Below 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.
BTW:
Zerohedge, a site I follow all the time has been picking up Prof Turley’s articles more & more lately.
https://www.zerohedge.com/political/future-economy-may-depend-ancient-doctrine-past
Oky1 – Redstate has been giving Turley’s Twitter some shoutouts. 😉
Most people paying attention had become very tired of the old media lying to them, I think & have been searching for new media that tries to present truthful real facts of interest to the public. That they may sometimes make a mistakes, but admit it early & move forward.
Now I have way to many to keep up with them all. I know when I get tired I tend to go to ones that can present the stories with some humor.
….. AKA: Today a WV man was hit by an express train, he was ripped from limb to limb. Never has be such a bloody sight rarely seen before. After searching for hours authorities found that his junk was male. It turns out it the body parts recovered were that of a local cross dressing pre-op transgender Bob. What a helluva way to go.
Sorry Bob, I just like some dark humor sometime. lol;)
BTW: that was fake news, but I’ve read a great story of much the same from way back in time. He was defiantly post op after the train hit him. 😉
BTW Paul,
That Dark humor & reading/watching say like war movies/violence, when one thinks about it on a larger psychological level what’s done to people that haven’t seen such scenes vs those that have been to wars, etc..
I think of it as gallows humor & the media/govt’s propaganda & many that have been to war zones don’t think it’s so funny.
Oky1 -that is a horrible story. 😉
Paul– when (and if) you have time, I’d love to hear your comments. I hope all is well.
honestlawyer – I converted both to google docs and made corrections and comments. Now I just need to figure out how to send them to you. 😉
You are very kind. I’m not sure I know how to handle google docs but I think my grandson does. If you want to send them as google docs then I can try to get it to work on this end. No hurry.
There must be something about legal liability vs the USC that I just don’t understand.
So facts lean towards the facts that Dr Fauci/Bill Gates/Harvard/Chapel Hill NC/etc., with $$$ grants/approval of med tech transfer by Obama’s Admin., all engaged in the illegal action building a virus with “Gain of Function” bio weapon & shipping it to be continued to be worked on by the Chicom govt & it one way or another got out of their control.
And 2 years earlier one of Bill Gates orgs patents a vaccine for just such a virus.
Yet some how Joe & Susie’s , very low profit, Bar & Grill, after being Un constitutionally forced to close, reopen & now likely to be $$$ Liable for workers/customers if they catch Obama/Gates virus unless everyone agrees to give up all their Rights & take Gates’ Vaccine even though Gates admits in public his vaccines will likely Kill at least 700,000 people plus take a Tracker Chip ie: “Mark Of the Beast”.
Yep, just blame it all on the bar tenders every little town across the US.
Does anyone else see a problem here?
Just remember if someone ask you: :”You where in Fear For Your Life”, I know I’m very concerned their Demonic Crap.
Professor… There’s something even more fundamental about re-opening the economy that should be considered.
If we appeal to Occam’s Razor and look for the simplest answer, we start with this: The ‘economy’ is a system where people do things with money over time.
A person buys a mall from the previous owner. A bank loans the money on a note stipulating the manner of repayment over time. The mall owner leases space to businesses and services their debt from those lease payments. Each lease also represents persons doing something with money over time.
So we have four things to look at: The creditor; the debtor; the money supply; and the clock. Truth be told, we are only looking at the first three. It’s as if the clock doesn’t even exist. Here is what I mean:
Businesses need to reopen because there are settlements required by the note on which money was lent. The owner of the loan as a debt instrument on the asset side of their balance sheet has a right to collect; this asset is a liability on the sheet of the debtor – he has an obligation to pay. Executing this is a ‘settlement’ and these settlements work their way up the banks who are members of the Federal Reserve System, who maintains the ultimate record of settlements.
So as a practical matter something has to be done. By saying “businesses have to reopen” we have only looked at three of the four things in play. If we (as it seems we are doing) flush trillions into the economy to support debtors’ obligations to pay, we will almost certainly see an inflationary replay of the 1970s in the 2020s. Then it was Vietnam and the War on Poverty; today it is COVID-19.
If, on the other hand we look at the creditor and say: “Well, you lent money so you took risk… You’re going to have to take a big haircut on what you are owed, we run the risk of a significant deflationary spiral as that “haircut” essentially subtracts from the money supply.
