Litigating the Pandemic: Disaster Cascades in Court

By Susan M. Sterett

As officials scrambled in 2020 to manage the spread of COVID, the reverberations of the crisis reached well beyond immediate public health concerns. The governance problems that emerged in the pandemic would be problems in other climate-related disasters, too.

Many of these governance problems wound up in court. Businesses filed insurance claims for lost commerce; when the claims were denied, some companies sued. Defense attorneys tried to get inmates released from prison, citing dangerous living conditions. As state governments ordered closures and otherwise tried to adapt, interest organizations that had long sought to limit government authority challenged them in court. Political officials railed against litigation they argued would stop businesses from reopening. The United States, like other countries, governs partly through litigation, and litigation is one way of seeing the multiple governance failures during the pandemic.

Drawing on databases of cases filed, news reports, and the websites of advocacy groups and law firms, Susan M. Sterett argues that governing during the pandemic, or in any disaster, must include the human institutions intertwined with the effects of the virus. Those institutions reveal problems well beyond the reach of technical expertise. Failures in private insurance as a way of governing risk, conflicts about the primacy of religion, government authority, and health, are problems that predated the pandemic and will persist in future disasters.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Aug 22, 2023
• ISBN: 9781512824827

Susan M. Sterett

Susan M. Sterett is Professor of Public Policy at the University of Maryland, Baltimore County.

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Litigating the Pandemic

CRITICAL STUDIES IN RISK AND DISASTER

Series editors: Kim Fortun, Scott Gabriel Knowles, and Jacob A. C. Remes

Critical Studies in Risk and Disaster explores how environmental, technological, and health risks are created, managed, and analyzed in different contexts. Global in scope and drawing on perspectives from multiple disciplines, volumes in the series examine the ways that planning, science, and technology are implicated in disasters. The series also engages public policy formation—including analysis of science, technology, and environmental policy as well as welfare, conflict resolution, and economic policy developments where relevant.

A complete list of books in the series is available from the publisher.

LITIGATING THE PANDEMIC

Disaster Cascades in Court

Susan M. Sterett

PENN

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2023 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

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Printed in the United States of America on acid-free paper

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Hardcover ISBN: 978-1-5128-2483-4

eBook ISBN: 978-1-5128-2482-7

A catalogue record for this book is available from the Library of Congress.

For Maya

CONTENTS

Introduction

Chapter 1. What Are Disaster Cascades?

Chapter 2. Democratic Backsliding and Litigation

Chapter 3. Courts, Meaning, and Instrumental Effectiveness

Chapter 4. Tsunamis, Explosions, and Misdirecting Metaphors

Chapter 5. Government Authority, Civil Liberties, and Mass Incarceration

Conclusion: Courts and Accepting Loss in a Pandemic

Appendix: A Note on Data and Methods

Notes

References

Index

Acknowledgments

Introduction

I

n July 2020, months into the COVID-19 pandemic and shutdown orders, the Washington Post reported on landscape and construction workers in Florida. The state had deemed them essential, therefore they showed up for work (State of Florida, 2020b). Though they didn’t lose income, the workers were now at risk for infections that they could bring home. The number of infections soon rose in South Florida’s indigenous Guatemalan community as the virus spread through families, many of whom lived in multigenerational homes. The reported positivity rate for tests reached 30 percent (Sieff, 2020). Meanwhile, Congress had recently enacted the Families First Coronavirus Relief Act (FFCRA), and President Donald Trump had signed it into law on March 18, 2020. Although the new law provided for paid sick leave and employers were not allowed to inquire into immigration status before paying the benefit, undocumented people have long found it difficult to file claims about employment problems for fear of attracting unwanted attention from immigration officials (Menjivar and Abrego, 2012; Patler, Gleeson, and Schonlau, 2022). At the state level, Florida governor Ron DeSantis also issued executive orders taking widely used measures to protect the most vulnerable people, for example, advising the elderly and those with health impairments to stay home and recommending remote work for people who could do so (see, for example, State of Florida, 2020a). Another policy, though, had little to do with spread and more to do with imagining how to keep businesses that required people to work in person operating. In September 2020, Governor DeSantis also endorsed limiting liability for employers if employees became ill and might claim they became ill at work, arguing that a threat of liability was hold[ing] the economy back (Sexton, 2020). After the next legislative session in 2021, he signed a bill limiting liability for employers. In doing so, he was joining other governors who had issued executive orders in spring 2020 limiting liability either in health care or for all employers (Lewis Brisbois, 2021). Why would liability be a high concern as the virus spread?

