In Part 1, I ended with Learned Hand’s famous cost-benefit formulation in the Law of Negligence:
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. 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.
Now before I get down legal rabbit holes, I want to make a few things clear after my braying about Hand’s genius in Part 1: first, I’m not sure that he is completely correct, but I’m still certain of the genius of his contribution, in the same way that I’m not certain that Newton or Einstein or Seaborg or Oppenheimer were completely right about everything they offered, but I’m no less certain of the genius and value of the contributions. Carroll Towing‘s contribution to the intersection of law and economics continues to be discussed, anayzed, and debated using high-level mathsz that are… interesting to me, but only academically.
Some important caveats apply because Hand does some other “calculations” and never explicitly accounts for the value judgments that underlie those decisions elsewhere in the opinion. For example, Hand notes that the Anna C.’s bargee
left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence that he had no excuse for his absence.
Second, the court “deduces” that had the bargee been on board the Anna C. when it cast off, he would have been in a position to communicate with the other ships, including the tug, and save the Anna C., as well as her cargo, and ergo, is entitled to no damages for the Anna C. sinking. This gets us into deeper areas of negligence law governing contributory negligence and supervening/intervening causes, and a host of other areas that are outside the scope of our consideration, but they represent important judgments about how liability gets apportioned using non-falsifiable alternate realities. Hand also makes some judgment calls about who would have done what if the bargee had been present during the line switching by the harbormaster and deck hand. Hand presumes that the harbormaster could have “ignored” any protest by the Anna C.’s bargee over line-handling, so is therefore still entitled to some of the “collision damages.”
Notwithstanding all of this, I think Hand’s opinion is useful is because it gets us to begin thinking about the line-drawing we do in society around other people’s behaviors in terms of risk analysis, (B>PL) something human beings have been wired to do, have been doing in the area of infectious disease spread long before tort law, and should have no problem adapting to infectious diseases that spread via less demanding vectors, such as sexual contact. Now, I previously said I wanted to stay away from criminal cases involving HIV transmission as templates because criminal law involves issues of mens rea and, as I noted previously, someone who has a deadly, contagious illness, and knowingly engages in intimate contact that is likely to cause infection, and doesn’t tell the other person ahead of time is at (IMO) the outer boundary limit of useful discussion. Of course that’s an NAP violation. There’s not much else useful to be gleaned from discussing that example.
However, sexual contact also involves questions of disclosure – i.e. what obligations are owed between people engaging in sex, specifically by those who have a sexually transmitted disease/infection? People have been knowingly and unknowingly giving each other all of the possible permutations of life-threatening (syphilis) but treatable, and non-life threatening (gonorrhea) and curable (crabs), incurable (HIV) – but now treatable – and that’s to say nothing of pregnancy and abortion risks, for as long… well, at least all of recorded history, would be my assertion. What’s amazing is that we engage in all manner of mitigative steps, risk calculations, avoidant behaviors, or flagrant, or dangerous behaviors, and yet no one thinks we need the government’s help in sorting that out beyond the extreme, and extremely rare, cases. I know a woman whose fiancée gave her an STD that cannot be cured. They stayed together for some time after that, managed it as a part of their relationship, then eventually broke up. What is she going to do – sue him now?
We have societal/cultural/even human expectations that before someone engages in something as significant as the reproductive act, they simply must be aware of at least some of the possible consequences – and legally speaking, we either impute that knowledge to them (is one way of describing it). For example, would a case lie for a 25 year-old woman who got pregnant as a result of sex and then claimed that her partner didn’t tell her that was a possibility? That she had therefore been the victim of fraud? Would anyone vote to convict the man whose defense was simply that he’d asked and she’d said yes? It’s laughable to bring it up, but it’s important because it illustrates the point: we have certain baseline expectations of anyone who is of a certain age and operating inside of this meatsack just like the rest of us are, so perhaps the “reasonable (wo)man” standard isn’t so much a legal fiction as it is a necessary “standard/unit of measure” for adjudicating if/when there has been been a harm and/or assigning consequences to the proper party where we recognize a legal harm.
Let’s slide back and to the right for a moment because the decision to engage in behavior that we expect adults to at least have some ideas about, such as sex, also requires intimate contact that doesn’t raise the same concerns of transmission that COVID19 does. So, let us suppose instead for a moment that I know I have been in contact with someone, like my daughter the nursing tech, who was in contact with someone else (a patient) who might have COVID19? What are my legal “duties,” societal obligations, vis a vis the rest of the world? What externalities am I now obliged to mitigate? What, to use the template I’ve raised, does my B>PL readout look like under Hand’s formulation?
