The Emergency Next Time

49 Pages Posted: 22 Mar 2021

See all articles by Noa Ben-Asher

Noa Ben-Asher

Elisabeth Haub School of Law at Pace University

Date Written: March 19, 2021

Abstract

This Article offers a new conceptual framework to understand the connection between law and violence in national emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has come to stark light in the crisis of the COVID-19 pandemic.

The Article offers a new taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes that there are two types of Emergency Violence: Emergency-Affirming Violence and Emergency-Denying Violence. Emergency-Affirming Violence occurs when the government (1) declares and emphasizes the magnitude of an emergency; (2) calls for robust deference to experts; and (3) aggressively pursues emergency measures. Emergency-Denying Violence, by contrast, occurs when the government (1) denies or minimizes the existence of an emergency; (2) ignores or undermines experts; and (3) declines to take significant emergency measures. The Article demonstrates how the three branches of government can engage in both types of Emergency Violence.

Analyzing the legal responses to the two national crises of 9/11 and COVID-19 side-by-side, the Article underscores the vulnerable individuals and communities against whom Emergency Violence is unleashed via both Emergency-Affirming and Emergency-Denying Violence. The Article proposes a principle of Emergency Non-Violence to guide public response to the next emergency.

Keywords: COVID-19, coronavirus, emergency powers, 9-11, violence, racial injustice, war-on-terror

Suggested Citation

Ben-Asher, Noa, The Emergency Next Time (March 19, 2021). 18 Stan. J. C.R & C.L.(Forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=3808134 or http://dx.doi.org/10.2139/ssrn.3808134

Noa Ben-Asher (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States

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