This episode I talk with Professor Ed. A Morse of Creighton University Law School about whether government should provide protection to universities and other organizations.
- Waivers such as the “Buckeye Pledge” and whether they remove any legal liability from a university
- Should the government provide liability protection?
- That this issue is unbelievably more complex than I realized
- Any litigation could be tied up for years
- Professor Morse is very good at diplomacy
- I discovered I’m glad I am not a lawyer - I mean, I already knew this, but holy cow.
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About the Transcript
Keep in mind that the following is a transcript. I use a service that automates the first draft. As much as “artificial intelligence” is included in the description of every bit of technology these days, it’s clear that computers understanding human speech is more artificial than intelligent. The transcript has been edited to take out human speech bites, you know, um, okay, uh, but it’s not been edited to be an “article”.
I am trying different services. For this episode, I tried Descript.com. I am rather disappointed. I will be using something else.
Jon Johnston: Welcome to Jon’s Post life crisis. I am your host, Jon Johnston, founder, and manager of CornNation.com your Nebraska Cornhuskers site of trying extremely hard to find content that’s interesting. I am joined today by Professor Ed A. Morse professor at Creighton university school of law. This episode, we’re going to talk about whether government state or federal should provide universities or other organizations with some kind of protection against lawsuits regarding the COVID-19 virus, because we can’t get away from this subject unfortunately. How are you doing today?
Professor Ed Morse: I’m doing great. Thanks for having me, Jon, and thanks to all the people at CornNation.
Jon Johnston: Where do we start? I guess you start with the, just the base question. I mean, should the federal government provide sweeping protection to the universities.
Professor Ed Morse: Well, you know, one of the problems, that is presented in this environment is that there’s just so much uncertainty. I know you have a background in, it, areas, and I think there’s some of the same kinds of uncertainty and tracking disease transmission as there is in dealing with. the damages and harms caused by say a breach of personal data.
So there’s a lot of uncertainty about, how, how harms happen, where they’re coming from, et cetera, and couple that uncertainty with potential legal claims. Yeah. A system that makes those claims it’s very expensive to defend. And I think you’ve got an environment that might deter legitimate productive activity, and that’s, what’s motivating that concerns.
That’s, what’s motivating folks who are looking at, providing some. Limitations on liability in this area. So those, those key features our, our, concerns that are motivating the legislation that has been out there. we got a federal, bill that it was proposed, last week, in the Senate.
that, that seeks to remove this whole area to, federal courts and severely constrained the kinds of causes of actions that could be brought against, all kinds of, defendants, including, universities and, as well as, healthcare providers, businesses, et cetera.
Jon Johnston: is that a good idea?
I mean, in the interest of full disclosure, my career business career, it consulting, I’ve always kind of looked at lawyers and thought, well, they stifle innovation there. You’re scroungy, I hate to say, and use the term that you hate - ambulance chasers, but that’s how I’ve always seen lawyers.
Now on the other hand, I know that large corporations, if they knew that they were limited on it, the liability, they just calculate the cost of that liability and build damage into their products, kind of like the old exploding Ford Pinto thing, you know? Right.
I mean, is it a good idea that we’re going to provide these protections?
Professor Ed Morse: What you’re getting at is you’re getting at economics, you’re getting at the coast there and you’re saying, look us, if we were left to private ordering or bargaining, we would find a way to address this potential liability or uncertainty, it’s likely, it’s like the factory that, emits smoke or pollution. if we didn’t know which way it would go, you know, which way, are you going to be liable for putting out the smoke or do I have to pay you to stop putting out the smoke?
Because you’ve got the property right. When we don’t know where those rights are, we’d probably negotiate and find a way to deal with that on her, on her own. And one of the problems in this area is that you’ve got potentially many people that are, engaged in, commercial activities and, human contact.
And so one approach would be just to engage in some form of private ordering. So we could use some form of waiver doc document, you know, so we can contract with one another to say that, Hey, I’m going to provide this opportunity for you to come and see, an athletic competition. And in exchange, you’ve got to forgo any legal rights that you may have to compensation, to the extent you make a claim that I am negligent in failing to protect you from flying baseballs or in this case flying germs.