But what if we stop looking at the creditor, debtor, and the supply of money between them and look at the clock instead?
The Federal Reserve says to all its member banks: “All rights to collect on debt collateralized by real estate and transportation assets, along with the accrual of interest on these debts, are suspended until the emergency is over.” This would be called a “Settlements and Accrual Pause.” The debt does not go away – so the money supply does not contract and create a deflationary spiral. But since the right to collect is paused, so too is the obligation to pay. This means we do not need to risk a stagflationary repeat of the 1970’s by injecting massive amounts of new money at the debtors.
The legal question here is whether the Fed has this authority.
Question: If money from the fed is free what’s it worth?
BTW: this is a very interesting time in history, economics & American’s Rights to be Free, free of Forced Vaccines, etc.., Can we as a people hold it all together?
“The legal question here is whether the Fed has this authority.”
Since when does the what the law says ever matter in a time of crisis? Never. That’s the lesson we’ve learned over and over since the founding of the nation.
Hell, the Fed isn’t allowed to buy corporate debt…but they’re doing it. They’re even buying junk debt. Does the Fed Reserve Act of 1917 give them that power? No. Does that matter? No. They could print money to buy Dorito’s and no-one would blink. The act does not explicitly ban the Fed from buying Dorito’s.
The only “emergency power” in the Constitution exists as the power to suspend Habeas Corpus under the condition of invasion or rebellion. Once the existence of an invasion has been established, Habeas Corpus is in suspense and the government may incarcerate anyone for anything and crush any and all opposition.
The only regulatory power exists in Article 1, Section 8, and is limited to that of money, the “flow” of commerce and land and naval Forces.
Government has no authority to quarantine people and the people enjoy the freedom of assembly and the inverse, disassembly or segregation.
The people enjoy the right to private property which is not qualified by the Constitution and is, therefore, irrefutably absolute and government has no authority to claim or exercise dominion over the private property of individuals.
Government has no authority to conduct commerce, to regulate enterprises, to support a commercial enterprise financially or “bail out” any corporations.
Government has the power merely to “coin” money not “print” fiat money. Coined money must be backed by gold and/or silver.
Government exists merely to provide security (i.e. property damage and bodily injury) and infrastructure to facilitate the maximal freedom of individuals.
Free people and free enterprise live and die and succeed or fail freely and without dictatorship by government.
The actions proposed are only legal under a communist dictatorship.
On another one of the Professor’s posts, I was engaging with some of our Progressive activist friends on California governor Newsom’s naked and blatantly illegal decree using the coronavirus to mandate mail-in voting in the November 2020 election. There is an obvious connection to rampant voter fraud, which of course they denied. Much to my surprise, the Times ran an article on point.
The “Voter Fraud Handbook” as published in today’s New York Times:
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“You do get to learn from these things,” said Ramsey Reid, the battleground states director for the Democratic National Committee, who has facilitated calls between Wisconsin officials and their counterparts in other states. “You get to train more volunteers, you get to build habits around voters and apply lessons learned to states that have challenges.”
While officials are publicly bragging about tactics like video calls with voters who need hand-holding to navigate often-cumbersome absentee ballot request forms, they’ve been more circumspect about efforts they’ve employed in the event of a narrow defeat.”
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Translation: Even the stuff we do out in the open is dishonest as h*ll, but that’s only the half of it.
——————————————————————-
Some of the other gems from a Democratic memo linked in the Times article:
1. Do away with burdensome witness and notarization requirements.
2. Encourage ‘community groups’ to help people fill out and then return their ballots for them.
3. Put up unmonitored drop boxes to accept the ballots, and ensure ‘geographic diversity’ in their placement.
4. For ballots that don’t have a postmark, no worries if they don’t arrive in time. If we need ’em, we’ll count ’em even if they’re a few days late.
5. Have procedures to cure small ‘administrative issues’ like a lack of signature
6. Make sure the process is run under the watchful eye of the Democrats. Those nasty Republicans stand in the way of voter rights.
How long until Gretchen Whitmer, who is preening for Biden’s VP slot, hops on board? This will spread much more quickly than the coronavirus, and it is much more lethal.
This would be REALLY funny if not for the fact that the things she talks about are things we have actually been told by the experts: https://www.youtube.com/watch?v=8hElK61a1_4&fbclid=IwAR3QazMe6vBofYp7F3yPorY9ttkrsNt2VsgwkMCz8cypgu3zymG46likg_M
Without a doubt, the clearest explanation I have received so far.
