The Covid-19 pandemic has fueled legal battles in Pennsylvania over everything ranging from the powers of the governor to shut down businesses to the best way to conduct an election by mail.
Those battles are now the subject of a weekly seminar for the spring 2022 semester at Widener University Commonwealth Law School in suburban Harrisburg.
Leading the seminar is Christian Johnson, the law school’s former dean and current professor of business advising. The enrollment is 22 students, surpassing the average of 15 for a typical seminar.
“It’s a great opportunity,” Johnson said. “Almost all of our content is coming from outside experts that bring with them current materials.”
Indeed, the schedule includes Keli Neary, executive deputy attorney general for Pennsylvania; Scott Cooper of Harrisburg law firm Schmidt Kramer, who has pressed lawsuits over insurance coverage for pandemic-related financial losses; and Rory Ritrievi, president and CEO of Millersburg-based Mid Penn Bank, which made more than $1 billion in loans under the Paycheck Protection Program.
Johnson sat down recently with biznewsPA editor Joel Berg to discuss the content of the course and share his take on the legal controversies that have simmered alongside the pandemic. His responses have been edited for length and clarity.
Q: Where did you get the idea for the course?
Christian Johnson: Our associate dean for academic affairs, Juliet Moringiello. She’s always looking for seminar topics that will engage our students. I thought it was pure genius. Rarely do you have a situation where the students are actually experiencing the effect of the laws that they’re writing about. But when you start talking about mandates, vaccinations and stimulus, they’ve gone through all of these things directly.
Q: What will be the most important legal lesson we take away from this pandemic that we might apply to future crises? Is there just one?
Johnson: The one that’s turned out to be wildly important is all the effects on election law. Most of this is driven by the desire to do mail-in voting. And there was a tremendous amount of litigation involved as to how mail-in voting works. A second question is about public health, “Does the government have the authority to mandate vaccinations?” That’s not a new issue. That goes back a hundred years. The third issue is executive power. The question is, “When a governor goes in and declares an emergency, what powers does he have?” It got tested in an extraordinary way with the business orders that Gov. Tom Wolf issued. And we’ve seen the governor’s powers being narrowed quite substantially, once they were tested in an actual crisis, through statutory and constitutional changes. The fourth issue is the deficit spending that went on to fight the pandemic. We haven’t paid the piper yet on that one.
Q: Which issues have had the most impact on businesses?
Johnson: Some industries have done very well and have actually made tremendous amounts of money. The stock market in general has done quite well. Other businesses have just been decimated, anything related to tourism: restaurants, hotels, airlines. People have lost their livelihoods.
Q: Did any legal precedents come out of that?
Johnson: One really interesting issue that we’re going to talk about in class deals with business interruption insurance. Most businesses carry some form of business interruption insurance, meaning that if they can’t open for something that happens to them, their losses are insurable. But the policies typically are written in such a way that they don’t cover something like the pandemic. Businesses had Paycheck Protection Program loans and other things that made up for a lot of it. In Pennsylvania we do have one case, though, where they’re attempting to hold an insurance company liable. It’s one of the few cases in the entire country that’s in litigation right now.
Q: During the pandemic, business groups emphasized the need for a liability shield against Covid-related claims, such as from employees or workers who got sick on premises. Was there ever a need for that? Do you see a need for that still?
Johnson: I have an employment lawyer coming in who is going to talk about those issues: If the employer requires you to be vaccinated and you get sick, can you hold the employer liable? Or if the employer doesn’t require it and you get sick, can you sue the employer for not requiring it? It’s just a multitude of issues that have to be sorted out and worked out, and I don’t know what the answer is to that one.
Q: One of the hallmarks of the pandemic was regulatory flexibility. The governor and regulatory agencies were very flexible in terms of what they were allowing businesses to do because the virus shifted the way they had to operate. Do you see any lasting impact from that? And do you see any concern that it might be tougher in the future, given the curbs that were placed on emergency powers on the executive branch?
Johnson: The problematic issue is a lot of these things get politicized. The question is, “Is it good or bad to give the governor a lot of power? How much power does the governor need to fix something? To react properly?” And that gets lost in the debate, because then it becomes, “Well, we don’t like Wolf,” or “We like Wolf.” “We want him to have power,” or “We don’t want him to have power.” And the discussion that gets lost is, “What should the power be?” Ten years from now, we may have a similar pandemic. We may have a Republican governor who’s going to discover that the restrictions that the legislature and the Pennsylvania constitution placed may not let them react properly.
Q: Did we overreact?
Johnson: I think everybody did the best they could, and I think it’s clear that politics had a huge impact on both sides as to how we reacted. And we’re still in the middle of it, which is what’s really interesting.