perspectives typography
on a pandemic typography
By Paula Derrow
In a matter of months, the coronavirus outbreak has upended life as we know it and promises to shape legal issues across the globe for decades to come. Whether grappling with the continued rise of global authoritarianism or the need for more protection for unions and workers of color here in New York City, Fordham Law’s faculty are providing powerful insights into the current and long-term impact of the global pandemic.
opening quotation
COVID-19 is coming,
and if people don’t prepare, it won’t be pretty!
Professor Carl Minzner
Shanghai, February 2020
Carl Minzner headshot
Carl Minzner:
Message from a Time Traveler
In February, when New York City was still pretty much going about its business, Fordham Law Professor Carl Minzner was living in Taipei with his family on a Fulbright Scholarship and frantically trying to get a message to his friends and former students back in the United States: COVID-19 is coming, and if people don’t prepare, it won’t be pretty! “I felt like a time traveler from the future talking to everyone about what was about to happen,” says Professor Minzner, an expert in Chinese law and governance.

Except no one was really listening.

“It was really hard for everyone to grasp that something occurring so far away—in Wuhan, then in Italy, then Iran—was also going to happen here,” he says. But Professor Minzner had seen this kind of tragedy unfold before. He was in China in 2003 when SARS “blew up,” and the scenario with COVID-19 felt eerily similar: “The Chinese government initially played down the potential impact of SARS before finally putting effective measures into place.”

This time around, just three days after Professor Minzner arrived in Shanghai with his wife and 3-year-old for the second half of his Fulbright, Wuhan went into lockdown. “Things started happening very quickly,” he recalls. “Within 10 days, everything had changed.” All restaurants and public spaces were suddenly shuttered, travel restrictions were being put into place, and Shanghai, like Wuhan, was headed for a full-on residential lockdown. “It became clear that we were going to have real problems getting out of China if we needed to, so we decided to head back to Taiwan,” says Minzner.

More Prepared than the States
Taiwan, he says, responded far more effectively than the U.S. “They learned from the visceral experience of SARS,” he explains, when the virus leaped from China into Taiwan, killing 27 percent of the more than 700 people who were infected.

This time, Taiwan was better prepared. “The government put an epidemiologist in charge, used the military to ramp up mask production—from 2 million to 20 million within weeks—and instituted effective quarantine procedures.” Just as important: “One hundred percent of the population wore masks,” he says. The results speak for themselves: In a country of 23 million, there were only 7 deaths and 530 cases as of October 13.

Troubling Trends in China
Meanwhile, things in China were more coercive. “The government closed down entire cities, people were forbidden to leave their homes, and anyone infected was physically quarantined in designated facilities,” says Professor Minzner. This aggressive approach, he believes, has been aided by a broader, more authoritarian trend that has taken hold in the country over the past decade—and that may be exacerbated as a result of the virus. “After 1978, China opened up economically and socially,” he says. “People could circulate more freely within the country and things opened up to foreigners.” That loosening of restrictions continued during the ’80s and ’90s, but now, he says, “There has been a shift back to tighter political controls—especially when it comes to minority groups—and a greater discomfort with foreign influence in general, whether economically or socially,” he explains.

The pandemic, he predicts, will take those trends to the next level. For instance, African immigrants living in Guangzhou, in the southern part of China, have been subject to forced evictions. “When you feel as if you are under threat, the impulse is to blame outsiders,” he says.

Just as troubling, Minzner says, is the rapid breakdown of China–U.S. relations. “I’m really worried about the possibility of conflict,” says Minzner. “U.S.–China ties are snapping one after another—in education, business, and politically—as each country tries to lay the blame on the other.”

Yet after seeing firsthand what a coordinated, successful response to a global pandemic looks like in Taiwan, Minzner also sees reason for optimism. “Right now [in June of 2020], schools and restaurants in Taipei are open; citizens can go about their normal lives,” he says. “This is what’s possible when there is broad social consensus, effective leadership, and when everyone takes the pandemic seriously,” he says. “If you pull together, you can make a huge difference.”