Right? So we can, we can deal with it through a private ordering type approach. And that’s the waiver, you know, option. and we can do that when I have people that are gonna come in contact with me, that we could have some kind of an agreement, et cetera. There’s a little bit of friction there, but in many cases we have to have an agreement anyway to, come to the stadium. maybe we’re going to be participating, as a students, may we’ll be participating as a student path. we can make agreements on that nature, or you can have government intervene and say, Hey, look, we’re going to displace the role of private ordering, and we’re going to provide a single solution in the form of, in the, safe to work act. The Senate bill that was brought out last week, it’s like, well, we’re going to displace all state law causes of actions. We’re going to make it all federal. we’re going to, we’re going to have stringent pleading rules.
We’re going to, have federal courts, not state courts reviewing this. we’re going to have, a higher standard of proof. We’re going to have a, instead of a preponderance standard, we’ll have a higher standard. So you really have to prove your case. And what does that do? Well, that shifts the protections in favor of the businesses.
Now it’s not a unilateral. I mean, it’s not, it’s not without some benefits. I mean, you lose your protection. If you’d be grossly negligent. You have to show that you’re taking appropriate care. You have to show that you’re already, you know, you’re, you’re in compliance with the applicable guidelines so we’re what we’re really saying is we’re we’re what tort law is supposed to do in any event is. Look at benefits and burdens associated with, with, activities. And we’re just substituting a legislative solution for that. is that a good idea? I guess I leave it to you. It depends on how well you trust that other system.
And I think there’s reason to believe that we’ve got some, Outlying, legal judgments that are out there, that are potentially, you know, bankrupting companies. a lot of people, I have a lot of friends in the European union. Whenever the subject comes around to, looking at us, court systems and us torque systems, They don’t have a lot of confidence.
if you’re doing business in the United States here, they are very concerned about, the potential liability risks that come from, torque exposures. And so I think that’s really lurking in the background here as well.
Jon Johnston: I’m going to read a part of an article. I found universities are asking student athletes to sign waivers. For example, at Ohio state football players must sign a Buckeye pledge in quotes, asking players to promise, to take responsibility for their own health and acknowledge that they can never be completely protected by the university from COVID-19. Now. A lot of people are complaining, you know, sports writers, I guess I’m a part time sports writer who really don’t understand law, which is why I’m interviewing you, that this takes away all the liability from the university.
Any, it really doesn’t because of like, I don’t know. What is it reckless disregard? I don’t know. explain a little bit where they, the gray areas are with the, okay. So, essentially what we’re talking about, first of all, I think. that might’ve been a wall street journal article. I remember reading something about that, two or three weeks ago.
Professor Ed Morse: The interesting thing about the Buckeye pledge was that it really wasn’t a liability waiver. It was more, designed, I think, to, reinforce or get the students to think about their own, behavior and their own responsibility for. behaving senses. I think this is something that all of us are a little bit worried about, young people are going to continue to be young people. I mean, at Creighton, we have all these restrictions and rules, et cetera, about how they’re going to behave, but you gotta believe in the evening, they’re going to talk to each other. Boys are gonna meet girls. All those things are gonna happen.
So I think the Buckeye pledge, maybe it’s a separate category, but all right. Let’s assume that you’re in that category. And you’re saying, look, I’m genuinely has an ad about engaging in a sports program. That is going to bring people in contact with one another. Now, you know, if I’m playing baseball, I think I can social distance if I’m playing football, not so much.
Right? So there are some sports where you’re going to have basketball, close contact with other people. So there’s benefits to everyone for, from participating in that there’s health benefits from strength and training and other things. but there’s also this potential risk that happens. so. When you’re looking at the liability waiver.
So it would be a good spot for waiver, right? Because you have people that are going to voluntarily undertake this new activity. You first of all, want to say, okay, what’s the waiver telling me, you know, in my view, the Buckeye applied just didn’t want to have anything. It’s just saying I’m really responsible.
And I can’t protect you from everything. That’s true. Welcome to my world. Right. But you’d have to say what’s the waiver going to cover. So we’re going to look very, we’ll have to look at very carefully what it covers and who it covers because waivers can just protect, the party like the university, but you probably want to expand it out to protect individuals that may come in contact.
