The Future Of The Economy May Depend On An Ancient Doctrine Of The Past

Nighthawks_by_Edward_Hopper_1942Below is my column in The Hill on the legal foundation for an economic recovery in reopening businesses in the United States.  While some often seem to assume a zero tolerance approach for any risk of spread, we have no choice but to try to get this economy out of the current disastrous conditions.  Unless we want to reintroduce a barter economy, we need to stop the exponential growth of debt coupled with the perilous decline of employment.  The key may be individual choice and an ancient legal doctrine.

As pressure builds on states to open, many governors are starting to ease lockdown orders. That decision is not purely a public health matter but a public policy matter with interlaced issues of law, finance, and medicine. Congress and states must decide how legally to restart an economy in a world saturated by the coronavirus. With expensive recovery measures and a federal deficit projected at more than $30 trillion by the summer, we face a real possibility of a lost generation due to crippling debt and chronic unemployment. So this means businesses and institutions will need to operate in a way that is sustainable instead of just symbolic.

The legal challenge here is to open up the country fully when we cannot reasonably expect any vaccination program until next year, according to most experts. Thus, in the interim, our best hope may be an ancient legal doctrine that extends back to Roman law in the sixth century. “Volenti non fit injuria” means “no wrong is done to one who consents,” and it became the solid foundation for what we know today as “assumption of risk.” The doctrine encapsulates the concept of personal responsibility and choice. Thus, any economic opening precisely requires not liability but choice.

But assumption of risk, which began as a doctrine in employment liability cases in the United States, has already been on the decline in this country. Assumption was an absolute defense, but most states have now adopted an alternative “comparative negligence” approach in which jurors assign the portion of responsibility of each party in their verdict. If the plaintiff or the injured party is found to be 20 percent at fault, the award is reduced by that amount. Some states apply an additional rule that if plaintiffs are more than 50 percent at fault, then they are barred from any recovery.

The problem for businesses in this pandemic is that every case presents different arguable facts as to who is more at fault from the spread of the coronavirus. Is it the individual or the establishment? Strong defenses do exist, including factual causation where a plaintiff needs to establish that a particular location was the source. Indeed, it is difficult to imagine how someone could prevail against a business on the speculation that he or she contracted the disease from any single contact inside the business.

Yet states are adding different conditions and responsibilities that could fuel claims. There could also be a tsunami of litigation of strike lawsuits, cases brought with the intention of forcing a quick settlement, and even stronger liability lawsuits. If there will be a reliance on individual choice without the exposure to prohibitive litigation costs, then there is a need for uniform legislation on the state level and possibly the federal level.

Negligence can be wildly difficult to define in a world after a pandemic, where businesses are not being careless but must operate in a high risk environment. Any economic recovery needs to occur at a time when the majority of customers will be neither immune nor vaccinated against the disease. Businesses cannot question every group to determine if they are all family members or what each of their personal medical conditions are.

Take my neighborhood pool in McLean in Virginia. The board has debated whether it can afford to open it this year, given the uncertainty of what the state mandates. The state cannot expect lifeguards to constantly separate people or teenage workers to constantly check temperatures. It can clean surfaces regularly and can separate tables. While there is no evidence that the coronavirus can spread through chlorinated water, children will gather in groups and people might not be honest about their symptoms. There is no method to protect against transmission and remain a functioning pool.

In deciding whether to open, businesses now must balance the possibility of coronavirus infection against the near certainty of legal exposure. One can understand if they feel like they are being set up by those politicians who often speak as if they have a zero tolerance for any transmission risk. States are creating a host of duties for businesses to manage, even those directed at customers like the requirements that they wear masks inside.

In Kansas City, there is a rule limiting many businesses to 10 customers or 10 percent of occupancy. If customers linger for over 10 minutes, stores are asked to take down their identities and contact information to allow for possible reporting to state officials. In New Mexico, hotels and other places of lodging are allowed to operate at no more than 25 percent of maximum occupancy, reduced from the previously arduous 50 percent occupancy order. Each order can be the basis for a negligence lawsuit.

Many industries are already arguing for sweeping immunity protections from lawsuits alleging the contraction of the coronavirus. However, such sweeping immunity laws can remove the incentive for businesses to take precautions. The most logical path to reopening is to keep up pressure, including liability, on those businesses like nursing homes with high risk occupants or customers. Though nursing homes are seeking immunity, incentives or disincentives for high risk businesses must be preserved.

