E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In the near future whether you can apply for many positions, receive an
education, and simply enter certain buildings will depend on your ability to
pass a simple medical test.Persons who
are cleared by the test will have proof in a way others can see,
such as through a shareable app or perhaps a symbol they can wear.The “cleared” will no doubt be treated
differently from those that do not.They
might be able to shop at certain establishments not otherwise open to the
public, for example.
Unless there are special circumstances, the test will not be available
from the government.Moreover, the kind
of repeated testing that is necessary to participate in these activities is not
free.It is conditional on your ability
to perform certain kinds of (mostly) highly remunerative jobs or your ability
to benefit from an education designed to prepare you for those jobs.If you can participate and pass the test, you
might consider yourself special.And why
not?You will be a certified participant
in the new enclave society.In the
enclave (an idea somewhat inspired by the 1997 movie Gattaca), people are regarded as disease-free and hence have higher social
standing than those that cannot receive the test or fail it.
This is, of course, a projection based on certain rapidly developing
realities. It is the sort of society
that may develop in the United States as the national government so far refuses
to enact the kind of program which would massively expand the testing necessary
to detect the coronavirus. The EEOC has already ruled that these tests do not violate the Americans with Disabilities Act. State and local governments do not have the resources to provide this
testing. But large corporations and
non-profit organizations like universities most assuredly do. And they will, because arguably their very
survival depends on it. Without strong collective
action by the government to provide testing as a matter of right, we could
arrive quickly at the enclave society – or perhaps an Orwellian version much worse than
the one we are currently living in.