You may also want to expand it out to include claims against fellow athletes. You know, so you, you, you could have a waiver environment that is, going, first of all, to define what you’re waving. Cause they’re giving up some kind of a legal right to make a claim. And then you’re looking at who is covered.
you want it to be clear, you want it to be a situation where, also what are you waving from presumably? You’re going to find it against public policy or otherwise violating your rights, the scope of your state laws in this case, if you’re waving from grossly now behavior. Okay. So in other words, we’re looking at, I was just looking at some case law in advance of this, little program here and there was like a nice discussion of that gross negligence in a, in a lawsuit against a, Health club, a woman falls off at spreads mill and a health bot.
Why ability a waiver in that case. And, so they’re talking about great or excessive negligence indicates an absence of even slight care and the performance of duty. So we’re looking at, requiring people to behave appropriately within the bounds of. Reducing reasonable risks. And that waiver from the Buckeye, the Buckeye waiver is really kind of telling you, look, we’re going to try to take appropriate precautions, but we can’t do everything.
And I think therein lies the problem. Right. You know that in a, in a world that requires social distancing, you’re not going to be social distancing. So will that be deemed to be grossly negligent? if you have a, if you have sickness or illness, will the appropriate screening, mechanisms that you use, you know, temperature screening. the app that we use, et cetera, maybe even testing, would that be viewed as necessary? So there’s a little bit of uncertainty when you get to those waivers, when it comes to the scope of what does gross negligence mean? Because under state law might not. protect you to have a waiver. If the activity is such that it’s going to require you to, be in contact with others.
And I think that’s another reason behind this, push toward federal legislation. there’s an area where, we’re just unsure whether the state is able to pass its own laws or deal with that. Now, should that be as a question of federalism? Should we just leave that to the States? Should we say, Hey, that’s a matter for you, your state too.
figure out. but then if we, if we do that, if we leave it on a state by state basis, we may not be able to play, sports across state lines. Right. Right. This is incredibly complex then. I mean, we tend to. You know, as lay people, as I am a non lawyer, you tend to look at it and go, well, they should protect them or they should not protect them.
Jon Johnston: Everybody makes their own choices. And really what you’re basically saying is this is very incredibly complex. And that’s why lawyers bill by the hour.
Professor Ed Morse: Well, yeah, we’d bill by the word if we could. you know, the thing I’m fascinated with this, the federal legislation here because, the legislation itself, the foundation for this as being rooted in the commerce clause.
So we’re looking at interstate commerce, also looking at the role of federal courts. They’re trying to remove all jurisdiction of these kinds of claims to federal courts, but we’re, the commerce power itself presents some interesting constraints because we want to not only defend, hospital universities, obviously universities, when you got intercollegiate athletics going on that’s interstate commerce, right?
Cause it’s going across state lines, et cetera, but it’s also the churches. Now, I mean, I go to mass and in Omaha. So, and I live in, so I’m crossing state lines. There is some of that, but many religious institutions. If you have a small congregation, it’s going to be purely intrastate, so there’s a legitimate question there about whether the federal power extends to, causes of actions that would arise out of that, limited environment. So this thing may never be resolved, but what it will do is it’ll create a lot of friction that you’ll have to overcome if you want to make one of these claims and, that friction itself is a turn.
I call it, you throw sand in the bearings and that keeps things from moving. And so it’s which bearings do you want to throw sand in? Do you want to throw sand in the bearings of the side of the, litigation side, those people who were empowering litigation, class actions, et cetera. There’s pluses and minuses about that.
You have people that are legitimately injured and so are you telling them, you know, go pound sand, it’s your own problem, fix it, or do you wanna, throw sand in the bearings of business industry, religious institutions, nonprofits, universities, et cetera, that are trying to open it up and move forward in an environment where just like the Buckeye pledge, we know that we cannot guarantee everyone’s safety. And, and by the way, even if we thought we’ll do it on our own, we can’t because there are so many, as I, as I alluded to at the beginning of our conversation, there are so many other points of contact causes, et cetera, that the federal legislation is going to require as part of your pleading requirement that the plaintiff puts down everywhere they went for 14 days before they, every contact they had 14 days before they contracted the virus. So we’re gonna we’re. Okay. Are you going to give the other side saying, well, wait a minute, you went to this wrestling match or a, you went to a ladies night at the club, you know, there’s so many other places you could have contracted diseases and that’s also a problem.
