Legal Liability and COVID-19: John Grisham Edition
The United States is often seen (and often sees itself) as a highly litigious society, ready to launch frivolous lawsuits for any and every reason. And there is some truth to this. However, having lived most of my life in another country, I've come to a different conclusion. The United States is not litigious by its nature, but its litigiousness is the consequence of the complete and long-standing failure of its government.
In other countries, citizens can rely on the government to protect them. This is what government institutions, regulations, and enforcement mechanisms are supposed to do—their purpose is to protect citizens from mistreatment at the hands of powerful private actors. And when these mechanisms are functioning well, citizens don’t need recourse to lawsuits. Victim of fraud? Contact the business regulator. Medical malpractice? Contact the medical board. Water or land contaminated? Contact the environmental regulation agency. And so on and so forth. And when institutions like these are working well, they are able to deliver the justice that citizens deserve.
In a functioning society, people shouldn’t have to hire private lawyers for each and every injustice they experience, because the government is supposed to act as a public mechanism for addressing these problems. However, in the United States, the government is so corrupted that it doesn’t serve this basic public function, but instead serves the interests of the powerful groups that are often the perpetrators of these injustices. And so, absent a public mechanism for addressing injustice, many citizens have little recourse but to hire private lawyers in order to sue.
It’s therefore no accident that John Grisham became famous in the United States, and it’s no accident that Julia Roberts won an Oscar for playing Erin Brockovich. The American cultural landscape isn’t filled with examples of government working well and delivering justice, it’s filled with countless examples of private lawyers delivering justice, stepping in when the government fails. And the ubiquity of these stories can make it seem like this is a universal phenomenon experienced in every developed country, but the truth of the matter is that these stories are particularly American. Detective stories and crime drama’s? You can find these in every country, because crime is a universal phenomenon. But the legal thriller? The story of a lone lawyer delivering justice when all else fails? That’s a purely domestic product.
Moreover, in the United States, this is hardly a new problem. For better or for worse, the New Deal era of big and effective government shapes how many Americans view their history, so that we see the current moment of particularly corrupt government as the exception rather than the rule. But the truth is that the New Deal was the exception, delivering a few decades of effective and responsive government (for some, at least), in an otherwise corrupt past. If examples like John Grisham and Erin Brockovich help illustrate this problem, perhaps an even better example is the fact that the conventional way we teach civil liberties and civil rights is through a purely legalistic lens. A woman’s right to choose? That was won by the private lawsuit of Roe. v. Wade. The right to attend any school regardless of race? That one was the private lawsuit of Brown v. Board. And what about the right to marry anyone regardless of sexual orientation? That was the private lawsuit of Obergefell v. Hodges. And where was the American government in many of these cases? All-too-often, it was on the wrong side of the courtroom. And none of this is to mention cases involving big business, often the prime antagonist in these legal dramas, and with whom the American government has sided for centuries.
Which brings me to today, and the example of COVID-19. As is often the case, what’s best for public health is not good for big business (just ask Philip Morris or Exxon). And unsurprisingly, the president is siding with big business, who are calling for the economy to reopen as soon as possible. However, while the president has repeatedly demonstrated a complete and total willingness to sacrifice the public good for private profit, he’s also proven that he’s a coward who refuses to take responsibility for any of his actions. Consequently, he keeps sending mixed messages. One the one hand, he keeps pressuring states to reopen, while on the other hand, he keeps walking back these statements when public health officials point out how dangerous it would be. So, he wants the economy to reopen, but he doesn’t want to be the person held responsible for the reopening.
But one person who did get the message was Georgia’s Governor Kemp. As of Friday, Kemp began reopening the state of Georgia. And while the president had initially called for states to reopen, he publicly criticized Kemp’s move, calling it too soon. However, while Kemp is no genius, he’s “smart” enough to know the president’s game: the president wants the economy reopened, he just doesn’t want to be accountable for the decision to do so. After all, while big business might want us all shopping and back at work, public health experts recommend that reopening should only be considered after several consecutive weeks with decreasing cases of COVID-19, and then, in only a very limited and deliberate way. However, Georgia is reopening, even though they haven’t hit their peak of cases yet.
Given the complete failure of government—or really, given that the government is wholly captured by the interests of big business—what other recourse do citizens have but to sue? Get sick at work or by visiting a business that reopened before it was safe to reopen? Good luck getting justice from Governor Kemp’s Department of Health. But if you’re wealthy enough to hire a lawyer, or if there are enough victims to warrant a class action suit, maybe you can get justice through the private rather than the public sector. These days, as is true of most days, it might be your only option.
Therefore, I was hardly surprised when I came across a recent article on the question of legal liability and COVID-19 in the Washington Post. As the article explains, the current administration is looking to pass legislation that exempts businesses from any liability related to their decision to reopen prematurely:
“President Trump has pushed to “reopen” the country to reverse the economic devastation caused by the coronavirus pandemic, but numerous executives have told the White House they are hesitant to reopen stores given the potential legal risk, these people said. White House officials are likely to seek the “liability shield” as part of the next stimulus package being taken up by Congress, and also are likely to enact an executive order and unilateral regulatory reform to curtail firms’ liability, a senior administration official said. The exact details of such an order have not been determined and planning remains in flux.”
As I mentioned earlier, without any meaningful government oversight, all we have is recourse to private lawsuits. But it looks like the president is looking to issue a blanket “get out of jail free” card to corporate America. But I should rephrase that, because it’s not really a get out of “jail” card. After all, only public prosecution on criminal charges can send someone to jail, because only criminal charges can lead to jail time. And in the United States, it’s hard to imagine the government criminally prosecuting corporate officials for reopening too soon given that the government actually wants them to reopen too soon.
Instead, given that criminal prosecution isn’t even on the table, what the government is actually trying to do is to issue a blanket amnesty for civil litigation too. In other words, the government is not going to prosecute companies on criminal grounds for reopening too soon, which would be a reasonable thing to do in any reasonable country. Instead, if the government has its way, you’ll lose your right to sue in civil court too.
So what’s the long story short? The White House has released its COVID-19 policy: Go to work, go shopping, and if you get sick, you can go screw too.