Of all the problems officials faced in the pandemic—from widespread infections and growing numbers of deaths to closed schools and parents without child care—liability protection beyond what the law already afforded to businesses rapidly rose to the top of the list among Republican officials. In May 2020, on the floor of the U.S. Senate, some Republican senators argued that businesses needed to reopen, and to reopen they had to be protected from lawsuits, however unlikely those lawsuits would be. Indeed, there was a mismatch between those employees deemed essential, such as the Florida construction workers, and the likelihood of a lawsuit. Making a credible claim that one had gotten sick at work (instead of somewhere else) would have been hard to do, as large law firms surely recognized (e.g., Thibodeau, 2020). Moreover, even if they could prove they had contracted COVID-19 at work, low-wage workers would have been the least likely to be awarded enough money to make it worthwhile for a lawyer to take the case. On their websites, however, law firms echoed senators’ warnings and noted that even the threat of litigation was troubling (Gibson Dunn, 2020); so did the U.S. Chamber of Commerce (2021).

Making sense of the early advocacy for liability protection requires contextualizing it within a timeline of the politics of litigation that long predated the pandemic. Limiting liability for injury was a long-standing issue for conservative advocates. It condensed ideas about individual responsibility and morality and the costs of doing business that many years of advocacy had made resonant in the United States. This trend persisted in the pandemic. Congress could not enact limits to liability before the 2020 election other than for health care workers, and since it was a Republican initiative, Democratic majorities in Congress after the 2020 election made protection from lawsuits at the national level less likely. Advocates for expanding limits to liability therefore turned to the states. The states were a familiar venue for advocates of conservative legislation, including limiting liability. The conservative advocacy group the American Legislative Exchange Council (ALEC) had been active on liability politics in statehouses from the late 1980s onward, primarily by proposing model legislation (Hertel-Fernandez, 2019: 25–26). Their model had led to many successes over the years. Revisiting liability was therefore a matter of going over familiar ground. It did not require a real threat or answering explanations of why there was unlikely to be much of a threat.

Situating the Pandemic: Governing a Changing Climate

Embedded in the risks the construction workers in Florida faced was a changing climate. They were tasked with building on lands subject to sea level rise from climate change (United States Global Change Research Program, 2018: ch. 11). In addition, U.S. national security officials and consensus elite research reports have concluded that climate change contributes to the destabilization of countries from which people flee, including Guatemala (National Research Council, 2013; American Security Project, 2019). People who had fled Guatemala were now working in Florida and vulnerable to the virus’s spread. These threads—climate change, climate migration, and the virus—cannot be disentangled. Sorting out connections, though, depends on a tolerance for extended timelines and processes that not everyone shares but that is critical to understanding governance in a changing climate. Governing in a changing climate will continue to work through the same set of actors, institutions, and issues that were mobilized in the pandemic. Disagreeing about what even count as problems—liability, workers’ and families’ safety, and, as we will see, public religious exercise—predated the pandemic and will persist after it. Contests over attribution, evidence, and priorities, such as economic activity and public health, open opportunities for actors to advocate in court because organizations that go to court or argue about liability in court had mobilized long before the pandemic. In the pandemic courts heard contests about legal authority, especially concerning civil rights and the failures of insurance claims. If governors, legislatures, and interest organizations can repurpose issues for the pandemic, they will continue to repurpose them for other climate-related problems.

Commentators hoped experts would persuade publics in the pandemic and that their expertise would have positive spillovers for believing reports about how people need to change what they do in a changing climate (New Yorker Politics and More Podcast, 2020). However, pandemic governance included disputing not only expertise but public health as a priority. Experts can reference the changing climate as a reason for pandemics, increasingly intense hurricanes, sea level rise, or migration to South Florida, and they do. Saying that a changing climate makes pandemics more likely, though, does not settle the origins of any one pandemic. Even if pandemics are more likely in a changing climate, examining one pandemic will allow anyone looking for a more limited cause to find one. The outbreak began in China, and attempted explanations cited either a leak from a lab or a jump from animals to people in a wet (fresh food) market in Wuhan. Ambiguity and uncertainty in a world already divided about how to describe problems, and the role of accident and blame, allowed different stories to proliferate. Sorting out the particulars took time (Cohen, 2021; Pekar et al., 2022; Worobey et al., 2022).

