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‘Test and trace’ seems simple, but law may differ

Entrepreneurs are optimistic.

They devote immense time, effort and money to launch their business ventures because they’re focused on the many rewards, intrinsic as well as material.

Lawyers, by contrast, are trained to anticipate problems. It’s a different mindset.

As businesses gradually arouse from the enforced slumber of the governor’s lockdown order, entrepreneurs will need to learn to think, just a little, like lawyers. Nervousness about potential legal liability seems universal in the business community. But for everyone not engaged in the operation of high-speed meat processing plants, the risk should be manageable.

Guidelines from the FDC and CDC don’t have legal force as safe harbors (although there are proposals floating about to give them that legal status). But it would be sensible for any business owner to think of them as establishing the mandatory baseline rules for reopening. The law requires reasonableness, and following the advice of the federal government’s public health agencies is reasonable.

Stores are responsible for the safety of their customers, just as employers are responsible for the safety of their workers. But infallibility is not demanded of ordinary storekeepers. By now, we all know how to reduce the risk of the virus’s spread. Use your sense.

A few weeks ago, the chairman of the planning commission for Antioch, California, caused a stir when he pointed out on social media all the advantages of allowing the coronavirus to kill vast numbers of Americans. It would alleviate the Bay Area’s chronic housing shortage, for one, bringing down sky-high prices. (And think of the bargains at all the estate sales!) It would relieve pressure on Social Security, as survivors get to spend other people’s forced savings. The pandemic is like a forest fire, he argued, burning up society’s deadwood.

The moral blankness of the man, the negative value he placed on other people’s lives, drew widespread condemnation. Probably he had no idea he was paraphrasing thoughts first expressed by the 19th-century English thinker Herbert Spencer. Spencer’s book Social Statics, published in the wake of the Irish famine, was revered by some Victorians the way Ayn Rand’s novels are treasured by some today. Purporting to apply the then-novel concept of natural selection to human society, Spencer lauded the “beneficence” that “singles out the low-spirited, the intemperate, and the debilitated as the victims of an epidemic.”

He deplored charity, which “stops the purifying process.” Those that seek to relieve “the really salutary sufferings” of the poor, he contended, are “sigh-wise and groan-foolish.”

Spencer was the father of social Darwinism. Although largely forgotten today except among libertarians of a scholarly bent, his name may ring a bell with lawyers. Supreme Court Justice Oliver Wendell Holmes mentioned him in Lochner v. New York, an epochal 1905 labor law case. Writing in dissent, Holmes protested – futilely – that the Constitution “does not enact Mr. Herbert Spencer’s Social Statics.”

The majority disagreed. It held that the people of New York, acting through their elected representatives, were constitutionally forbidden from limiting the working week of bakers to 60 hours a week and ten hours a day.

The evidence showed that bakers of the era, laboring in atrocious heat in clouds of flour dust, “seldom live over their fiftieth year, most of them dying between the ages of forty and fifty. During periods of epidemic diseases,” one justice noted in an observation that strikes with special force today, “the bakers are generally the first to succumb to the disease.”

But that, the five justices in the majority said, made no difference. The Constitution prevented the government from infringing on the contract rights of business owners merely to protect the health of workers.

Law students are taught that “the Lochner Era” ended with the New Deal, which is certainly true with regard to work week regulations. But today’s judges remain congenitally skeptical of any measure that infringes on personal liberty to promote public health, as any environmental lawyer can tell you.

I keep hearing public health officials talk about “test and trace” as if it were a simple matter of obtaining the necessary resources. But we have a whole body of law, developed in DWI cases, limiting the state’s ability to perform invasive tests on an unwilling person’s body. Another well-developed body of law restricts the state’s authority to demand answers to questions, as contemplated by contact tracing. As for ordering a person into quarantine, that’s house arrest.

So far as I can tell, test and trace is the only realistic path between the extremes of endless lockdown and the mass die-off euphemistically known as herd immunity.

But public health officials need to be prepared for Lochner-style efforts to shut it down.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at