Justifying lockdowns from a standpoint of defending individual rights

Entrance of new Apple Computer HQ, one of the world's largest office buildings, at 5pm

Many people opposed to lockdowns feel they are an improper state interference with our liberty. Possibly an unconstitutional one, particularly in the case of religious gatherings.

For people who believe in a strong state, the lockdowns don't need much justification. For those who believe in limited government, it's a harder question.

Even the most libertarian people tend to feel the state has a legitimate role in protecting the lives and safety of the people. It has a monopoly on force, operating police, courts and the military to protect people, which is its legitimate role.

Here I explore some theories of lockdown justification based on principles of individual rights and small government.

If you breed and foster viruses, you are a threat

A person with an infectious fatal disease is a dangerous threat. They expose those they come into contact with to great, even mortal risk. Society lets people expose others to risks, but we don't tend to accept high mortal risk. We have a right to defend ourselves against it, or in particular to expect the government to act in our defence.

The personal right to life is the first of the individual rights, and you don't have the right to, through your deliberate negligence, infect me with a fatal disease

Naturally, how much this happens depends on the level of the risk. There is much debate about just how dangerous Sars-Cov2 is, and whether that level of danger justifies the actions taken to defend against it. Actions which do clearly impinge on the freedom of others. While people certainly do not have the inherent freedom to infect people with dangerous diseases, they do reasonably expect freedom of movement and association and it's a quandary when these come into conflict.

In almost any ethos, if you were infected with Ebola and you started lunging towards me, trying to hug me, I could use extreme force to defend myself. Including asking the government to force you into quarantine. Covid-19 is not Ebola, but rather than debate the fine points of how deadly it is, let's stipulate, in order to examine the moral questions, that it is indeed extremely dangerous.

Infections are special. Clearly if you know you are infectious, you should not be going out. Not only can you infect others, but they can pass this infection along in an exponential explosion. "Patient Zero," who first receives a new disease from an animal source, has caused, even though not deliberately, historic levels of harm. In addition, the more that people gather in groups which may contain an infected person, the more the risk of exponential spread increases. Even a gathering of people who have all knowingly consented to the risk of infection from the gathering can do harm to others, because it's close to impossible for them to assure that none of the others at the gathering will never come into contact with those who did not consent. The mere act of gathering produces risk for others outside the group, and for all of society. It is under this understanding that gatherings get regulated in an epidemic.

The key realization is that while one has the freedom to gather or to work, one does not have the freedom to knowingly breed and spread fatal infectious agents. You have a duty of care to avoid doing that, or you impinge on the rights and lives of others by creating more virus. And while I believe you have the full right to control your own body, and even to take risks to yourself with it, you may not permit it to be used as a bioreactor to breed dangerous diseases which can escape to others.

Giving aid and comfort to foreign invaders

The virus is a lethal foreign invader, smaller but in some ways not so different from an invading army or terrorist group. It is a violation of the rights of others to knowingly help the invader and give it a place to grow.

That alone is reason not to help the invader, and reason why people in self-defence might force you to stop helping via lockdown orders. But there is also an argument strictly from the point of financial liability and individual rights.

Liability rather than statute

Imagine for a moment a world where we could always tell from whom you got an infection. In that world, infecting somebody would be a tort, including wrongful death if the infection were fatal. Infecting somebody with a fatal disease would be manslaughter, and perhaps a negligent homicide. This tort and crime would extend through others infected by the ones you infected, though they would share in the liability, as might others who facilitated those meetings.

Some people would know they were infectious. Others might not know, but should have known they have a probability that they were. In a disease that has asymptomatic carriers and imperfect testing, all should know they would have some probability of being infected without being aware of it. Only a very few could claim they had no idea their actions were risky.

This world would have no state ordered lockdowns. The torts and crimes would be handled by the courts, as they are in even fully libertarian societies. Any person who knew themselves to be infected, or likely to be a carrier, would take extreme measures to self-isolate. (Indeed, anybody with even a cold would stay isolated, not wanting to have to pay for a few days salary for everybody they infect, or a portion of everybody infected by those.)

It would not just be those who knew the infection who would isolate, though. Even if there were only a 1% chance you were infectious, you would start reducing contacts if you knew that you might face expected costs of millions of dollars, and criminal manslaughter chargers if you lost that 1% bet.

Insuring against the risk you expose others to

For most risks, you can buy insurance. In fact, if you want to go driving, where you expose others to a small mortal risk, you are not even allowed to drive unless you get insurance (or post a bond) to cover the consequences of that risk. This is no minor cause, we buy $200B of insurance in the USA to cover that. Of course, driving on the public roads is a licenced privilege, and they have the power to deny it to you if you don't have the insurance. But if you are going to put others to great risk, a risk that you could not necessarily compensate, it can often be required that you have proof that you can compensate it, directly or through insurance, if you want to participate in society.

As the risk of infecting others went up, insurance premiums would go up. With fatal infections, they would go through the roof, and quickly put constraints on what you did if you wanted to get insured at all. In a serious epidemic, your insurance, or your fear of liability, would keep you out of all public gatherings and events, make you want to social distance.

I did some playing around with the numbers for what that liability might cost. There is no one answer -- it depends on the R0 of the virus, your odds of catching it if you don't socially distance, and how liability for those you infect would be split between yourself and the person who infected you. Based on some very rough but plausible estimates, I calculate the liability for not quarantining to be a bit over $1M and 180 counts of participation in negligent homicide Multiply that by your probability that you will get infected if you go out and don't social distance. Put that at 5% and it's about $50,000 and 8 counts of negligent homicide.

In other words, you would not need any law to tell you to lock down. You would do it on your own. Your activity is so risky to others that their rights, and their right to have you punished and forced to pay if you harm them are reasons not to take those risks.

Businesses would lock down earliest

If liability flowed to companies who gathered workers together, or venues who held meetings, they would shut down long before any government order might come. In fact, even the "essential" businesses would shut down unless they had specific exemptions from the liability.

What if the calculations are wrong?

Of course, some will argue, "The current scientific consensus overestimates the risk." This is entirely possible. Insurance companies and governments have little choice but to go with the best available consensus. If you are very wealthy, and very certain, you could take the risk of harm to others upon yourself, perhaps. But perhaps not: If most people lock down because they can't afford it, a small group takes a bigger risk, because now they will be more like Patient Zero -- responsible for most of the downstream infections, rather than splitting that liability among a large group. So they had better be very certain.