Much appreciated.
“The Future Of The Economy May Depend On An Ancient Doctrine Of The Past”
– Professor Turley
______________
The future of the economy depends on the act of Americans to “throw off” the corrupt and deleterious Supreme Court. The future of the economy depends on free Americans, free enterprise, and the “manifest tenor” of the Constitution Bill of Rights. Governmental doctrines are unconstitutional and deleterious. The Supreme Court exists not for the Constitution and Bill of Rights but for the forced imposition of the dictatorship of the Deep Deep State of global communism.
If you want the most perfect form of governance known to mankind, you must eliminate the antithetical, anti-American, redistributionist, collectivist, state-centric Supreme Court as it exists today. The Constitution and Bill of Rights establish the maximal freedom and free enterprise of individuals while severely limiting and restricting government to its role of merely facilitating the maximal freedom and free enterprise of individuals. The Supreme Court wittingly and deliberately violates fundamental law, diminishes freedom and increases government.
The Constitution and Bill of Rights, in Article 1, Section 8 and the 5th Amendment, prohibit government from taxing for charity and redistribution, prohibit government from regulating anything other than money, the “flow” of commerce and land and Naval Forces, and prohibit government from claiming or exercising dominion over private property, the right to which is unqualified and absolute.
The entire American communist welfare state is irrefutably unconstitutional, including affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.
It’s not a matter of choice. It’s a matter of law enforcement. The Supreme Court must be brought under the authority, control and checks and balances “with teeth” of American fundamental law. Americans have rights, freedoms, privileges and immunities provided by the Constitution and Bill of Rights and government, with emphasis on its corrupt, biased, communist Supreme Court, has no authority to deny and confiscate those rights.
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
“Such has been the patient sufferance of these [United States].”
The law of “absolute Despotism” must be annihilated. The law of freedom must be enforced. The future of the economy does depend on the “ancient” documents of the past, the Constitution and Bill of Rights per their “manifest tenor.”
______
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
_________________
“…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…”
Declaration of Independence
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these [States].
Suddenly the whole nation and it’s economy are depending on the very people that Trump doesn’t believe should make 10 to 15 dollars a hour.
President Trump does not set the wages anywhere except his own businesses. They are set by the value of the service or work provided to the person paying for it, whether a corporate employer or the guy paying your kid to mow the grass. The economy doesn’t give a rats ass about some concept of “fairness” or someones idea of a “livable wage”. Want to get paid more? Obtain useful skills that someone else wants to pay a higher wage for. Better yet, start your own business if you have the guts. Then you will either understand economics or you will fail. With the low level of self care and incompetence I see in many people I encounter in a day, I don’t now how many of them are even employable to begin with. but many seem to exhibit an incomprehensible sense of entitlement far in excess of their ability to contribute to an employer or to society in general. They are the ones who seem to scream loudest for “social justice’ when that is in fact what they are living. TANSTAAFL
TANSTAAFL
No, but there is such a thing as a “living wage.”
“No, but there is such a thing as a “living wage.””
– Anon
No.
Absolutely false.
There is such a thing as market value. Labor is a commodity to be exchanged on a market just like tomatoes or Lamborghinis. Individuals may choose to increase their personal market value or scheme to illicitly obtain sustenance from others. The former being legitimate the latter being illegal outside the realm of charity. If you agree with American concepts of freedom, markets shall operate freely. If you are a communist, you forcibly impose your arbitrary “economic” principles as a dictatorship. Under American fundamental law, people and enterprises are free and Mr. Market functions as he will. A constitutional Supreme Court would have struck down any and all “labor laws” that impose the minimum wage or prohibit the firing of strikers and the hiring of replacement workers.
The minimum wage is an unconstitutional violation and denial of the right to private property which is absolute and prohibits any and all actions by government to claim or exercise dominion over the private property of individuals.
You are a denier of the Constitution and Bill of Rights. You endeavor to forcibly impose the principles of the communist manifesto on free Americans.
You are an enemy of America and its essential fundamental law.
FishWings — would you care to respond to Grommet’s points? I for one would love to hear your arguments FOR a “living wage”…..
What are the odds we will hear an argument/reply from Fishy?
It rhymes with “hero”…
Nero?
Hero?
Cheerios?
ah! Blutto!