Leading scholars from around the world discuss the administrative law and regulatory dimensions to the global response to COVID-19.
The world has been consumed by COVID-19, with the disease’s contagion spreading to every corner of the globe. National governments and international organizations have responded to the coronavirus pandemic with varying speeds and policies, including shelter-in-place orders and economic stimulus packages, each with important administrative law components. In many countries, public officials have taken unprecedented regulatory actions, at times perhaps even pushing the limits of their legal authority.
To offer our readers insight into the administrative law and regulatory dimensions of the global response to COVID-19, The Regulatory Review has launched this special series. The series owes its intellectual inspiration and leadership to Neysun Mahboubi, a Research Scholar at the University of Pennsylvania’s Center for the Study of Contemporary China and a Lecturer at Penn Law. Mahboubi recruited most of the contributors to this series, and The Regulatory Review is grateful to work with him and the series’s many contributors to feature this diverse collection of legal and regulatory analyses on the planet’s most pressing crisis.
Over the coming months, The Regulatory Review will publish essays covering the regulatory and administrative law aspects of the pandemic by contributors from more than twenty jurisdictions around the world. Six initial essays offer scholarly perspectives on developments in the United States, China, Italy, France, the World Health Organization, and Australia. Throughout the spring, we will continually add new essays from our array of invited contributors.
This series launch features initial contributions from a diverse set of international scholars, including: Cary Coglianese, a professor at the University of Pennsylvania Law School; Andrew Edgar, an associate professor at the University of Sydney Law School; Oswald Jansen, a guest senior lecturer at Tilburg University; Shen Kui, a professor at Peking University Law School; Fernanda Nicola, a professor at American University Washington College of Law; and Thomas Perroud, a professor at University of Paris II Panthéon-Assas.
April 20, 2020 | Cary Coglianese, University of Pennsylvania Law School
Even though the most salient regulatory aspect of the COVID-19 crisis in the United States revolves around state-level orders shutting down most business and social activity, the crisis also reveals the vital role in a regulatory system for decisions over when, how, and for whom to alleviate obligations.
April 20, 2020 | Shen Kui, Peking University Law School
Information is starting to emerge about why the Wuhan government delayed its response to the coronavirus. Although fragmented, the picture that is emerging can help explain how the legal system in China failed to propel local governments to act quickly to handle the contagious virus.
April 21, 2020 | Thomas Perroud, University of Paris II Panthéon-Assas, and Emma Guernaoui, University of Paris I Panthéon-Sorbonne
Scientific prescriptions cannot remedy the deficit of political decision-making that has left the French government underprepared to address this crisis. When evaluating the government’s response, we must observe and investigate France’s rhetoric of exceptionalism and how it serves to dilute responsibility.
April 22, 2020 | Oswald Jansen, American University Washington College of Law
If an international regulatory body is displacing national governments as decision-makers during public health emergencies, then procedural and substantive principles must govern that authority to compensate for the states’ yielding of control. Such principles would bolster the legitimacy of WHO’s authority to take administrative action.
April 23, 2020 | Fernanda Nicola, American University Washington College of Law
The Italian model for fighting COVID-19 has become a blueprint for many European nations and the United States. Italy transformed conflicts between its central and regional governments into enhanced cooperation.
April 24, 2020 | Andrew Edgar, University of Sydney Law School
The main disruption to administrative law in Australia during the coronavirus pandemic has been the disabling of parliamentary review and legislative disallowance. With no public participation to ensure the legitimacy of these actions, the courts may be the only check on the Australian government’s use of public health regulation during this crisis.
April 27, 2020 | Elizabeth Golberg, former Director of the European Commission’s Better Regulation Directorate
In today’s globalized world, it is difficult to imagine any workable, sustainable solution to a public health issue that does not involve some form of international regulatory cooperation. Such cooperation rests on a foundation of trust, transparency, and adaptability.
April 28, 2020 | Elena Chachko, University of Pennsylvania, and Adam Shinar, Harry Radzyner Law School at the Interdisciplinary Center Herzliya in Israel
The Israeli government’s response to the COVID-19 crisis, including suspension of most judicial work, electronic surveillance, and the stonewalling of Parliament, reveals potential abuses by the executive of the emergency regulatory regime without proper oversight.
April 29, 2020 | Geo Quinot, Stellenbosch University
The regulatory response to the COVID-19 pandemic in South Africa is noteworthy because of how the government has justified sweeping restrictions with scientific expertise and because of the challenges the government faces due to the lack of horizontal regulatory coordination.
