Torts

Should Congress Preempt Coronavirus Liability for Businesses That Reopen?

Even after the shutdown orders are lifted, businesses may fear liability if they reopen and someone supposedly gets sick as a result—when Congress concludes reopening is safe, should it block such liability?

|The Volokh Conspiracy |

My colleague Prof. Jim Salzman (UCLA Law / UCSB Bren School of Environmental Science & Management) passed along this proposal:

Assuming the curve steadily flattens, I suspect one of the reasons businesses such as universities still may be hesitant to start up in the Fall is potential liability should students living in dorms or attending classes catch the virus and have bad outcomes.

What do folks think of a federal law that would prevent common law actions based on these types of claims? The basic idea would be that we, as a society, have decided to accept this added level of risk for certain business activities without the possibility of recompense through the tort system. If students decide to attend classes or live in dorms, for example, they will do so with a greater assumption of risk than normal.

I like this proposal.  There's an important risk-benefit analysis to be conducted when it comes to reopening institutions (as there was when it came to closing them). It's a complicated analysis that requires considering a vast range of direct and indirect costs and benefits.

I'm not sure that either the President or Governors or Congress will do a great job with this analysis. But it seems to me clear that they'll do a much better job—both in reaching the right result and creating predictability—than would juries throughout the country deciding on a case-by-case basis whether some company's decision to reopen was "reasonable."

I also think this would be a sound use of Congress's Commerce Clause powers. Tort liability for enterprises accused of injuring people as a result of their moneymaking activity is a form of governmental regulation of commerce. That's so whether it happens through the common law or through statute. And it's so even though the lawsuits may be brought by private parties—they are still authorized by the government, and they rely on government power for their enforcement. It may be justifiable regulation or it might not be justifiable, but it is commercial regulation.

Congress may therefore constitutionally preempt such state-law burdens on commerce, just as it may preempt state statutes that burden commerce. That's particularly clear for organizations that are involved in interstate commerce, as most large businesses and nonprofits are. And under modern law, Congress may reach intrastate commerce when "the activity substantially affect[s] interstate commerce"; that would likely be satisfied even for small businesses, such as bars and restaurants.

But if you have a narrow view of Congress's Commerce Clause power, then at least it would be justified to preempt liability as to large enterprises (whether businesses or universities) that draw huge interstate clienteles or have huge networks of interstate suppliers. And my guess is that any such preemption would quickly lead states to similarly limit liability as to smaller enterprises: Few states would want to leave small local businesses liable while their large national competitors are immune.

Advertisement

NEXT: Litigant Can't Seal Case to "Improve Her Chances of Employment"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Relevantly, it isn’t the “commerce” clause. It’s the “interstate commerce” clause.

    1. Those of us who actually work in the field call it the Commerce Clause. You get no say in this, Brett.

      1. That’s because those of you how actually work in the field WANT it to be a “commerce” clause, and not the interstate commerce clause that’s actually in the Constitution.

        1. That’s not the reason, though your complete ignorance of the subject matter and certitude that intellectual elites are conspiring against you are amusing.

          We call it the Commerce Clause for the same reason we call the Takings Clause the Takings Clause and not the Takings for Public Use Without Just Compensation Clause. The same reason we call the Supremacy Clause the Supremacy Clause and not the Supreme Law of the Land Clause.

          We are trying to shorthand. And those of us who are actually experts in the field get to choose what shorthand we wish to use. The views of some ignorant, crazy extremist on the Internet are not really germane to what we are doing.

          1. Except that shorthand became a lot more popular recently. It used to be routinely referred to as the “interstate commerce” clause.

            1. Brett,
              Do you have any cites for this assertion?

              1. It was uniformly referred to as the “interstate commerce clause” in textbooks when I was going through school, back when dinosaurs roamed the earth. It’s so referred to in old legislation such as the Interstate Commerce Act.

                In Gibbons v. Ogden, Marshall wrote, “The subject to which the power is next applied is to commerce among the several states. The word among means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. “

                1. That link literally refers to it as the “Commerce Clause” in the first sentence.

                  1. The link naturally uses current terminology, but it still concerns a statute that used the THEN current terminology.

    2. No, it’s called the commerce power, since it doesn’t use the word “interstate” and contemplates power beyond merely regulating commerce interstate. There are clauses affecting interstate matters but they are in Article IV.

      If you are trying to say that “among the several states” necessarily implies “interstate only” just say that. Don’t try and change the name.

      1. Look, for instance, at the enactment of the 1887 “Interstate Commerce Act”; The clause was routinely called the “interstate commerce” clause for most of the nation’s history.

        1. The notion of “interstate commerce” is definitely thing, and certainly in an era when the US Supreme Court was applying the E.C. Knight “manufacturing is not commerce” doctrine (which was stupid, unprincipled, and unworkable), Congress definitely needed to pay heed to the concept.