In the United States during the pandemic, differences in priorities, skepticism about experts, and differences in how to analyze the problem all met with polarization around issues that followed identity. Polarizing around identity means that people choose positions on issues based on how they understand social identities, as the political scientist Liliana Mason has argued (Mason, 2018; see also Gadarian, Goodman, and Pepinsky, 2022). Opinion polls tracked partisan differences over mitigation efforts, such as wearing masks or closing public gathering places, and also differences over how much people were willing to limit their activity and mobility (Clinton et al., 2021; Gadarian, Goodman, and Pepinsky, 2022).

Courts have been critical to politics in the United States, in more than one way. Some court cases track partisan cues. The conservative legal movement in the United States builds cases on the claim that practicing Christians are disadvantaged minorities, that restricting voting is critical to protecting the disadvantaged (Gorski and Perry, 2022), and that the courts can protect the rights of Christians (Southworth, 2008; Hollis-Brusky and Parry, 2021). With or without actual cases in court, Republicans have advocated for liability limits for years. Other court cases address material losses: the businesses shut, the events canceled in the pandemic. In an election year, parties took cases contesting whether to adapt election administration in a pandemic.

Contests in court over voting in a pandemic were one part of a resurgent authoritarianism around the world that predated the COVID-19 outbreak and that accompanies the current polarization. The Republican Party has been extending control of multiple institutions without commanding an electoral majority across the country, partly by extending voting restrictions (Grumbach, 2022). In turn, ALEC, which quickly put together model legislation about liability in the pandemic, has also developed model legislation for the states to restrict access to voting (Hertel-Fernandez, 2019). Historians of epidemics and disease have argued that disease has reshaped governing (Kudlick, 1996; Snowden, 2019); some maintain that disease outbreaks and other disasters contribute to molding more tightly regulated societies (Van Bavel et al., 2020). It is too early to tell how far COVID-19 has reshaped or will reshape governing in the United States or elsewhere. In the context of the pandemic, these already existing partisan divisions facilitated disagreements about attribution and mitigation measures and whom to protect and how, many of which could go to court. Those who litigated complaints about mitigation measures could claim their rights as minorities subject to rights-violating orders. The opportunities, organizations with resources, and multiplicity of courts across the states allowed these disagreements to come to court. Partisanship enacted into policy increases the risks stemming from catastrophes (Leigh, 2021).

How, though, can we integrate the risks people experience in a pandemic showing up to work for jobs that a governor has deemed essential with climate change, partisan political identity, and liability politics? Geoscientists have been urging that their studies more seriously consider how disasters such as earthquakes and mudslides interact, and have named the problems disaster cascades. The term organizes linked disasters in human systems. Disaster cascade aptly sums up the pandemic in a changing climate amid disputes over partisan identity and over controlling political institutions (see also Clark-Ginsberg et al., 2021). Naming this complex a disaster cascade can make connections visible.

In linking the problems of climate change, the pandemic, governance, and the courts, I work from the perspective of critical disaster studies, which argues that disasters are ways of imagining risks, with contests over power at their heart, which occur over much longer timelines than traditional definitions of disasters usually allow (Horowitz and Remes, 2021: 2–6; Tierney, 2006). A critical perspective on disasters turns away from the disaster managers’ understanding of disaster as a discrete event, confined in time and space. Such a limited perspective cuts off the view of long lead-ins and long tails, or the conditions that create the disasters and the governance effects that flow from them (Horowitz and Remes, 2021: 5; Horowitz, 2020). By any account, the COVID-19 pandemic challenged the definition of disasters as discrete; it spread around the world. As of 2022, public health officials talk about learning to live with it. Even so, it is an event governed via institutions with histories that created the conditions for its management and spread. Those institutions can change as disasters roll out. Understanding the pandemic requires describing these institutions; as historians Andy Horowitz and Jacob Remes argue, governance, time, and context are all necessary for analyzing COVID-19 (Horowitz and Remes, 2021: 7–8). Stretching timelines and expanding context blur the sharp edges of a disaster defined as a discrete event.

