Governor, Legislature and COVID-19:  The Case of Louisiana

Louisiana has been and remains one of the epicenters of the COVID-19 epidemic in the United States.  Likely as a result of the failure of national and local officials to anticipate the possible health consequences of holding its traditional Mardi Gras celebration -- which brought over a million visitors to New Orleans during the last weeks of February -- New Orleans became an early hotspot for COVID-19.   From there, the disease spread rapidly throughout the state.  As of May 7, Louisiana had over 30,000 confirmed COVID-19 cases and has suffered well over 2,000 confirmed COVID-19-related deaths.  Not all communities in the state have been equally affected.  While African-Americans make up only 32% of the Louisiana population, they have accounted for some 57% of the COVID-19-related deaths.  St. John the Baptist Parish (or “county” for non-Louisianians), a small rural parish in the heart of Louisiana’s infamous “Cancer Alley,” has the highest per-capita death rate from COVID-19 of any county in the United States.  As of the beginning of May, the rates of new infections appeared to be declining in several parts of the state.  However, rates of new infections are still increasing in the Baton Rouge area and in the northeastern portion of the state, while holding steady in central Louisiana.

Against this background, a battle is brewing between Louisiana’s Governor – John Bell Edwards, a Democrat – and its overwhelmingly Republican-controlled Legislature, regarding how quickly the state should rescind the “stay at home” orders.  Governor Edwards first declared a state of emergency on March 11 and followed up with his initial “stay at home order” on March 13. That order effectively shut down most state offices, public and private schools and non-essential businesses.  That order has been renewed and extended several times since, though with minor modifications.  Most recently, on May 1, Governor Edwards issued the latest proclamation, easing restrictions on business activity to some extent (for example, by allowing restaurants to serve customers on outdoor patios, subject to minimum distancing requirements), but continuing the bulk of the stay-at-home rules through at least May 15.   In response, the Louisiana legislature has embarked upon multiple initiatives to force the governor to rescind, or at least substantially modify, the current stay-at-home order.   One effort, spearheaded by Louisiana House of Representatives Republican delegation chairman Blake Miguez, has sought to use the normal legislative process to pass laws modifying the governor’s order.  Though the specific wording of any proposed legislation is not yet final, the intent appears to be to amend the Louisiana Homeland Security and Emergency Assistance Act so as to limit the governor from issuing orders of this type.  On May 6, the Louisiana House and Governmental Affairs Committee held one afternoon of hearings and has voted to recommend such legislation.  At this point it remains unclear whether any such legislation will be enacted, whether it could be passed over the governor’s veto, or whether any of these measures would take place before the latest order expires by its own terms, on May 15.  It seems more likely that the threat of such legislation is being brandished as a bargaining tool, and that the governor and the legislature will reach some sort of compromise, with a substantial weakening of the state’s anti-COVID-19 mitigation efforts arriving sooner rather than later.  Politics, at least, seems to be proceeding as usual in Louisiana.

However, a more radical effort is also underway. State Representative Alan Seabaugh has proposed that the Louisiana House of representative make use of a previously un-used provision in the state emergency laws, which would at one stroke allow a one-house “petition” to rescind the Governor’s initial declaration of an emergency, and all the orders which have flowed from that original declaration.  It is unlikely that Rep. Seabaugh’s effort will bear much fruit.  As has been pointed out, rescinding the governor’s initial declaration of an emergency would likely put at risk the federal aid which has come into the state as a result of that declaration.  However, the fact that this mechanism has even been proposed can focus attention on the underlying Louisiana statutory scheme for dealing with these emergencies, and whether that scheme may violate the Louisiana Constitution of 1974.

In issuing his emergency proclamations Governor Edwards relied on the very broad statutory authority granted to him by the “Louisiana Homeland Security and Emergency Assistance Act”, first enacted in 1993 and amended into its current form in 2003.  In relevant part the Act provides that:

the governor is “responsible for meeting the dangers to the state and people presented by emergencies or disasters, and that in order to carry out the purposes of the Act, the governor may issue or amend orders, proclamations and regulations having the force of law;

a disaster or emergency, or both, shall be declared by executive order of the governor if he finds that a disaster or emergency has occurred or is imminent, and shall continue until the governor finds the threat of danger has passed;

during the state of emergency, the governor is empowered to suspend any regulatory statute and the operations of any state agency, may call upon all resources of the state or any of its political subdivisions, transfer control of state functions, commandeer private property, mandate rules regarding transportation, housing and alcohol.”

In delegating this authority to the governor, the Louisiana legislature reserved to itself a purported power to rescind a gubernatorial declaration of disaster or emergency, by a one-house petition (i.e., the provision that Rep. Seabaugh relied on, in proposing his one-house veto by petition):

“The legislature, by petition signed by a majority of the surviving members of either house, may terminate a state of disaster or emergency at any time.  The petition terminating the state of emergency or disaster may establish a period during which no other declaration of emergency or disaster may be issued.   Thereupon, the governor shall issue an executive order or proclamation ending the state of disaster or emergency.”

As any student of constitutional separation-of-powers doctrine would note, this statute raises at least two constitutional issues: 1) whether the broad, standard-less delegation of authority to the governor to determine whether an emergency exists violates non-delegation doctrine; and 2) whether the statutory provision which allows a “one house veto” of the governor’s action violates the ordinary requirements of bicameralism and presentment.

To be sure, the non-delegation doctrine appears to be, for the moment at least, a dead letter on the national level.  The U.S. Supreme Court has not struck down any Congressional delegation of authority to executive agents on such grounds – no matter how broad or standard-less – since the 1930s.  However, the doctrine – and the principle on which it rests, that elected legislatures have a non-delegable duty to determine basic policy for the state – remain alive and well in many states, including Louisiana.  As recently as 2013, the Louisiana Supreme Court struck down a state law which delegated authority to a Board representing rice producers, to assess fees on all rice produced in Louisiana.  Though the decision rested on several grounds, the court was clear that the legislature’s failure to confine the Rice Boards’ discretion with appropriate standards violated the state constitution.   So too, perhaps, here.