Race and Class
clipart people in line wearing medical masks
Jennifer Gordon, Professor of Law
One of the strange gifts of COVID-19 has been the ways it has forced us to see, literally rather than metaphorically, the truths about race and class that undergird our society. At the height of the pandemic in New York City, I walked by a large grocery store and saw a short line of people waiting outside to enter. Around the corner, I saw another, longer line. Both were for the same store, but the first—for people doing their own shopping—was mostly made up of white people, and the second—for app-based shoppers who were buying groceries for others—was almost entirely people of color. The segregation between these two lines is the product of a series of decisions in law and policy. We have accepted a legal paradigm that addresses discrimination only when there is clear evidence of an individual bad actor, leaving the real problem—structural racism—untouched.
clipart kid on laptop with headphones
Aaron Saiger, Professor of Law
The COVID-19 pandemic abruptly transformed American schools into virtual schools. This nearly total, almost entirely ad hoc, and exceedingly bumpy transition made vivid how sweepingly American education law assumes, without ever saying so explicitly, that schools are buildings of bricks and mortar. With respect to nearly every aspect of schooling that law touches—compulsory attendance, the supervision of children, curriculum, student health and nutrition, discipline, safety, teachers’ conditions of work, privacy, disability, equity, racial and gender discrimination, freedom of expression, intellectual property, governance, taxation, and more—it fits virtual technology poorly. The staggering scope of this mismatch demonstrates how much work must be done to adapt to inexorable technological change. This undertaking presents an opportunity for American schools, and school lawyers, that has not presented itself since the beginning of the Progressive Era. It is to be hoped that this opportunity to see school law afresh will permit us to reassess and redirect, to realign principle and practice, and, ultimately, to transform education law in the service of learning, equity, and effective civic participation.
clipart life raft
Richard Squire, Professor of Law & Alpin J. Cameron Chair in Law
In bankruptcy law, the CARES Act made it easier for small businesses to file for relief under subchapter V of Chapter 11, which provides a streamlined reorganization process. Whereas businesses previously had to have no more than $2.7 million in business debts to qualify for subchapter V, CARES raised that threshold to $7.5 million. This change is set to expire after one year, but I anticipate that Congress may make it permanent. Although subchapter V makes bankruptcy cheaper for the bankrupt firm by simplifying the process, it also makes it easier for owners of small businesses to hold onto their firms even while their debts are partially canceled. It thus makes lending to small businesses riskier, with the potential consequence that small businesses will have to pay higher interest rates on their loans in the future.
american flag illustration with man carrying big star on his back
Catherine Powell headshot
Catherine Powell:
Constitutional Rights = Human Rights
When Professor Catherine Powell talks about COVID-19 and the changes we might see in its wake, she likes to quote other thought leaders who have inspired her, everyone from novelist Arundhati Roy (“The pandemic is a portal … to a more just world … ”) to Rahm Emanuel, who famously said during the recession of 2008, “Never let a … crisis go to waste.” Like Roy and Emanuel, Powell believes there’s no going back to the world the way it was, only forward. “I never would have wished for this crisis, but now that we’re in this, we need to push for a more just society,” she says.
A Racial Justice Paradox
For Powell, that means talking about the connections between human rights and constitutional rights, between the pandemic, policing, poverty, and protests. “The piece I’ve been trying to drill down on is how the pandemic is unmasking the racial justice paradox in this country—the fact that, on the one hand, Blacks and Latinx are overrepresented in terms of blue collar essential workers, but on the other hand, they’re treated as disposable, with no paid sick leave or health insurance. That’s not only inhuman, but it makes no sense in terms of containing the virus.” Indeed, data from the Centers for Disease Control and Prevention released in July showed that people of color are three times more likely to contract COVID-19 than whites, and Blacks and Latinx are nearly twice as likely to die from the virus as white patients are. “Especially during this crisis,” says Powell, “health care needs to be considered a human right.”
An Employment Gap—and a Gender Gap
That disparity is also seen in unemployment numbers, says Powell. “Black and Latinx are the last hired and the first fired,” she says. According to May 2020 figures from the Labor Department, as the pandemic reached its first peak, unemployment for Black workers was at 16.8 percent, the highest in a decade, while rates for white workers went down, to 12.4 percent. A majority of these lost jobs, contends Powell, belonged to women—whether in leisure, hospitality, childcare, education, or health care. “To take on this urgent poverty pandemic—inside the health pandemic—lawmakers must address the structural and racial inequalities embedded in both the health and financial crises, which are ultimately at the root of the protests … in the United States and around the world,” writes Powell on the Council on Foreign Relations’ Think Global Health site.
A Sense of What’s Possible
Yet there could also be an upside to this crisis, says Powell, which is that the pandemic is highlighting what is possible. “We’re seeing that we can provide free testing, we can provide at least a short-term income for everyone—things that everyone thought were impossible,” she says. “Maybe, like Europe, we will also be able to restructure work, health care, and our government so that everyone is better supported.” She points to congressional proposals for a “bill of rights” for essential workers as one promising possibility, which would include health and safety protections, hazard pay, and paid sick leave. “Society has an obligation to make sure that everyone in the community is included, and that there is compassion and care when people get laid off, or when they are ill,” she says.

