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So @ne0liberal made a serious error in claiming"businesses that are negligent or break the law ... do not get liability protection". The linked Skadden article/pitch/service for their corporate clients laid out the elements of the proposed COVID tort. Note the missing word. https://twitter.com/ne0liberal/status/1337458897809002497
"gross negligence" and "negligence" are completely different standards. If you are only liable for gross negligence, you can in fact break a lot of rules and fuck up quite a bit without being held liable.
But wait, there's more
In the VERY NEXT PARAGRAPH Skadden helpfully describes all the ways that this makes it harder for plaintiffs to prevail. In the orange highlights we have a helpful reminder that these are elements, not factors, all of which must be proved by "clear and convincing evidence"
What does that mean? Let's say firm Acme exposed you to COVID, you got sick, and Acme was grossly negligent. But you can't prove by clear and convincing evidence that your sickness wasn't caused by a different incidental exposure that week.
In that case, Acme gets away with it.
In that case, Acme gets away with it.
Negligent: Car accident in Racoon City
Gross negligence: How local cops do their job
Willful/knowing: Umbrella corporation https://twitter.com/dubbusthe2nd/status/1337467267773239297?s=20
Gross negligence: How local cops do their job
Willful/knowing: Umbrella corporation https://twitter.com/dubbusthe2nd/status/1337467267773239297?s=20
Oh good, having a written policy without any evidence it is effective or enforced creates the presumption that you are immune to liability, and it becomes on the defendant plead otherwise, before discovery.
JFC. This is a *pleading* requirement which means this is not only before trial, it's before discovery. This is just to get your foot in the door at all. Now think about it in the context of the causation element.
I'm going through the article instead of the primary because @ne0liberal should have been able glean all this from the article they citing for support. But also because Skadden has done all the work for me for their own reasons. https://twitter.com/tznkai/status/1337474569586798594?s=20
Aaaaand here's Skadden's direct interesting in support the bill. Look at all those sweet sweet outside counsel fees they could rake in.
My politics are fairly neoliberal by the way. I am pro-trade, pro-immigration, and pro-prosperity with the benefits spread through low-overhead cash transfers.
I am not for whatever bullshit pro-business ideology leads one to support this nonsense.
I am not for whatever bullshit pro-business ideology leads one to support this nonsense.
This is a better argument but still wrong. The bill does not just create a safe harbor if a business follows the rules. It creates a lax standard for what counts as following the rules and an easy escape from liability if they didn't follow the rules. https://twitter.com/BudgetBen/status/1337459709524242437?s=20
Exclusive federal action, explicit preemption via the supremacy clause.
https://twitter.com/the_shoe_yes/status/1337479045521547272?s=20
https://twitter.com/the_shoe_yes/status/1337479045521547272?s=20
I guess it's time for a Supremacy Clause and Commerce Clause explainer? It's been a minute, but the short answer is that they can. https://twitter.com/the_shoe_yes/status/1337480773063090182?s=20
You're getting two issues confused. Let's start with the basics. The Supremacy Clause is as follows
This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... every State shall be bound thereby. https://twitter.com/the_shoe_yes/status/1337480964738605056?s=20
This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... every State shall be bound thereby. https://twitter.com/the_shoe_yes/status/1337480964738605056?s=20
The supremacy of federal law is absolute. This leaves two questions when looking at conflicting state law.
1. Is the federal itself a valid exercise of federal power. If no, no law exists to conflict.
2. Does the law actually conflict?
1. Is the federal itself a valid exercise of federal power. If no, no law exists to conflict.
2. Does the law actually conflict?
What you cited goes to the question of "does the law actually conflict", specifically field preemption is whether the breadth and volume of federal regulation occupies the field.
This is explicit conflict pre-empetion. Any state law would conflict. https://twitter.com/the_shoe_yes/status/1337480964738605056
This is explicit conflict pre-empetion. Any state law would conflict. https://twitter.com/the_shoe_yes/status/1337480964738605056
Like I said, it's been a while since civ pro, happy to take specific corrections. https://twitter.com/the_shoe_yes/status/1337482879526449154?s=20
It sounds like you're going back to question 1, which is whether there is a valid exercise of federal power to establish and regulate covid torts, presumably under the Commerce Clause. https://twitter.com/the_shoe_yes/status/1337483517190664195?s=20
They actually do run on tort reform, often! https://twitter.com/the_shoe_yes/status/1337485097319198721?s=20
In Jones v. Rath Packing, 430 U.S. 519, 530 (1977) the Court held Section 408 of the FMIA, 21 U.S.C. § 678, (prohibiting imposition of additional labeling) an explicit preemption provision was supreme over California law.
I don't have a Wexis subscription by the way, so please excuse any shepardizing errors.
The embed leads to a good thread you should read, but this point in particular is incorrect. The proposed statute explicitly preserves workers comp. As I read it, it kills *all* torts for COVID exposure not just against your employer.
https://twitter.com/burtlikko/status/1337492091270615040?s=20
https://twitter.com/burtlikko/status/1337492091270615040?s=20