The second issue is less clear, as Louisiana appears to have no case equivalent to the U.S. Supreme Court’s decision in INS v. Chadha which found the one House veto unconstitutional for violating the Constitution’s bicameralism and presentment requirements.   The Louisiana Constitution appears to be at least as clear as its federal counterpart in prescribing that legislation must be enacted in the proper way: by majority vote of each house and with presentment to the governor.  The Louisiana Constitution however allows the state legislature to suspend laws by concurrent resolution, without presentment to the governor, but it has been persuasively argued that this language should be interpreted to apply only to legislation, not to orders and regulations.  The Louisiana Administrative Procedure Act allows for legislative suspension of administrative agency rules and regulations, also by concurrent resolution, but it is unclear how that would apply to gubernatorial proclamations.  And, in any event, both these provisions require action by both houses.

It remains doubtful that the governor and legislature will come to an impasse requiring judicial scrutiny of the Louisiana Homeland Security and Emergency Assistance Act, but if they do, the results may be interesting.

 

 

 

 

A New Textualist Argument in the Title VII Cases, and the Risks of Corpus Linguistics

The Title VII cases pending before the Supreme Court are a notable test for conservative proponents of textualism, who find themselves uncomfortably confronted in Zarda and Harris Funeral Homes with strong arguments from the interpretive school most closely associated with Justice Antonin Scalia. That debate has been well-documented, with some conservatives already speculating in the Wall Street Journal and on Twitter that they may have lost it.

Still, there are two more months before the Supreme Court is likely to rule, and thus more shadow briefing to be done. So last week James C. Phillips sought to recast the textual evidence with a subtly modified claim relying on corpus linguistics. For a textualist like Justice Gorsuch, who may be attracted to petitioners’ analysis but concerned about the outcome that would result, Phillips’s intervention could provide important new textual evidence.

Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips’s analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.

A. The Standard Textualist Claim in the Title VII Cases

Beginning early in the Title VII litigation, the gist of textualist question has been: does the plain text of the statute, which forbids discrimination “because of . . . sex,” also encompass sexual orientation and gender identity? At oral argument in Zarda, Pam Karlan began with a simple comparison: “When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.” The standard response to that claim has been that it gets the analysis wrong: it fails to isolate sex as the reason for the firing because, when a male employee who dates men is substituted for a hypothetical woman who dates men, what changes is not only the gender of the employee, but also their sexual orientation. The man is fired not because he’s a man, but because he’s gay; and if he were instead a woman who dated men, that woman would necessarily be straight. The better comparison, it is said, is to compare a gay man with a lesbian woman. Only firing that man, and not the woman, would qualify under Title VII as sex discrimination.

At oral argument, Justice Kagan said any such possible imprecision didn’t matter, because the Court need not isolate gender as the sole basis for an employer’s action. Karlan’s comparator sufficed to show that, by varying gender, sex was at least a “but for” cause of the discrimination, and the statute required nothing more. Remarkably, Justice Gorsuch suggested he might agree (see page 44 of the transcript). Even if the plaintiffs’ argument did not “isolate the sole or proximate cause,” he said, and even if sexual orientation necessarily varied with sex, that only showed that “perhaps there are two causal factors at work here . . . [and] isn’t one of them sex?” If the answer is yes, the case would appear to end there for any textualist who ordinarily would resolve ambiguity with reference to a statute’s overall purpose only after the text has been judged ambiguous (if at all).

B. The “Principle of Compositionality”

Phillips’s textual analysis is different than that which has so far preoccupied commentators and the Court because he argues that “discriminate against,” especially when paired with a particular suspect class, functions like an idiom with its own distinct meaning, a “linguistic unit . . . by the time of Title VII’s enactment” in 1964. That unit, Phillips argues, “refers only to adverse treatment that rests on prejudice or bias . . . directed at some or all men in particular, or at some or all women in particular.” Because the litigants seem to agree that Congress didn’t specifically intend to prohibit discrimination on the basis of sexual orientation or gender identity, Phillips’s argument thereby effectively incorporates purpose into the very meaning of the words of the statute, rather than leaving it for consideration only after textual ambiguity is identified. Borrowing from linguistics, he associates his approach with the “principle of compositionality”: when a phrase operates as a composite unit with collective meaning that cannot be understood through the analysis of each of its parts. Having defined “discriminate against” as textually referring only to prejudice against members of a group, and noting that all such groups were identified in the statute, Phillips concludes that the text cannot be read literally to reach discrimination against LGBTQ people (who were, after all, not enumerated in the statute). If Congress had intended a literalist reading, it could have used general words rather than this particular idiomatic phrase.

1. A Questionable Specialized Meaning

To prove the prejudice-oriented meaning he claims, Phillips gathers evidence from corpus linguistics, and supports it with contemporaneous dictionaries. He argues that the Corpus of Historical American English (COHA) at the time of the statute’s passage reflects a common and particular usage of the phrase “discriminate against”; that the phrase’s collocates (the words that most often appear before or after the phrase) in that corpus suggest a special meaning limited to prejudice against members of particular suspect classes; that the phrase’s binomials (especially common pairs of words) are associated with such prejudice; and that dictionaries at the time are generally consistent with such a reading.