This year, during her sabbatical, Professor Powell will be looking to move that agenda forward with her writing and research. She is working part-time with the Washington, D.C.–based Leadership Conference on Civil and Human Rights. “We are looking at this moment of crisis as a chance to transform the system—beyond a set of legislative changes.” She’ll also be looking at the impact of our new stay-at-home economy on the nation’s most vulnerable laborers. “As the touchless economy continues to emerge, speeding the shift to a platform economy and gig workers, I’ll be looking at the effect on people of color and women—who tend to be most affected in moments of crisis and transition,” she says. “I’m excited to grab hold of this moment and to make some lasting change.”

clipart of prisoner on bench
John Pfaff, Professor of Law
Even in the midst of a profound health crisis, politicians remain unwilling to cut prison populations in any serious way. One study suggests that COVID-related releases of inmates have led to something on the order of a 3 percent decline in numbers, a remarkably anemic response to the threat COVID poses to those detained in prisons, as well as those who work there.

Many elected officials are likely coming to the grim, immoral, cynical—but perhaps politically astute—conclusion that it is better for their political futures to let many people die and far more people contract the coronavirus in prison—preventable though those outcomes may be—than take the risk that one person released early commits a single, awful, headline-grabbing crime.

That politicians appear to feel this way now, when the risks posed by the coronavirus provide them with much more political cover to release people early from prison, suggests that they will be even more reluctant to push serious decarceration efforts when the fear of the virus has subsided. That’s not to say that significant decarceration is a quixotic goal, only that the COVID-19 epidemic has highlighted the significant political opposition that serious decarceration efforts will likely face in the years ahead.

arrow going around covid-19
Martin Gelter, Professor of Law
COVID-19 will accelerate or strengthen some ongoing trends in corporate governance worldwide, starting with firms developing more resilient structures to better withstand crises, perhaps holding reserves of cash or other assets that can be easily liquidated in the next shutdown. And preliminary research suggests that well-connected firms (those controlled by powerful families in their home country or by the government itself) may be better able to survive. We are also likely to see a resurgence of nationalism—or protectionism—in corporate governance. Countries will seek to keep key industries at home and be less dependent on transnational supply chains. Many countries may also be wary about foreign ownership of firms, especially if they’re of national importance and employ a large base of workers. COVID-19 has already put the tools to interfere with the economy more firmly into the hands of many governments. In the future, we can expect these governments to make greater use of these tools.
Legal Challenges
two clipart gavels
Karen J. Greenberg, Director, Center on National Security
In the coming months, I expect there will be numerous legal challenges in response to the pandemic and the policies that have been put in place and those that will be put into place going forward. First, there may very well be suits against any policy requiring vaccinations, and the 1905 Supreme Court decision in Jacobson v. Massachusetts [which raises questions about the power of state governments to protect public health] will likely be challenged. Second, I wouldn’t be surprised if there is a reevaluation of federalism and the allocation of authority between the states and the federal government, along with the application of the Supremacy Clause [which says the U.S. Constitution takes precedence over state laws and constitutions] in conjunction with Article II powers, and preemption to situations previously reserved to the states. Third, as we have seen, I think there will be continued controversy over whether the government can institute mandated contact tracing without violating the privacy protections of the Fourth Amendment. Fourth, we can expect litigation regarding schooling and efforts to open or close them, perhaps argued on Fourteenth Amendment grounds. Fifth, there will likely be litigation and policy debates over whether people can get fair trials with juries when jury composition may be curtailed because of COVID-19. In other words, in a COVID-19 world, will juries still represent a fair cross-section of the community? And finally, there may be lawsuits over government limitations on businesses’ ability to operate. The Fifth Amendment’s Takings Clause [which prevents the government from taking private property for public use without just compensation] endeavors to protect the right of businesses to conduct their affairs freely. But given government decrees on shelter-in-place and social distancing, the financial costs to businesses for adhering to these decrees are sure to be an issue.
grocery store clerk with a mask
James Brudney headshot
James Brudney:
Looking Out for Front-Line Workers Everywhere
At 7 p.m. in New York City, in the thick of the COVID-19 crisis, New Yorkers embraced the new tradition of opening their windows to bang pots and pans and cheer the pandemic’s front-line workers—doctors, nurses, healthcare providers, and EMTs. But Professor James Brudney, the Joseph Crowley Chair in Labor and Employment, is focused on front-line workers often left out of the celebration: grocery store clerks and cashiers; meat and poultry packers; transit workers; agricultural workers; food delivery people; and warehouse employees, among others. “These are the people who can’t work remotely,” he says. “They’re more likely to be African American or immigrants, and also more likely to be living in low-income families. And given that they are being exposed to the virus on a daily basis, they are more likely to be hospitalized or to die from COVID-19 than those who have had the luxury of working from home.”