In my opinion, this is where the important discussion really begins. The exact framework (or “balancing test”) that you, or I, or a court, uses isn’t nearly as important as long as the there is a workable model and it captures the relevant interests at stake. The common law is excellent in this way at evolving from various fact-patterns to refine the model/framework/balancing test as new “data” comes into the ‘black box’ of litigation. So, my daughter told me she was awaiting her patient’s COVID results, but she had purchased a coffee table for her new apartment and needed to borrow my truck to go get it, and… couldIpleasecometodaybecauseit’sheavyDadandI’mworkingtomorrowplease?
I hadn’t seen middle-daughter in a few weeks and the father-daughter hockey game we were supposed to go see between the ‘Yotes and Canucks had just gone kaput. I also had a big stack of her mail that keeps getting sent to the house from when she was staying here and some of it was almost two weeks old.
What is my Burden, my Probability, and the Injury (L)?
Here is where it gets interesting because there are a range of possible outcomes, and sliding scales of danger (i.e. probabilities of harm) – much as I discussed before with STDs – and as with everything else in life… such as controlling 2500-3500 lb. vehicles hurtling through space at speeds of 80 mph in close proximity to other cars doing the same thing, all with their completely independent, unknown agendas, with varying degrees of mitigating or risky behaviors one and others can take, from talking on the phone to wearing a seatbelt to driving while intoxicated. And then there’s the point that we insure against risks, all kinds of risks, like car accidents, and thefts, and rocks hitting our windshield, and actuaries and claims adjusters process gajillions of points of data to make cost determinations for premiums and deductibles and hospital coverage… To use just one example.
Being in possible contact with someone who was/or might have been exposed to COVID comprises a whole range of possible risks, from death to mildly ill to nothing whatsoever, and depends in part on other mitigating behaviors, from wearing masks, to meeting outside, standing farther away from people, washing hands more often, avoiding those who are at higher risk, etc. Then there’s the various contingent events that have to come to be for a worst case scenario: (1) that my daughter was exposed, and (2) that she is now a carrier, and (3) that our driving in my truck together to get a coffee table and bring it back to her apartment will be sufficient to infect me, after which I then (4) bring myself into contact with someone else, and that contact is also (5) sufficient to cause them to contract the virus, and (6) either that person will get sick and/or die of COVID, or (7) transmit it to someone else whom they otherwise might not have. There are also a host of other possibilities, including everything from she was exposed and doesn’t have it, to she does and our contact isn’t sufficient to transfer it to me, to the mitigating actions I can take on my own (ride my motorcycle and leave my helmet on while out; wear a mask; only interact with my own family members; and on and on) and all of those mitigating measures have to be accounted for, in some fashion, in an honest comparison of whatever one defines to be inside of the “P x L < B.” All of these could probably be subjected to some kind of Vegas-like probability analysis, with the infection rates controlled for various lifestyle and mitigating factors, much like insurance actuaries do for motorcycle and/or car drivers, and red car drivers, and drivers under 25, and on and on, to make it look super-science-y! All of this, by the way, would point towards our reaction being completely over-the-top and out-of-proportion when we are talking about 775 total deaths in the US as of March 25, as I type this.
There are other aspects of this, too, I submit, of which even a cursory consideration shows that we are quickly trending to the absurd. Wherever and whenever we speak of legal obligations we are ultimately making judgments of where and when it is sufficient to use the force of the State against an individual who doesn’t “measure” up. If I can prove you stole from me, under the procedures that we establish for adjudicating “harm” (“externalities”), a jury of my peers will award me money damages that comes out of your ass…ets. In criminal law, the Law actually does take it out of your ass…eventually, via third parties.
Let’s push on for a moment to the place where I am most comfortable and have made a living for the last two decades, the place where the “rubber” of a citizens’s rights meets the “road” of the State’s Power: the courtroom. Those who believe that there are affirmative legal obligations on each and every citizen to the larger society with respect to “flattening the curve,” or limiting the spread of infectious disease, presumable have some B > PL formulation in which the calculus works out against the individual’s Freedom and Liberty to make their own calculated choice during epidemics to conduct themselves as they see fit as a rational adult. It didn’t even take me one page of searching to find that there are people who beat me to this schtick; it also perfectly illustrates that you can make anything fit your preferred outcome by simply ignoring/disregarding/being unaware of a whole range of relevant interests. We’re right back to the “measurement problem” I keep talking about, except in this instance, even a comprehensive measurement system (like Hand’s) doesn’t work if you don’t measure things that might impact your desired outcome. This is like being an accountant and deciding that you don’t want to include “expenses” in your calculations because you really need to show a profit at the end of this spreadsheet.
The most egregious failing in that piece, however, isn’t that it comes out contra what I believe, it’s that it doesn’t even acknowledge what I find to be the most significant problem of all with the “shelter in place (or else)” mantra: the process by which one would adjudicate who has crossed the B > PL line from “this is acceptable behavior” to “this is out of bounds.” I don’t mean the the measurement/ruler problem, though; I mean the mechanical problem of proving that someone has not “measured up.”