          That doesn’t prove the term “Commerce Clause” is wrong. In addition to not saying “interstate”, it also refers to commerce with foreign nations and Indian tribes.

  2. (as there was when it came to closing them)

    The closings were done entirely without any kind of analysis, particularly a cost benefit analysis.
    There were done is a fascist spasm of grabbing an opportunity.

    1. The opportunity to not spread a disease around.

      1. I’ll be interested in how the ranting about this as fascism plays once we’re all together again.

        1. Clingers gonna cling.* Many of them have already recovered their guns-God-gays reflex.

          * until replacement

        2. It’s the liberals turn to be called “nazis” and “fascists”. Hope you enjoy.

          1. You continue to rationalize your own bad behavior based on nutpicking from the other side.

            You do realize that makes you into a nut…

          2. That would be weird though, because those ideologies depend heavily on nationalism and adherence to (an often mythical) tradition…

        3. I’ll be interested in how the ranting about this as fascism plays once we’re all together again.

          I strongly suspect that will depend on whether at that point the words “all” and “together” carry the same meaning we used to ascribe to them.

    2. “The closings were done entirely without any kind of analysis, particularly a cost benefit analysis. There were done is a fascist spasm of grabbing an opportunity.”

      EXACTLY — and what we’ve seen over the past month is the licensing of tin-horn despots to show their inner fascism, which they have done a very good job of. My personal favorate involves $100 fines for *walking* in the wrong direction on a sidewalk.

      But why would there be liability in the first place?!?</i? Even here in sue-happy Massachusetts, I've never heard of a merchant being sued by a customer for contracting a contagious disease, and how would anyone ever be able to prove it? (Employees would come under Workers' Comp, again *if* they could prove it.)

      Food poisoning, yes — you have a bad batch of something and it's documented (by a government entity) then yes, and most definitely if someone slips & falls on your wet floor or a display case falls over on someone, but proving what might have been drifting through your air seems damn difficult. As long as your HVAC system meets code, how could anyone ever prove anything?

      And as to the state and local authorities, they'd have soverign immunity and the state tort claims act protections.

      I honestly don't see how there is liability here. Perhaps exposure to unemployment fees for workers refusing to return to work because the *worker* felt it to be unsafe, but other than that, what exactly would be the cause of action?

      "Joe's Gun Shop is liable because I might have caught an infectious disease, from some unknown third party, while on its premises — even though it is just as likely that I caught it in a multitude of other venues." And this is going to meet the preponderance standard???

      1. But why would there be liability in the first place?!?</i? Even here in sue-happy Massachusetts, I've never heard of a merchant being sued by a customer for contracting a contagious disease, and how would anyone ever be able to prove it? (Employees would come under Workers' Comp, again *if* they could prove it.)

        No business is going to expose itself to lawsuits on the thinking that “The plaintiff would have a difficult time proving it.” Do you know how much it costs to allege that the business is liable? Somewhere between $200 and $500, for a filing fee. Do you know how much it costs for the business to prevail, if it does? Add a couple of zeros. And that’s assuming one case. When there’s a cluster linked to a particular business, it won’t be one case. And that’s how they’ll prove it.

        Oh, and while employees would come under workers’ comp, employees’ families would not.

        1. Sadly, you’re right.

  3. “But if you have a narrow view of Congress’s Commerce Clause power, then at least it would be justified to preempt liability as to large enterprises (whether businesses or universities) that draw huge interstate clienteles or have huge networks of interstate suppliers.”

    Nope. Because it’s the interstate commerce itself that Congress is authorized to regulate, and nothing more.

    You really think anyone who cares about the actual text of the interstate commerce clause is going to overlook that?

    1. There is no one left on this planet that cares about the interstate commerce clause.

      1. Yes there are, but there are too few of us to make a difference.

    2. ” Because it’s the interstate commerce itself that Congress is authorized to regulate, and nothing more.”

      _Katzenbach v. McClung_ arguably involved Congress’ authority to regulate the interstate commerce of catchup — and on that basis Congress had the authority to regulate who was permitted to enter Ollie’s Diner.

      Ron Paul’s argument that the Civil Rights Act of 1964 is unConstitutional has validity, but reality is….

    3. The “actual text” of the Commerce Clause doesn’t say that. Your libertarian ideology says that.

      1. The actual text of the INTERSTATE commerce clause:

        “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

        See, right there in the clause: It’s the power to regulate commerce. If it ain’t both commerce, AND interstate, the clause grants no authority over it.

        1. The actual text of the Constitution does not say this:

          “Because it’s the interstate commerce itself that Congress is authorized to regulate, and nothing more.”