Jon Johnston: Oh my God, this, so this is much more painful than I thought it would be.
Professor Ed Morse: well, sorry. Welcome to my world.
Jon Johnston: If you’re a decision maker, let’s say you’re running the university of Nebraska, so I don’t get you in trouble with your own university. what is going to fall into you making decisions? What is going to be the determining factors on even having students come back and go into the dorms? What are the bars, you have to jump over for student athletes to compete in different sports? And are there going to be different in different sports? Does the complexity go that far or do you just say try to make it as simple as possible?
Professor Ed Morse: Well, you know, I guess my approach might be a little different than, than some, because I really think that we have to calibrate our risks when we’re thinking about, the coronavirus. we know first of all, life is not risk-free. So, if I get in my car, the car and I drive to my office in Omaha, I’m going to travel on the interstate.
I’m going to be, driving, with other cars. I can’t control that. there’s a risk of bodily injury and death that’s associated with that. but I am personally making a trade off every time, right. Because I think, well, the good that I get out of interacting with my colleagues. working with my students, not to mention the fact that I get to earn a living doing that.
That’s kind of important to me. So I’m glad to have the opportunity to bear that risk and to, and to participate in those activities that are human goods. to me, there’s a risk reward. Trade off. The problem with the coronavirus is that for so many people, we’re looking at risks in an absolute sense. So in other words, I just want to eliminate all my risks.
Well, the only way you can eliminate all your risk is to stop living, right? And so, unfortunately there’s different demographics associated with the risk. If you’re a young person and healthy. From all the indications. I’m not a medical expert, but from what we’re seeing here, the risks of serious bodily injury or death coming to you from contracting, it’s not, eliminated, but it’s very, very, very low.
So. Having that opportunity for young people to get together, to learn, to participate in athletics. Think about it. You only get so many years of, if you’re a college athlete, many of those young people have invested a lot of their time and talent and treasure by the way, because parents have put them through clubs sports and other kinds of things, so they can be good athletes. And then you get to your years of college eligibility, and suddenly an injury can put you out and now COVID puts you out. So there’s no way for you to play or no way to compete. that’s a real damage or real loss.
So I think I would err on the side of saying, Hey, let’s open this up. Give people chances to do this, but also, Hey, I’m giving you opportunities. you have to give me something in return and that is that you’re willing to assume some risks that are not perpetrated by me. Not made worse by me, but that just are inherent part of the activity.
You want to go sky diving, Hey, there’s a small chance the plane’s going to crash. is that because of gross negligence? Well, then maybe that’s on the airplane company, but if it’s because of, an unexplained, you know, a flock of Canadian geese, I have friends and I have a pasture out here that’s full of Canadian geese about half the mornings.
I have some friends in Canada, I’ve been really tempted to take pictures of them and saying, Hey, you know, your countrymen are invading my pasture. but the whole thing is I think a balancing approach. And, I just don’t know that, our leaders of institutions are balancing appropriately. I think we’re being awfully risk averse.
Because of fear because of fear of legal liability, but also fear of demagoguery. if something happens and you tried it and it turns out poorly, they think, gee, I’m going to be blamed. And if it turns out well, there’ll be, well, I want to get some coffee. That’s the problem.
Jon Johnston: Everybody has hindsighted this thing to death, and it happens on a weekly, almost an hourly basis.
If you go on Twitter, I, I don’t see, I guess, look, give your decision makers no matter what level they are, and you kind of understand why they’re a little gun shy, but at the same time, They do have to make decisions. I mean, that’s why they’re leaders that’s, you know, as we say, that’s why they get paid the big bucks.
Professor Ed Morse: virus came at a very difficult time for us socially because I think we were already very polarized and a couple of that with, you have a mainstream media that is. Always looking for blood, you know, we’re always looking for, you know, I don’t know if any of your people watch the, the coverage of the space X launch, two months ago, and then it’s returned to earth.
