ABSTRACT
The chapter concludes a book whose contributions are based on around 2400 decisions selected and available in an openly accessible Database and News Page (available at https://www.covid19litigation.org/). It provides a comparative analysis about the drivers of institutional responses to the COVID-19 pandemic and the role of courts in times of global health crisis.
The comparative analysis is aimed to examine the different features of judicial review deployed by courts on anti-pandemic measures, its scope and intensity, in light of the different regulatory approaches taken by States. How courts have dealt with uncertainty and the extent to which scientific evidence has been considered a necessary basis for public choices are among the main aspects explored in the comparative analysis together with the different use of general principles by courts in judicial review. While examining the role of liability litigation and the space for immunity of the government in relation to the adoption of emergency measures, the chapter discusses the possible lessons learnt from courts and from their role as guardians of fundamental rights in the COVID-19 pandemic.
From an institutional standpoint, the relevance of courts in emergency times not only contributes to ensuring compliance with the rule of law and fundamental rights, preserving the democratic allocation of powers, but it improves the quality of administrative decision-making especially when the interaction between administrations and courts is repeated. A comparative analysis of institutional responses to the pandemic crisis should therefore include judicial decisions and describe their evolution related to the availability of knowledge about the pandemic and the effects of restrictive measures.
Cafaggi, Fabrizio and Iamiceli, Paola, Covid-19 Litigation: The Drivers of Institutional Responses to the Pandemic and the Role of Courts (December 4, 2023) in Quaderni della Facoltà di Giurisprudenza Series by Università degli Studi di Trento.
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