My daughter texted me a couple of days after I helped her move. “Welp, looks like I’m now a possible vector of COVID!?” read the message. I talked to her later and she told me that her patient was the one that tested positive of the 3 that came in on the night in question. Which means that I have akshually been in contact with someone who’s been in the presence of the dreaded WuFlu!
Now let’s gin up the hypothetical-case machine and pretend that the woman at the FedEx store where I dropped off my package tests positive for COVID19. She is in her late-50’s, mildly overweight, also is a smoker and pre-diabetic. The AZ version of the crack CDC COVID-response team conducts a thorough investigation and they get a list of customers and eventually show up at my door asking questions, to which I coolly reply, “Do you have a warrant? No? Fuck off then, please.” Okay, probably not, but there are real questions here for the Statists who think that a mandatory lockdown is a real power the State has, or should have. Does the “State’s” interest in controlling the pandemic now vitiate my right to remain silent? Can they just snatch me on the spot and take me to the hospital to take a test for COVID19? Can that test result be used against me in a civil proceeding by the FedEx woman’s family for damages if she dies? What should be the quantum of proof necessary to convince a jury that I’m legally responsible? In a criminal proceeding it’s beyond a reasonable doubt, but civil proceedings have everything from “clear and convincing” down to “preponderance of the evidence” (more likely than not). Then – what about my right to reciprocal discovery, my right to present evidence that would make it less likely I’m guilty or liable, and to present evidence in extenuation or mitigation? Wouldn’t I have the right to know everyone else that woman had come into contact with and from whom she might also have gotten the disease? Wouldn’t that be essential to a fair trial, to allow me to show that I wasn’t the proximate cause at all?
The people who believe that the Governor or President can order us into our homes, or to cease making a living, may not realize it, but they (necessarily) believe that our individual legal obligations during a pandemic include the duty to stay home, or the duty to not work, and that violations of those obligations can be met with the force of the State. That’s what the Law is.
Now, if you’re reading the last two paragraphs and thinking, “Hey! Wait a minute… you made me read more than 5500 words of your bullshit in two separate pieces just to conclude that shelter in place orders are completely unworkable as a matter of practical nuts and bolts trial procedures? Why didn’t you just say that up front, asshole!?” My response to that is twofold. First, on the asshole charge, I plead guilty to a lesser-included-offense. Second, I offer this thought on my experience in trying to convince smart people of anything: you have to meet smart people “where they are” and that frequently includes distracting them with lots of smart-people trinkets, like law review articles from Princeton, and economics articles from Brown, and quotes from jurists named “Learned Hand.” It’s kinda like giving your kid the car keys to distract them from their hunger. ?
In all seriousness, the real reason I took the “road less traveled” to get here is that I wanted to conduct a serious inquiry into how we engage in risk analysis and mitigation all of the time, in every aspect of our lives. From learning to walk to touching a hot stove to driving a car to taking our kids to the beach, we are pattern recognition machines par excellence whose brains are engaged in a nonstop process of “Observe-Orient-Decide-Act,” Col. Boyd’s famed “OODA loop.” Learned Hand’s B >PL is as good a starting point as any (and better than most) for cost-benefit analyses involving legal obligations; and it is my contention that we have been doing this exact thing sub rosa in the area of transmission of diseases and viruses, up to and including ones that are deadly for certain portions of our population, for millennia. We are wired this way.
Quarantine of small segments of a population may be necessary in the most dire of circumstances, the stuff of which movies are made, but none of the movies ever address how to square these “life-saving” measures with Freedom or Liberty; if the solution is life in a cage, all alone, for each of us, I’m not sure what we’ve “saved.” Of course, in the movies and TV the emergency measures are always “just temporary” until the heroes just beat the clock and cure the virus at great risk to themselves, but never do the movies – or the statists – deal with the more trenchant problem of less than life-ending consequences and risks, possibilities of mitigation, and how to assign liability in the event someone knowingly or negligently gets someone else sick. The brass tacks of that happen to be my specialty, particularly the processes, standards of proof, and rights that we all have within that adjudicative function. Everyone rushing to signal their virtue by supporting the suspension of our rights – if it saves “just one life!” – doesn’t seem to understand the Trolley Problem and undoubtedly hasn’t read the great Mister Bastiat on “That Which is Seen and That Which Is Not Seen.” For every life claimed to be saved by the extraordinary resources we have diverted to COVID, someone with diabetes, or sepsis, PTSD, or addicted to opioids, or some other illness or problem has been on the short end of the resource re-allocation. There are no free lunches.
I leave you with this: We’re going to be fine. Some number of us will get sick; a vastly smaller number of people will succumb to the disease. The trees will still turn CO2 and sunlight into oxygen and food, the skies will cloud and rain, and the sun will shine again. Love your friends and neighbors, and conduct your B > PL for yourself, the same as you do for everything else in your life. We’ve moved beyond leper colonies as a species and we don’t need a return to that for infectious diseases.