Over time, calculations of the real dangers would improve.

Back in the real world...

We're not going to have such perfect infection tracing, short of having surveillance robots in our bloodstreams. We can't sue those who infect us or charge them with manslaughter or negligent homicide. That's where it can make sense to have a government which can enact policies to reflect what would happen if we had a perfect tort and criminal system to deal with the harm caused by breeding the virus and infecting others.

In other words, declaring a lockdown.

Comments

I’d dispute something in just about every paragraph above. Perhaps the biggest errors are your assignment of liability (both civil and criminal!) not only to people you infect but also to those infected by those you infect, etc. and your misuse of the terms “manslaughter” and “negligent homicide.” It's pretty easy to imagine a world where we could always tell from whom you got an infection, because that's fairly close to how it works with HIV. Look at how the laws work with HIV. There are crimes for knowingly spreading HIV, but you don't get charged with manslaughter or negligent homicide just because you spread the virus unintentionally and without a very high degree of recklessness. And you don't get charged, civilly or criminally, with infecting not just those you spread it to directly, but also those who you spread it to indirectly. (We also clearly have not banned "non-essential" sex, and doing so would be pretty obviously idiotic.)

But I do find the topic interesting. I accept that government can quarantine individuals who they know to have, say, Ebola. I would say that government cannot quarantine the entire state/country because some people have the flu. Covid lockdowns fall somewhere in-between those two hypotheticals, and it’d be interesting having a discussion about where it fits in for someone who believes (like I do) in minarchism.

I’d say the statewide lockdowns fall much closer to the “clearly draconian” end of the spectrum, but would love to hear a well-reasoned counterpoint. As an initial argument, I'd say that it is wrong to quarantine people who don't pose a risk that is higher than anyone else. You can quarantine someone who you know to have Ebola, because obviously almost no one would consent to being exposed (while watching a movie in a movie theater, for instance) to someone who is known to have Ebola. You can't quarantine someone who is no more likely to be infected than anyone else, because anyone who goes to a movie theater (or whatever) obviously knows that they are going to be exposed to others. They are voluntarily assuming the risk. So I think statewide or nationwide lockdowns are categorically an instance of government overreach.

In terms of your analogy to car insurance, first of all, I don't think compulsory auto insurance is compatible with minarchism. But moreover, there isn't a state in the USA that requires auto liability insurance in an amount that comes anywhere close to fully compensating for a wrongful death. https://www.iii.org/automobile-financial-responsibility-laws-by-state The highest minimum limits are in Alaska and Maine, and are 50/100/25. $50,000 per person, $100,000 per accident, $25,000 in property damage. The rest are lower. Two don't require bodily injury liability insurance at all (Florida and New Hampshire). The average wrongful death case goes for at least $500,000 per person.

If Alice negligently infects Bob, Bob can sue her for damages caused by her negligence. If Bob then infects Carol, Carol can get damages from Bob. Bob then, can go back to Alice and ask her to pay for some portion of that. If I were deciding the apportionment, I would look at how negligent each party was in their infection of the other, but for my math I presumed we averaged at 50-50.

Both manslaughter and negligent homicide are not deliberate. Here are some tests for them.

I believe if you have been advised by top medical experts that your activity is reckless and likely to cause you to be infected, and then for you to infect others, and it leads to the death of persons, you would meet the tests laid out there.

People are not under quarantine, though the word is often read. If you are under quarantine you don't go out, you don't come near anybody. People with confirmed infections go under quarantine. People of unknown infection state are under social distancing orders to prevent spread. Engaging in anything but work from home causes contact with others. There are certain types of work (like going to work in a solo office) which do not present more risk than the travel involved, and could probably be allowed, but since the order is for no non-essential travel they don't officially make the cut but I have not heard of anybody getting in trouble with doing that.

But clearly crowded spaces, cinemas, restaurants, bars, hair salons etc. involve lots of personal contact which puts everybody -- not just the people involved -- at risk. They put everybody at risk because there is a magic threshold of contact above which the spread goes exponential and out of control. Below that threshold it dies out. Exponentials are strange that way. The orders are to make sure it stays below that. While no single person's activity may seem so risky as to bump over that threshold, of course somebody's is, and everybody contributes.

Compulsory car insurance is compatible with minarchism, it is just enforced by the road owner, not the government. If I operate a road, I want to make sure everybody who goes on the road can pay for any damage they do. I will require those who wish to drive on it to either prove they can pay any damages, or find a proxy like an insurance company to pay for it. I probably also offer to sell you the insurance as part of your road use fee. I do not let you on the road as a random unknown dangerous driver without paying that fee, because if you smash into somebody, it's going to land on me probably, but even if it doesn't, my other customers want to know that if somebody hits them on the road, they can get compensated.

If Alice negligently infects Bob, Bob can sue her for damages caused by her negligence. If Bob then infects Carol, Carol can get damages from Bob. Bob then, can go back to Alice and ask her to pay for some portion of that.

Bob can ask for that, but he won't get it. His own negligence was an intervening, superceding cause. If there was negligence at all.

Also, likely Bob and Carol both assumed the risk by going to the movies or getting a haircut or letting their child visit them in the nursing home or whatever. If you want to completely isolate yourself from all other human contact, that is your right, and anyone breaking into your house to infect you will be guilty of a lot more than negligence. If not, you are assuming the risk that those you come into contact with are at least as likely to be infected as the general population. https://en.m.wikipedia.org/wiki/Assumption_of_risk

To have any case for negligence against Alice or Bob, you're going to have to show that they had some special reason to suspect that they specifically were infected. Maybe they had a fever or maybe they were living in a house with someone who tested positive. Maybe they tested positive themselves. Those people should be isolating themselves. The general public doesn't need to. It should be their choice.

Both manslaughter and negligent homicide are not deliberate. Here are some tests for them.

They all require at least criminal negligence. Going to the movies when you don't have any symptoms and have no reason to believe you are highly at risk of being infected (in other words you haven't been in close contact with someone known or suspected to be infected) is not criminally negligent by any stretch of the imagination.

