I hadn’t been in the comments as much last week because of work/life stuff, but I did catch a snippet of some cross-thread discussion that began with Mexi’s Thursday PM Beer Review (Thoughts-on-a-COVID19 infected person and the NAP). This naturally follows the recent link where the police barricaded a known-infected man in his residence. One commenter raised the issue of tort law as a place to sort out some of the thornier moral/ethical and legal questions raised. Some others also brought up the specter of criminal liability for someone who, for example, went into a nursing home and spit/sneezed in everyone’s green jello right before lunch. (SF is hereby prohibited from offering his “for example” in the comments to this article.) Because of the current pants-shitting over COVID-19, I thought this was a good time to break out our One True Libertarian™ and run xer through the gauntlet of hypotheticals and some analysis to see if perhaps we can’t tease out some principles that might help guide the personal conduct of the Glibertariat and add to the wider understanding of the “tragedy of the commons” – a topic that is so often brought up in response to libertarian political thought that it should eventually make the medical texts as a reflex reaction, the political discussion equivalent of the doctor hitting your knee with the little rubber hammer.
These kinds of questions around the coronavirus are at the heart of any serious course on jurisprudence, even beyond their similarities to other sticky areas of the law involving the other usual “tragedy of the commons” suspects, such as pollution, riparian rights, fishing/coastal waters, etc. In a more general sense, all of law – even religious law – has been principally concerned with the problem of “externalities” i.e. of when one person’s activities/actions cause a measurable harm to another person. The key word (of course) is always “measurable” because measurement, as a scientist will tell you, is simply a “comparison to a known standard.” Unfortunately, the “standards” for what is a legally actionable “harm” – and how it can be measured – vary widely across cultures, and even subcultures within a single culture or legal system. Wiccans, BernieBros, and tort lawyers all measure the “harms” of various actions, government or private, with different standards in mind. Which also partly helps explain why they are all perfectly certain that they are right about every issue of public policy on which they disagree: each is (probably) logically “right,” but only if we use the standards of measure that are at the heart of their philosophy. Therein lies the rub. In case it’s not clear, I believe that this “standards of measure” problem is at the heart of a lot of intractable disagreements; people argue right past each other using different “rulers” – standards of measure – for the same event(s) and no one can understand why the other person doesn’t “see” the error of their ways. (I get an image in my head of a Frenchman – measuring in metric – arguing with an American who is using feet, yards, and inches. The two have veins bulging in their necks and neither understands why the other has a different ‘number’ as the answer.)
I note at the beginning that I am not going to lean on the cases that deal with an HIV positive person knowingly having sex with an unwitting victim. While those cases are useful for the extreme hypotheticals (like my Jello examples) I don’t think they add much to the discussion because the answers are too obvious. I’ve defended and prosecuted these kinds of cases in the military, so I’m fairly familiar with the case law. It seems to me that these kinds of cases provide a kind of outer boundary of the discussion, but the real meat of the conundrum is in between the extremes. It is from there that I deploy my legal perspective, using a framework that I believe covers all of the competing interests, while also addressing the legal problem of consistent standards of measure.
It seems an impossible conundrum to resolve, this argument over “standards” – even worse than English versus Metric system – yet somehow, in the pluralistic society that is the United States’ melting pot, we’ve managed to provide some degree of certainty in dispute resolution for several hundred years… Or even thousands of years, if one is willing to trace our legal history back through the British common law to the medieval/early Germanic (Anglo Saxon) weregild, then further back through Alfred the Great’s Doom Book, to the courts and complexity of the Roman law, from the Twelve Tables through the Justinian Code. Adjudicating the vast array of problems that can arise between large groups of people living in close proximity in pluralistic societies is not a new concept in human endeavors; this thumbnail sketch is just a brush through the Western legal tradition.
In all of that jurisprudential tradition there are certain figures that stand out for their contributions to helping our understanding of certain thorny issues, distilling what looks like nothing more than convention into articulable, legal principles. Judge Learned Hand certainly falls into that category and I believe one of his cases provides a nice “jumping off” point for some elucidation on the question Mexi and the Glibertariat raised: what are the duties of an infected person to “society?” Is going out in public while you have the Wu Flu – and know it – an NAP violation? What is the measure of the “harm” and how do we provide recompense for it? I’ll attempt to answers these (and other) salient questions.