But Phillips’s analysis, if conceptually appealing, goes awry. First, he begins by observing that “discriminate” and “against” are frequently paired together in COHA, but he finds only 125 instances of the phrases “discriminating against,”  “discriminated against,” “discriminate against,” or “discriminates against” in COHA’s 48 million-word corpus of books, magazines, and newspapers covering the 1950s and 1960s. Even if one can rely on the unusual frequency with which “discriminate” and “against” appear together (most of the time), prejudicial collocates following the phrase collectively appear only about half the time. Reading the sentences themselves,[1] rather than relying on collocate statistics, shows that “discriminate against” (and its permutations) was used just as often to refer to non-prejudicial subjects like one country discriminating against another’s products, or a state discriminating against interstate commerce, or Americans coming to discriminate in their diets against “beef having yellowish fat.” The phrase “discriminate against,” in other words, is (at best) just as likely to embrace either of the two ordinary meanings of the word “discriminate” alone: either to distinguish, or to subordinate.

Second, in concluding that the phrase “discriminate against” (and its permutations) had a subordination-oriented meaning in 1964, Phillips overlooks the possibility that the phrase’s usage in the legal context may have differed from popular usage. Though Phillips’s analysis only relies on COHA, another American English corpus is available from the same time period: one that collects all issued U.S. Supreme Court opinions. Though it is a quarter the size – comprising some 12 million words, from more than 4,000 opinions issued in the 1950s and 1960s – it nonetheless contains 392 references to the forms of the phrase “discriminate against” that Phillips analyzed in COHA (i.e., more than three times as many). It turns out that the word  “discriminate” (and its permutations) is even more likely to precede “against” in the legal corpus (about 70% of the time) than in the popular language corpus (about 50% of the time).

In this legal context, the collocation-based connections to particular types of prejudiced motivations become even less compelling. Of the nearly 400 usages of the phrase “discriminate against” (and its permutations) in Supreme Court opinions during the 1950s and 1960s, the vast majority (clicking “context” after the searches[2]) refer not to prejudice against suspect classes, but to issues like employers discriminating against unionized employees in labor disputes, states and companies discriminating against other states’ and companies’ trade, and one governmental unit discriminating against another. Fewer than a quarter of the collocates used a variation of the phrase to refer to prejudicial motivation; larger categories referred to discriminatory trade restrictions and labor law issues. It is true, of course, that the opinions the Supreme Court issues reflect only the kinds of cases for which it grants cert. But the overwhelming skew in the data suffices to at least show that the specialized meaning of the phrase that Phillips claims existed at the time was even less true for legal writers than for popular ones. And it’s perhaps more likely that Congressional statute drafters wrote more like Supreme Court Justices than like authors of books and magazines.

Phillips also writes that textualist evidence can be derived from binomial pairs, like “cease and desist” or “aid and abet,” in which one word often appears with another. He writes that “the most common form of the binomial prejudice and [WORD] was prejudice and discrimination, appearing twice as often as any other word following the phrase prejudice and.” But that, of course, tells us only about words following “prejudice,” and little about what usually follows (or precedes) the only word that matters, the one in the statute: “discrimination.” After all, the most common noun that precedes “and discrimination” in the corpus as a whole (reaching beyond the 1950s and 1960s for illustration) is “taste” – but the fact that “discrimination” often follows “taste and” doesn’t tell us much that’s meaningful about “discrimination.” It tells us mostly about “taste.”

Finally, Phillips cites dictionaries to indicate that the phrase “discriminate against” was also defined in relation to prejudice. It is true that is one of two traditional definitions. But all of the dictionaries Phillips cites also include a distinction-oriented definition, and it’s not clear why we should opt for the prejudice-oriented definition when the distinction-oriented one was used at least as commonly in COHA and much more commonly in the corpus of Supreme Court decisions. At least two dictionaries published during the 1950s and 1960s – the Oxford Illustrated Dictionary and the Chambers’s Twentieth Century Dictionary – don’t have prejudiced-oriented definitions at all.

2. The Risks in Specialized Meanings

The work Phillips’s evidence claims to do is to render the word “discriminate” to mean something narrower than a mere “causal link” of an adverse employment action. Even if sex is, in a kind of word game, one of many but-for causes of discrimination against a gay or transgender person, it is not the central, motivating, and prejudicial reason. One could quibble over what this really achieves: the discrimination alleged against the plaintiffs was motivated by prejudice too, and it’s not clear that prejudice on the basis of sexual orientation or gender identity are not both species of discrimination on the basis of gender stereotypes, in the same way that sexual harassment of masculine women and effeminate men have been held to be (as in Price Waterhouse and Oncale; a note in the Yale Law Journal well makes this point).

But even if the evidence better supported the linguistic claim, there would be other textual problems with Phillips’s approach as well.  First, words are generally to be given their ordinary meanings. This is true with limited exceptions, as when there is a clearly borrowed common law meaning, or when the statute itself has defined a term – and even when Congress has defined a word or phrase, “It should take the strongest evidence to make us believe that Congress has defined a term in a manner repugnant to its ordinary and traditional sense” (Babbitt, Scalia, J., dissenting). Neither exception applies to the phrase “discriminate against.”

Second, whatever textual value corpus linguistics has, the Title VII example shows how equivocal the evidence can be. Some semantic tools are more reliable linguistic short-hands than others. It wouldn’t make sense to elevate weak corpus linguistics evidence over comparatively strong structural evidence.

Here, that structural evidence is unusually strong, because the statute exempts employment practices that formally, but not functionally, discriminate when they constitute “bona fide occupational qualifications.” If a prejudicial motive was required to violate Title VII, it would be bizarre to create a prominent scheme of exceptions to a public policy combating subordination. The statute expressly contemplated, and created exceptions for, otherwise facially discriminatory employment actions not motivated by prejudice, like mandatory retirement ages for pilots or denominational requirements for pastors. (And as a matter of precedent, the Supreme Court has already ruled, in Automobile Workers v. Johnson Controls, that “[t]he beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a).”)