I believe if you have been advised by top medical experts that your activity is reckless and likely to cause you to be infected, and then for you to infect others, and it leads to the death of persons, you would meet the tests laid out there.

I haven't. Neither has well over 90% of the population. (I'm being extremely generous saying that 10% of the population might have a reason to self-quarantine. And even with them it doesn't rise to the level of "recklessness." Maybe criminal negligence. Probably not even that, especially if they're asymptomatic and wear a mask. Moreover, pretty much no prosecutor would touch this kind of case.)

People with confirmed infections go under quarantine. People of unknown infection state are under social distancing orders to prevent spread.

I would say that the standard is slightly lower than "with confirmed infections" to justify quarantine. But yes, you have to be especially likely to be infected to be under a mandatory quarantine. Quarantines are a legitimate use of government power. Broadly applicable stay-at-home orders are not.

But clearly crowded spaces, cinemas, restaurants, bars, hair salons etc. involve lots of personal contact which puts everybody -- not just the people involved -- at risk.

Just the people involved are directly put at risk. There is an intervening, superceding cause in the case of indirect spread.

They put everybody at risk because there is a magic threshold of contact above which the spread goes exponential and out of control. Below that threshold it dies out.

Nonsense. This virus likely isn't going to die out for many years. It probably won't die out during either of our lifetimes. It's way too late for that. Based on what we know now, it was probably too late for that in January. It might have been too late for that in December. We just didn't realize it yet.

Moreover, the only way this virus is going to get under control is when there is herd immunity. Every time someone gets infected and recovers it gets us closer to that.

Compulsory car insurance is compatible with minarchism, it is just enforced by the road owner, not the government.

That's not the same thing. If a private road owner wants to have dumb rules, they can.

If I operate a road, I want to make sure everybody who goes on the road can pay for any damage they do.

You'd need to require millions of dollars in liability limits then, not the comparatively tiny limits people have today. And the cost of insurance would be so expensive that no one could afford it.

It'd be incredibly stupid, and unlike any other private system in the world.

No, what would be more likely to happen is that the road owner would include the cost of a minimal amount of insurance in the fees for using the road, would get a liability waiver for amounts over that, and people would be on the hook to buy insurance to cover their own damages if they wanted more than that. You could still sue for negligence, but let's face it, unless your damages are low or you're hit by someone who is driving for work at a large corporation, you're probably not going to recover enough to compensate you for your damages. And even then, you'll probably have to pay 1/3 or so in attorney's fees. Third party liability insurance is incredibly inefficient. Personal injury protection insurance plus AD&D insurance is much more efficient. No need to worry about fault. No need to prove to the value of a life in the case of a wrongful death (you choose the policy amount up front). In most cases, no need for lawyers at all. And probably best of all, no need to worry about being harmed by someone who is uninsured or underinsured.

But that's really all irrelevant when it comes to recognizing that compulsory auto insurance is not compatible with minarchism. Obviously private owners are able to add whatever dumb rules they want. At least, they are in a minarchist society.

Bob would never have infected Carol if not for receiving it from Alice. She is a contributor to the liability. As noted, in any such case the court would consider just who violated the standards of care. For example, Bob may not have been symptomatic when infecting Carol, and did it at the supermarket. Bob might have one of the minor symptoms like a mild cough -- many people get no more than this, and it has so many causes that it is not a cause for quarantine orders today. Or Bob might have known he was infected and went to work as a hairstylist. In each of these cases the court would decide differently about how much liability Alice had for these infections.

In a case of strict liability, you don't need to know you are infected or even know you are not following the standard of care. You just are liable for the harm. There are other doctrines of liability that require knowledge. Of course the criminal matters require some sort of intent, most commonly intent to disregard the now very well publicised standard of care in not spreading infection. If you go to a church and sit shoulder to shoulder, in spite of the TV crews outside reporting on how strange it is that you're doing that, you definitely had intent to take this unacceptable risk.

And again, not just to yourself. In my mind, the rules aren't there to protect you. If you want to muck up your own body, go ahead. The rules are to stop you from being a bioreactor. They are there to stop you from doing things which will increase the probability of spread to a larger group.

The virus may be with us for some time -- most viruses are -- but it can be prevented from going exponential. There are many reasons to prevent it from going exponential. The most talked about is to avoid overloading the medical system, which seems to have been a success. But as they have done in some countries, if you can flip that base, you can eradicate the disease from an area. This was done with SARS-1, with MERS and with SARS-2 in China, New Zealand and a few other places. With lots and lots and lots of testing, it can be done in the USA, too.

How can it have been too late in January? China got much further along than that and has nearly wiped it out.

If the road owner includes the cost of insurance in the road fee, then that's the same as requiring insurance, but worse, because they insist they have a monopoly on selling it. But yes, while various forms of insurance are more efficient or less, I'm avoiding that for now to just discuss the principle. You said only a public road would require insurance, and that's not true, and it is in fact quite common for private venues to do it just as you say, to buy a blanket policy for their facility and to pay for that from fees. It's still insurance.

However, if I run a cinema in the Covid-19 era, and I could be liable if a patron came to my cinema, got infected, and then infected somebody else, I would need insurance for that. And it would probably raise the cost of the ticket to untenable levels. Of course, the people buying tickets would sign a waiver not to sue me, but they can't give me immunity when they infect somebody who dies, and the family says, "If you weren't taking this negligent risk of running a cinema, my mother isn't dead." They sue your patron, of course, but they sue you too. Even if the patron indemnifies you (another bump in the cost) they might not have the resources to do that.

I think you need to look some more at the court precedents on "proximate cause." A successful negligence case requires proximate cause.

In a case of strict liability,

What makes you think there'd be a case for strict liability? Strict liability is used in some cases involving animals, manufactured products, and abnormally dangerous activities, but going to the supermarket is none of these. Maybe you have some other theory for why we'd impose strict liability in this case? If so I'd like to see the precedent.

The virus may be with us for some time -- most viruses are -- but it can be prevented from going exponential.

I'm not sure what that even means. Are you suggesting that the number of cases has not already grown exponentially?

Anyway, what you said was that the virus will magically die out, not that we would prevent it from going exponential (again?).

How can it have been too late in January? China got much further along than that and has nearly wiped it out.

