustive account of the national security implications of the pandemic. Many important topics are not represented here, and the authors of these articles are careful to emphasize that the analyses here do not represent the last word on covered topics.

The Special Issue groups its articles into categories. The first focuses on who is in charge. A second grouping examines pandemic responses from the perspectives of health, privacy, military, and emergency law. A third concerns information from the perspectives of transparency and journalism. A final section includes an important comparative and international law perspective on cybersecurity and the pandemic.

On behalf of JNSLP, I sincerely hope that readers enjoy and benefit from this fine collection of pandemic scholarship.

William C. Banks
Editor-in-Chief
October 2020

PART I: WHO’S IN CHARGE?

Leadership in a Time of Pandemic: Act Well the Given Part James E. Baker

The Roles of the State and Federal Governments in a Pandemic Emily Berman

Emergency Powers, Real and Imagined: How President Trump Used and Failed to Use Presidential Authority in the COVID-19 Crisis Elizabeth Goitein

A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020 Edward P. Richards

Domestic Military Operations and the Coronavirus Pandemic Mark Nevitt

PART II: RESPONSE ISSUES

Good Health and Good Privacy Go Hand-in-Hand Jennifer Daskal

From Shortages to Stockpiles: How the Defense Production Act Can be Used to Save Lives, Make America the Global Arsenal of Public Health, and Address the Security Challenges Ahead James E. Baker

COVID-19 and Military Law Eugene R. Fidell