Alternatively, states can pass laws allowing for conditional assumption defenses. Businesses could be given immunity if they post prominent warnings that customers must assume the risk of entering or engaging. Congress has passed such an immunity law, for drug companies, which has been upheld by the Supreme Court. Under the National Childhood Vaccine Injury Act, vaccine manufacturers cannot be held liable for an injury or death related to a vaccine “if the injury or death resulted from side effects that were unavoidable even though a vaccine was properly prepared and was accompanied by proper directions and warnings.”

Indeed, Congress can pass the same type of law to protect any business from lawsuits over the contraction of the coronavirus if the business was properly maintained and displayed proper directions and warnings. Many states allow hotel pools to be protected from lawsuits over drownings, for instance, if the posted warnings indicated that no lifeguards are present.

Congress can arguably not only pass such immunity for federal enclaves but condition relief on such legal measures that allow for the opening of the economy. Under such a law, businesses and institutions can resume full operations with protection, so long as they meet conditions like the cleaning of equipment, the testing of employees, and posted warnings. Regulated industries such as the airlines today are subject to new rules, like proposed use of ultraviolet lighting to kill the coronavirus on board.

Otherwise, the choice would be left to individuals on the level of risk they are willing to take. For younger people, that risk might be sufficiently low enough to venture out to bars, restaurants, or sporting events. There has been more information now readily available to the public to make such critical decisions and to take personal responsibility for their decisions.

Torts scholar Francis Bohlen once described “volenti non fit injuria” as a “terse expression of the individualistic tendency of the common law” that “naturally regards the freedom of individual action as the keystone of the whole structure.” In either common law or legislative form, our future in this country may depend on that “freedom of individual action.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

177 thoughts on “The Future Of The Economy May Depend On An Ancient Doctrine Of The Past”

  1. The Atlantic:

    “…There is one way out of the mess: To fix the economy, the country must solve the public-health crisis. Survey data show that the economic turmoil is driven not primarily by government shelter-in-place policies but by Americans’ fear that going outside will result in illness….”

    Today’s WaPo editorial:

    “…The pandemic response demands a testing regimen that does not yet exist. According to the Covid Tracking Project, states are reporting about 300,000 tests a day, about a tenth of the 3 million or more a day that experts say is the minimum needed to begin to safely open workplaces again. Weeks ago, Mr. Trump should have embraced this as a uniquely federal responsibility, under the supervision of an experienced leader, a Manhattan Project for the pandemic age. Instead, he left the job to governors, and the nation is staggering under the consequences.

    Mr. Trump and the “liberate” protesters portray a choice between opening and staying locked down, but that is false. Everyone understands the urgency of returning to work, schools, leisure and worship, but it must be done in a way that does not ignite a second wave. Until a vaccine or effective therapy arrives, that means segmenting the population by testing, and isolating and treating those who are sick as much as possible. The virus is dynamic, relentless and opportunistic. It will spread as long as people give it the means.

    We have the technology but not the scale needed to test the whole population. If ever there were a job for the federal government, the singularly most powerful actor we can rely upon, this was it. Instead, we are now suffering with piecemeal efforts at diagnostic testing, while more than 20,000 new infections and about 2,000 deaths occur every day. What would it have taken for Mr. Trump to put testing kits in every workplace and school? We will never know, because he didn’t try. …”

  2. looks like Turley is expecting an economic boom in his profession

  3. Th illustration is a beautiful painting by an artist whose name escapes me.
    Getting old rally sucks!

  4. It can happen only in an overlawyered country where the question “who is more at fault from the spread of the coronavirus” can be seriously considered (with all due respect to professor Turley). Unfortunately, the premise, that someone must be “at fault” of the causation of an adverse event, and that it is actually factually definable, is accepted without a second of further thinking. That’s why the heirs of a gardener who died from liver cancer get hundreds of millions of dollars from a company that made a pesticide. And let’s not even wonder about how 12 people uneducated about the topic at hand can make such a decision after hearing nothing but shrewdly framed opinions presented by lawyers also uneducated about the topic. This is the way it is, I don’t expect it to change, I’m just saying it because I believe it is true. It’s not going to be different regarding COVID either. Lawyers don’t sue people, people sue people, and if you notice an analogy, you may start to think of a solution. And bearing lawyers is not even a constitutional right. Would lawyers ever support a law banning them? But I’m digressing. Unless there is a law stating that no person can sue another person or entity for getting COVID, because it can never be proven (scientifically) at what time and location did viruses enter a person’s body in large enough numbers to start an infectious process, people will sue people, and lawyers will “prove” spurious causation. This law has to be absolute, excepting only provable direct transmission (e.g. a petri dish full of viruses falls on someone) but not cases when a malicious active COVID sufferer sneaks into a store and spits into the mouth of another customer (he should be criminally liable of course, as any other person trying to hurt another).