You said wiped out (literally "dies out" with a reference to "magic"). Not nearly wiped out in one country (which probably is lying anyway).

Anyway, I am extremely skeptical of any numbers coming from China, and I don't see how the USA is going to avoid "the hammer and the dance" unless we stay locked down even more than we ever have been until we achieve herd immunity.

I could be wrong. The most realistic scenario where I'd be wrong is that the virus is somehow seasonal. That seems unlikely to be true, at least to a sufficient degree. (I do think warmer weather is helpful; I think that's why many southern states were able to do as well as they have despite much fewer restrictions than many northern states; but it's unclear if it'll help enough.) Even if it is true, that just means we have to do this all over again in the fall and winter.

Are we going to keep international travel restricted for years? Even if we completely eliminated the virus in the USA, until it's eliminated worldwide it's still a threat.

We haven't even eradicated the measles. This virus doesn't spread quite as much as the measles, but it spreads a lot more than many viruses that are endemic. It'll probably mutate a fair amount too. I stand by my claim that this virus won't "die out" for a very long time.

It's a somewhat deadlier version of the flu. Over time it'll likely become less deadly. Maybe by next winter it won't be any more deadly than the flu. But if your plan is to avoid getting this at any cost, you're likely to be stuck in your house for an extremely long time. The entire world is not going to shut down indefinitely in order to accommodate you (which is good, because if it did, you'd die of starvation).

If the road owner includes the cost of insurance in the road fee, then that's the same as requiring insurance, but worse, because they insist they have a monopoly on selling it.

If you assert it's worse then you must agree it's not the same. It's not anywhere near the same. And you seem to misunderstand what I'm saying anyway. There would be no monopoly. There would just be coverage for certain basic things included in the cost of road use.

But yes, while various forms of insurance are more efficient or less, I'm avoiding that for now to just discuss the principle.

But you never discussed the principle. You just asserted, incorrectly, that private roads would do the same thing.

You said only a public road would require insurance,

I do believe that. Unless they were coerced by government in some way. But that's irrelevant.

and it is in fact quite common for private venues to do it just as you say, to buy a blanket policy for their facility and to pay for that from fees. It's still insurance.

Huh? A company buying insurance for itself is not the same as a company forcing customers to buy insurance for themselves. I can't think of a scenario where that happens except auto rentals where it is government regulations that cause it.

In any case, we seem to have gotten off topic. My assertion, which you don't seem to have challenged, is that compulsory auto insurance is in no way compatible with minarchism.

I made a separate comment that compulsory bodily injury liability insurance is a really stupid system. I'm not sure if you even disagree with that. But I'm fine with dropping that, as the important point is that it's not compatible with minarchism.

Covid-19 era, and I could be liable if a patron came to my cinema, got infected, and then infected somebody else,

This is a hypothetical, or you think this is reality? If you agree it's not reality, what's the point of this hypothetical?

If you think it's reality, show me a case where anything remotely close to that happened. Be sure not to include a products liability case, unless you can also show how a cinema is treated as a product.

You know the elements of negligence, right? Duty, breach, proximate cause, and damages. I don't see how you even get past duty when it comes to someone who didn't even enter your business. This is in addition to the cinema not being the proximate cause of the damage.

This is not how the law works.

The type of liability for this tort is not well established. In any event, while at the start of a virus people are unaware of what is going on, and if they have it, today, everybody has been highly informed, again and again, of the risks. If you are warned your activity is risky, and you do it anyway, and you were wrong and it causes harm, you are reckless, or worse, of ill intent.

Growth was exponential. The key is to turn it into exponential decay, which took place in China and several other places. That is still exponential, but it's not exponential growth.

If you don't believe China (which is understandable) you can believe New Zealand.

I know lots of private businesses which demand that those they do business with have insurance against certain risks. I sign contracts saying that all the time, and they are generally things that are much less risky than driving on a road. We have private roads today but they are islands in a sea of public roads that require insurance. There is much to suggest that in a world where the highways were private, that if you wanted to drive on them you would need to either buy insurance from the highway owner, or prove you had insurance or means to remedy any ill you cause, and possibly also proof of a safe driving record. And as a driver on those roads, I would prefer to know the other drivers are safe and have the means to compensate me if they hit me.

One could operate a competing road that was cheaper and declared a demolition derby, but I doubt it would be the top competitor.

Yes, a company buying insurance for itself, and adding that to the price of every ticket, is a company forcing all to buy their share of the insurance.

Globally compulsory insurance is not minarchist, but having every open to the public space demand insurance before entry is.

As I said, if Alice infects Bob infects Carol, both Alice and Bob had a duty to not greatly increase the risk of infection which they have breached. Each is the proximate cause of infecting their immediate downstream, and it causes damage. But when Bob faces paying costs for infecting Carol, this did not happen purely by his actions, and I think he could add that to his list of damages Alice did to him. His complaint to Alice is, "your reckless actions made me sick, and they also caused me to be infectious, which caused me to (unaware) infect Carol and I had to pay her $20,000."

I could see the argument that if Alice and Bob are both part of the virus breeding hugathon that now Bob can't blame Alice. But Bob need not have been part of that hugathon. He might just have been grocery shopping at the same store as Alice.

The type of liability for this tort is not well established.

That’s because it’s not a tort.

Maybe if you test positive, cough all over the fruit in the grocery store, and don’t tell anyone, that might be a tort. But most transmission of communicable diseases is not a tort.

If you are warned your activity is risky, and you do it anyway, and you were wrong and it causes harm, you are reckless, or worse, of ill intent.

Please cite the case you’re getting that from. I think you’re making it up.

If you don't believe China (which is understandable) you can believe New Zealand.

I’ll look it up.

I know lots of private businesses which demand that those they do business with have insurance against certain risks.

You’re talking about B2B contracts. That’s completely different.

Yes, a company buying insurance for itself, and adding that to the price of every ticket, is a company forcing all to buy their share of the insurance.

What if they don’t add it to the price of every ticket? What if they don’t buy insurance for themselves? Does the supermarket force everyone to buy insurance just because they’ll sometimes pay out if one customer spills something and another customer is injured?

to remedy any ill you cause,

Again, no compulsory auto insurance law in the world requires that. They all have low liability caps, if they require liability insurance at all.

