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May 14, 2020 by Michael C. Duff

The Stimulus 'Liability' Debate: Don't Forget Texas Elective Workers' Compensation

Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of the nearly catastrophic events unfolding in the meatpacking industry. I recommend the article to you generally, and there is one point made within it that warrants reflection.

Even if immunity conferred as a precondition for passing the next round of stimulus contains "only" stiff tort limitations, consider the situation potentially faced by certain …

May 13, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.

In this post, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.

Tort lawyers may be …

May 7, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal …

Dec. 13, 2018 by James Goodwin
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Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards.

Though the actual language of H.R. 1 has not been released, the bill is expected to consist of three sections. First, it would introduce a number of ethics reforms aimed at high-ranking executive branch officials and members of Congress, including requiring presidential candidates to disclose their taxes …

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More on CPR's Work & Scholars.
May 14, 2020

The Stimulus 'Liability' Debate: Don't Forget Texas Elective Workers' Compensation

May 13, 2020

Free to Be Negligent?

May 7, 2020

The Coronavirus and the Commerce Clause

Dec. 13, 2018

By Fixing Congress, the Planned H.R. 1 Could Strengthen Public Protections, Too