          For several reasons. First of all, the text does not define “commerce among the several states”. There are reasonable arguments that it includes things that relate to such commerce, or things that have an effect on such commerce.

          For instance, contra Hammer v. Dagenhart, I think it is entirely plausible to read the commerce power as including the manufacture of goods for interstate commerce. Why isn’t that a part of commerce?

          Now I know there are counter-arguments, BUT THEY ARE NOT IN THE TEXT. They are counter-arguments based on anti-government ideologies. The text doesn’t say one way or the other if manufacturing is inside or outside of commerce.

          Similarly the text does not say one way or the other if liability of large firms doing interstate business is or is not a matter of interstate commerce. Your position is NOT commanded by the text. It’s something you get from your ideology.

          Second, you are, of course, ignoring the necessary and proper clause, which specifically permits Congress to enact regulations that relate to interstate commerce even if they don’t precisely regulate it. And that, unlike your ideology, is in the text.

          1. Yes, I’m aware that, if you’re absolutely determined to, you can rationalize a clause giving Congress the power to regulate “commerce”, which crosses specified borders, as being essentially a general grant of regulatory power.

            Sophistry can get people anywhere they really want to go, but it’s still worth calling it out as such, even if the people running the government want to go there, too.

            “Eppur si muove”, IOW. Your side’s got all the power, except for the power to silence people pointing out that it’s a steaming heap.

            1. Brett, I made an account just to commend your ideas and speaking out. There are many people that still care about the i n t e r s t a t e commerce clause….. but sophists are gonna sophist.

              Dilan, how much more dishonesty until you get a Blue Check?

      2. Brett does not have libertarian ideology; he has Dunning Kruger ideology.

        1. So far I’ve seen him discount the history expertise of historians, the psychological expertise of psychologists, and the Jewishness of Jews.

  4. Sure, why not.
    The car industry is not liable when drunks kill with a car, or crooks make a get away in a car. Why should a school be responsible for anything?

  5. LtbF, not sure if you are trolling or not, but I’ll respond in seriousness.

    1) I suspect that there are more people than you think who care about the ICC. I believe it was Montana that passed a gun bill stating that no firearm manufactured in Montana and not sold or shipped out of state had to comply with various federal regulations. That’s one small example and I know I have read more.

    2) Are you being tongue in cheek when you conflate a limited liability protection proposal with “responsible for anything”? This is the argument that progressives often make regarding the Protection for Lawful Commerce act which gives gun manufacturers a very limited liability against misuse of their products. The examples you give regarding auto manufacturers even contradict your statement. It is a bad faith argument because it assumes a much broader conclusion from a limited set of premises which do not directly follow.

    1. ” the Protection for Lawful Commerce act which gives gun manufacturers a very limited liability against misuse of their products.”

      Actually, the Protection for Lawful Commerce act doesn’t give gun manufacturers any protection any other product lacks. NO product gets treated the way they were trying to treat guns. All the Act did was make explicit that gun manufacturers couldn’t be deprived of the protection every other industry had as a matter of normal legal practice.

    2. I recall Texas passed a law exempting 60 watt incandescent light bulbs manufactured in Texas and not shipped out of Texas from the Federal Light Bulb Ban.

      1. I have no idea whether Texas purported to do this, or whether Montana did what Heresolong claims it did, but of course that’s nonsensical. If Congress doesn’t have authority over these items, then the states have no need to “exempt” them; the federal laws automatically don’t apply. If Congress does have authority over these items, then the states have no power to “exempt” them.

        So such laws are either useless or unconstitutional.

        1. Or attempting to set up a challenge.

    3. The specific protection for the gun industry, the recent Roundup losses, and this proposal itself illustrate a more general problem — it is too easy to sue and win for bogus claims.

      How is it even possible to sue a gun manufacturer for making a safe gun? It is exactly as ludicrous as suing car manufacturers for what a drunk or bank robber does with a car. Consider a bank robber in more detail — should the costume manufacturer be sued for the Frankenstein mask he wore? How about the shoe manufacturer, or clothing manufacturer, or the clock manufacturer for waking him up, or the grocery store which provided the breakfast? Far as I’m concerned, anyone bringing such a lawsuit should pay all the costs for abusing the court system.

      Roundup has been found safe by thousands of studies and by every government agency I have ever heard of. One dubious “scientific” report said otherwise, and claimants won hundreds of millions of dollars. Where is the logic in that? How can you possibly even prove that one single cancer victim got his cancer from such a proven-safe herbicide?

      Here, if people don’t think a dorm is safe — if they really do think the infection might still be present — then don’t go back to school. The alternative is that the government continues (unconstitutionally in my view) shutting down the economy. Either way, don’t go to school — either the government makes it illegal, or you think it is a threat. But don’t sue the school for your choice turning out wrong — if your lawsuit says the school should have known better, then why didn’t you know better?