Phillips’s argument demonstrates how frustrating it can be for some textualists to deny themselves purposivist evidence: it tempts them to find particular forms of intent in words themselves, because it generally can’t be considered at the level of an overall statutory scheme. At the very least, if textualist judges are to accept corpus linguistics evidence of meaning, as Phillips has elsewhere urged should be prominently integrated into originalist methodology and textualist statutory interpretation, they should demand clearer and better evidence than that which exists in the Title VII cases.

[1] These links don’t work in all browsers, and could not be captured by Perma.cc. To re-create the results, search “discriminate* against” and “discriminating against” in List for the 1950 and 1960 sections of COHA and click “context.”

[2] Again, these links don’t work in all browsers, and could not be captured by Perma.cc. To re-create the results, search “discriminate* against” and “discriminating against” in List for the 1950 and 1960 sections of the Supreme Court corpus and click “context.”

President Trump’s Misguided Effort to Take Down the Affordable Care Act

President Trump announced last week that his Administration would redouble its efforts to dismantle the entire Affordable Care Act at the Supreme Court next Term. The President’s statement was stunning, especially in the midst of a global health crisis. That’s because a win for the Administration would leave millions without affordable health care and other protections in the ACA, including protections that enjoy wide, bipartisan support.

The statement was stunning for another reason, too: the shockingly flimsy legal argument that supports it. The Administration’s bold move to undo the entire ACA is based on nothing more than a barefaced bait-and-switch that confuses the standard for congressional authority with the standard for severability. The Court should see right through this and uphold the bulk of the ACA, even if it strikes the single provision at issue.

The case, California v. Texas, tests the continuing constitutionality of the ACA’s “individual mandate,” the provision that requires us all to have health insurance. Recall that the Court upheld the mandate in NFIB v. Sebelius under Congress’s power to tax. The ruling noted that the ACA imposed a financial penalty on individuals who failed to obtain insurance, and that this penalty operated like a tax. The Court ruled that Congress therefore had authority to impose the mandate under its taxing power, as a tax penalty. 

In 2017, Congress “repealed” the mandate. But Congress didn’t strike the mandate from the books. Instead, it merely set the tax penalty for noncompliance at $0. This meant that individuals could go without health insurance with impunity. 

Several states and individuals then sued the government, arguing that after the 2017 change, the mandate was invalid, because Congress no longer had authority to enact it. The plaintiffs claimed that because Congress set the tax-penalty at $0, the mandate could no longer generate revenue for the government. And because it could no longer generate revenue, they said, it could no longer stand as an exercise of Congress’s power to tax. 

The plaintiffs then went a giant step further. They claimed that because the mandate was an essential part of the ACA, it could not be “severed” from the other provisions of the Act. According to the plaintiffs, this meant that the rest of the ACA must be invalid, too. The district court agreed. The government supported the district court’s ruling at the Fifth Circuit, and now, with President Trump’s statement, at the Supreme Court.

But the argument is spurious, and even dangerous. It’s spurious because it deliberately confuses the standard for congressional authority with the standard for severability. To see this, go back to one of the key Obama Administration arguments in support of the individual mandate. The Administration argued that the individual mandate was an essential part of the ACA—one leg of a three-legged stool. In particular, the Administration claimed that the guaranteed-issue and community-rating provisions—which prohibited insurers from denying coverage based on pre-existing conditions and from charging more to sick people, respectively—would drive insurance rates up. This, in turn, would mean that fewer healthy people would buy insurance. And this, in turn, would drive rates even higher, resulting in the infamous “death spiral.” The Administration claimed that requiring healthy people to buy-in to the insurance pool would keep rates affordable for everyone.

But this wasn’t just an economic argument; it was also a constitutional one. The Administration claimed that the individual mandate, as an essential part of the ACA, was justified under Congress’s Commerce Clause and Necessary and Proper Clause powers. According to the Obama Administration, that was because it was a necessary part of the congressional effort to regulate the interstate effects of the health insurance market. The Supreme Court rejected this reasoning in support of congressional authority to enact the individual mandate.

But now the Trump Administration has coopted this reasoning and mis-applied it in support of non-severability. The Trump Administration argues that the essential role that the individual mandate played in the original ACA is now the reason why the Court can’t sever it from the rest of the ACA—and why the entire ACA therefore must fail. In other words, the Trump Administration transparently baits the Court with the original justification for the individual mandate, but switches to use it for its severability argument. 

But this conflates the standard for congressional authority with the standard for severability. In contrast to congressional authority, severability asks whether Congress wants the rest of the ACA to stand, even if the Court strikes the individual mandate. All indications say yes. For one, Congress in 2017 only set the tax-penalty to $0; it did not write the mandate out of the ACA, and it certainly did not write out any other provision of the ACA. For another, insurance markets have demonstrated now that they can work (without a death spiral) with operative guaranteed-issue and community-rating provisions, even without an effective individual mandate. For a third, the guaranteed-issue and community-rating provisions enjoy widespread, bipartisan support. So do the many other provisions in the ACA.

And that’s where the Trump Administration position is outright dangerous. The argument threatens the many other provisions of the ACA that benefit nearly everyone. Examples run from the insurance exchanges, to tax credits, to requirements to cover dependent children, to restrictions on high-cost insurance plans, and more. The Trump Administration’s position threatens all of these. 

The Court should see right through the Trump Administration’s bait and switch when it hears the case next Term, and flatly rejected this mis-guided attempt to take down the entire ACA.

We Need to Provide Resources for COVID-19 Victims, Not Tort Immunity for Businesses

Tort law makes it unlikely businesses would be found liable for the costs of COVID-19 infection among workers and consumers, yet American businesses are lobbying hard for immunity from suit. How to make sense of this? The best explanation is that businesses and their liability insurers anticipate massive rates of illness and death upon reopening the economy. Faced with medical expenses and lost wages, desperate claimants might file suits in hopes of prompting settlements even from prudent businesses who have taken precautions against exacerbating the rate and amount of infection. In other words, the push for “liability shields” rests on a recognition that reopening the economy is going to make a lot of people very ill and facing large expenses, rather than the stated concern that cautious businesses would not be able to successfully defend against tort claims. If many people are going to be devastated by disease, we should not  be providing business with tort immunity. Instead, we should be planning to provide resources to the millions who will fall ill and families whose members die. If we do this, businesses will be far less likely to face great waves of claims, and we can leave the tort system to impose liability on those actors who fail to take reasonable, prudent precautions against workplace infections.