April 30, 2020 | Duncan Fairgreive, British Institute of International and Comparative Law
The U.K. government may have been slow to react in the early days of the COVID-19 crisis, but since then it has moved swiftly to implement expansive lockdown restrictions. These restrictions push the limits of their statutory authority.
May 4, 2020 | Gautam Bhatia, University of Oxford
The regulation of pandemic response measures has emerged as a web of intersecting administrative orders at the central and the state level. India’s deliberative and representative bodies are prevented from exercising scrutiny or oversight of executive actions.
May 5, 2020 | Cristie Ford, Peter A. Allard School of Law at the University of British Columbia
Around the world, governments need to redesign and reinvigorate their judicial systems, and may do so by renewing a commitment to the rule of law, independent of the place-based, in-person rituals that have so long characterized courtroom practices.
May 6, 2020 | Maria De Benedetto, Roma Tre University
Italy’s response to the COVID-19 outbreak has consisted of people, together with their multi-level governments, experimenting with a regulatory balance among competing values. Trust is crucial for ensuring effective and high quality regulation during this time where the government is forced to make tragic choices.
May 7, 2020 | Joana Mendes, University of Luxembourg
The COVID-19 pandemic began as a threat to public health, but has since produced a fundamental challenge to Europe’s Economic and Monetary Union. This crisis is likely to exacerbate the deep divisions within the eurozone and lead to unpredictable political consequences.
May 11, 2020 | Yoav Dotan, Hebrew University of Jerusalem
The judiciary’s supervision over executive policymaking did not come to a halt during the crisis—but rather, through judicial review, the judiciary exercised significant influence on the government’s policies and on Israeli society during this tumultuous period.
May 13, 2020 | Johannes Saurer, University of Tuebingen
The central role of federal and state governments in both guideline-setting and implementation reflects two traditional patterns of federal governance in Germany: administrative federalism and cooperative federalism.
May 14, 2020 | Seung-Youn Oh, Bryn Mawr College
What kind of institutional and legal changes did South Korea adopt to transform itself from a “super spreader” of MERS to a “super stopper” of COVID-19? Examining these changes reveals several lessons from South Korea that other countries should heed in their COVID-19 responses.
May 18, 2020 | Anne Meuwese, Tilburg University
The conventional wisdom in the Netherlands is that the Dutch do not like to bow to authority. In mid-March the Prime Minister called for an “intelligent lockdown.” It is not always clear, however, whether the Prime Minister’s strategy is to do everything reasonably possible to fight the spread of the virus or to “flatten the curve but not too much.”
May 19, 2020 | Alejandro E. Camacho, University of California-Irvine, and Robert L. Glicksman, George Washington University
The Trump Administration’s bungled response was made immeasurably worse by the Administration’s confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus’s damaging effects.
May 20, 2020 | Susana de la Sierra, University of Castilla-La Mancha
From a legal perspective, in Spain, the lack of updated and appropriate legislation to deal with a global public health crisis is a major issue. Transparency, legal certainty, and coordination are three key concepts that require attention during the COVID-19 crisis and in crisis response thereafter.
May 26, 2020 | Allison K. Hoffman and Simone Hussussian, University of Pennsylvania Law School
The federal government has largely punted to the states the challenge of expanding access to COVID-19 medical care. States are not especially well positioned to address a pandemic, yet they have shown great adeptness at using the tools that are in their control.
May 27, 2020 | Mauricio A. Guim, Instituto Tecnológico Autónomo de México
In responding to the COVID-19 crisis, effective governments distinguish themselves from ineffective ones by the capacity of their political leaders, as well as the capacity of governing institutions, to process information and harness expert advice and evidence in a timely way.
May 28, 2020 | Florentin Blanc, Organization for Economic Cooperation and Development
The pandemic has demonstrated the importance of focusing on risk assessment, integrating and managing information, ensuring that regulatory requirements do not create unnecessary barriers, avoiding procedural “heaviness” that hinders responsiveness, and communicating effectively with the public.
May 29, 2020 | Odile Ammann, Law Institute of the University of Zurich
The executive use of emergency powers in Switzerland during the pandemic is complicated by the federal parliament’s supreme authority under the Constitution, the centrality of direct democratic rights, and Switzerland’s federalist system of governance.
June 1, 2020 | Bruno Cunha, research affiliate with the Penn Program on Regulation
Brazil’s COVID-19 policies have at best inconsistently enacted its administrative apparatuses, particularly at the ministerial level, where a prevailing dogmatic anti-state narrative stands in the way of pragmatic and effective decision-making.