These workers are vulnerable in another way: “They don’t have a lot of safety and health-related rights—including the right to PPE, to mandatory social-distancing rules at work, to hazard or premium pay, or to refuse to come in to work if conditions are unsafe,” says Brudney.

On the Precipice
Like Catherine Powell (see above), however, Professor Brudney also believes that this is a moment when real change is possible. “There are opportunities to think about major legislative changes and protections beyond what the federal government and the states have already put into place,” he says. One option: health and safety-related councils organized by industry or occupation on a tripartite basis. This industry-wide or sectoral approach would allow nonunionized workers in the meat-packing industry or in grocery stores or warehouses to meet, negotiate, and improve protections in collaboration with business and government, “just as occurred in New York State for fast-food workers when securing a higher minimum wage.” Adds Brudney, whose Law Review article about this topic, “Forsaken Heroes: COVID-19 and Frontline Essential Workers,” will be published by the Fordham Urban Law Journal in January 2021, “It shouldn’t just be what a Trump administration or Amazon decides in terms of PPE or hazard pay, but what employees help decide for themselves. There has to be a role for workers and their voice.”

Then there’s the issue of paid sick leave, which is mandated in a handful of states. The federal CARES Act provides for only about one-fourth of all workers, and only during this emergency. “We need it to be available to everyone, as a general rule, along with a law mandating adequate PPE,” says Brudney, who points to instances where workers have sued for safer conditions. In two separate lawsuits against McDonald’s (in Illinois and California), state courts granted preliminary injunctive relief ordering the restaurants to provide masks, adequate training, safe distancing, and paid breaks every 30 minutes for handwashing.

Professor Brudney is also hopeful that as a result of this crisis, workers will gain the right to protest against health risks without losing their jobs. “COVID-19 has shown how grave hazards faced by essential workers can arise with little or no warning and persist or worsen if not addressed,” says Brudney. “The law should provide better protection for peaceful walkouts motivated by these serious health concerns. We’re the only country in the world that gives employers the right to hire permanent replacements for lawful strikers. When workers walk off the job to protest such hazardous working conditions, they ought to be protected absolutely.”

Finally, Professor Brudney points to the passage of a special provision in the CARES Act that protects some 2 million employees in the heavily unionized airline industry. The union negotiated for compensation that would “directly pass through to the workers, so all of them would stay employed,” he explains, along with clauses that prohibited compensation for executives over a certain amount. “I think it bodes well that a highly unionized industry like that was able to secure considerably more protection than usual,” he says. “As an example of protecting workers’ rights while also preventing possibilities for further income inequality, we may have a model for other settings in the future.”

clipart bomb
Susan Block-Lieb, Cooper Family Professor in Urban Legal Issues
After the worst of the public health effects from the coronavirus pandemic have receded, every recipient of a government Economic Injury Disaster Loan (EID); every student with deferred interest obligations; and every residential mortgagor and tenant whose foreclosure or eviction has been stayed by virtue of federal law will have to figure out how, in the uncertain economic context of recovery from a pandemic, they will pay back all this debt.

The economic rebound may be sufficiently swift and strong to enable this borrowing to get repaid, at least in part. But because I’m a bankruptcy lawyer, I tend to focus on the worst-case scenario contained in this half-empty glass—which is the near certainty that many will default. And, absent additional deferment and forbearance, this worst-case-scenario thinking leads me to the conclusion that bankruptcy filings will increase over time—substantially. For many, in other words, the federal government’s “helping hand” will later feel more like a slap in the face.

clipart skyline
Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center
Cities have always been intimately involved in public health, going back to the yellow fever and cholera epidemics of the late 1700s and early to mid-1800s. Likewise, with COVID-19, in cities where the pandemic hit first, and hardest, city leaders had to respond rapidly. Yet in many cases, city and state leaders saw the response to the crisis differently, exposing long-standing underlying fault lines about the true power of cities. We’ve all seen that if a mayor wanted to protect public health by issuing a stay-at-home order or narrow the definition of what constitutes an essential business, and the governor disagreed, in most states, the governors prevailed. Often, mayors on the front lines of this once-in-a-century crisis were hamstrung in their ability to react in real time to protect public health and their citizens.

One thing that may come out of this, then, is that people will have a renewed appreciation for what the division of authority between cities and states really means. We now understand that it’s the leadership at the city level that really has to grapple with the fallout of this crisis for renters, for businesses, for public transportation, for the day-to-day quality of life. All of that gets managed at a local level. Ultimately, I believe there will be a stronger constituency for empowering cities.