American tort law makes it challenging for individuals to recover damages from those who may well have injured them. An injury victim generally bears the burden of proof on every element of a tort action, so that to recover in a negligence suit, for example, the plaintiff must convince a factfinder that it is more likely than not that a defendant was careless, this carelessness empirically caused injury and played a significant causal role, and that injury inflicted specific losses. Furthermore, the plaintiff’s case can be countered by a defendant who can successfully persuade the factfinder that the plaintiff’s own conduct was, more likely than not, careless and played a significant causal role in bringing about the losses alleged.

Picture a situation where a warehouse or factory worker comes down with COVID-19. That person won’t have a ready tort claim against their employer in any event as he or she will have to turn first to workers compensation. But assume that the worker’s spouse also contracts COVID-19, with grave consequences. It is very hard to see how the spouse would have a viable claim against the warehouse or factory owner.

The spouse would have to show the warehouse or factory owner omitted precautions a reasonable, ordinarily prudent person would have taken to protect people’s safety. Unless we are talking about an enterprise that was operating without social distancing, appropriate ventilation, gloves and masks, and cleaning and disinfecting and so forth, this would be hard to establish. Tort law does not expect those who create risk of personal injury to take superhuman or even supererogatory precautions; to avoid being legally at fault, a business need only take reasonable, ordinarily prudent, duly considerate measures to limit the risks of injury they impose on others.

Additionally, to win a lawsuit, the spouse would have to show that the conduct of even a legally careless factory or warehouse owner was, more likely than not, a source of his or her COVID-19 and a significant causal factor in his or her case. Since the very problem with COVID-19 is that it is caused by a highly contagious, pervasive virus and since we are assuming the spouse contracted the disease upon reopening, there will be many ways in which the worker and the worker’s spouse could have been exposed to the virus. Showing that, more probably than not, it was the worker’s exposure at the factory or warehouse that caused the spouse’s particular illness and also that the workplace exposure more probably than not directly caused the spouse’s COVID-19 would be daunting.

Even if the spouse could make out legal carelessness and causation, the warehouse or factory owner would be able to argue for a reduction in its responsibility for damages if it can show that the spouse engaged in legally careless conduct that exposed him or her to the virus and that this exposure played a significant causal role in the spouse’s illness. Any inattentiveness to handwashing, mask-wearing, or social distancing by the spouse would ground this sort of defense. The more instances of legal carelessness by the spouse, the more likely that his or her own conduct swamped any causal role played by his or her partner’s workplace exposure.

As this example illustrates, between being able to rebut claims of carelessness and causation and citing victim’s own conduct as a source of their illnesses, businesses stand a good chance of prevailing in COVID-19 tort suits brought against them. Typically, that means would-be plaintiffs would find it difficult to find lawyers to bring such suits. Plaintiffs’ attorneys litigating personal injury cases generally only get paid if their client wins the suit, so attorneys decline improbable claims.

If, however, millions of Americans have no place to turn for assistance in bearing the costs of sickness and death from COVID-19, some attorneys might bring suit, hoping the sheer number of sick and ill plaintiffs will encourage liability insurers to settle rather than pay the costs of defending in court. Unlike litigation, settlement would not differentiate those employers and businesses whose careless conduct causes extra infections from employers and businesses acting prudently and safeguarding against enhanced rates of disease.

In this way, even cautious businesses could end up bearing the medical expenses, lost wages, and pain and suffering of ill and deceased workers and consumers.

Ordinarily, businesses deal with the prospect of litigation and settlement by reducing the risks they create or by raising their prices to cover liability insurance premiums. The drive for immunity suggests: American businesses recognize that they cannot do much to reduce the incidence of COVID-19 as the economy reopens; they anticipate large scale serious illness; and they do not think they can simply pass along the costs of liability insurance to consumers, presumably because the threat of illness-driven claims is making liability insurance expensive.

We should be sensitive to businesses’ push for liability immunity when tort law does not actually warrant fear of liability. The push tells us that businesses do fear claims. Science tells us that millions of Americans will suffer illness and death from COVID-19 in the coming months. However, neither factor justifies liability immunity for businesses. If we cannot or will not cover the costs of a pandemic by paying higher prices for goods and services nor limit costs by staying home, and if we do not want to leave COVID-19 victims without funds for medical care and living expenses,  we need systematic social welfare funds to meet the needs of the sick and the dependents of those who die.

The Enduring Problem of the Race-Blind Reasonable Person

It is not without a sense of irony that one of the most pressing internal challenges facing the administration of justice today is its capacity to effectuate equal application and protection of the law based on one its most fundamental historical pillars–i.e., reasonableness as manifested in the reasonable person. In the context of constitutional law, and especially the Fourth Amendment, the conceptualization of reasonableness is  a lynch pin for the functioning of law as a process, yet it also has the potential to be the most insidious form of injustice for people of color and other marginalized communities. A recent Fourth Amendment case in South Carolina, State v. Spears, reflects the contentious relationship between reasonableness, the reasonable person, the criminal law, and race.[1]  South Carolina Supreme Court Chief Justice Donald Beatty’s dissent in Spears identifies the highly problematic nature of the foregoing vis-à-vis the legal process. The Chief Justice’s observations resonate with an overarching problem that reasonableness and the reasonable person pose in the criminal law, the legal process, and the equal administration of justice.

