Wednesday, May 13, 2020

Part I

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Morality, Liability, and Fairness in a Pandemic: Hard Issues Demand Answers

As Christians, we often find issues that are morally clear a lot more tolerable than issues that are less clear. It’s not to say always morally or legally ambiguous, but it is to say, the harder and more complex the issue, the harder we have to think and sometimes the less clear the resolution. Recent headlines bring this to our attention. This week we’ve already talked about the great cultural and moral achievement of the rule of law, but how exactly is the rule of law applied in some situations? It’s not at all clear at times how fairness or equity or justice can actually be put into law and policy, but we still have to try. We also have to think about it.

Consider recent headlines having to do with a call by the Senate Majority Leader, Mitch McConnell, Senator from Kentucky, for increased liability in the wake of the pandemic, especially liability coverage and allowances made for businesses trying to reopen on the other side of the COVID-19 crisis. Now, as you look at the two political sides in the United States debate this, if you listen to either side, you would think that the issues are just crystal clear. If you listen to Senator McConnell, he is calling for the necessity of this kind of liability coverage if businesses are going to dare risk opening and employing people as the nation is trying to come out of the pandemic.

If you listen to the Minority Leader in the Senate, Chuck Schumer, Democratic Senator from New York, or if you listen to Nancy Pelosi, the Democratic Speaker of the House, you would think that these calls for limiting legal liability would be crystal clear, they would be absolutely wrong. You have statements by Senator Schumer that this is nothing more than an attempt by business to try to oppress its customers and its employees. What’s really going on here?

Well, this comes down to two different stories we’re going to look at today. They both have to do with the limits of moral responsibility and the reality of liability. Legal liability comes up in the context of a rule of law. It’s something we haven’t talked about before. This might be the right time to talk about it, after all it is headline news.

When you’re talking about liability, you’re talking about legal responsibility and the enforceability of damages if someone says you failed in your responsibility. This would include everything from medical malpractice suits to all kinds of negligent suits. It will come down to you claiming that you’ve been wronged by a business or by your employer and claiming the ability to seek redress in the courts or through some kind of process of arbitration. That comes up again and again and again, actually Americans would be horrified to understand how much of our economic energy is actually taken up either with litigation, through what is known as tort law, that is differences that come down to allegations of damages, or that come down simply to efforts to avoid liability or avoid being sued. All of this consumes massive amounts of economic and moral energy in the United States.

Furthermore, tort lawyers, as they are known, lawyers who give themselves to this kind of law practice, are actually a very important political power in Washington, DC. As is the case with the teacher’s unions, they tend to be on one side of the political equation. They lean heavily Democratic. The associations of the tort lawyers, state by state, and many of the most important legal issues are fought out at the state level. At the state and the national level, they also tend to be overwhelmingly Democratic in support. That’s just not a surprise that when you see Democratic Senator Schumer and Democratic Speaker Nancy Pelosi you see them siding with the lawyer, so to speak. And when you look at business, that means both small business middle-sized businesses and big business, you’re not surprised to have Republican senators and representatives speaking up on their behalf.

So where is justice? Where is fairness in the midst of this? How should Christians think about this? Well, it goes back, let’s just remind ourselves, to the fact that the rule of law, having laws officially stated, rightfully adopted on the books, applicable to all and having a system for the redress of grievances, not only between citizens and their country, but between citizens and one another, including corporations, the rule of law’s a very precious thing. But it is also something that sometimes comes down in a fallen world to trying to balance different interests, different cultural and moral goods. It’s a moral good for businesses to be about business. Don’t we know that now? Without businesses able to operate as businesses, restaurants, corporations, airlines, hotels, mom and pop bookstores, and all the rest, our economy fails. And that means a depression, not only of the economy, but it means a depression of human flourishing. People aren’t paid. They can’t pay the rent or the mortgage. They can’t buy food. This is a huge problem.

At the same time, we don’t believe in a laissez faire economic system, which is to say using a French term, that there are no controls and there are no laws and business just goes on unrestricted, ungoverned, unaccountable. We don’t believe in that either. I do believe in a free market, avidly, and in a market economy. I think it sets loose entrepreneurship. It sets loose individual energies. It links labor and reward. It offers an incentive for saving and for investing. All that’s good.

But at the same time, I do want someone watching over the fact that when I go to the drug store and pick up a prescription, it actually is the drug that I’ve paid for. It’s not some kind of imitation. It’s not some kind of dilution of the drug. It is exactly what my doctor has prescribed. That’s why we have a food and drug administration. Balancing regulation and then the freedom of business to do business is never easy. And frankly, business has been increasingly suffocated in the United States by a regulatory state and by an ever expanding bureaucracy, but even the most ardent conservative and free market advocate, doesn’t actually believe in laissez faire. That is to say, let business just do whatever business wants to do.