  5. Trump: #NotPresidential

    Donald J. Trump

    “We are getting great marks for the handling of the CoronaVirus pandemic, especially the very early BAN of people from China, the infectious source, entering the USA. Compare that to the Obama/Sleepy Joe disaster known as H1N1 Swine Flu. Poor marks, bad polls – didn’t have a clue!”

    6:48 AM · May 10, 2020·Twitter for iPhone

    1. Over the course of a year, between 8,868 and 18,396 people died from H1N1. Trump spends a lot of time living in a fact-free zone.


      “From April 12, 2009 to April 10, 2010, CDC estimated there were…274,304 hospitalizations (range: 195,086-402,719), and 12,469 deaths (range: 8868-18,306) in the United States due to the (H1N1)pdm09 virus.”

      1. Not the way to analyze success or failure. In order to do so one has to think hard about what each number means along with all the other variables. It’s easy to look up numbers. Much harder when one is made to think.

        1. Alan, we’re not out of this crisis yet. No ‘Mission Accomplished’. We won’t know how successful we’re doing until a vaccine is found. And even then we might still have an economic depression. So it could be 5 years before we know how ‘successful’ we were.

          And I don’t mean to be nasty by pointing out that seniors of a certain age may never see the next economic expansion. ‘I’ may not live that long myself.

          1. July, we will never know a time without the threat. The severest crisis is over because we now know more about the organism we are fighting and we have put together methods of keeping it under control. The Big crisis is the Democratic Party of today that has made every crisis we faced worse. They are obstructors. They are mean spirited and anti-American. Their only interest is in their own power.

            A vaccine is probable but we don’t know how successful it will be or if we will have it as soon as we hope. We have promising drugs but there is a high likelihood that just like cancer treatments there is no one drug that will work as an antiviral against all viral infections. This is just one virus and there are many others whether living today or being created. Remember, viruses have been around forever and we still haven’t developed a satisfactory drug. Seniors and the ill may need to take extra precautions for a long time.

            The economy might not take hold the way we want. We have done terrible damage to our economy and the globalists have left us under the thumb of enemies and potential enemies. The west is in turmoil.

            We have also revealed a tremendous military weakness. Our ‘regard for life’ is so ‘high’ that an enemy can now use that knowledge against us.

          2. As humanity enters into poorly explored or even completely unexplored places, then returns to more densely populated areas, there’s always the risk for bringing new viruses to which we have little or no immunity – in the case of hte RNA viruses, we may never adjust to how such viruses mutate.

            It makes just as much sense to blame Woodrow Wilson for the spread of influenza throughout the United States as is does to blame Trump for the sudden introduction and spread of a very poorly-characterized mutant coronavirus strain. SARS had neither the virulence nor the long asymptomatic yet infectious period of SARS_CoV2, the novel strain of the current pandemic.

            Setting limits as to when we know whether we’ve beaten the pandemic isn’t possible. SARS_CoV2 is steadily mutating as we speak, Mixing politics into such discussions is a fool’s game for anyone who tries it – Trump AND his critics.

        2. Haha. And? Is this really all you gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make are left with by the utter incomeptent failure of the day glo bozo, nonsensical word salad? Awesome.

          this is to “at this point i won’t vote for him either, but hannity already told me to” allan/allen

          you know who this is from

          1. Hi Mark M., I haven’t heard from you in a long time. I see you haven’t changed your signature response. Keep it up.

      2. “Trump’s bizarre effort to tag Obama’s swine flu response as ‘a disaster’”


        The Pinocchio Test

        Reviewing this history, we can only assume that Trump has not studied the swine-flu pandemic very closely. He simply heard a death-toll figure — remembering it incorrectly — and presumably concluded that anything associated with Obama was a debacle. But in reality, the government under Obama worked relatively smoothly, even if it was not tested as in the current pandemic.

        As of April 3, when we last updated the database, Trump had criticized Obama’s handling of the swine flu 10 times. Including this most recent tweet, the count now stands at 14. It’s a mystery why Trump persists in this false attack when the facts have turned against him, but this Four-Pinocchio claim looks like it will quickly be another Bottomless Pinocchio.

        *** Four Pinocchios **** [asterisks added]

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        1. So Trump said this, today: ‘Compare that to the Obama/Sleepy Joe disaster known as H1N1 Swine Flu. Poor marks, bad polls – didn’t have a clue!”’