Pitfalls of a “Reasonable Person” Analysis

In Spears, Eric Terrell Spears was indicted for trafficking crack cocaine. The trial court denied Spears’ motion to suppress the evidence of the drugs seized by police on Fourth Amendment grounds and he was subsequently convicted.[2] On review, the Supreme Court of South Carolina held that there was sufficient evidence to support the trial court's finding that Spears engaged in a consensual encounter with law enforcement, and that Spears' subsequent actions created a reasonable suspicion that he may have been armed and dangerous—justifying law enforcement's Terry frisk that led to the discovery of the offending crack cocaine on Spears' person.

Chief Justice Beatty dissented, arguing that Spears was seized in violation of the Fourth Amendment at the beginning of his interaction with the police officers, because a reasonable person would not have felt free to terminate the encounter with law enforcement. Furthermore, law enforcement did not have reasonable suspicion to justify the seizure.

The threshold question of  “whether Spears was seized . . . . hinge[d] on how a reasonable person would perceive the encounter with law enforcement.”[3] While Chief Justice Beatty acknowledged  that Fourth Amendment jurisprudence does not take into account explicitly “personal” characteristics such as race, sex, age, disability, and so forth, when making this determination, he nonetheless states that “a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.”[4] The Chief Justice points out that, “Scholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement (Spears is an African-American male).”[5] This context is indispensable to having a complete understanding to the “totality of circumstances” for Fourth Amendment consideration. The Chief Justice goes further to explain that, “‘For many members of minority communities . . . the sight of an officer in uniform evokes a sense of fear and trepidation, rather than security.’ Moreover, ‘[g]iven the mistrust by certain racial, ethnic, and socioeconomic groups, an individual who has observed or experienced police brutality and disrespect will react differently to inquiries from law enforcement officers . . . .’ Unfortunately, under our existing framework, this can result in the evisceration of Fourth Amendment protections for many people of color.”[6]

The Chief Justice also references a similar discussion by United States Supreme Court Justice Sonia Sotomayor: “But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”[7] Chief Justice Beatty also considers the current Fourth Amendment jurisprudence in light of these concerns, stating that “In spite of these academic findings and judicial observations, our current framework fails to meaningfully consider the ways in which a person's race can influence their experience with law enforcement. As a result, I fear minority groups are not always afforded the full protections of the Fourth Amendment. Given the interests at stake, one would expect our criminal justice system to forcefully resist marginalizing the experiences of people of color by insisting on a ‘color-blind’ reasonable person standard.”[8]

Revisiting Reasonableness & the Reasonable Person

In the singular context of this case, the Chief Justice’s dissent highlights the potential of legal reasonableness and the reasonable person analysis to exacerbate the administration of injustice. His analysis reveals how the historical conception of a “reasonable person” employed by the law becomes a means of perpetuating a politics of racial/ethnic exclusion of the “Other,” i.e., a non-white racial/ethnic subject. The Other is required to comport themselves as a reasonable person that bears very little resemblance to their lived reality. This results in the “Other” being constrained within a concept that excludes them by imposing the worldview, norms, values, etc., of a rendition of the reasonable person that is not reflective of their world. Spears demonstrates that this is not merely an esoteric observation with scant applicability in the empirical world. Historically, police signify a very different state of affairs for the “minority” subject than other racial/ethnic subjects, which has a direct and indelible impact on what constitutes a reasonable person in those communities.

Most concerning is the way in which cultural clashes fuel excessive verdicts and sentencing by the very fact that the current rehabilitative justice model cannot readily incorporate non-Anglo and non-Western European cultural, political, economic, and social norms and values, which correlate, in large part, with the present day application of a non-representative reasonable person. This is observed by Chief Justice Beatty when he states: “[s]pecifically, [Spears] contended a seizure occurred because a reasonable person would not have felt free to walk away from the initial encounter. Spears also contended the agents did not have a reasonable suspicion to stop him. The State argued the encounter . . . was consensual and the agents therefore did not need a reasonable suspicion to initiate the stop.”[9] Reason, reasonableness, and the reasonable person are thus fraught with subjectivity and internal fragmentation.

In light of the changes that have transpired vis-à-vis the “People,” the question becomes whether the concept of the reasonable person retains truth-value in the present time.[10] Emerging segments of the population that were previously silenced and marginalized—silence informed and defined, for example, by race, ethnicity, economic status, immigrant status, and gender—have prompted a need to comprehensively reconsider the reasonable person and, by extension, reasonableness within the law.[11] The “repressive” nature of the traditional reasonable person ablates the subjective—the cultural traditions and histories that are not comprehended by the reasonable person’s notion of reasonableness either drop out or are appropriated and redefined by the dominant standard of reasonableness. Is the reasonable person simply “Everyman, an individual without race, class, gender, or any other non-universal characteristics? Or is the reasonable person someone who resembles the defendant herself, possessing some or all of the defendant's characteristics?”[12]

The reasonable person requires reevaluation because of its significant disconnect from the human communities that are emplaced into the legal process. Examples of identity and experience that muddy notions of reasonableness include: the relationship between police and certain racial groups; the relationship and dynamic between male and female perspectives; the relationship between transgender or gender nonconforming and cisgender identities; and the interplay between religious and secular perceptions on values and norms.

