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Abstract

We live in a viral moment—a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. In fact, the viruses of sexism, racism, and economic instability are pre-existing conditions of an unjust legal system—baked into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property-based voting rights, and Native American dispossession. COVID-19 has not created these conditions, but instead has amplified the persisting inequalities upon which the nation was built.

At the same time, the current viral moment reveals that vulnerability is universal—inherent in being human—making Martha Fineman’s vulnerability analysis particularly timely for theorizing a framework that manages our common vulnerabilities, even against a backdrop of differential vulnerability. Commentators have observed, “coronavirus doesn’t discriminate . . . But America does.” Even as COVID-19 has unmasked deeply embedded structural inequalities, this moment of interlinked pandemics of coronavirus, inequality, and economic precarity affects us all, albeit disparately, and has torn at the very fabric of the social contract we owe one other and, in fact, depend on.

Drawing on insights from Derrick Bell’s notion of “interest-convergence” and Ruha Benjamin’s idea of “viral justice,” I propose a new concept, “viral convergence.” Both descriptive and prescriptive, I offer the idea of viral convergence as a way not only to analyze this moment of interlinked crises, but also to utilize it productively. The road ahead calls for new legal paradigms and political coalitions that offer both universal solutions (for our shared vulnerabilities) and more targeted solutions (for disparate impacts). As Arundhati Roy suggests, we must both acknowledge the tragedy while also utilizing this crisis for transformational change by viewing the COVID-19 pandemic as a “portal” to a more just and equal world.

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