June 2, 2020 | Jorge Contesse, Rutgers University
The political context surrounding the Chilean government’s COVID-19 response—where lack of government trust has become pervasive—is crucial for understanding the government’s failure to address and contain the virus.
June 3, 2020 | Juan Carlos Covilla Martínez, Externado University Law School, Colombia
Colombia’s response to the pandemic and to future emergencies should involve a better coordinated system, and coordination measures should include consultation with local governments and specific procedures to address emergencies in a better manner.
June 4, 2020 | Trang (Mae) Nguyen, New York University School of Law
Commentators have attributed Vietnam’s effective response to a host of recent executive actions. Giving credit mainly to Vietnam’s authoritarian toolkit, however, risks missing a more salient narrative about Vietnam’s decades-long effort to improve governance and responsiveness at local levels.
June 8, 2020 | Nicoletta Rangone, LUMSA University
The Italian response to the COVID-19 has been one of exceptions to the norm. Despite policymakers’ good intentions, the measures they have put in place have often clashed with the country’s complex legislative framework, including its traditions of baroque legal drafting, legislative inflation, red tape, and the neglect of previous assessments.
June 9, 2020 | Richard Parker, University of Connecticut School of Law
Key elements of New Zealand’s successful COVID-19 strategy contrasted with the familiar and less successful response of the United States. New Zealand’s battle to contain the virus followed the classic pattern ordained by the science of virus transmission.
June 10, 2020 | Eric Feldman, University of Pennsylvania Law School
Although Japan is commonly perceived as a nation where a strong state leads a pliable public that is deferential to authority, the most notable aspect of Japan’s coronavirus policy is the priority placed on individual rights over the protection of public health, resulting in a limited lockdown and spotty compliance with requests to stay home and close businesses.
June 11, 2020 | Cheng-Yi Huang, Academia Sinica, Taiwan
Taiwan has adopted a relatively less-intensive regulatory framework and still has managed to secure a low mortality rate during the global crisis. The efficacy of soft regulation depends on proactive compliance from members of society.
June 15, 2020 | Kevin Y.L. Tan, National University of Singapore
The COVID-19 crisis was tailor-made for Singapore’s executive, top-down, interventionist, and managerial style of governance. For the most part, the government has acted sensibly and responsibly, and was therefore able to secure widespread cooperation from the people.
June 22, 2020 | Mariana Urban and Eduardo Saad-Diniz, Ribeirão Preto Law School at the University of São Paulo
The Brazilian government is sending mixed signals about the severity of the outbreak in Brazil and turning a pandemic into a political debate. This posture has led to some resistance by state governments to comply fully with federal guidelines.
June 24, 2020 | Josefina Court and José Tomás Correa, FerradaNehme
The health crisis has forced the state to take radical action to contain and manage the emergency. Chile has witnessed the strengthening of the public apparatus and restriction of constitutional rights, mainly through administrative decisions.
June 30, 2020 | Jacques deLisle, University of Pennsylvania Law School
China’s response to the outbreak of the novel coronavirus reflects characteristic weaknesses—as well as strengths—of the Chinese administrative state. A more ambitious law to address the sources of COVID-19 would have faced challenges endemic to regulation in China.
July 1, 2020 | Ana Santos Rutschman, St. Louis University School of Law
Portugal so far has been able contain the virus relatively well. By adopting a wide-reaching package of initial measures and only gradually lifting restrictions, the Portuguese response confirms the need for early interventions matched by phased, closely monitored, reopening strategies.
July 2, 2020 | Neysun A. Mahboubi, University of Pennsylvania
The essays in this series may not resolve debates over the relative merits and efficacies of regime type in times of crisis. However, in the impressive range of the collection—and the granularity of each contribution—there is much to be gleaned about state regulatory capacity overall.
July 2, 2020 | Cary Coglianese and Larissa Morgan, University of Pennsylvania Law School
In a recent podcast, Larissa Morgan, the Editor-in-Chief of The Regulatory Review, and Cary Coglianese, the Edward B. Shils Professor of Law and faculty advisor to The Review, discussed this series of essays.
July 6, 2020 | Cary Coglianese, University of Pennsylvania Law School
It is The Review’s hope that lawyers, leaders, and citizens everywhere, by learning how different nations have responded to the COVID-19 crisis, will gain a better understanding of law’s potential as an instrument for protecting public health, promoting economic welfare, and securing justice for all.