But when you’re looking at this kind of liability, let’s understand what’s at stake. Businesses, generally, in every state have to buy some kind of liability insurance coverage before they can open their doors. Whether it’s a pet shop or a doctor’s office, you’ve got to have necessary insurance before you can do business. If you don’t have that insurance, by the way, it simply means that if something goes wrong, either which is actually your fault, or at least convincing a jury that it’s your fault or a regulator in some cases, then you can be assessed massive damages. It could put your entire business at risk.

So why are we talking about it right now? We’re talking about it because there is completely now uncharted terrain for businesses and institutions trying to reopen on the other side of the COVID-19 pandemic, or speaking more accurately, at some point during the pandemic with a continuing risk. Should businesses be able to open and bring their employees back? Should they be able to open and patients come back into their doctors and return to hospitals for elective surgery? Should you have economic activity continue in this sense? Should schools be allowed to reopen or even required to reopen? What is the limitation upon legal liability? What if there is an outbreak of the pandemic, again? What if a case of COVID-19 is traced by one employee to another employee in the workplace? What’s the liability of the business?

One of the problems we have here is that in the United States, especially at the current moment, we do not even have standard procedures to know how businesses and institutions like schools should operate. I’ll admit that’s a significant frustration to me as president of an institution. We don’t even know at this point exactly what best practices are. I’m confident that we’re going to know them and have them in place by the time schools try to reopen in the Fall. But what about trying to open your bookstore or your pet shop or your physician’s office? What’s that going to require?

Let me get to the bottom line here. I think in any sane understanding of balancing these interests under the rule of law, you would continue to have the ability for people to bring suits against a business or a professional agency, or just about any kind of institution, if in the context, it can be indicated that there was malevolence or there was some kind of genuine neglect, there was some kind of egregious failure to meet best practices and standards. But that requires that they be written down and explicit. That requires that they be, here’s the rule of law again, publicly accessible. And it also means that if society really does now depend, and we know it does, on businesses reopening, we had better make it possible for those businesses to reopen and to follow right practices, knowing what they are and not risk having their entire business destroyed, if there should be some kind of problem that arises along the way.

Now, in a situation like this, I’ll be honest, I would be far more likely to side with Senator McConnell, understanding, especially as one who leads an institution, that it’s going to be impossible to open this economy, unless there is some limitation upon liability. Without that, then no one’s going to be willing to do anything, certainly over time. But I also understand something else that is made clear in the press coverage. And that is that there are businesses asking for limitations of liability that go far beyond anything connected with the pandemic. What does that tell you? It tells you that in the midst of a pandemic, even as we saw yesterday, the moral revolutionaries continue to press their cause. Just about every side in any argument will try to find some advantage in the opening created by the context of a crisis.

Now we, as Christians, understanding the doctrine of sin, understand that that is actually to be expected. We are to watch for it and to respond to it when we see it. I think sense points to the basic wisdom of what Senator McConnell is calling for, but this is one of the reasons why we also need to understand that in our political system, there is a check and balances, not only between the three branches of government, but between the two parties and their arguments.

On the Democratic side, the argument at this point is pretty radical and extreme, and it also relies upon a certain amount of propaganda, simply blaming business for anything that might happen in the midst of this pandemic. Let me point to an article that appeared by Natalie Andrews in the Wall Street Journal. “Senate Minority Leader, Chuck Schumer, said Tuesday that the Republican proposal highlighted a stark difference in priorities.” Now the Wall Street Journal’s reporting here, “Democrats say that additional funding for states and municipalities is the top priority for them to protect states from laying off police officers, teachers, and first responders. Senator Schumer said, ‘That’s another example of the Republican’s misplaced priorities. During this global health crisis, they are worried about protecting the companies. Democrats, he said are worried about protecting the workers.’”

Wait, just a minute, Senator Schumer, you can’t have companies without workers and you can’t have workers without companies. Drawing that kind of dichotomy is neither intellectually honest, nor helpful. Just consider the predicament of the major airlines right now. They are told that it is a matter of national security that they must continue flying. We understand that. We also understand that you can’t fly without pilots. You can’t fly without flight attendants and you can’t have the planes operate without an enormous number of staff. We understand that the airlines are also in a depressed business. Since the COVID-19 crisis hit there has been a fall of 90% in their passenger volume. That’s not just a little bit, that’s an existential threat to the airlines.

So we want the airlines to continue, but the airlines can’t do so without workers. The workers have a right to a safe work environment, but who gets to define that right now? We need the federal government to step in with responsibility and define some of these issues. But frankly, you also can’t expect the airlines to keep flying if at any point they could simply be sued out of their existence for doing what the government is commanding them to do.