Stretching timelines and contexts also invite analyzing the roles of people other than the officials who appeared in national media as responsible for managing the pandemic. Stories about these missteps by public health and political officials have been widely and well told, and more are likely to emerge in the future (Lewis, 2021; Christakis, 2020; Kapucu and Moynihan, 2021). A spate of memoirs about the Donald Trump administration’s last year and books about his administration’s management of the pandemic (Abutaleb and Paletta, 2021; Slavitt, 2021; Gottlieb, 2021) center on the national government, not on the states that decided about essential workers and closures. New York governor Andrew Cuomo’s 2020 book amounted to a premature statement of success in managing the pandemic. It was published long before COVID-19 cases had declined (Cuomo, 2020) and before he would resign in disgrace as the result of sexual harassment allegations, amid reports that he had deliberately understated the numbers of deaths in nursing homes.

This book does not seek to replicate commentaries and critiques centering on national or public health officials. The careful attention already paid to stories about both allows a turn to other problems and tactics that promoted conflict and uncertainty during the same period. By turning to litigation, this book describes links between governing institutions and the pandemic; problems in one could amplify the other. What emerges from legal process can be patterned differently than when one begins with the president or a leading public health official.

Litigation as Governance in a Changing Climate

In the United States, litigation is governance (Farhang, 2010).¹ Litigation as a way of holding people responsible in the pandemic has spanned a range of fields, from far-fetched lawsuits against China for the pandemic, to insurance, the power of governors to order closures, and concerns raised about liability. If climate change increases the risks of pandemics, then pandemic litigation is part of the context of litigating climate change. In the legal field, attention to how people litigate climate change has primarily centered on greenhouse gas–emitting businesses, including coal-fired power plants (Dillen, 2020) and other fossil fuel industries (Peel and Osofsky, 2015). People identifying as climate litigators work on cases that are intentionally environmental (Setzer and Vanhala, 2019). Yet limiting our understanding of climate change litigation to cases about greenhouse gas emissions misses the pervasiveness of climate-related litigation. As the legal scholar Kim Bouwer argues, all of litigation now happens in the context of climate change (Bouwer, 2018). Pandemic litigation has failures and fault lines that broaden the actors, legal provisions, and acts that are already part of climate litigation.

When viewed as discrete events—a definition that critical disaster studies calls into question (Horowitz and Remes, 2021)—disasters in court theoretically link well with one court case. A lawsuit promises accountability for wrongdoing. The claim in a lawsuit is causal: an actor caused a particular harm and needs to remedy it, even if, on closer examination, the remedy is extremely unsatisfactory (Cassels, 1993; Fortun, 2001). Court cases promise accountability for those responsible for disaster and impose remedies from a position outside ordinary power relations. But in reality, court cases never occur from outside the systems of power they govern (Moore, 1978). Instead, the power dynamics that organize a disaster and its effects structure court cases and their meanings, and can in turn change as a result of the legal processes (Fortun, 2001). Following one causal case also vastly understates the actors involved, and who is responsible for what. No one causal agent is responsible for the spread of the virus among multigenerational households, or for the climate change health experts link it to, but closure orders, immigration, and state decisions about liability exemptions all include opportunities for lawsuits that attribute responsibility and advance material or ideological advantage for those suing.

Governing with litigation includes everything from businesses contesting economic regulation to constitutional litigation. In this context, the pandemic offered opportunities to pursue longer-term goals in court, well beyond any one case tied to one story about the disaster. This book tracks multiple fields in which pandemic measures brought litigation. They differ from the liability risks that senators and the Chamber of Commerce first warned of. They are not cases about liability for getting infected at work, but cases about insurance, and mitigation measures amid elections and contests over the free exercise of religion and getting people out of prison. All have a history, and a set of actors, that long predate the pandemic. For example, businesses complying with closure orders turned to the insurance they had purchased that protected them against business interruptions, the term insurance contracts used for closures due to disasters. The meaning of that term had long been contested, and the insurance industry had rewritten guidance on the matter after the 2003 SARS pandemic. They were often denied. Denials of coverage generated lawsuits, which we will explore in Chapter 4. Insurance industry representatives argued that the failures of these cases amid widespread need, and the anticipation of future pandemics and future need, meant that the United States needed a program underwriting business interruption insurance. The court cases filed accumulated into a ground for advocating a new program.

In this way, litigation expands the actors that are considered part of pandemic governance beyond the president and the public health officials featured so prominently in news about the pandemic. Officials such as attorneys general or public defenders, and groups such as party committees or interest organizations, all take cases. Individuals who see themselves as harmed in ways the law prohibits take cases or threaten to do so. Lawsuits illuminate complex interactions. They don’t require that central government officials identify interactions, and no one official controls case filings. Instead, people with diverse problems file cases. Litigation organizes a number of problems, including cases about insurance, executive orders closing businesses or limiting public gatherings, and mask requirements. To exclude these problems from our discussion minimizes how a disaster can cascade not just through public health infrastructure but also through institutions organized to invite claims that contest markets, care, mutual responsibility, and morals in a changing climate.

