In the Spring of 2022, the Nova Law Review will hold its annual symposium. Next year’s symposium is entitled “Under Pressure: Legal and Systemic Responses to the Psychological Trauma Associated with COVID-19.” At the symposium, “academics, scholars, practitioners, and stakeholders” will come together to discuss “the legal impact of the psychological trauma produced by COVID-19 in the United States.” The editors will also publish scholarship related to this theme in a special symposium issue of the Nova Law Review.
This is an interesting and important topic, and I expect that the presentations and scholarship that result from the symposium will be well worth taking heed of. Nonetheless, it strikes me that the symposium theme begs an important question: it assumes that the psychological trauma associated with COVID-19 was “produced by COVID-19.” Accepting as true the claim that there is psychological trauma associated with COVID-19, it is not obvious to me that such trauma can be blamed solely on COVID-19 itself as opposed to, say, the response to COVID-19.
This isn’t mere pedantry on my part. (Okay, it’s a little bit pedantry. But that’s not all it is.) To the extent the trauma resulted from COVID-19 itself, our responses to it–and to trauma caused by any future pandemic or similar event–must necessarily be primarily reactive. On the other hand, if the response to the pandemic was a contributing factor in the trauma, then we can bear that in mind when crafting responses to future pandemics–we will be in a position to be proactive in preventing psychological trauma.
For this reason, I proposed authoring a contribution to the symposium (and making a presentation based off of it) arguing that the response to COVID-19 was a contributing factor to the psychological trauma associated with the pandemic, and outlining lessons that should be considered in designing the response to future pandemics.
Proposals were due on July 16, and I submitted mine on June 13. I still haven’t heard anything from the editors of the Nova Law Review, so it’s looking increasingly likely that they won’t be inviting me to participate in their symposium. That’s entirely their prerogative, but I still wanted to be able to share my ideas somewhere, in the event I don’t end up writing the paper as a standalone article. In that vein, here is the abstract that I submitted to the editors:
When the first COVID-19 cases began to crop up in December of 2019, it had been nearly a century since the world had last faced a truly global pandemic—the so-called Spanish Flu pandemic which began at the end of World War I in 1918 and finally sputtered out in 1920. The world had faced other deadly emerging diseases since then, such as Ebola, HIV, and COVID’s relative SARS, but for the United States, these were diseases suffered largely by people in foreign lands, or that disproportionately impacted small or marginalized populations. Diseases, in other words, that did not change day-to-day life for most people. This meant that while public health agencies in the U.S. had plans for how to deal with a pandemic (government bureaucracies always have plans) they had never implemented them. And, with the last global pandemic all but erased from living memory, they and their constituents alike found themselves on their back feet in trying to respond to the new threat posed by COVID.
Of course, lessons learned from a pandemic a century ago are of only limited use today. Our modern world is more interconnected than it was 100 years ago, more populated, and benefits from technology that is much more advanced. We cannot know when the next global pandemic will hit, and it may be that it will come so far in the future that lessons learned from the COVID-19 pandemic will be of as little practical use then as lessons learned from the Spanish Flu were to us now. Still, it is worth reflecting on both the mistakes we made and what we did well in responding to COVID for three reasons.
First, in all likelihood it will not be 100 years before the next pandemic hits. The world is growing ever more populated, and at the same time, that population is growing into regions of the planet largely foreign to humans and filled to the brim with life forms we have not even catalogued, let alone come to understand. Some of those lifeforms will infect us, and in a global society such as ours, unless those infections are caught early, the danger they pose properly understood, and the appropriate steps immediately taken to respond to them, they will spread. We should expect the rate at which pandemics occur to increase in relation to population growth and the expansion of our global human footprint.