Globally compulsory insurance is not minarchist, but having every open to the public space demand insurance before entry is.

It absolutely is not.

As I said, if Alice infects Bob infects Carol, both Alice and Bob had a duty to not greatly increase the risk of infection which they have breached.

You have said it, but is there any reason to believe that you know what you’re talking about? There’s a lot of case law about what constitutes a duty under the common law. I’ve read a lot of it, and I’ve never seen anything like you’re suggesting.

Each is the proximate cause of infecting their immediate downstream, and it causes damage.

Maybe, maybe not. It depends on the facts of the case.

But when Bob faces paying costs for infecting Carol, this did not happen purely by his actions, and I think he could add that to his list of damages Alice did to him.

Again, I’m not sure why what you think is relevant. Do you have any case law backing this up?

His complaint to Alice is, "your reckless actions made me sick, and they also caused me to be infectious, which caused me to (unaware) infect Carol and I had to pay her $20,000."

If Carol is successful in suing Bob, that means Bob was negligent (and according to you, reckless). How can Bob sue Alice for damages which would not be caused but for his own negligence/recklessness? Any case law for that?

Maybe when Carol sues Bob, Bob could add Alice (using an “impleader”) as a third party defendant. But you seem to be talking about something different.

I think impleader would be the way to do it. But then duty, breach, proximate cause, and damages, has to be proven twice, and I don’t think most fact scenarios are going to let you do that, particularly if Alice or Bob is asymptomatic and hasn’t been engaged in any high risk activities.

I realize it is not common to have a tort over infection. It happened with AIDS but was experimental then. Most infectious diseases either kill you quickly (no time for you to sue) or don't kill you (low damages not worth suing over.) AIDS was different.

This is a theoretical exercise. I think most would agree that if, as the conspiracy theory suggests, this leaked from a bio lab in Wuhan through their negligence, that this lab has done an injury to the world, not just to the one person outside the lab who got infected. That they should hold some responsibility for what they wrought on the world, because it is well understood that a dangerous disease lab has a duty of care to do containment. Even if many of the downstream parties who pass on the infection do so by being reckless, like going to Mardi Gras.

I don't think it's binary, and that this model can be applied to others who are reckless.

If Alice has success with Bob, it's because he is partly negligent. The court can assign other responsibility and a share of the total responsibility to other parties. Quite often you will see some injury with damages of $1M, and the court blames 90% on the error of the injured, but the injurer still owes $100K. In addition, multiple defendants can be sued, and liability assigned among them.

What is not common is to have a tort when there is no negligence, or no duty, or no proximate cause. It's not common to have a tort when there is an assumption of risk.

These terms all have fairly well-defined meanings, and I don't see how you can fit every spread of disease into them.

In particular, I don't see how you can say that there is a tort when an asymptomatic person who has not had a high-risk or even medium-risk exposure transmits the virus by engaging in a normal daily activity like going shopping. The CDC has released guidelines that classify exposures into high-, medium-, and low-risk. For low-risk exposures, they don't recommend any work restrictions. So I don't see how you can say it's negligent for a person who has not had a medium-risk or high-risk exposure, and is not symptomatic, to go grocery shopping.

Maybe the vast majority spread of the virus is being done by symptomatic individuals and individuals who have had high-risk or medium-risk exposures. If that's the case it's even more the reason why people should be allowed to do things that only expose them to low risk.

By the way, you seem to be okay with those of us who want to resume life again doing so as long as we stay away from you at the grocery store. In many areas grocery stores have certain hours for shopping by the vulnerable and the elderly. Why can't you go shopping during those hours?

If you don't believe China (which is understandable) you can believe New Zealand.

New Zealand has only had 1,147 confirmed cases total. USA has had over 1,380,000.

New Zealand went into nationwide lockdown when they had 205 confirmed cases, 47 days ago.

Maybe if the USA had gone into a strict nationwide lockdown on March 5, we could have been like New Zealand. Maybe you could look at New Zealand as an example of what we should have done. They're not an example of what we can do.

Besides, my comments about the fact that this virus is not going to "die out" was about worldwide, not about a single island. Maybe New Zealand will be successful in not allowing any travel to their island from anyone who has not been quarantined, so that the virus never takes a foothold there again. They'd have to keep this up for years, though. Probably decades. The virus is all over the globe, and even if we vaccinate 95% of people in the USA, it'll still continue to spread in poorer countries, and from time to time it'll show up in pockets in the USA, among people who aren't vaccinated. Or possibly among people who are vaccinated, if it mutates enough.

So do you not think, during an epidemic, that one has a duty to take extra precautions to avoid infecting others? Not simply if one is infected, but if you know that there is a serious probability that you are an asymptomatic carrier? How about a duty, once you learn you are positive, to contact those you had recent close encounters with? What about a duty, when you are infected, to quarantine?

If you live with a group, do you have a duty to not go and do things which are likely to get you infected, and thus also them? Or do you just have a duty to inform and they can go find other housing if they don't like it?

But most of all, is there no duty not to deliberately flout the medically recommended rules against speeding the growth of the infection in a large group of people whom you know are also flouting the rules?

Why can't I shop in the special hours? I probably would, but again, I think the burden to stay away is entirely that of those in the virus breeding club. However, if you will pay for special santitization after your special hours, should the store wish to offer them. Though I don't know who is going to be willing to work the store during those hours, and they won't be allowed to work the regular hours if they do.

The people who are infecting are the ones who are violating the rights of others and take all the burdens. You are free to do what you want -- but not to greatly increase the chance of infecting others. Strictly, it is actually infecting which is the harm, but in practice, if you are going to deliberately assume a large risk of getting it, the risk of the harm actually coming into play is so large that people have the right to defend themselves from you, and keep you locked up if that's needed for self-defence.

So do you not think, during an epidemic, that one has a duty to take extra precautions to avoid infecting others?

I don't think that question even uses the term "duty" in the proper way. The question is not if you have a duty "to avoid infecting others." The question is if you have a duty to do X or Y or Z in order to avoid infecting others.

Not simply if one is infected, but if you know that there is a serious probability that you are an asymptomatic carrier?

What counts as a "serious probability"?

How about a duty, once you learn you are positive, to contact those you had recent close encounters with?