      I have a real dim view of people suing other people for not knowing what they themselves and society in general did not know and was not knowable. It’s one thing for a manufacturer to sell a known-defective product and hide those defects from potential buyers. It’s another think entirely to sue just for the deep pockets.

      Hell, tobacco was known right at the beginning to be bad for health. Cigarettes have been called “coffin sticks” for a long long time. Sue for stupid ads showing “9 out of 10 doctors recommend” if you want. Sue for tobacco executives telling Congress under oath, with a straight face, that they know of no studies showing tobacco causes cancer. But don’t sue for tobacco being unhealthy, because that has been common knowledge for centuries.

      1. In the firearms litigation, the plaintiffs didn’t actually expect to win. Though they wouldn’t have minded winning. Their goal was, explicitly and openly, to bankrupt the firearms industry through litigation costs even if they lost every last case.

        The Act protects against litigation costs, by foreclosing the lawsuit unless the claim alleges a wrongful act on the part of the manufacturer of the sort that would normally involve liability. Defective product, selling to an illegal purchaser, that sort of thing.

        1. Yes, I knew their end goal was bankruptcy. The solution is loser pays — but everyone freaks out at the idea that losing a lawsuit means paying your opponent. Far as I know, no one has even proposed just making it a jury option.

          IANAL, so maybe I am missing something. But I think a strict loser pays result would solve a lot of litigation problems. I do think it should not be all or nothing, but should be proportioned. I have seen civil trial results assigning percentages of blame and liability carried over into the restitution. Something similar should certainly be part of loser pays.

          I also think this should apply to criminal cases. If the government charges you with crimes and cannot convince a jury, they ought to pay your costs. This includes all that you were charged with — if the DA throws in every possible charge in the hope of overwhelming you into a plea deal, then drops some before trial, those count too. Take the maximum penalty possible, tally them up — if you were charged with 50 years possible, and conviction ends up with just 5 years, then the government owes you 90% of your costs.

          1. I think we’re in agreement here. I favor loser pays, and think juries should even have the option of returning a verdict of “wrongful prosecution”, which could have legal consequences for the prosecutor. Say, 3 unanimous verdicts of wrongful prosecution, and the prosecutor is fired for life.

            The risk in initiating all sorts of legal actions is too unilateral, doing so wrongly should be perilous.

            1. By gosh I think we do agree 🙂

              The asymmetry in cases has always bothered me. I would have cases put everyone on equal terms, equally accountable. Most cases would be unchanged; if you think you have a thief from evidence, you probably do. But the current asymmetrical system makes it all too easy for corrupt or sloppy cops, prosecutors, and judges to get away with sometimes literal murder when a prisoner is exonerated after execution.

            2. Because the protection of the law should only be for rich people without families to protect, right?

              1. Because the law should not be permitted to be a weapon people can use to destroy or extort the innocent. Filing false charges or bringing a frivolous lawsuit against someone, just to run them through the wringer, should be a crime. And THAT is, openly, what the people backing the litigation against firearms manufacturers were attempting to do.

                More: The legal system, having put somebody through the wringer and failed to establish their guilt, should make them whole, too.

                1. Malicious prosecution is already a tort.

                  The law is here for everyone. We make a mockery of the idea of equal protection under the laws if it is impossible for those who have lower incomes (but not nothing to lose) to be heard. It is not a bad thing to bring a lawsuit. If you can’t bring a lawsuit, you only have rights in theory, not in fact.

                  1. Malicious prosecution is already a tort that practically might as well not exist, as stacked as the cards are against it.

                    And the plaintiff might have nothing to lose, but if the lawyer thinks the case is good, they can’ cover the risk.

                    It IS a bad thing to bring a lawsuit, if it’s baseless, and only intended to extort the defendant into doing as you tell him.

                2. Innocence and winning a lawsuit are not the same thing. What you’re doing is putting risk onto the side that can afford it less. I leave it to you what that does for the incentives of the side that can afford it more, and who is required to maximize profits regardless of externalities.

                  Oh, but wait, you only care about guns. You’re making a broad policy decision to get what you want about guns. Jesus, dude.

                  1. The firearms litigation that the lawful commerce act put an end to was explicitly premised on the idea that the firearms manufacturers were the side that could afford it less, and would ultimately have to surrender to avoid bankruptcy even if the won every lawsuit.

                    But, in any case, I reject the idea that the poorer are entitled to ruin the wealthier with false accusations, just because they can’t afford to pay for the damage they’ve done in doing so. I don’t think people’s rights depend on their wealth that way, rich people can be wronged, too.

                    1. Lets change all of torts law because you’re bent out of shape about gun litigation.

                      You do realize that it’s not all false accusations, right? You do see who you’re closing out of the court system? But who cares, guns gotta stop being oppressed.