          Back in April, Trump said this: “Biden/Obama were a disaster in handling the H1N1 Swine Flu. Polling at the time showed disastrous approval numbers. 17,000 people died unnecessarily and through incompetence!

          He keeps repeating variations of the same theme.

          Glenn Kessler of the Washington Post says this:

          “It’s a mystery why Trump persists in this false attack when the facts have turned against him, but this Four-Pinocchio claim looks like it will quickly be another Bottomless Pinocchio.”

          Trump gets *** Four Pinocchios **** [asterisks added]

          1. Buckle up. Word is we are gonna have quite a week in Washington DC. Hang on….

          2. Anonymous – WaPo is an arm of the DNC which spent the last 3 years claiming almost daily that Trump was a Russian agent who colluded with Russia. They clearly do not know how ads work.

            1. Paul, Readers of WaPo see it as one of the best-written and most frequently updated sources.

              Trump’s irrational behavior is totally apparent on his Twitter feed. The WaPo doesnt have to make-up anything.

              1. Captain Lochart – is that why WaPo is constantly having to update (retract) articles?

              2. Captain, how come the WaPo articles quoting prominent members from the Obama administration doesn’t match up with what those members testified to in front of Congress?

                    1. Uh….errr….ummm….hrmmm….yeah, okay. That’s a whole lot of something going on there…

                  1. It wasn’t meant to be an anonymous posting. It is Allan and I think we know who you are.

                    “we don’t know ‘what’ you’re asking here.”

                    “We”? are you trying to say you are more than one alias?

                    It is incredible that you don’t know what I mean.

                    Several major witnesses’ testimony contradicted what they said to the Washington Post. That should be clear and definitely indicates the Washington Post is not doing its job. Therefore the Washington Post is NOT “one of the best-written” newspapers. It barely, if at all, meets any journalistic standard when it covers political issues.

              3. I read the WaPo periodically and am frequently amazied at how badly blurred editorialism is with supposedly factually-based journalism. They’re being sued for libel as I write this.

  6. 43 Million Could Lose Health Insurance. Yet Trump Vows To End Obamacare

    As many as 43 million Americans could lose their health insurance in the midst of the coronavirus pandemic, according to a new report from the Robert Wood Johnson Foundation and the Urban Institute.

    Prior to the pandemic, 160 million Americans, or roughly half the population, received their medical insurance through their job. The tidal wave of layoffs triggered by quarantine measures now threatens that coverage for the first time.

    Up to 7 million of those people are unlikely to find new insurance as poor economic conditions drag on, researchers at the Urban Institute and Robert Wood Johnson Foundation thinktanks predict.

    Edited From: “Up To 43 Million Americans Could Lose Health Insurance Amid Pandemic, Report Says”

    The Guardian, 5/10/20

    Donald Trump said Wednesday that he will continue trying to toss out all of the Affordable Care Act, even as some in his administration, including Attorney General William Barr, have privately argued that parts of the law should be preserved amid a pandemic.

    “We want to terminate health care under Obamacare,” Trump told reporters Wednesday, the last day for his administration to change its position in a Supreme Court case challenging the law. “Obamacare, we run it really well. . . . But running it great, it’s still lousy health care.”

    While the president has said he will preserve some of the Affordable Care Act’s most popular provisions, including guaranteed coverage for preexisting medical conditions, he has not offered a plan to do so, and his administration’s legal position seeks to end all parts of the law, including those provisions.

    Democrats, who view the fight over Obamacare as a winning election issue for them, denounced the president’s decision.

    Edited From: “Trump Vows Complete End Of Obamacare Despite Pandemic”

    The Philadelphia Inquirer, 5/7/20

    1. Article 1, Section 8 – Congress is provided the power to tax merely for “…general Welfare (i.e. all well proceed)…,” distinctly not individual or specific welfare, charity or redistribution of wealth.

    2. The Guardian!! LOL you people need to stop reading that type of Anti-American Commie/Nazi BS slop & ie WAPO, NYT, CNN/MSNBC, etc.

      I know I 1st scroll down, see who it’s from & then skip right over it as worthless.

      1. Okay, you don’t believe people are losing their jobs and health insurance? That doesn’t sound possible? You imagine Unemployment is still at record lows? ..Well there’s been a few changes..!

        1. Jobs, health insurance, unemployment, etc. are not any concern of the Congress per the Constitution. Please cite wherein the Constitution you find those mandates. All aspects of freedom and free enterprises are the concern and purview of a communist dictatorship.

          Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

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