If law’s purpose is to serve the People, the reasonable person in its present manifestation, becomes less reflective of the population (particularly as demographic trends suggest Latinos will become the numerical majority) and less legitimate.[13] The cultural superstructure upon which the necessary illusion of reasonableness and the reasonable person rest is being divested of the “universal” and “objective” (selective) scaffolding supporting a supposedly objective interpretation of reasonableness. For example, as a society we are now more cognizant that an undocumented community’s relationship with law enforcement creates a completely distinct sense of reasonableness when analyzing Fourth Amendment searches and seizures than the reasonableness of the same searches and seizures in an affluent, predominantly white suburban community.[14]

Jurisprudence, however, has been slow to keep up. In United States v. Smith, the defendant argued, in asserting a Fourth Amendment claim, that "no reasonable person in his 'position'—as a young black male confronted in a high-crime, high-poverty, minority-dominated urban area where police-citizen relations are strained—would have felt free to walk away from the encounter" with law enforcement officers. 794 F.3d 681, 687-88 (7th Cir. 2015). The Seventh Circuit Court of Appeals acknowledged the relevance of race, “racial profiling, police brutality, and other racial disparity in the criminal justice system . . . to the question of whether a seizure happened” but concluded that such considerations were not dispositive.  Id. at 688. The Tenth Circuit Court of Appeals has concluded, contrarily, that race is an inappropriate consideration in the reasonable person analysis, stating “there is no uniform way to apply a reasonable person test that adequately accounts for racial differences consistent with an objective standard for Fourth Amendment seizures” and therefore refusing to engage the entire enterprise. See United States v. Easley, 911 F.3d 1074, 1081-82 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

It is thus the case that the reasonable person, in its present manifestation, simulates and disseminates an antiquated legal and sociocultural construct that acts to suppress the sociocultural dynamics that stem from the configuration of the People as they are presently constituted. The reasonableness of judgment and legality are divested of relevance in the present. The continued use of the traditional reasonable person and its notion of reasonableness are part of an ever-present past. The consequences are significant for the majority of legal subjects that do not fit into the sociocultural basis of the traditional reasonable person.

[1] State v. Spears, 839 S.E.2d 450 (S.C. 2020).Id.at 454.

[2] Id.at 454.

[3] Id. at 463.

[4] Id.

[5] Id. (citations omitted).

[6] Id. 463-64 (citations omitted).

[7] Id. at 464 (citing Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal citations omitted); see also Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding the City of New York liable for the New York Police Department's stop-and-frisk policy, which violated plaintiffs' constitutional rights, and noting the racial disparities in the policy's implementation)).

[8] See Robert V. Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person,” 36 How. L.J. 239, 241 (1993) ("Because the reasonable person test assumes that a person's interactions with the police is a generic experience, the test is biased.").

[9] Spears, 839 S.E.2d at 453.

[10] Symposium, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1234 (2010).

[11] See e.g., Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stanford L. Rev. 1241 (1991).

[12] See Kevin Jon Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 Am. J. Crim. L. 4 (1998-1999).

[13] Symposium, supra note 17, at 1259-61. Similar concerns have arisen in the context of race. For example, the New Jersey Supreme Court noted in Taylor v. Metzger: “Some courts have found that a particularly offensive remark, if not repeated, will not be sufficient to establish a hostile work environment.” 706 A.2d 685 (N.J. 1998); see e.g., Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker’s one time use of a racial epithet insufficiently severe to establish a hostile work environment), aff’d, 58 F.3d 640 (11th Cir. 1995); Reese v. Goodyear Tire & Rubber Co., 859 F. Supp. 1381, 1385, 1387 (D. Kan. 1994) (holding a manager insinuating that all black people abused drugs insufficiently severe to establish a hostile work environment); Bennett v. N.Y.C. Dep’t of Corrs., 705 F. Supp. 979, 983 (S.D.N.Y. 1989) (concluding that corrections officer’s remark, “hey black [expletive], open the . . . gate,” to another officer did not amount “to more than a mere episodic event of racial antipathy” and was thus insufficient to sustain a claim of a racially hostile work environment); McCray v. DPC Indus., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (holding sporadic racial slurs by co-workers insufficiently severe to establish a hostile work environment). Nevertheless, a single utterance of an epithet can, under particular circumstances, create a hostile work environment. See e.g., Taylor, 706 A.2d 685. (RP 211-212)

[14] See Ward, supra note 10, at 240-41.

Wisconsin’s “Safer at Home” Order Isn’t a Quarantine—But that Doesn’t Mean it Isn’t Necessary to Control the Spread of Coronavirus

The Wisconsin Supreme Court will decide the fate of the state’s “Safer at Home” order any moment now. In doing so, the court is considering the legislature’s argument that the mandate to stay at home (with broad exceptions), prohibition on nonessential travel and gatherings in private spaces, and closure of nonessential businesses amount to a legal “quarantine” and are therefore subject to specific statutory requirements. Department of Health Services (DHS) Secretary-Designee Andrea Palm counters that the department’s quarantine powers “have no relationship” to the Safer-at-Home order, which “quarantines no one.” Palm argues her order, which is scheduled to remain in effect until May 26, is authorized by a broader grant of power to “implement all emergency measures necessary to control communicable diseases.”

Most people had never heard of “social distancing” prior to 2020. “Quarantine” (a much older term used in state and federal statutes to describe isolation of infectious patients and quarantine of their exposed contacts during the incubation period or—more rarely—border controls prohibiting people from entering or leaving an affected facility or community) and “lockdown” (a media invention with no legal meaning) are commonly used to describe the layered interventions that are slowing the spread of infection. But social distancing is distinct from quarantine in the legal sense of the term. Many social distancing interventions do not fall neatly within specific statutory provisions the way quarantine does. Instead, most state and local officials are relying on broad grants of authority to “control communicable diseases.” 

The basic strategy of closing schools and other places where people tend to gather dates back at least as far as the 1918-19 influenza pandemic. As described in a study of archival records by Howard Markel and his coauthors, “nonpharmaceutical interventions were legally enforced and affected large segments of [a] city’s population” for a period of one to ten weeks. The study documented mandatory “[i]solation of ill persons and quarantine of those suspected of having contact with ill persons” as distinct from public school closures and bans on public gatherings ordered by city officials. “Public gathering bans typically meant the closure of saloons, public entertainment venues, sporting events, and indoor gatherings were banned or moved outdoors; outdoor gatherings were not always canceled during this period (eg, Liberty bond parades); there were no recorded bans on shopping in grocery and drug stores.”