                      Even if you’re right about the litigation atmosphere about firearms, and lets face it you don’t have a great track record on such things, you’re myopic in the extreme. And don’t care.

                    2. It’s not just gun litigation, our society is being warped in all sorts of ways by over-use of civil lawsuits.

                      But, again, I’ll repeat this: The explicit goal of the firearms litigation was to threaten an industry with bankruptcy even if they won every single case, as a form of legal extortion. They didn’t even pretend otherwise.

                      Mayor Rendell, who helped organize the scheme: “If enough cities file at one time, the sheer cost of defending these lawsuits would be hard for the gun industry,”

                      Is it really the purpose of having a tort system to enable people to commit extortion by threatening to use legally meritless claims to impose litigation costs?

                      My prior employer went out of business in part because of this: We’d developed a superior new product, and a larger company in the same market came to us, and said: We’ve just obtained a patent for your product overseas, and are preparing to bring a lawsuit against you for patent infringement. Sure, you’ll eventually win, but our lawyers are on retainer. You’ll win bankrupt.” They were able to force us to sell them the US patent rights for our development costs, and the loss of the new business figured in our going under later.

                      Sure, you can imagine the little guy who has a good claim against someone with deep pockets, and can’t risk loser pays. But, if their lawyer thinks it’s a good claim, THEY can stand behind it. If they’re right, it costs them nothing.

      2. “Here, if people don’t think a dorm is safe — if they really do think the infection might still be present — then don’t go back to school.”

        Schools aren’t even liable for what roommates *maliciously* do, I can’t see them held liable for what one might catch. Now as to parents being willing to put their (often only) child into such an environment, that well may be something else entirely.

        I don’t think higher education, as it existed Fall of 2019, will *ever* fully come back — no more than all the freight lost to trucks during the PennCentral bankruptcy ever came back to the railroads. Having your own bedroom and saving lots of money is going to appeal to a lot more students than academia realizes.

      3. I think a lot of crap lawsuits would go away if you could only sue people for liability and not organizations, like is so common in Europe.

  6. I would hesitate to make any blanket immunity without some sort of alternative recourse for people who may catch the disease. As with most immunities, they tend to work unjust results.

    1. Agreed. I can see a college REFUSING to isolate an infected roommate — I know one that nonchalantly left a decomposing body in a dorm for a week. True story….

      1. It’s today’s Ed Makes Up an Anecdote!

        1. LIKE

        2. It happened on the second floor of Crampton Hall at UMass Amherst — I forget which summer.

          Starting one Monday, the girls living on the floor were politely complaining about the worsening smell every day, the janitor was known to have a nonchalant work ethic and all UM did was yell at her. On Friday afternoon, facing this all weekend, they swiped the master key and did an completely prohibited room search and found the body in the third room they searched.

          They were expecting to find garbage — instead they found a body and called the cops.

          UM then responded — but before that, no administrator had bothered to go up to the floor. True story.

          I don’t make things up, I don’t have to….

          1. UMass Amherst Undergraduate Student Dies; No Evidence of Foul Play

            Summer of 2001.

            Or, wait, maybe 2016. Geeze, how many dead bodies are they finding at Crampton Hall, anyway? Place must be getting a nasty reputation.

      2. Cite required.

    2. Alternative recourse for people who might catch the disease…
      if only we had a private industry that, in exchange for voluntary payments from people, provided financial benefits to a subset of payment making people who suffer harms listed within their contract.

      1. Yes, after setting up a system like that, and after carefully studying the numbers from this current pandemic (absolutely necessary, in calculating premiums, payment amounts, etc), the insurance industry could have something up and rolling within a few years.

        I think the question was: What about for people THIS year?

        Right now, if you’re talking about private (ie, non-governmental) insurance companies; the big problem seems to be: If it ends up being safe, then we’ll end up making zero or close-to-zero payments. If there is a huge problem, then we’ll end up being required to pay potentially hundreds of billions of dollars in claims…and of course we’ll have to go bankrupt. I’m not convinced that the private sector is a realistic way to go here (although I tend to believe that the private sector can do better than a state/federally-run alternative almost all the time). This falls into the “almost-always” exception.

  7. The proposed legislation is a good idea. Society as a whole would benefit immensely from the economy opening up, but fear of tort liability could easily quell that.

    1. Maybe so, but “a good idea” ≠ “constitutional”. Congress can legislate on what federal courts do in this regard, but the states need to handle the state end of things.

      1. What makes you think the Constitution mandates forum shopping?

        1. The 10th amendment.

          1. The Tenth Amendment isn’t the only provision of the Constitution. There are also due process (and in the case of the states) equal protection clauses, and an equal protection component of due process as well.