I don't think such a duty would be in terms of negligence law. You might have a duty under some other law.

What about a duty, when you are infected, to quarantine?

If you mean when you know or have reason to know you are infected, then yes, this is the proper use of the term duty in negligence law.

If you live with a group, do you have a duty to not go and do things which are likely to get you infected, and thus also them.

Depends what the group is, but for the most part, no.

Or do you just have a duty to inform and they can go find other housing if they don't like it?

You do have a duty to inform them, if you know that you're infected and are going to come into close contact with them.

I'd need more information about what type of group you're talking about before I could say who has to leave. Who owns the housing?

If it's jointly owned, there's an interesting question there over who has to leave, but that's not a question of duty.

But most of all, is there no duty not to deliberately flout the medically recommended rules against speeding the growth of the infection in a large group of people whom you know are also flouting the rules?

Whose rules? What rules are they? As I pointed out, the CDC has rules about what people should avoid working, and they say that people who have only had low-risk exposures and aren't symptomatic can work.

Why can't I shop in the special hours? I probably would, but again, I think the burden to stay away is entirely that of those in the virus breeding club.

There's no virus breeding club. Just people who aren't as paranoid as you are.

It's up to the store to decide on its rules. And it's up to the store to decide who pays for what. Don't like it, use another store, or build your own.

Of course the normal term of art in the law is duty of care. You have a duty to take reasonable care and not expose others to unreasonable risks. You hold that standard to be very light. I suspect others hold it to be greater and the courts (or in some cases statute) would decide what it turned out to be.

In an exponential explosion, as would happen if a decent sized population did not take social distancing steps, there comes a period of several weeks leading up to the peak, where a large fraction of the non-distancing population is infected (it's their goal if they seek some sort of illusion of herd immunity.) During that period the probability you are an asymptomatic carrier is definitely "serious."

Duties of care are established over time. Generally if there is something that is widely viewed as something you "should have done" that prevents harm to others, it makes its way into the duty of care.

Of course they don't think it's a "virus breeding club." But if the science says that's what it is, then it is. No, there are not membership rolls, but it's a group of people who have all decided they will ignore the medical advice on what they must do to avoid being a group of virus breeders.

One could imagine stores dividing up, with some being only for those taking precautions and others for anybody who dares to go in. People might even tolerate that as long as there were enough of each. However, in the modern world, occupational safety rules would probably stop the stores that take no precautions from protecting their workers, forget the customers, as it is viewed that jobs are not so fungible, especially in times of high unemployment.

In general, splitting the two populations is almost impossible. If one person in a household wants to be in the virus breeding club, they force their spouse and children into the club, even if they don't want to, and they are not free to opt out, nor can they be honest in their answer if it requires the consent of all in the household.

I just did a google search for "virus breeding club." I got a link to this page. Scientists are not saying this. You are saying this.

I do not hold the duty of care to be very light. I simply am pushing back against your assertions that treat it like strict liability. You have a duty to take reasonable steps to prevent the spread of infectious diseases to others. If you are asymptomatic, haven't had any high-risk exposures (as defined by the CDC), wear a mask, and try to avoid close contact with others (at least without their explicit permission), I think you've taken reasonable steps. I don't think you have a duty to lock yourself in your house and not come out for 1-2 years.

What constitutes "a large fraction of the non-distancing population"? What constitutes non-distancing? You are painting with a broad brush and not giving any details.

What is the probability that you are an asymptomatic carrier? Is it "serious"? Why or why not?

You don't need to imagine that stores will reserve certain hours exclusively for the old and the weak. They're already doing it. The stores are not taking zero precautions. They're taking reasonable precautions, in most cases, and no store that I know of is forcing anyone to work. If you are particularly vulnerable, and there aren't any positions available at your place of employment that provide sufficient social distancing, don't go to work. As I said earlier, I'd support your claim for disability, assuming your vulnerability is not one that is within your power to change.

Yes, it is my term, I would not expect others to be using it. And while it's not a literal club, I think it describes what's unwittingly being done. When I see people doing a march, in close proximity, that's what it is. They are providing food and resources for the invader, helping it grow. They say they don't want that, but they have been told 100 times that is what they are doing, and they just want to ignore reality and science.

I think you are conflating people who ignore you with people who are ignoring reality and science. Where is the science that says that people are catching the virus by protesting? In China, a study was done of 1,245 confirmed cases. Of those cases, only two came from outdoors transmission. That's science, right?

I get that there are, of course, individual cases of individuals doing really stupid and dangerous things. By all means they should be held to account for their actions. But just outright shutting down everything not deemed to be "essential" is painting with far too broad a brush. And closing the beaches while keeping the subways open is idiotic.

I'm all about people being smart, wearing masks, doing what they reasonably can to prevent the spread. But we shouldn't be shutting down the entire country because some people are irrationally afraid. Let the people who are irrationally afraid stay in their homes. Let the people who want to go to work, go to work.

The Chinese study was not about protesting. It was based on contact tracing efforts, which would not identify "guy I stood next to at protest" since you can name them, though Chinese surveillance might. However, a different contact tracing report just released in Wisconsin showed 72 instances of transmission at "a large gathering."

The worst of course are the people doing those close contact large gatherings (indoors and out, but yes, indoors is worse.) The churches seem particularly crazy, as would bars, restaurants, full moviehouses etc. I don't think well spaced public gatherings with masks are likely to be as dangerous, but the certainly are not risk free. This is being studied, and the lower risk activities are being opened up. Everybody agrees, I think, that we should not shut down everything. Rather we should do science, which takes time, to be sure of what is safe to open up and what is not, and open up the former.

The church gatherings are clearly an issue. If you have a packed church, particularly with singing, and no masks, it is likely quite a few infections would be transmitted based on studies of similar situations. (One choir in Washington had almost the whole choir get it from one person!) Those people may have all consented, but they will then take it to those in their household group, who did not consent, and on from there to some grocery store employees, possibly some health care workers and the odd accidental contact. If those people are not social distancing, they will spread it to many others they encounter, who may or may not be consenting to the unsafe behaviour.

The Chinese study was not about protesting. It was about transmission outdoors vs. indoors. I assume the "protesting" you were referring to was something that happened outdoors.