And, I was just glued on it. I mean, I, you know, I was born in 1962. So the space program and landing on the moon, I was a pretty little kid, but I was very inspired by it. And it’s like, I’m returning to childhood. I have a five year old grandson. I’m not sure if he or me was more excited about this thing, but what was it?
It was, it’s a culture of achievement. It’s great. Human triumphs. You know, where is that in art? Where is that? In our headlines? Almost nowhere. It was all based on what bad things are happening, et cetera. So you start to, you start to live in that environment for very long and you realize what’s going to get attention.
And, I mean, there are some leaders out there. I think, Mitch Daniels at Purdue, he he’s been very out in front on this. there’s some other institutions I don’t want to name names, but, you know, there have been people who have, been willing to sort of put those, criticisms aside, but , you’ve got a lot of factions that feel very empty Howard, to criticize, they have gained, attention from both mainstream media and from, alternative social media forces that has empowered more criticism in some ways this can be good because we can air a bigger debate.
But, we, we, I don’t think we’ve quite learned how to deal with all of this technology and, make it work. to have a proper kind of intelligent conversation and debate, it’s almost impossible to do that with Twitter things going back and forth. Yeah. I don’t do Twitter because I think it’s silly and I don’t want to descend into that environment, but, unless we can have conversations that are allowing us to listen to one another, hear one another. I think it’s going to be very hard, navigate our way through, public policy problems like this.
Jon Johnston: So what do you, what do you see happen from, let’s say from the federal government standpoint, do you see any kind of protections being passed? Do you see any kind of, I mean, it seems like they have to do something just to jumpstart the economy and maybe everybody that’s on the side of listening to the epidemiologists, we’re all gonna die. That’s bad. You know what I mean? Yeah. I guess I look at them and you hear these constant people on, well, God help us Facebook or social media.
It’s always listen to the scientists. And science has so many different facets to it that, you know what I mean?
Professor Ed Morse: Let’s just face it. The scientists have come out with egg on their face, throughout this event, right? I mean, first of all, the CDC changes its views on masks. Now some people are saying, well, we’ve we learned, Oh no, you told us the reason you told us not to wear it.
It’s cause you worried about the population running out and getting things. So in other words, you don’t trust people with real information. So you’re going to feed them false falsehood. You start out with that premise that erodes your, your credibility. You have all the public health leaders saying, Hey, don’t go to church and don’t sing for gonna say, because you might put vapor in the air, but feel free to gather and riot. Look, when we say we’re following science,, I think that’s false. I don’t think we’re doing that because it’s to, to infused with, with politics and, so, I’m not sure where that leads us, but I think that’s just part of the problem here, that, we’re or unable really to have these, appropriate, trust, seeing relationships. I think it was true in the beginning of the epidemic. Look how people voluntarily conform. We all said, okay, we’ll work, we’ll work with you. We’ll trust you, et cetera. But I think some of that trust is it is eroding.
Jon Johnston: Ooh. So when you go back to your things about policy and your things about the complexity of all these issues, I mean, it sounds like this thing is whatever lawsuits or whatever’s going to happen is going to be tied up in courts for a very long time.
Professor Ed Morse:That’s the problem with litigation, right?
It takes a very long time to resolve itself. you’ve got, I mean, you, you going back to your question about what do I think is going to happen in these areas? It’s just very difficult to get a agreement on something that is going to, potentially jeopardize the, interests of, A special interests class, the trial lawyer group, it’s going to be, which has a lot of support, from one of the parties.
Right. so that that’s going to be difficult. We’re gonna have to, we have two houses, so we’ve got to get cooperation with both for them. and, and we’re doing that in the shadow of a very uncertain time. We have an election coming up very soon. Soon. So I think getting something done in all that area, unless it’s like part of some kind of a grand compromise, that’s going to be part of a, some form of economic, benefits or legislation.
I guess we’re, we’re all Keynesians now. We’re, we’re all, we’re all spending a lot of federal treasurer. you know, it’s, it’s almost like a war time though. I mean, even the people who are fiscal fiscal conservative and I. I don’t like to see a large deficit spending, but if you have to do it for a short period to, to alleviate human suffering and other things, I think that’s what we’re thrust into it.