            I would not say that there is no situation where the Constitution might make forum shopping possible, but the harmonization of state and federal fora for common law causes of action in Erie R.R. v. Tompkins is something that no actual practicing lawyer or judge really disputes.

            Your interpretation would mean that the Constitution basically mandates that there be different rules of decision in state or federal court, that there can be no national policy about liability that arises out of interstate commerce. And that’s just crazy.

            1. Again, it’s not forum shopping if you have no choice of forum.

        2. And it isn’t forum shopping if you don’t have a choice of forum.

  8. I don’t think universities are the best example here. Even after a restaurant reopens, there’s no great cost to staying away if you’re worried about it. For college students that’s not so.

    1. The rub is that there is also a cost of keeping a university closed, if the distance learning part isn’t a 100% substitute for in person classes. I can recall a number of lab type classes where distance learning wouldn’t have been an adequate substitute. If you delay too many graduations for six months or a year, that could add up to a lot of QALYs lost.

      I’m not advocating either side of the issue – I don’t have enough info to have an opinion, other than that both sides of the equation need to be considered.

      1. Sure.

        I’m just saying that it’s really not comparable to a private business. It’s similar, maybe, from the employees’ point of view, but not from that of customers/students.

      2. What will be challenged is the mandatory live-in-dorm requirement that most of them have. Given their choice, a lot of students would commute from home, as an increasing number of professors do.

      3. The universities are more then happy to still take student tuition money and stay closed. Makes the whole shakedown of students a lot easier when you don’t even have to deliver a product. If anything this is demonstrating how much of a farce higher “education” is these days. Most students say “online learning” is just a joke and professors have already doled out grades. Some colleges are giving up on the sham and just going pass/fail for the semester and are talking about making the change permanent.

        1. That’s easy enough for the majors that were just jokes to begin with. Hard to pull off for STEM majors, given the need for them to actually know the subject matter when they graduate.

          1. More and more STEM is relying upon AI or what I will call “convenient knowledge” more then traditional training. Even engineers and scientists are becoming more like technicians trained on using machines that do the “work” then knowing the theory behind the work.

            Sure when they push the button and get a print out it takes some technical knowledge to interpret, but ask them to recreate what the machine does to get that data and they just shrug their shoulders.

            1. As one of my profs told me, “We don’t expect you to remember all this stuff, we just expect you to remember where to look it up, and be able to pick it up again quickly if you ever need it.”

              It’s true that, in practice you don’t need everything you learn in engineering school while on the job, or even most of it. But you DO need to have learned it in the first place, because if the occasion comes when you do need it, that’s a bad time to be learning it for the first time, and maybe not at all.

        2. Boston University has already canceled its on-campus Summer courses and is considering the Fall ones too.

  9. Maybe governments should be sued for the economic damage of their actions.

    1. Or they could be sued for the health damage of their inaction.

      1. No proximate cause.

  10. Who needs pandemic experts, experienced scientists, and health care professionals when half-educated, credential-disdaining, superstitious, anti-government cranks are available to provide pointers on pandemic management at a right-wing blog?

    Did the Conspirators ever meet a big-business position they didn’t like — other than one involving government micromanagement of businesses with some relation to abortion? Or, perhaps, one involving a business that figured customer service should not be trumped by an employee’s bigotry (if that bigotry is rooted in a religious claim)?

    1. Because the pandemic “experts”, the “experienced” scientists and health care “professionals” have been so accurate in their predictions on this.

      Remember how last week was supposed to have been worse than Pearl Harbor? How many hundred thousand was this supposed to kill? Right….

      1. Remember how last week was supposed to have been worse than Pearl Harbor?

        Hey, jackass who makes up anecdotes: a lot more Americans died last week from coronavirus than died at Pearl Harbor.

        1. I mean, I try not to be too uncivil here — I usually just stick to being snide — but when someone who knows nothing about nothing just makes up facts to pretend that a mass tragedy isn’t a big deal, it irks me a bit.

        2. Pearl Harbor was more shocking not because of the death toll but because of the surprise nature of the attack without a formal declaration of war.

          1. This virus also didn’t formally declare war.

            1. The virus is also not a nation state with planes, bombs, and guns. My point was it is a really bad analogy just like all war based analogies are for our current circumstance.

          2. In fairness, it is interesting to note that the aircraft carriers weren’t in the harbor that morning….

        3. Surgeon General Jerome Adams said U.S. citizens need to prepare themselves for an excruciating week of coronavirus deaths.

          “This is going to be the hardest and the saddest week of most American’s lives, quite frankly. This is going to be our Pearl Harbor moment, our 9/11 moment; only it’s not going to be localized. It’s going to be happening all over the country. And I want America to understand that,” Adams told Fox News Sunday.