"72 instances of transmission at 'a large gathering.'" Was it an outdoor gathering or an indoor one? 72 out of how many? That was a rhetorical question, it was out of 1,986 cases. (Also, you are being misleading, I think. It was not 72 instances of transmission at a single large gathering. In fact, we don't even know if the transmission happened at a gathering at all. All we know is that 72 out of 1,986 cases reported that they had attended a large gathering. You'd need much much more information to draw the inference you're suggesting.)

I find it interesting that you are suggesting that a minarchist society would ban something that even our heavily regulated society doesn't ban.

The rest of your post seems to be based on your personal opinion, and not science.

If you want to take away my rights, the burden of proof is on you to prove, with science, that I am causing you harm. The burden of proof is not on me to prove that I am not causing you harm. At least, that's how it would be in a minarchist society.

The medical researchers are not naming the gathering, presumably to protect privacy, but I agree they should say if it was indoors or outdoors.

These studies are not about indoors/outdoors or protesting or anything of that sort. Rather, they attempt to trace as many infections as they can, and learn from that. They trace by actually finding the real probable path, as in, "You got it, you said you had lunch with Lee Kai, and we see that Lee Kai confirms the lunch and that he had it before you -- now we have a confirmed transmission and can say things about it."

Just like in the Chinese study, they usually try to determine the actual path of transmission, the actual individuals involved and the place. They don't publish that for privacy reasons. There was an unspoken implication it was the rally, though.

72 out of 2K cases, yes, but we don't know if the 2K cases were in or out either. And I do think outdoors is safer. But not safe. Looks like restaurants, choirs/churches, airplanes are particularly bad.

The burden of proof that it's dangerous is indeed on the medical community, not me specifically. The general consensus there is indeed that it's dangerous. There is much yet to learn, and as we learn it, the rules should adjust.

In a minarchist society, the courts would handle it in most cases, and the courts would listen to the evidence of the scientists. However, plagues have special history of caution trumping individual freedoms until proven otherwise. Once it's clear you have a plague, you lock down with minimal evidence, then ideally rush to improve the evidence and adjust later. You do it this way because we know that "wait for all the evidence" and there can be massive death, from which there is no undo. Courts don't like death or other things that can't be fixed with money. Loss of money can usually be fixed with money.

Not sure why you think the stories of the church gatherings and choirs and restaurants and airplanes are "my opinion." Perhaps you don't track the news at that level of detail, which is understandable since there is so much of it.

They didn't ask what the gathering was. They asked 1,245 people who had the virus if they had attended a large gathering. 72 people (a relatively small percentage) said yes.

We don't know what the gathering was. We don't know if all the people were talking about the same gathering (almost surely they weren't). And probably most importantly, we have no idea if they caught the virus at that gathering. If you asked the 1,245 people who had the virus if they had voted for Hillary Clinton, and 800 said yes, would you then conclude that 800 people got the virus by voting for Hillary Clinton? Correlation doesn't imply causation. What other routes could those 72 people have gotten the virus from? We don't know; this data wasn't released.

I don't blame you for misreading the headlines initially. A lot of news outlets twisted the data to try to imply what you are now trying to imply. But once I pointed it out, I'd suggest you do a little more research before you continue to perpetuate this false narrative.

The Chinese study was in part "about indoors/outdoors": https://www.medrxiv.org/content/10.1101/2020.04.04.20053058v1

"We identified only a single outbreak in an outdoor environment, which involved two cases."

And I do think outdoors is safer. But not safe.

Nothing is perfectly safe. Fortunately, adults are generally allowed to decide for themselves how much risk they are willing to take. Life would awful if we all had to adhere to the rules of the most risk-averse among us.

If you don't think outdoors is safe enough, don't go outdoors.

The burden of proof that it's dangerous is indeed on the medical community, not me specifically.

The burden of proof is on the one who wants to impose the restrictions on freedom. Right now that's you.

However, plagues have special history of caution trumping individual freedoms until proven otherwise.

Yes, irrational fears have led to a lot of ill-conceived and rights violating laws. But I thought we were talking about justifying lockdowns from a standpoint of defending individual rights, not about what the masses do when they are irrationally afraid of something.

Once it's clear you have a plague, you lock down with minimal evidence, then ideally rush to improve the evidence and adjust later.

No, I don't. I care about individual rights.

Courts don't like death or other things that can't be fixed with money.

I'm not sure what you mean by that.

Loss of money can usually be fixed with money.

Loss of freedom can't, but as with almost everything (including deaths, and disfigurement, and pain and suffering, and emotional distress, and loss of consortium, etc.), the courts will try.

Not sure why you think the stories of the church gatherings and choirs and restaurants and airplanes are "my opinion."

I think these comments are your opinion: "The worst of course [is X]", "[Ys] seem particularly crazy [as does A, B, and C]", "I don't think [Z is] likely to be as dangerous", "we should do [M and N]", "[O is] clearly an issue", "If [P], it is likely [Q]".

As I read it the particular report you cite was looking at the indoor outbreaks, using general data looking for identified transmissions. They were only looking at reports of 3 or more people being involved. To my mind this would not catch transmissions to strangers.

Outdoors is safer than indoors if other people are around. Not getting close to other people is safer than getting close. Getting close to other people indoors is clearly the most dangerous. Marching could work but I have yet to see a large outdoor group actually maintain distance, even when they are trying. Doesn't mean it's impossible but it's pretty hard.

Yes, the burden of proof is on those wanting to protect themselves, but they don't generate the proof themselves, it comes from the medical community. The courts and governments listen primarily to that sort of evidence.

Locking down quickly with minimal evidence is what you do if you care about individual rights, or so I am asserting. You do it because when you see the signs of a plague you must act quickly or die. If you were wrong and there is no dangerous plague, it's bad but you're alive and you lost some economic activity. If you are right and there is a plague, you can save your life and the lives of others. That's still the top individual right, protection of your life.

Courts will issue an injunction against activities which create risk to life and health, because there is no way to compensate for them if the risk becomes real. They will not issue them for activities which only cost money, as long as the party has the money to make remedy for what they did.

I don't think you've met the burden of proof. Yes, courts will sometimes issue an injunction against activities that create unreasonable risk to life and health. They'll also sometimes issue an injunction against government restrictions that create risk to personal freedom. When a government prevents someone from protesting that causes irreparable harm, after all.