Second, we owe our assessment of lessons learned from the COVID-19 pandemic to those who come after us. It may be that the next global pandemic will not come for another 100 years (or for many hundreds of years). In that case, the world will likely be as different then as the world of the Spanish Flu looks to us now, and our reflections may prove largely useless. Still, we cannot say with certainty what the future holds, and consequently, we cannot confidently say what lessons will endure and which are merely fleeting. We owe it to those who come after us to consider lessons learned because they may be able to make use of them. And it must be us who reflects upon these lessons, as opposed to those who come later, because, having just lived through the pandemic, we are the people who will be able to reflect on COVID with the least amount of effort and (one hopes) the greatest accuracy. After all, we were there.
Third, we owe to ourselves a period of self-reflection in which we consider, as the theme of this symposium puts it, the “psychological trauma” that we as a people—indeed we as a world—have so recently undergone. We are now fortunate enough to have emerged from the pandemic, but it is virtually impossible that we should have emerged from it unscathed. Its effects will endure, but one way of gaining closure, of putting the pandemic roundly in the past and keeping it there, is to engage in individual and group introspection—to find some good in the ills COVID wrought by learning how to avoid suffering them again in the future.
For these reasons, it is fitting that we come together for this symposium to consider “the legal impact of the psychological trauma produced by COVID-19 in the United States”—not just for ourselves, but also for the benefit of those who come after us. Nevertheless, I feel that the premise of this symposium is somewhat flawed. It is clear that there has been psychological trauma associated with COVID. We can see this in the increased rates of mental illness, drug abuse, and suicide that correlate strongly with the pandemic. We can see it too reflected in tangentially related indicators, such as the paroxysms of political violence that swept the country during the pandemic or the difficulty many have expressed with the idea of returning to life as normal. What is not obvious to me is that this psychological trauma is traceable solely to COVID, rather than to the response to COVID, or, more likely, to some combination of these and other factors.
This is an important distinction. To the extent that pandemics are inevitable—and the scientific consensus is that they are—then the psychological trauma they impose is inevitable, too. We can develop policies to try and mitigate it and treat it, but we will always be in a defensive crouch, reacting to the inevitable. If, however, our response to a pandemic is a sole or contributing factor to the psychological trauma associated with that pandemic, then we can be proactive: we can alter our policies so that the next time, they cause the minimum possible trauma.
In this article, I argue that our response to COVID-19 contributed in part to the psychological trauma associated with the pandemic. I discuss the ways in which the response can be tied to psychological trauma, and propose how the lessons learned from COVID-19 can be applied to future pandemics.
I begin in Part I by documenting some of the ways our pandemic response was flawed. My goal here is not to criticize people for decisions that only proved to be wrong with the benefit of hindsight. In an emergency situation, with limited information available and intense pressure to act, mistakes are going to happen, and I have no desire to criticize people who made the best decisions they could, given the circumstances they found themselves in. Likewise, I am aware that there were a range of reasonable responses to the COVID-19 pandemic, and I have no desire to disparage reasonable decisions just because I would have done things differently. Still, there is no question that aspects of our pandemic response were flawed, particularly when our governments and institutions were dishonest, minimized or exaggerated the importance of data, or made decisions unmoored from anything other than base political considerations.
Next, in Part II, I draw on scholarship in the fields of psychology and crisis response to evaluate the ways in which the response to COVID contributed to the psychological trauma that arose from it. I conclude that, particularly when governments and other powerful institutions responded to the pandemic in ways that were dishonest, opaque, or politically motivated, they contributed to the psychological trauma associated with the pandemic to a significant degree.
Finally, in Part III, I discuss lessons learned from the COVID-19 pandemic that I believe will apply to future pandemics. In particular, I focus on policies that governments can implement to ensure that future pandemic responses are honest, transparent, and apolitical—policies I believe will help minimize the psychological trauma caused by the government response to the next pandemic. In this Part I also briefly discuss policies and best practices for non-governmental institutions, such as media outlets, science and health organizations, and private businesses. Because I am wary of the government bringing its awesome power to bear against such institutions, especially with respect to the things that they may or may not say, I recommend that these policies be made voluntary, unlike the policies I say should apply to governments, which I would make mandatory.
One could certainly object to many of my arguments. If you think I’m wrong, I’d love to hear about it in the comments below or by email!
Chauvinisms 