          Combined death total — 12-7-41 & 9-11-02 = 5,380
          “All over the country” = 50 States
          5,380 x 50 = 269,000

          And how many people did the Wuhan Virus kill last week????

          1. And I’m not the “jackass” who compared it to Pearl Harbor — the three-star who is our purported “expert” did. I merely was quoting him — you can watch the clip of him saying it if you wish.
            https://www.youtube.com/watch?v=1qdoa_V19zQ
            And if you don’t think that’s him saying that, just Google “Adams Pearl Harbor” and you’ll find no shortage of it elsewhere.

            And you’d think a military man would know how many died at Pearl.

            1. No, you’re the jackass who denied that it was Pearl Harbor, even though it was worse than Pearl Harbor — and then when called on it, made up a completely ridiculous argument based on an absurd interpretation of a statement that no native English speaker could reasonably, in good faith, pretend the person meant.

              He did not say that 3,000 (let alone 5,000) people would be killed in each state. (He actually didn’t mention any number; he just named two big tragedies.) He said that we would suffer like some other national tragedies, and the effect would not be localized. And he was 100% correct.

    2. What does a “pandemic expert” know about the functioning of an economy or civil society? Probably very little. To such an “expert” everything looks like a nail because their only tool is a hammer. The answers to questions is easy when you are trained to only look at them through one lens. That is the problem with liberal egghead credential types. All they see is problem > solution. They can’t even contemplate the other variables involved because of the echo chamber type environment in which they are educated, trained, and live.

      1. Sort of.

        A pandemic expert can tell us the health effects of various courses of action, but, when balancing economics, mental health, America’s competitive position in the world, liberty concerns, etc., against the health effects of the pandemic, they are utterly useless, because those are not questions about biology. We are not balancing pandemics; we are balancing a pandemic against other concerns, and the epidemiologists need to stay in their lanes and understand that they can only inform us of one side of the cost-benefit equation.

        1. And liberals are classic credential whores. They are taught to “trust the expert” from school on up. It is a weird thing our education system does and liberals, for some reason, buy it completely. But if you need someone to always buy the kool-aid it helps if they never question the salesman. And it is this type of unthinking the left relies upon to sell their wares.

          1. You know where the credentials come from though, right? It’s from doing the thing. If you don’t have the credential you’re not spending your life performing studies, experiments, or immersing yourself in the relevant literature.

            There’s a reason you don’t go to someone without a medical degree for medical treatment. It’s because the people without one don’t do medicine.

            1. Yes I know where credentials come from. They are thought reform factories that some call “universities”. You pay them an obscene amount of money and engage in theatrics where they pretend to teach you something and you pretend to learn. Then you get a fancy diploma that says you are an “expert” when it is all said and done.

              Then you can hang out with other people that “are a…X” too and talk about being an X. Then you tell people how important it is that we have X’s in society and that you are extra special because you are an X. Then you tell other people about X and also tell them they have to do what you say because you are smart and important. The problem comes when someone who is not an X, but has enough critical thinking skills to tell you that you are not a very smart X tells you so. Then you get mad and yell at that person that they don’t have the fancy credentials so they can’t ever know what it is like to be an X. This is how it works with 95% of “experts” out there.

              1. Soooooo you just go to any person for medical treatment? You go to any person for dentistry? You would let anyone run and design a nuclear power plant? You would read a history book by someone who never once looked at a primary source?

                1. Sure I see a dentist and get is advice on my teeth or see a doctor to get his advice on my bad knee. But I don’t give them power of attorney over my finances and household to boot.

                  1. Doctors say if you don’t do this, then this will happen. You get to decide on whether you’re going to do what they advise. Often it involves financial outlays.

                    That’s what we have here. Policymakers are in charge, facts and predictions provided by the scientists. It is how science policy should work, actually.

                2. Remember the Baake case? It was Patrick Chavis who got his seat, and Jeff Jacoby of the Boston Globe told the rest of the story. A “fair use” quote (plug it into NEXIS for the rest):

                  Administrative law Judge Samuel Reyes found Chavis guilty of gross negligence and incompetence in the treatment of three patients—one of whom died at his hands. “Letting him continue to engage in the practice of medicine” the judge ruled, “will endanger the public health, safety, and welfare.”

                  Soooooooo……

                  1. So anecdotes aren’t data. Certainly not one as causally attenuated as this one.

                    1. “anecdotes aren’t data”

                      Technically true.

                      On the other hand, data=large pile of anecdotes run through a mathematical blender.

                    2. Well, Ed has one. And a questionable one at that. Not really a great start.

        2. when balancing economics, mental health, America’s competitive position in the world, liberty concerns, etc., against the health effects of the pandemic, they are utterly useless, because those are not questions about biology.

