Govind Persad on Allocating Medicine Fairly in an Unfair Pandemic

Govind Persad has posted “Allocating Medicine Fairly in an Unfair Pandemic,” forthcoming in the University of Illinois Law Review, on SSRN. Here is the abstract:

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Article, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 and similar public health threats should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of vaccines presents questions about racial disparity. Therapeutics like monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust.

In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of policies that explicitly deprioritize the prevention of early deaths, and by considering policies that prioritize their prevention.

Cherokee Nation Prevails Against Insurance Company over Pandemic-Forced Business Shutdown

Here are the materials in Cherokee Nation v. Lexington Ins. Co. (Cherokee County Dist. Ct.):

2020-4-13 Petition

2020-08-11 Cherokee first MPSJ

2020-09-14 Arch Opposition Brief – OK MPSJ

2020-09-14 Aspen resp to MPSJ

2020-09-14 Evanston Supp Resp to MPSJ

2020-09-14 HALLMARK CHEROKEE – Hallmark Resp to MPSJ

2020-09-14 INSURERS Opp Cherokee’s MPSJ

2020-09-14 Landmark – Cherokee – Supp Opposition Brief – OK MSJ

2020-09-14 XL’s Opposition to Cherokee’s MPSJ [20-0914]

2020-11-20 Notice of Supp Authortiy (Western District)

2020-12-11 – Cherokee Reply to Arch- MSJ

2020-12-11 – Cherokee Reply to Aspen – MPSJ

2020-12-11 – Cherokee Reply to Evanston – MPSJ

2020-12-11 – Cherokee Reply to Hallmark – MPSJ

2020-12-11 – Cherokee Reply to Landmark – MPSJ

2020-12-11 – Cherokee Reply to Liberty Mutual – MPSJ

2020-12-11 – Cherokee Reply to XL Insurance America – MPSJ

2020-12-11 Cherokee Reply to Insurers MPSJ

2020-12-17 Cherokee – Liberty Mutual, Landmark, Arch Motion for Leave to file SurRely

2020-12-17 Insurers’ Ntc of Supplemental Authority

2021-01-06 Arch Sur-Reply to MPSJ

2021-01-06 Landmark Sur-Reply to MPSJ

2021-01-06 Liberty Mutual Sur-Replyto MPSJ

2021-01-14 Order – Granting Cherokee’s MPSJ

SCOTUS Grants CARES Act Cases

Here is today’s order list. The Court granted the consolidated cases of Mnuchin v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Assn. v. Confederated Tribes of the Chehalis Reservation.

Here are the cert stage briefs.

Here are the lower court materials.