Justice Hand’s opinions are a staple of law school casebooks and United States v. Carroll Towing, Co., 159 F.2d 169 (2d. Cir. 1947) may be his most famous. Hand achieved fame as a judge on the 2nd Circuit Court of Appeals and is considered by many to be the best judge who never made it to the Supreme Court. Learned Hand is the most quoted lower court judge… of the United States Supreme Court. Carroll Towing concerned itself with a legal concept known as “consequential damages,” but in the context of the sinking of a barge, the Anna C., and her cargo, while at a Manhattan Pier. Before we drill down on Carroll Towing, however, we need a little legal history and background. The archetypical case regarding consequential damages, the contextual legal history in which Carroll Towing takes place, is another staple of the law school casebook, Hadley v. Baxendale, 9 Ex Ch 341 (1854).
Hadley and his partner owned a mill which ground grain into a meal and processed it into flour, among other products. One of the steam engines in the mill had a crankshaft break and Hadley contracted with W. Joyce & Co. company to replace the crankshaft. W. Joyce required the broken shaft be shipped to them, which Hadley did, using Baxendale’s shipping firm. The essence of the case is that Baxendale’s firm failed to deliver on schedule as he had contracted and Hadley sued for what he paid for the promised shipping, as well as consequential damages – his lost profits/commerce for the days that the mill was out of service, in excess of what the promised delivery schedule would have yielded. IOW, Hadley wants the revenue for the days he was shut down because of the shipping delay.
Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
This principle is frequently referred to as the “foreseeability” test of HvB. Okay, so far, so good (seemingly). On the surface this seems a sensible rule in which the consequential damages from a contract can only be imputed as those which can be reasonably deduced from the commercial context in which the contract occurs. This isn’t very far off from contract formation; the opinion goes on to repeat itself about what might be in the contemplation of each party in the “great multitude of such cases occurring under ordinary circumstances.”
At its core, however, it is really (in my opinion) the creation of a new unit of measure: the commercial actor, a special form of homo economicus. Behold! The businessman, to whom the Law will impute knowledge of the surrounding circumstances under which a contract is made. We can call this another variant of the Law’s ubiquitous “reasonable man,” who pops up in other areas of the law, like criminal law, quite frequently. While this has some virtue by providing some limitation on damages in contract cases, like many judicial decisions, it has been well-criticized as being nothing more than justifying what the judges in the case already believed.
For instance, the wiki on Hadley v. Baxendale points out this issue regarding the “principle” enunciated in the case; because it doesn’t seem to turn out the way it should under the rule announced. Wouldn’t a commercial shipper be on notice that every day over its promised delivery date is a day of lost revenue for the business awaiting the items of repair? If you have doubt about your ability to ship commercially and meet promised dates, then maybe you’re in the wrong business? In other words, this issue doesn’t seem like some far-fetched, hidden outcome for a commercial shipper. It looks rather like “the great multitude of such cases occurring under ordinary circumstances.” OTOH, should the shipper be liable for days of work that haven’t actually occurred? Due to a shutdown by events that the shipper had nothing to do with? For now, let’s leave Hadley’s rule aside and simply live with the questions it asks in the back of our mind and return to Carroll Towing and Justice Hand.
The facts of Carroll Towing don’t appear to have been much in dispute even at the trial level. The Pennsylvania Railroad Company chartered the Anna C from Conners Marine Company. The Anna C was moored at Pier 52 on the North River along with several other barges; a load of flour belonging to the FedGov was in the Anna C’s hold. It was winter (Jan. 4, 1944) in NY Harbor, and the water conditions were choppy, with a fair bit of wind. The barges at Pier 52 were tied together by mooring lines and one barge at Pier 52 was tied to another set of barges at the adjacent Public Pier. On the day of the accident the tug Carroll was sent to remove a barge from the Public Pier and in the process of removing the barge, the line between the barges at Pier 52 and the barges at the Public Pier was removed. After the removal of the line, the barges at Pier 52 later broke free and a whole bunch of barges and their cargo went catawampus. Among the casualties was the Anna C, which wound up on the bottom of the harbor with the United States’ flour. The US sued Carroll Towing Co., owner of the Carroll tug who removed the line between the two piers in an indemnity action.
The crux of the legal issue was (again) consequential damages, except in this case it was in the context of a tort suit for negligence, rather than an action on a contract. (I submit for the lawyers and legally educated that the distinctions between contract and tort law are largely irrelevant legal fictions. See, e.g., Grant Gilmore, “The Death of Contract,” (1974). Tort law deals with civil wrongs for which the law recognizes a remedy; Contract law is merely a specialized subset that deals with which promises the Law will recognize as enforceable and which ones it won’t. Wills and Trusts and Property transfers all deal with the exact same question.)