          No more useless than other citizens, unless you think, which I guess JTD does, being a pandemic expert makes you less able than others to consider those things.

          1. I once asked a geologist how he would solve the energy crisis. Easy, he replied, just tap all the natural resources in the Rocky Mountains. I asked how do you get to them. His response was again, easy, just drop a nuclear bomb on them and mine the mess. Taken a back by the suggestion of using a nuclear weapon he responded well you asked me I am a geologist, you asked me how to solve the energy crisis so I told you how to, if you want to know about the environmental impact better ask someone in a different speciality.

          2. But far less useful than economists, business owners, lawyers and scholars who study the liberty issues, historians who can shed light on how the human side of quarantines work over time… and less useful than normal, uncredentialed people who lost their jobs and are terrified of never being able to make ends meet again.

            The ‘experts’ can inform us of the likely consequences – costs and benefits – of various actions; however, it is not their place to tell us what weight we put on those costs and benefits.

  11. Maybe Congress should preempt, but conditionally. Make business protection against liability kick in no sooner than 4 weeks after some stringent standard for testing availability has been met nationally, and in every state. That would at least put the business community behind a public health policy to deal with the disease, instead of opposing it.

  12. This is a bad idea. Why should we think that students or employees should bear the risk of decisions by large organizations rather than the large organizations themselves? Further, to open or not open is not a binary manner. An organization can choose to operate after opening in a more safe way or a more dangerous way. Eliminating liability reduces the incentive to operate in a more safe way after opening.

    Universities have very little excuse especially for “opening” in an aggressive manner since they can get with the 21st century and put lectures online and hold discussion sessions with smaller groups of students online.

    It should be noted that the so-called Socratic method is disadvantaged by classes that aren’t held in person. Good. This has always been a stupid way of running large classes anyway. The Socratic method (if it ever made sense) makes sense for small discussion groups, not large lectures. That people will have to adapt instead of continuing poor teaching practices that “just so happen” to be less work is one upside to the crisis.

    1. Come on, you’re at Reason. Of course liability will be moved from those with economic power to those without, because markets and free minds.

      1. The safest thing to do is for even the food stores and food chain to shut down, lest they become fodder for legions of drooling lawyers.

        I concur!

        1. Right. Because unless have immunity to liability, they can’t run.

          The only problem with your little “theory” is that such “food stores and food chain(s)” don’t have immunity now. Yet they remain open.

    2. Why should we think that students or employees should bear the risk of decisions by large organizations rather than the large organizations themselves?

      Why do you think that large organizations should bear the risk of decisions by students or employees rather than the students or employees themselves? (It’s like you think only one side is making a decision.) Different students or employees or customers have different risk preferences — but imposing the risk solely on the large organization requires said large organization to implement the wishes of the most litigious student or employee or customer.

      And as to the rest of what you write, teaching and discussing online is a poor substitute for teaching and discussing in person.

  13. Hm. Say that a commission–one formed by a completely hypothetical interstate compact to follow the rulings of the commission (although the commission wasn’t authorized by Congress)–dictated that a certain class of business was safe to reopen on date X. State restrictions are then lifted on that date.

    1. Is either the forming of the commission or the state action to abate the restriction pre-empted by the Congressional intent to occupy the field, given the recent assertion by the President that national agencies should make the decision on when to reopen?

    2. Is the degree of state or multi-state abatement of restrictions fit to borrow for a tort claim, or does the federal immunity shift the balance to a national calculus, given the intent to occupy the field of tort claims? If not, how can the states effectively lift restrictions?

    3. Absent specific language, does the statute contemplate state-by-state abatement of restrictions? (And if so, how do you get it past the Republicans.)

    4. How to preempt claims sounding in contract to avoid a tort claim bar, without trampling state powers in this area? Does the pre-emption have to be stated (a domestic Garamendi, perhaps), and if so, do you insulate claims emanating from state mandates or, more broadly, state advice?

    5. How much time is it possible for me to spend procrastinating the dissertation by writing forever-unread Volokh comments?

    Cheers,

    Mr. D.

  14. Congress may therefore constitutionally preempt such state-law burdens on commerce, just as it may preempt state statutes that burden commerce.

    With such power Congress could destroy the states by exempting all businesses from state-level fees, regulations, and tax liability. I await the New Federalism.

  15. How does it even matter? Do businesses get sued because someone got the flu there? Do they lose? (I’m genuinely asking. But I’m guessing the answers are mostly no.) What keeps the airlines from facing these sorts of lawsuits by the hundreds of thousands every winter?

    Covid is more dangerous than the flu, but that doesn’t make every customer’s cough the grocer’s responsibility.

    1. You’re no fun. There are a million yachts and mansions waiting to be bought by lawyers.

Please to post comments

Comments are closed.