Like everyone on Earth, Americans are making up the rules of the coronavirus era as we go along. But because we are Americans, we want courts to write the rules.
Should police be told whether I am Covid-19 positive, before they respond to my emergency call (or don’t)? A judge in Cook County, Illinois, where I live, ruled on Friday that they cannot be given the information, but the battle may go on.
Will my kids go back to college in the autumn? That could well depend on how much their universities fear being sued if returning students fall ill from the virus. Will I be refunded some of the $100,000 a year that I spend on their education, since they were sent home midterm? There’s a lawsuit for that one too. And the state of Missouri is even suing China, on the grounds that it started the pandemic. Can I use that technique to get Beijing to refund the cost of my coronavirus-cancelled summer holiday? Don’t count on it.
The local response to the pandemic itself is in court: an Illinois Republican lawmaker is suing to lift governor JB Pritzker’s stay-at-home order, one of the strictest in the US, on the grounds that the Democratic governor abused his powers by extending it to May 30. A judge in rural southern Illinois has already ruled against Mr Pritzker, but the decision only applies to the state lawmaker who brought that case: he can go out, but the rest of us must stay at home. A new lawsuit theoretically applies to everyone in Illinois; the governor has said lives will be lost if the order is lifted too soon.
So courts could be making some of the biggest decisions in my life in coming weeks — like when I can get a haircut. My girls managed to shave my head with shears we bought online last week, but I’m eager to take that botch job to the professionals as soon as possible.
Why is the law involved with my brush cut? Mimi Johnson is a make-up artist in Georgia, one of the first US states to allow beauty salons to reopen, but she says fear of lawyers is keeping her business near Atlanta, The Glamatory, closed anyway.
“I can wear a mask but my client can’t wear a mask and I’m right there in their face,” she says. “They could sue me claiming they got coronavirus at my salon. And though it might be hard for a plaintiff to prove that, you still have to go to court to defend yourself . . . and that would cost money.”
US legal experts say it’s too soon to know how widespread such litigation could be: plaintiffs will struggle to prove causation at a time when so little is known about how coronavirus infects its victims. There could be millions of potential litigants — more than in any mass injury situation, such as the 9/11 terrorist attacks, the BP oil spill, or even decades of asbestos litigation. The results depend on how many people are killed or injured by the pandemic — and whether businesses are granted protection from coronavirus lawsuits.
Victor Schwartz, a veteran campaigner for US tort, or personal injury law reform, says “it’s only a matter of time until we see those trial lawyer advertisements on TV, ‘have you or a loved one been harmed by coronavirus?’” But Anthony Sebok, an expert on tort law at New York’s Cardozo school of law, says: “I don’t see this as a looming tsunami of liability. There’s a big difference between saying hypothetically speaking that a tort claim can be brought and finding a lawyer who will invest their time and energy in a suit.”
US president Donald Trump and top Republicans want to shield businesses from coronavirus liability. But Liz Coyle, from consumer watchdog Georgia Watch, says: “If ever there was a time when you should not waive liability, it seems to me that it’s now.”
Mr Sebok says there could be some kind of “victim compensation fund”, much as one was set up after 9/11, which would pay out to victims who waive lawsuits. Or the rules of litigation could be changed, to set a higher bar to such suits or limit damages. But that would require Congress to force Covid-19 suits into federal courts rather than individual state courts, where they normally are heard.
Either way, we’ll have to make up the legal rules of this crisis as we go along, and fast. Or I may be stuck with my brush cut and Ms Johnson may not be doing any eyelash extensions for a long time to come.
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