Solomon Center Hosts Panel on COVID-19 Litigation

On Oct. 21, 2021, the Solomon Center for Health Law and Policy hosted a virtual panel discussion on COVID-19 litigation around the world. The event featured renowned judges from Italy, France, and Brazil with significant knowledge of how courts in their respective countries have responded during the pandemic to litigation challenging COVID-19 restrictions. 

The panel, “COVID-19 Litigation Around the World,” featured Professor Fabrizio Cafaggi, a member of the Italian Council of State and a professor of behavioral sciences and public administration at LUISS Guido Carli in Rome; Judge Bénédicte Fauvarque-Cosson, a judge on the Conseil d’Etat, a governmental body in France which is both the legal adviser of the executive branch and the supreme court for administrative justice; and Judge Candice Lavocat Galvão Jobim, a federal judge at one of the five Regional Federal Courts of Brazil. Justin Cole, Research Fellow at the Solomon Center for Health Law and Policy, organized and moderated the panel discussion. 

To begin the discussion, Fauvarque-Cosson and Jobim provided an overview of the most common cases challenging COVID-19 restrictions in their respective countries. Many of the cases they discussed dealt with issues similar to those in the United States including mask mandates, stay-at-home orders, and restrictions on gatherings. Others, however, were unique. Jobim, for example, indicated that many cases in Brazil have involved access to hospitals, which has been scarce throughout the pandemic. Fauvarque-Cosson added that early in the pandemic, a number of cases in France had ended with “settlements,” or agreements between the two parties to resolve their differences, prior to being resolved by courts.

Cafaggi then presented a comparative analysis. He emphasized that courts around the world have had to carefully consider separation of powers as well as the scope and intensity of judicial review. Cafaggi emphasized that courts have shown different levels of deference towards the choices made by governments depending on various contextual and institutional factors. Interestingly, he noted that courts in some countries — including India, Argentina, Colombia, Belgium, and Spain — have exercised judicial review with respect to governments not implementing certain public health measures. 

The panelists then discussed the role of courts with respect to balancing public health and other fundamental rights during the pandemic. Broadly, the panelists agreed that striking an appropriate balance is a significant challenge, regardless of which legal approach a court relied upon. During this part of the conversation, the panelists highlighted the consideration of scientific evidence by courts. In particular, Jobim described a database in Brazil that judges can use to access the most recent scientific evidence related to COVID-19. 

Finally, the panelists turned to the broad question of how the pandemic would affect judicial review and courts in the future. Fauvarque-Cosson suggested that it would compel judges and other institutional actors to think more broadly about the relationship between ordinary times and crises. Additionally, Cafaggi pointed to a research project of the University of Trento in coordination with the World Health Organization. The project promotes judicial dialogue among judges around the world by permitting them to exchange ideas on legal strategies. Because the current pandemic will almost certainly not be the last international crisis, the panelists each recognized the utmost importance of carefully identifying the lessons from this pandemic and considering how they may be applied in the future. 

The Solomon Center is the first of its kind to focus on the intersection of law and the governance, practice, and business of health care. The Center brings together leading experts and practitioners from the public and private sectors to address cutting-edge questions of health law and policy, and to train the next generation of top health lawyers, industry leaders, policymakers, and academics.