Coyote Blog

There is an interesting discussion about liability going on at Overlawyered and Prawfsblawg.  The original subject was Eddy Curry, the basketball player who may or may not have a genetic heart condition.  The Chicago Bulls refused to play him until he had submitted to a series of tests that would let them determine for themselves if it was safe for him to play (Curry had already said that he wanted to play).

The Bulls have been derided in a number of venues for requiring privacy-invading tests which Curry reasonably refused to submit to.  However, in today's legal world, the Bulls are being entirely rational and in fact entirely consistent with the law, at least as it is practiced in courts today.  Many courts, including those in particular in legal hellhole Illinois, have pretty much thrown out most liability wavers.  Effectively, courts have said that Curry has no right to make risk-reward trade-offs for his own body and self, and if he gets hurt playing for the Bulls, it is the Bulls fault and they can be sued.  So, reasonably, the Bulls want the necessary information to make that safety decision, since the fact that Curry has already decided for himself holds no weight in courts today.

I have long lamented this statist tendency to treat us all like incompetent children, effectively revoking our ability to make decisions for ourselves and our own lives.  Where the discussion gets interesting, though, is when a lawyer suggests that Curry's liability waiver should hold more water than the average person's, since he is wealthy and has access to a full range of professionals to advise him.  Which suggests that there is some point, either in terms of wealth or education, where Americans may actually regain the right to make decisions for themselves and be held responsible for them.  I remember when I was working on an acquisition of a company, and was concerned whether a non-compete agreement I had the other party sign was enforceable.  After all, I had in the past had non-competes signed by my employees routinely thrown out by judges.  My attorney told me that it is assumed that the average ordinary employee does not know what they are doing when they sign an agreement, but that wealthy business people in a transaction are treated like big boys and it is assumed they actually understand and really mean what they sign their name to.

Overlawyered concludes:

A fascinating epitomization of the litigation culture: "ordinary"
people can't make intelligent and free decisions, but elites"”presumably
including lawyers and judges"”can properly advise them how to do so.

Paul's proposed rule of emancipation upon reaching a certain wealth
level has interesting ramifications. It would be fascinating to see
what democratic political consensus would develop for where to set the
Gowder Line above which people are permitted to make free decisions.
Many doctors and attorneys would be sufficiently wealthy to qualify,
but would public interest and government attorneys protest that,
through no fault of their own, they don't have the same rights as
BigLaw partners and their children? Would college professors lobby for
the same emancipation rights as wealthy millionaires because they're
already sufficiently sophisticated? And once that happens, would the
NEA dare to suggest that teachers aren't entitled to the same status?
Before you know it, every Sneech will have a star on his belly.

I made myself clear about this long ago:  We have got to move to a point where adults can be trusted to make decisions for themselves and take responsibility for those consequences.  However, the temptation is just too great, it seems, to act like you know more about someone's best interest than they do.

Update: By the way, we discuss this all in terms of capability and competence and knowledge.  One important factor not discussed above is that every person has a different set of values.  Mr. Curry may rank the value of playing basketball, or making lots of money, higher than the risk of losing his full four-score and ten year lifespan.  Or he might feel just the opposite.  I have heard athletes who have said they would have played pro sports even if they knew for sure they would only as a result live until 50, and I have heard athletes call those others insane.  We all have different values, and even beyond relative confidence and information in making decisions, it is IMPOSSIBLE for other people to make quality decisions about your life, because they are not going to share the details of what you value and how much.  But of course they do all the time.  And if we assign others liability when we make the wrong choice in our life, then we are just asking for other people to take over our decision-making. 

In a free society, I suppose you can delegate the decision-making for your life to others, if you lack confidence in your abilities, but don't give away mine!

Update #2:  Here is another decision adversely affected by lawsuits:

We've reported before (Mar. 18, 2004)
on how, after court decisions in Arizona eroded the state's
longstanding immunity from being sued over the actions of wild animals,
lawyers began obtaining large verdicts from public managers over
humans' harmful encounters with wildlife -- with the result that
managers began moving to a "when in doubt, take it [out]" policy of
slaughtering wild creatures that might pose even a remote threat to
people. The continuing results of the policy came in for some public
discussion last month after a bear wandered into a residential area
near Rumsey Park in Payson, Ariz. and was euthanized by Arizona Game
and Fish personnel:

[Ranger Cathe] Descheemaker said
that the two Game and Fish officials were no doubt following procedure,
and that bears are routinely destroyed ever since the agency was sued
when a bear mauled a 16-year-old girl in 1996 on Mt. Lemmon near
Tucson.

"Since Game and Fish lost that lawsuit, they do not relocate any
bears," she said. "The fact that bear was in town was its death
warrant."