We’ll leave this issue here, but it’s just another reminder of the fact that in a fallen world, it’s difficult sometimes to come up with exactly what a policy should be. But we do need to think carefully and recognize this really is a big question. If we’re going to reopen the economy, these questions are going to have to be answered.

Part II

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The Rule of Law on the Other Side of the Sexual Revolution: Once Moral Sanity Has Been Surrendered, It’s Difficult to Reclaim

But this leads me to another issue that might have even a far longer significance. Melissa Korn, again, reporting for the Wall Street Journal gives us a story with a headline, “New Rule Strengthens Right of the Accused.” Well, is that just about criminal law? No, in this case, it’s really about colleges and universities. As Korn reports, “The US Department of Education issued the final version of its rule for how schools must investigate and respond to allegations of sexual harassment and assault, bolstering protections for those accused of misconduct while providing some additional support for those making complaints.” Korn rightly summarizes, “Sexual assault has been a flashpoint on college campuses for years, as schools struggle to interpret a 2011 letter from the Obama administration that spelled out how the institution should investigate such allegations.”

Now, the background of this legally is Title IX of the education amendments of 1972, so it goes back decades and it’s basically a matter of equal protection for women and men, as well as equal opportunity in the educational environment. The background of this morally is the fact that we do know that massive sexual misbehavior has taken place. That much of it has taken place in connection with American colleges and universities. And that there is a very real problem of sexual assault, primarily against women, sexual harassment as well. But we are also looking at the fact that the Obama administration through the Department of Justice and the Department of Education stacked the deck to such a degree that basic constitutional protections for the accused were denied.

There are cases in which the classic situation does not pertain, but it does pertain in most cases in which you have a woman, a young woman of college or university age making allegations against a young man. The reality is that many of those young men were denied anything close to due process. The legal process that was put together in that letter of 2011 from the Obama administration simply was incompatible with the US Constitution and several federal courts, including circuit courts of appeal have made that issue clear. Advocates for women making the accusations to come forward contend that if women are put in a situation where they have to face the one they are accusing in some kind of legal process, or if they are cross-examined or if the evidence requirement is put higher, they will be less likely to come forward and make allegations of actual abuse.

Is that right or wrong? Well it might actually be right. But we’re also looking at the fact here that again, in a fallen world, we’re looking at how to do the right thing when it isn’t immediately clear what the right thing would be. When you look at the Obama letter of 2011, it clearly violates basic constitutional principles of law in the United States. In many cases it denied to the accused basic issues of due process and legal protection that would have been guaranteed in any court, other than the court that would be held in effect on a college or university campus with the college or the university carrying out the legal process.

We also see a context which is highly politicized with the Republicans, largely siding with the Trump administration and secretary Betsy DeVos of the Department of Education in these new policies. You’re also talking about some of the Republicans identified, even in the media, as moderates, including Tennessee Republican, Senator Lamar Alexander, who by the way, was also at one point president of the University of Tennessee. He knows both sides of this equation.

Democrats have traditionally sided with the Obama administration in this. By the way, one footnote in this, is that at least some of the internal discussion in the Obama administration was that there had to be some very quick convictions, that is, findings of guilt on the part of the young men accused, if the moral message was to be sent. But here’s the problem, the Department of Justice doesn’t exist to send a moral message by misplaced convictions. But the Department of Justice and the Department of Education and the federal government do exist at least in part to make sure that there is equal protection. And there’s a very important goal here, protecting young women on college and university campuses. And there’s a very real problem of abuse. What do we do with this?

Well, here’s an occasion in which Christians need to telescope back just a bit. Let’s regain a little bit of moral sanity here. One of the things we observe by a biblical worldview is that these policies, regardless of whether it’s the Obama policy or the Trump policy, they are basically policies trying to put a genie back in the bottle, trying to put the horse back in the barn. We’re talking about a sexual revolution that simply cannot be had without enormous damage, cultural damage, moral damage, individual damage. We’re looking at the fact that a culture of free sex has been set loose in this culture and in particularly on college and university campuses. And what you’re looking at here is an attempt to try to have some kind of remedy on the other side of a denial of sexual sanity.

In a Christian biblical perspective. People shouldn’t be having sex if they’re not married to one another. And then sexual activity must be limited inside the sanctity of the covenant of marriage. If sex was contained within marriage, there wouldn’t be any discussion of this issue on college and university campuses. But what we have seen over the course of the last several years is that America’s most prestigious college and university campuses, and this filters down throughout the entire secular system, they’ve become sexual playgrounds. Sexual promiscuity is now taken for granted. Even at esteemed universities, such as Yale University, there has been an annual sex week, which is nothing more than pornography undertaken with the official responsibility of the university. And of course, a celebration of all kinds of sexual misbehavior, period.