When both sides have a point, courts have to balance the rights of both sides, and this is where the science is key. If the science shows that certain activities have a substantial risk of harming others who have not voluntarily engaged in any risky activities themselves, then maybe government should step in. But if the risk is low, or if the people at risk have voluntarily and knowingly assumed the risk, then government should not be involved.

In the case of COVID-19, the evidence I've seen suggests that the risk is low so long as you follow simple rules, like avoiding close contact and wearing a simple cloth mask. If you follow those rules, your risk from others is low. If you choose not to follow those simple rules, it's on you.

Moreover, as more people get infected, recover, and acquire antibodies, the risks go down even further.

If by "the medical community" you mean to include the people coming up with the models projecting the effects of certain government policies, you should be aware that they have been absolutely abysmal at making those projections.

It is not just possible, but extremely probable that some of the measures in places over do it. That was the goal after all, overdo it to be on the safe side.

I don't understand your comment about others who have not voluntarily engaged in the risk themselves. Shopping, working in essential jobs, generally living your life are not supposed to be high risk activities. The issue is people who, by following a path that greatly increases the chance that they and others become virus spreaders, and thus turn everyday activities into risky ones. That's the violation of my rights. You do not have the right to turn my everyday life into something with a much higher risk of my life.

Remember again, that for the purposes of this discussion, we are stipulating that the virus is indeed highly dangerous and infectious, and that increasing the amount of it in the world creates a mortal risk for others. Perhaps that's not true, perhaps the lockdowns are not necessary, but that's not the point under discussion. If they aren't, the goal is to keep doing research to determine that, and release the lockdowns once conclusions are in.

My essay above was, if you do have a dangerous disease that needs lockdowns to stop carnage, why is that justified based on individual rights, particularly my right not to be infected by you. Not all diseases make the cut of needing lockdown to protect my rights. This one may or may not. The first question was, can a disease be dangerous enough that you violate my rights be encouraging its spread. An independent question is whether this disease reaches that standard, and what activities reach that standard. A third question is, what decision making process goes in to deciding what activities reach that standard.

The answer to the 3rd one seems to be, medical consensus, with some debate as to how much you err on the side of caution before you have enough data to make a highly confident decision.

I'm not sure what you mean when you say that shopping, working, and living your life "are not supposed to be" high risk. I could just as correctly say that people "are not supposed to" hide in their homes all day.

We're in the midst of a pandemic. Maybe there's "not supposed to be" one, but that's the reality of the situation.

Shopping isn't "supposed to be" high risk, and in fact it isn't. Your risk of getting this virus from shopping, while following the rules as set out by every grocery store I've been to in the last several weeks, is very low. Most of that low risk comes from others who don't follow the rules, and I'm talking about perfectly reasonable rules, like washing your hands, wearing a mask, following the arrows, not getting too close to people, staying home if you have reason to know you're sick... If the low risk that remains is still too high for you, you of course have the right to hire someone else to shop for you.

Working in "essential jobs" (as with working in "nonessential jobs") often carries risk with it. Maybe life wasn't "supposed to be" that way, but that's the reality of the world. Life is risk. Fortunately we live in a free (or at least freeish) country where adults have the right to choose how much risk they want to take, in work, in shopping, in recreation, etc.

"If the risk is low, or if the people at risk have voluntarily and knowingly assumed the risk, then government should not be involved." Is that one of my sentences you don't understand? I assume you understand the first part, though we probably disagree on what level of risk is low enough. Can we agree that there does exist a risk level that's acceptable?

As for the second half of my sentence, I don't have time to teach you Torts 101, but do some googling for "assumption of risk" if you don't understand why government shouldn't be involved when someone voluntarily and knowingly assumes a risk. Best example is sports. When you play football, there's a chance you're going to get injured or even killed through the negligence of another. But you almost never have a successful lawsuit against the player that tackled you negligently and caused you an injury. You've assumed a certain level of risk when you chose to play the game.

Remember again, that for the purposes of this discussion, we are stipulating that the virus is indeed highly dangerous and infectious, and that increasing the amount of it in the world creates a mortal risk for others. Perhaps that's not true, perhaps the lockdowns are not necessary, but that's not the point under discussion.

I agree that the virus is highly dangerous and infectious, and that increasing the amount of it in the world sometimes creates a mortal risk for others. But I'm not willing to stipulate that the lockdowns are necessary. My whole argument is that many of them, in fact the majority of them, are not.

If they aren't, the goal is to keep doing research to determine that, and release the lockdowns once conclusions are in.

As I've said before, the burden of proof is on the people who want to lock things down. We should release the lockdowns until conclusions are in.

And before you say that this would cause a surge in cases, I think you should look more carefully at the data. Voluntary social distancing slows the spread. Lockdowns don't. There's no convincing evidence that I have seen showing that lockdowns save lives.

My essay above was, if you do have a dangerous disease that needs lockdowns to stop carnage, why is that justified based on individual rights, particularly my right not to be infected by you.

My initial response recognized that this was a question about where to draw the line. And I still think my initial answer was on the right track: "I'd say that it is wrong to quarantine people who don't pose a risk that is higher than anyone else." "So I think statewide or nationwide lockdowns are categorically an instance of government overreach."

A third question is, what decision making process goes in to deciding what activities reach that standard.

That, I think, is an interesting question.

The answer to the 3rd one seems to be, medical consensus, with some debate as to how much you err on the side of caution before you have enough data to make a highly confident decision.

"Medical consensus" is way too much of a wishy-washy term for me. Medical consensus over what? Medical professionals can potentially tell us what the medical risks of a certain action are. But that's only one factor that goes into the decision-making process. Medical professionals are not necessarily experts on individual rights, and that is the most important factor.

Should protesting still be illegal? Or now that liberal groups are doing it is it now okay?

If the virus is spreading, congregating closely is currently forbidden. Protests (especially at government buildings) have a very strong constitutional protection, if peaceful, but I believe things like the six foot rule can still be enforced on them.

Protests unfortunately often include the thing which is now being identified as a particular problem -- shouting and singing. These seem to spread the virus a lot more, even outside, though longer term close proximity (like sitting close together, personal service etc.) seems to be the other biggie.

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