Exploring New Approaches to Unsettled Legal Questions


COVID Era Regulations in the Absence of Federal Coordination: How the Dormant Commerce Clause Can Co-Exist with Effective State Contact Tracing Regulations

by Ken­neth R. Brown*

Con­tact trac­ing emerged dur­ing the begin­ning of the COVID-19 pan­dem­ic as an impor­tant tool to reduce the spread of COVID-19. The use of cell phone appli­ca­tions pro­vides a method to effec­tive­ly trace poten­tial expo­sures since most indi­vid­u­als car­ry cell phones that can eas­i­ly gath­er the nec­es­sary data. The fed­er­al gov­ern­ment has thus far failed to intro­duce its own reg­u­la­tions regard­ing the large vol­ume of data that can be col­lect­ed dur­ing con­tact trac­ing efforts or attempt to help coor­di­nate the reg­u­la­tions of the indi­vid­ual states to ensure con­sis­ten­cy; paving the way for a patch­work sys­tem of rules to gov­ern, as each state is left to for­mu­late its own method to pro­tect the health and pri­va­cy of its res­i­dents. How­ev­er, due to the vol­ume of inter­state trav­el and dif­fi­cul­ty of restrict­ing appli­ca­tion usage based on state bor­ders, states must be care­ful not to run afoul of the so-called “Dor­mant Com­merce Clause” of the Unit­ed States Con­sti­tu­tion. In this Con­tri­bu­tion, Ken­neth Brown (’22) argues that it is pos­si­ble for a state to effec­tive­ly reg­u­late con-tact trac­ing appli­ca­tions with­out vio­lat­ing the Constitution.

Solitary Confinement Imposed in Response to the COVID-19 Pandemic Entitles Incarcerated Individuals to Procedural Due Process

by Julia Leff*

After med­ical experts advised social dis­tanc­ing and quar­an­ti­ning in response to the COVID-19 pan­dem­ic, many pris­ons assigned incar­cer­at­ed per­sons to soli­tary con­fine­ment. This sit­u­a­tion rais­es the ques­tion of whether an incar­cer­at­ed indi­vid­ual is enti­tled to due process when they are placed in indef­i­nite soli­tary con­fine­ment for their med­ical pro­tec­tion or to pre­vent the spread of a virus. In this Con­tri­bu­tion, Julia Leff (’22) argues that the uncer­tain­ty regard­ing the length of the COVID-19 pan­dem­ic is suf­fi­cient to pro­vide an incar­cer­at­ed indi­vid­ual his right to pro­ce­dur­al due process under the Four­teenth Amendment. 

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