Hauptman-Woodward Medical Research Institute
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COVID-19 Tort Reform
Full text linkIn 2020 and 2021, 44 states and Washington, D.C. passed laws that limited tort liability related to COVID-19. The most common reforms immunized health care providers from malpractice or similar liability. A second category is limited liability to individuals or businesses for exposing others to the novel coronavirus. And a third category protected manufacturers of supplies used to detect and prevent COVID- 19 from products liability suits. The goals of these reforms included protecting health care providers from uncertainty in providing care for a novel disease, limiting the macroeconomic consequences of the pandemic, and encouraging the distribution of critical supplies to avoid shortages. States providing immunity assumed that institutions and individuals alike would react to reforms, as theory predicts, by engaging in more of the immunized activities. In general, the literature supports the assumption that institutions, like hospitals or manufacturers of face masks and COVID-19 tests, change their behavior in response to tort reform. Yet there is little empirical evidence demonstrating how tort law affects risk-taking by individuals. The lack of evidence about the relationship between tort law and individual decision-making is of broad interest, as one of the primary goals of tort law is to incentivize efficient levels of risk-taking. This Article provides novel empirical evidence on the effects of COVID-19 tort reform on public health. The analysis yields three important results. First, it shows that medical liability reforms had counterproductive public health effects. States that immunized health care providers from tort suits arising out of COVID-19 care experienced 20% more COVID-19 cases and 5% more COVID-19 hospitalizations. Second, the results demonstrate that exposure reforms counterintuitively decreased COVID-19 cases by making it easier for businesses and other institutions to require customers to comply with public health guidance. Third, the results reveal that tort law had very little effect, if any, on the precautions individuals chose to avoid contracting or spreading the disease. The third result is broadly interesting, as it indicates that tort law will be a weak incentive to individuals whenever they are choosing a level of care that can protect themselves or others
A Right to Be Left Dead
Full text linkTechnology forces us to contemplate a counterpart to the right of privacy—Brandeis and Warren’s “right to be let alone”—for the age of artificial intelligence: the right to be left dead. Traditionally, it has been presumed that even if Brandeis and Warren’s right constitutes “the most comprehensive of rights and the right most valued by civilized men,” it does not apply to the dead. The question is whether we need a new approach at a time when technology can reanimate anyone and make them behave in a manner indistinguishable from their living presence. This Article interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than the existing privacy, consumer protection, and property laws marshalled against unauthorized invocations of the living. A new right to be left dead can serve important social goals, but it must be narrowly construed, yielding to the critical interests of the living when necessary. To the extent legislatures and courts are beginning to grapple with the nascent problem of digital reanimation, they have failed to account for the most fundamental dividing line in existence—the line between life and death
Escaping Conditional Constitutionalism: Political Fear and Judicial Power in a Polarized Age
Full text linkFear of judicial power in the wrong political hands is on the rise, particularly with respect to the Supreme Court. We confront a crisis of “conditional constitutionalism”—the expectation that the United States Constitution stands for a different set of principles and requires adherence to a different set of rules depending on which party has appointed the Supreme Court majority. Conditional constitutionalism erodes the distinction between supreme law and ordinary legislation for many partisans, rendering support for the constitutional order itself conditional on the partisan composition of the Court. Fear of the Court stems largely from its inability to settle on a stable understanding of substantive due process, which has resulted in a body of contradictory or incoherent case law that can justify a broad range of outcomes and the selective treatment of precedent. This inability does not stem from the incompetence of the Court; rather, the institution lacks the legislative tools required to deal with policy cycling in this area and requires the assistance of the political branches. President Biden’s Commission on the Supreme Court of the United States recently considered several reforms, including term limits, court expansion, jurisdiction stripping, and supermajority requirements to overrule precedent. Although these proposals may have merit, they are not calculated to deal with the problem of policy cycling on the Supreme Court—and therefore cannot address the political fear that feeds into conditional constitutionalism. Two reforms that together may succeed are splitting enumerated rights from unenumerated rights and articulating justiciable standards for the Court in recognizing new liberty interests under the Constitution. Fearful ideologues and the public at large stand to benefit from a structural resolution of this crisis
While Waiting for Virtue: Comments on Schlegel’s \u3cem\u3eWhile Waiting for Rain\u3c/em\u3e
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Cake-and-Eat-It-Too Clauses
Full text linkImagine this: You have signed on the dotted line to purchase a home for 25,000. Right before closing, you find out that your bank will not provide the financing you thought you had secured. You can no longer afford to purchase your dream home. You are coming to grips with the reality that you are going to lose 100,000 in “actual damages”—the amount the house depreciated between the time you signed the purchase and sale agreement and the time you breached the contract. How is this possible? It is bad enough that you are going to lose $25,000. How can you be on the hook for even more? It is because of a little- known clause in your purchase and sale agreement that provides the seller with the option of retaining the deposit as liquidated damages or suing for actual damages instead. These clauses have a variety of names: election clauses, election of remedies clauses, optional liquidated damages clauses, or cake-and-eat-it-too clauses.
A surprising number of courts are prepared to give effect to these clauses, reasoning that they represent the parties’ intent, and that freedom of contract demands that they be enforced. This Article argues that courts are getting it wrong: liquidated damages clauses cannot be reconciled with election clauses. No amount of freedom of contract logic can get around the fact that the two clauses are legally incompatible. This Article examines the two different contexts in which liquidated damages clauses and election clauses intersect. First, a buyer may seek a return of his earnest money deposit, arguing that the presence of an election clause renders the liquidated damages a penalty. Second, a buyer may seek to foreclose a seller from pursuing actual damages under an election clause, reasoning that such a clause is fundamentally at odds with a liquidated damages clause. In the first scenario, the buyer seeks to invalidate the liquidated damages clause; in the second, he seeks to invalidate the election clause. This Article encourages courts to prohibit liquidated damages clauses and election clauses from coexisting in contracts. A seller who attempts to have his cake and eat it too should be relegated to the lesser of the two amounts