In Carroll Towing, there didn’t appear to be any gross negligence on anyone’s part, but just to review, the Western legal tradition has a fairly well-developed (‘black letter’) body of law regarding negligence as a tort. The formula is (generally) that there is an existing legal duty that a person breaches, which can be shown to be the proximate cause of a harm to another, from which there is some damage. Various jurisdictions expand on these, but legal negligence generally involves a Duty, a Breach of the Duty that causes Harm to another, and Damages. Each of these aspects has (literally) tomes dedicated to picking at the particular thorny questions of each, and all have difficult questions around standards of measure at every step. Who decides what the legal duties are between individuals in a Constitutional Republic (and when did that happen)?? How do we decide if my actions are the proximate cause of someone else’s harm? And what is the measure of damages – a subject with which we’ve already had a preview via Messrs. Hadley and Baxendale.
The standard to which we are all held is, as noted above, the “reasonable man,” or “reasonable and prudent” person, or some variation on the same yardstick. This “reasonable man” standard has been justifiably criticized along the same grounds as Potter Stewart’s more honest formulation regarding pornography: “I know it when I see it.” How would any of us know, for example, that a tugboat captain had been negligent – had failed – in his duties? Setting aside the procedural and evidentiary questions, we can imagine that there is some body of professional custom and knowledge, not unlike our own vocations and avocations, to which we can turn and inform ourselves, and then make judgments about whether or not someone has lived up to or missed the mark. That seems a straightforward enough proposition, but the problems of competing, alternate reasonable decisions can make even this an exercise in arbitrary line-drawing (pun intended). For example, was it unreasonable for the harbormaster to order the extra line that joined the two piers cast-off? That line was not normally there. How abnormal were the sea conditions? Is the duty of a commercial carrier, like the commercial shipper M. Baxendale, higher than that of the average person? Do we impute a higher standard of care to people who handle the goods of others, especially people handling ships?
It is into this maelstrom that Judge Hand waded and offered, I believe, a lantern to help illumine the murk around these issues.
Judge Hand’s opinion begins in earnest with a survey of the existing caselaw surrounding barges, tugs, and similar previous maritime mishaps. He engages in the exact work mentioned above, attempting to tease out the “body of professional custom and knowledge” that governs the conduct of each of the various parties: from the harbormaster, to the deckhands, to the absent barge handlers who had gone home for the evening. Another aspect of the law that impinges is the obligation to mitigate damages. That is to say, the law imposes affirmative duties on plaintiffs, too, and one of them prohibits what I call “wallowing in ongoing harm.” For example, the landlord who loses rent because a tenant breaks their lease the day before the lease begins must attempt to fill the now-vacant apartment; she cannot simply leave it empty and claim damages for month after month after month and presume that a court will now give her the entire year’s lease as the measure of the “loss.”
Likewise, Hand’s examination of various parties’ obligations includes the duty that even plaintiffs or their agents had. It raises interesting questions all over again about who owes what obligation to whom. For example, if the weather was bad enough that a court says the harbormaster breached his duty of due care by casting off a certain line, are the individual ship-owners and their crews also not on notice of the same exact conditions – and therefore responsible for taking mitigating actions to ensure their own ship’s and cargo’s safety? Hand covers this in the early paragraphs, but it is his discussion of the interrelation of these factors that has become a lighthouse for law students and practitioners – and even shitty, amateur, libertarian philosophers – to provide some firm ground by which to navigate.
It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.
This is the setup for what would become Hand’s most quoted, and likely most famous, legal pronouncement.
Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL.
Let the mathematicians, and other certainty-demanding knaves, rejoice! A formula – an actual mathematical &$%^ing formula! – in a legal opinion. Praise be!
Hand’s formulation of this legal rule for negligence cases represents (IMO) something so profound that it may be counted among those rare opinions that eventually pass as wisdom.
Liability for negligence is an inequality in Hand’s formulation. First, we calculate/discern the likelihood (i.e. the probability) of a harm coming to fruition. Second, we measure the gravity of the harm. We then multiply those two items and compare it against the burden of the defendant taking sufficient precautions to prevent the harm from coming to be. Zut alors! Le voilà!
Here is Hand’s own application to Carroll Towing, for everyone’s consideration.
Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in “The Kathryn B. Guinan,” supra; and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her.
Now, I do not for an instant want to suggest to anyone that there are no unanswered questions left by Hand’s opinion. In fact, in part 2, I will put that framework to the difficult test of our COVID-19 example and hope that the resultant red meat in the comments will be something that adds value to all, even if it includes disagreement. My ultimate goal is to offer at least a better understanding of the “standards of measurement” issue that I believe underlies the constant tension between individual rights in a connected society, and the competing demands of collective solutions to various “tragedies of the commons.”