On the other side of that revolution, that unleashing of sexual immorality, Christians understand there are severe limitations on the ability to bring any remedy. But we also understand that there’s a moral responsibility when it comes to sexual misbehavior, when that sexual misbehavior takes the form of a violation of consent and what comes down to abuse, rape, sexual violence, and worse. We also know that there is a pattern of bad behavior. We see this fraternity by fraternity, party by party. We see it linked to alcohol and drug use. We see all kinds of misbehavior mixed together.

And on the other side of that, colleges and universities are told you are to create and maintain a safe learning environment and you are to put some kind of limitation upon the damage that can happen to individuals. You’re to put in some kind of system of accountability. That means that we have to understand there are two arguments being made here and both of those arguments need to be heard, but it also means that the rule of law rightly applied is just about the best a society can hope for in the aftermath of any kind of wrong, especially a wrong that the society wants to celebrate on the other hand. It’s a form of cultural insanity, as Christians understand, to set loose sexual immorality as if there will not be horrifying consequences and Christians understand those horrifying consequences actually go far beyond anything contemplated in either the platform of the Democrats or the Republicans when it comes to setting up these policies on college and university campuses. Christians understand there is great damage done to the soul, even when neither party claims or admits it.

So once again, those are two big headline stories in the news, and they seem to be linked together by some common themes, which is why we have discussed them together on today’s edition of The Briefing.

Part III

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Forget the Hot Wheels, This Boy Wants a Lamborghini: 5 Year Old Pulled Over on the Highway with Big Dreams and $3 in His Pocket

But finally, we’re going to turn to a very different kind of story. The headline comes from USA Today. The reporter is N’dea Yancey-Bragg. Here’s the headline, “Boy, 5, Driving on Utah Highway Had Big Plans.” Now wait just a minute, this is a headline story. The boy was five years old and he was driving a car on a Utah highway? You got that right.

Every once in a while, you just need a news story like this. We are told by USA Today, “Police in Utah pulled over a five-year-old boy who said he was heading to California to buy a Lamborghini.” In the next sentence, “The boy somehow made his way onto the freeway in his parents’ car and was planning to buy himself an Italian luxury sports car.” This according to the Utah Highway Patrol in a statement on Twitter. The statement also said, “He might’ve been short on the purchase amount, as he only had $3 in his wallet.” The news report tells us that Utah State Trooper, Rick Morgan, pulled the boy over after he saw the car swerving so badly on Interstate 15 in Ogden, Utah. The officer thought that the driver was impaired or needed medical attention.

He later told the Associated Press that the boy did not respond to his flashing lights, but he did pull over when he hit his siren. The state trooper said, “I approached the vehicle and I was expecting to find somebody who needed an ambulance or paramedics.” Instead he found, “A very underage driver who was behind the wheel.” Well, in this case, the boy might not have needed an ambulance or paramedics, but he surely did need parents, arriving on the scene fast. We’re told that the boy was sitting on the edge of his seat to reach the brake pedal.

Given the gift of technology, there is actually camera footage of the traffic stop that shows the officer pulling over the SUV. The officer asked the boy, “How old are you? You’re five years old. Wow. Okay. Where did you learn to drive a car?” We’re told later that the boy’s parents were contacted. They took custody of their son and the vehicle. No one was hurt. No property was believed to have been damaged. Officials will later decide whether to file charges against the boy’s parents.

So at some point you’re asking right now, what is the great weighty worldview importance of this article? And the answer is there isn’t any, but I hope you enjoyed it. I did. We sometimes need a cognitive break from all the heavy headlines we have to deal with day by day. I’m very glad that this five-year-old boy was not hurt, but I do have to wonder how in the world did he get control of the family SUV and get on Interstate 15? That’s rather an achievement for a five-year-old boy who could barely even touch the pedals.

You have to say that the boy had good taste for a five-year-old. When it comes to Italian luxury sports cars, the Lamborghini lists for about $281,000 base, fully loaded $353,000. The boy had $3 in his pocket. He was a little short.

Now of course, there are all kinds of worldview issues we could imagine here, parental responsibility, parental authority, the rule of law, when it comes down to the fact that five-year-olds aren’t supposed to be driving cars and have no legal authority to drive a car. There are all kinds of practical questions. How did a five-year-old learn how to drive a car? And there are questions of justice. What exactly happened to this five-year-old once he was apprehended, not only by the authorities, but by his parents?

But there are also big lessons for parents here. And the lessons include not only guarding the keys to the SUV and making sure your five-year-old boys know they’re not allowed to drive the car. But perhaps another lesson is this, don’t ever underestimate what a five-year-old or whatever the age, a child is capable of doing. They may be buckled in a car seat in the back seat, but they’re watching you drive—watching, and evidently learning.