But you know, longer term, we’re going to have to come up with a sustainable things. And I think one of the problems in this area, and one of the problems in, constantly providing government intervention in the form of relief is that you run out of other people’s money to spend. And once that happens, then people have to start internalizing their own risk reward balances.
You know, I think we’re seeing that right now in the conversations about, do we, do we send the kids back to school? Well, I understand the concerns of the teacher’s unions, but on the other hand, if the alternative was, I stay at home and don’t get paid or I stay home and get paid. Anyway, whether I go in and teach or not. I think those are two different incentive structures, right? It would affect the way you might want to approach or embrace that risk. Bottom line, I think we got to try to get people to internalize those costs as much as we can, help the vulnerable, help the people who can’t make those choices for themselves.
But for many of us we’re healthy, strong, have pretty good immune systems. We can still social distance and do the wash, our hands make appropriate judgements, and we have to move forward because what else do we have left? Stay in our house?
Jon Johnston: Okay, I’m going to surprise you with this one. Creighton doesn’t have a football team. Do you root for the Nebraska Cornhuskers or not?
Professor Ed Morse: I tell you what I, I like to see the Huskers succeed. I think you got a great coach there. you have a great tradition, in Nebraska. I grew up here on the outside. I live on the farm where I grew up and, you have, you’ve had such a amazing, characters in your history, a big fan of Tom Osborne.
When you have great leaders that are trying to do well, you cheer for people like that. irrespective of whether you like other teams. So, I, certainly wish them well. I don’t really,
Jon Johnston: You’re being very diplomatic here.
Professor Ed Morse:I’m not that big of a, of a football fan. Creighton has a soccer team, right. I bought season tickets. We have five kids, they’ve all gone to Creighton and, I would take them. I had basketball tickets. I had season tickets, we would all go. and I’m like at the soccer games, I’m, I’m trying to like, get, get a newspaper read, you know, you could do that at baseball soccer.
I mean, maybe the only significant point score will be happened one time. And it’s like, well, if I’m gonna watch it jumbotron, why don’t I watch on TV? So I always kind of embarrassed my kids because I always found something more interesting than the sport itself. But this is just how deeply flawed I am, you know?
I’m hoping as a grandparent. I can, I can pound for my sins as a parent, you know, maybe I’ll be better next time around. I don’t know. There you go.
Jon Johnston: Okay. I have to ask everybody, this gives us a required question. Do you think I’ll rephrase it for the sake of Creighton university’s lack of a football team.
Do you think we’ll have fall college sports at all in any form?
Professor Ed Morse:I think we will. but I, it’s hard to know this, the latest outbreaks and such, I’ve gotten a lot of people worried, but, again, I think we’re going to be looking at, some hard forces here that are going to nudge people toward trying, and that is one, the sheer economics of it. College sports bring in a lot of revenue and there’s a lot of costs associated with not doing it. Second. I think. There’s always, there’s always the student athlete here. And I think if you ask a coach’s athletic director, I mean, our, our athletic director, Creighton Bruce Rasmussen is one of the finest human beings on the planet.
They just don’t make people that good. And I know that Bruce cares deeply about our students and the well being of our student athletes. And I think that. Those considerations again, are going to go both ways. On the one hand. We don’t want to expose people to disease, but on the other hand, this is a great time of your life.
It’s a great opportunity. If we can find ways for you to do your sport and your passion, you know, people are going to be trying to do that. So, it remains to be seen, fortunately I don’t get to make the decisions and I don’t have to make those decisions.
Jon Johnston: Should we be done? That sounds like a good ending. anything else that I might’ve forgotten?
No, I think we’ve, we’ve covered the field pretty well. and we’ve had a rollicking, tour of very many, issues. So, I hope I haven’t, I hope I haven’t digressed on too many rabbit trails.
Jon Johnston: Nah, it’s not that long. I mean, Joe Rogan goes for like five hours with
Professor Ed Morse: Alex Jones. I couldn’t
Jon Johnston: do that, but anyway, this has been Jon’s post life crisis. Thanks for listening. Thanks to Professor E Morse for joining me. Go big red. This is where you say go Creighton blue Jays.
Professor Ed Morse:Well go Jays and Go Big Red too. How about that?
That’s very, very diplomatic again.