The COVID-19 Pandemic Is No Time for Referral to Administrative Agencies: The Dangers of Primary Jurisdiction Doctrine

11 Pages Posted: 15 Jan 2021 Last revised: 25 May 2021

Date Written: October 18, 2020

Abstract

It is hard to believe that an obscure technicality in the laws of federal civil procedure could be so consequential amidst a global pandemic. Primary jurisdiction doctrine is a judicial invention first formulated by the Supreme Court in 1907. First year law school classes rarely cover it, and even some professors will admit they have scarcely heard of it. Yet, in recent federal district court decisions during the COVID-19 pandemic, judges have invoked the doctrine in troubling ways, likely with devastating consequences.

This paper addresses the application of primary jurisdiction doctrine during the pandemic by examining a federal district court’s decision issued in May 2020. It argues that while the doctrine can be a useful tool, judges should not apply it in exigent circumstances.

Keywords: Torts, Agencies, Employment Law, COVID-19, Smithfield, Palmer

Suggested Citation

Friedman, Raphael A., The COVID-19 Pandemic Is No Time for Referral to Administrative Agencies: The Dangers of Primary Jurisdiction Doctrine (October 18, 2020). NYU Annual Survey of American Law, ASAL FORUM (online), forthcoming, Available at SSRN: https://ssrn.com/abstract=3765004 or http://dx.doi.org/10.2139/ssrn.3765004

Raphael A. Friedman (Contact Author)

NYU School of Law ( email )

New York, NY
United States
3476288530 (Phone)

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