Many commentators center debates about the politics of litigation on the U.S. Supreme Court, particularly constitutional issues, thus turning public attention to that court as well. In the first year of the pandemic, the Supreme Court decided cases about religious practice and governors’ orders across the states. A religious official who wants to hold worship services but cannot, a schoolchild who claims a right to wear a mask with a religious message: these challenges are opportunities for religious litigation along American fault lines. The less visible litigation in the pandemic included more: prisoners living where the virus could spread rapidly through crowded cells, business owners whose insurance did not pay out during closures, regulations on voting, and maneuvering in state legislatures about litigation over liability for injuries. This litigation and images of it are the workday litigation in governing, even if they are sometimes remote from people’s experience. The dramatic controversies about religion and possibly voting grab attention; the very remoteness of symbols from everyday life confers some of their symbolic power. Other controversies grab pocketbooks, or threaten to, but many people experience the economic losses individually, and such policy decisions are less likely to resonate. Constitutional cases are particularly visible, amplified by the interest organizations that take them. These cases identified prominent public officials as actors, including governors. Governance also includes cases under state rules that are between businesses. They often appear in lower courts and include multiple insurance companies and differences in state rules. They are responsible for delivering real financial benefits or losses, but they are less likely to be part of the political spectacle (Edelman, 1985) of governing the pandemic in an electorate divided by partisanship.

Litigation, and ideas about litigation, are a useful way of understanding pandemic governance and the amplification of problems across systems in a disaster cascade. Pandemic litigation is governance in a changing climate. The effects of a changing climate are wide-ranging, and anticipating how they will ripple through institutions is difficult (McKibben, 2019). Exploring climate governance through the pandemic allows a way of seeing what kinds of problems it raises that are not necessarily first defined by media frames or individual opinions in surveys. Extending the timeline and the context reveals that the pandemic has been an opportunity for already mobilized interests to extend, contest, and consolidate their power through courts.

In following cases filed in court, who has filed them, and what their histories are, this project relies on the framework of legal mobilization, or who brings law to bear (Vanhala, 2013). Legal rules are seldom self-enforcing, and courts do not declare themselves without people asking them to. People have to have the wherewithal to claim that a legal rule has been violated and that they are the right person to bring the complaint to court. They can make claims for themselves as individuals, or as part of a movement. They can make claims for material benefits or for ideological affirmation. Turning to the cases filed and who brings them integrates multiple kinds of cases organized around one pandemic, which is unlikely the worst and certainly not the last opportunity to disagree about religion, or insurance.

This book draws largely on the first six months of the pandemic, when everything was still in flux. After that, the fault lines were well established. States would either limit liability for companies during a disaster or they would not. Complaints about insurance companies that would not pay disaster claims would grind on. Cases contesting election procedures brought to restrict voting early in the pandemic would expand in the 2020 presidential election. If interest associations were challenging closure orders, the same motives would guide them to challenge other safety measures later. But if we look specifically at the earliest months of the pandemic, mapping related litigation before the presidential election and before a vaccine was available shows the problems and cleavages likely to reappear later.

The pandemic in court is about much more than a public health problem that might dissipate. In the pandemic in court, or in related debates about the courts, national political movements relied on existing mechanisms to institutionalize ideas about markets, authority, and morals. National officials from members of Congress to the president of the United States argued that trading off people’s health for the economy was necessary. The economy was never people who worked and went to school, saw family members, and spent time in parks, but something more abstract. That abstraction required that landscapers and other workers and their family members be put at risk beyond the risks they already ran at work. In arguing for the economy over people or other living creatures, political officials gave credence to political theorist Wendy Brown’s warning even before the pandemic that the economy had come to dominate life, with its importance leading to political power exercised to enforce and protect markets above all else. Although in conservative political arguments, markets represent freedom, Brown argues that the freedom they represent requires enforcement, and conservative market-oriented advocacy groups advocate accordingly. Enforcing markets takes on a moral dimension, she argues (Brown, 2019). The morality is one of personal responsibility, a flexible claim applied as much to objections against masks as to compensation for