The term “social distancing” first appeared in post-9/11 preparedness plans. In the decade following the airliner and anthrax attacks of 2001, federal, state, and local governments invested considerable resources in preparedness. At least one post-9/11 pandemic plan described more extreme forms of social distancing than were used in 1918-19. A 2004 CDC plan for possible resurgence of SARS, which had a case fatality rate of a little under 10 percent and no vaccine, recommended “community-wide measures to increase social distance,” as a strategy distinct from isolation of the infected and quarantine of the exposed. Social distancing was designed to apply to “[a]ll members of a community in which 1) extensive transmission … is occurring, 2) a significant number of cases lack clearly identifiable epidemiologic links at the time of evaluation, and 3) restrictions on persons known to have been exposed [i.e., quarantines] are considered insufficient to prevent further spread.” 

A 2005 Homeland Security Council strategy for pandemic influenza similarly addressed social distancing as a measure distinct from “quarantine authority.” The strategy advised that individuals and families should be prepared for “limitation of attendance at public gatherings and nonessential travel for several days or weeks.” A 2007 CDC plan for pandemic influenza, assuming a case fatality rate of 2 percent or higher and the ability to develop a strain-specific vaccine within about 20 weeks, similarly advised social distancing strategies more in line with those used in the 1918-19 pandemic. The pandemic flu plan advised that “[s]ocial distancing measures can be implemented in a range of community settings, including educational facilities, workplaces, and public places where people gather (e.g., parks, religious institutions, theaters, and sports arenas).”

During the same post-9/11 time frame, many states modernized their public health emergency and infectious disease control statutes. In some states, statutory frameworks give the governor power to issue detailed emergency orders in response to a public health emergency. In Wisconsin, the emergency management statute (Wis. Stat. § 323.10) indicates that the governor, upon declaring a public health emergency, “may designate the department of health services as the lead state agency to respond to that emergency.” The statute defining the scope of the health department’s powers includes an umbrella provision (Wis. Stat. § 252.02(6)) granting power to “authorize and implement all emergency measures necessary to control communicable diseases.” A second broad provision (Wis. Stat. § 252.02(4)) gives the department authority to “issue orders … for the control and suppression of communicable diseases.”

The breadth of these provisions would appear to accommodate any emergency measure deemed “necessary” in a communicable disease outbreak to control the emergency, including the multi-layered social distancing measures adopted by Palm in her “Safer at Home” Order. Of course, in addition to being authorized by statute, these measures must also respect constitutional limits based on civil liberties and the separation of powers. 

Palm’s order, issued with the blessing of Democratic Governor Tony Evers, has been criticized by several members of the state’s Republican-controlled legislature and some justices of the conservative-majority state supreme court. Now the future of the “Safer at Home” order appears to be in jeopardy, following a live-broadcast oral argument held via video conference in which multiple justices expressed disdain for the order.

The first issue on which the court granted the legislature’s petition for original action in Wisconsin Legislature v. Palm raises separation of powers and rulemaking requirements. The second raises the statutory scope of the state health department’s power to respond to the coronavirus pandemic. Civil liberties claims were not raised in the petition, but they did appear to be on the justices’ minds during oral argument.

On the statutory scope of powers issue, the legislature relies on the specific/general canon to argue that the grant of certain specific communicable disease control authorities to the Department of Health Services (DHS) should be read to bar the use of more general authorities to achieve similar purposes. Mandatory orders for the general public to stay at home are not specifically addressed in the statute, but “isolation of a patient” and “quarantine of contacts” are addressed in Wis. Stat. § 252.06. Prohibitions on private gatherings in people’s homes and nonessential business operations are not specifically addressed in the statute, but school closures and prohibitions on “public gatherings in schools, churches, and other places” are addressed in Wis. Stat. § 252.02(3). The legislature’s petition argues that Secretary-Designee Palm’s orders fall outside of the scope of these specific grants of authority and therefore cannot be authorized by separate, broader grants of authority.

Secretary-Designee Palm argues that the section authorizing isolation of patients and quarantine of their contacts “is irrelevant.” Quarantine and isolation powers permit the confinement of an individual to a designated location at all times, with no exceptions for meeting essential needs. Palm describes these measures as “highly restrictive” and “applicable only under special circumstances to a particular individual.” Palm argues the quarantine and isolation statute “says nothing about individuals who have not been diagnosed with a communicable disease, and Safer-at-Home says nothing about imposing those kinds of measures.” As a matter of statutory construction, she has the better argument. Moreover, the broader grants of statutory authority in § 252.02(4) and (6) appear to grant discretion to DHS to determine whether any given emergency measure is “necessary.” The court should recognize the Safer at Home order as falling within the department’s statutory authority, though the justice’s comments at oral argument seem to hint at a more dire outcome. 

Pre-pandemic plans, such as the 2004 plan for SARS resurgence, caution that the most extreme disease control measures “[m]ay be controversial because of infringement on personal liberties,” and that it “[m]ay be difficult to solicit cooperation for extended periods, particularly if the rationale is not readily apparent or was not clearly explained.” They recommend that implementation “[r]equires excellent communication mechanisms to inform affected persons and to maintain public confidence in the appropriateness of the chosen course of action; [m]ay need to provide replacements for affected activities (e.g., school, essential service providers); and [m]ust address mental health and financial support for affected population.” Elected and appointed officials would do well to keep this advice in mind as they navigate the challenges ahead. Clear communication of goals and supports to enable compliance and minimize secondary harms are critical. The public’s trust is a scarce and precious resource in a pandemic and the worst of this crisis may yet be ahead of us. Ultimately, the time may have come for the legislature to weigh in on the next steps in the state’s pandemic response, but lifting executive-branch orders in the meantime via judicial decree would be the wrong approach to that transition.